Cases and authorities

PROCEDURE – request for referral to solicitor or barrister on the Pro Bono Panel – Uniform Civil Procedure Rules 2005 (NSW), r 7.36

PRACTICE AND PROCEDURE – judgments and orders – where UCPR rr 36.15, 36.16, 36.17 are inapplicable and the Court’s orders have not been procured by fraud, the Court has no jurisdiction to set aside those orders after their entry – Bailey v Marinoff 125 CLR 529 followed

COMPANIES - membership - share register - plaintiff sought declaratory relief as to membership of private company - common ground that share register lost - proof of membership by inferential reasoning - reliance on ASIC return showing transfer of share by father - unchallenged evidence of father that he had been mistaken - inferences available to be drawn from failure to tender tax treatment of transfer - effect of unstamped transfer of shares - inferences available from role of company's registered agent - primary judge correct to have held plaintiff had not discharged burden of proof DECLARATORY JUDGMENTS - onus - plaintiff's onus to establish on balance of probabilities all facts necessary to support declaration sought

CORPORATIONS – administration – creditor’s meeting – where company is a co-operative with numerous creditors – whether the Court should grant application to extend time for a second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth)

PROCEDURE – affidavits – whether document filed could properly be called an affidavit – where annexures to, and place and date of swearing of, the affidavit are omitted – where truthfulness of contents of document sworn on oath – held, defects do not deprive document of character as affidavit.

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – opposition only to nominated liquidator – where liquidators appointed to related company – held, concurrent appointments not inappropriate.

EVIDENCE – expert evidence – application for leave to adduce expert evidence – on application to set aside statutory demand – where expert evidence pertains to ultimate question for the court’s determination – held, leave not granted to adduce expert evidence.

PROPERTY - joint tenants - de facto partners - survivorship of one joint tenant - sale of property by mortgagee - monies paid into court - whether proceeds of sale held entirely by applicant as surviving joint tenant or between applicant and estate of deceased as tenants in common

CORPORATIONS – external administration – winding up – winding up in insolvency – application to set aside appointment of liquidator – whether application for winding up determined within time – where extensions of time for determination granted – where up to and beyond date of winding up order – where stay of winding up order arguably expired after last extension – held, application for winding up determined when winding-up order made.

SERIOUS SEX OFFENDER – Application for interim supervision order under s 10A Crimes (High Risk Sex Offenders) Act 2006 – Application for preparation of psychiatric and psychological reports pursuant to s 7(4) of the Act – No dispute that matters in supporting documentation would, if proved, justify the making of an extended supervision order – whether interim supervision order should be made – Interim supervision order made – Orders made for appointment of two qualified psychiatrists to examine the defendant and furnish reports

CRIMINAL LAW – conviction appeal – applicant convicted of one count of commit an act of indecency against a person aged 13 – acquitted on three other counts and the jury unable to agree on a fifth count – whether conviction on one count and the failure of the jury to agree on another was capable of giving rise to inconsistent verdicts – whether a failure by a jury to agree on a verdict could be regarded as analogous to a verdict – no authority in New South Wales – conflicting authority in Queensland and Victoria – inconsistent verdicts ground not made out – whether conviction unreasonable and not supported by the evidence – appeal dismissed.

CRIMINAL LAW – application for costs pursuant to Costs in Criminal Cases Act 1967 – successful appeal against conviction for possession of drugs for supply – relevant principles – review of evidence – never sufficient evidence to convict applicant – not reasonable for Crown to institute proceedings – a costs certificate should be granted.

PROPERTY- fixtures to land- where certain items are part of an integrated processing facility- whether items are chattels or fixtures- intention of parties- whether terms of a lease assists with determining the intention of parties - degree of annexation- dispute as to ownership of chattels- difficulty in removing items- potential damage during removal- the cost of removal

BANKING – Standby letters of credit – whether claimed amounts are “due and payable” – whether letters of credit expire before beneficiary is entitled to present draft – whether definition of “Business Day” satisfied

DEFAMATION – procedure – pleadings – objection to form of defence – where defence maintains objection to capacity – whether defendant entitled to plead back the plaintiff’s imputations – where particulars of truth set out in general narrative and discursive form relating to imputations as a whole

ADMINISTRATION OF ESTATES - Settlement agreement regarding sale of estate lands - performance outside the settlement agreement by both parties – directions given to assist the making of an order for specific performance according to settlement agreement - orders for sharing of information between parties. CIVIL PROCEDURE - right to cross-examine witness - litigant in person - Civil Procedure Act 2005, ss 56 and 62(3)(a) - cross-examination of witness disallowed where issue outside defendant’s responsibility as administrator of estate - cross-examination of witness disallowed where litigant in person does not understand the proper role of the solicitor for the opposing party. CONTRACT - construction of consent orders - meaning of ‘immediately’ in context - specific performance - whether a pre-condition to specific performance is solely for benefit of promisee – whether condition may be waived.

LIMITATION OF ACTIONS – claim by joint tortfeasor – when time begins to run – judgment given against one tortfeasor in May 2014 – application by cross-claimant to amend cross-claim to plead the judgment – cross-claim not statute-barred – leave given to amend

PRACTICE – Parties – Party becoming incompetent during proceedings – Appointment of tutor – Role of tutor – Whether holder of power of attorney can be appointed as tutor – Obligations of solicitor certifying that tutor has no adverse interest – UCPR Pt 7, r 7.18 EVIDENCE – Affidavit evidence – Whether use of affidavits sworn by party who has become incompetent and cannot be cross-examined should be permitted – “attend for examination” - UCPR Pt 35, r 35.2(3) WORDS AND PHRASES – “attend for examination”

ADMINISTRATIVE LAW – judicial review – mandatory relevant considerations not taken into account by Tribunal in application for an enabling order to permit the applicant to work with children notwithstanding disqualifying offence – failure to comply with s 30 of the Child Protection (Working with Children Act) 2012 (NSW) – unjustified concentration on alleged failure to disclose leading to disregard of mandatory provision – making findings for which there was no evidence – matter to be remitted to be determined in accordance with law STATUTORY INTERPRETATION – Child Protection (Working with Children) Act 2012 (NSW) s 28(5) – nature and relevance of disclosure obligation to considerations listed in s 30

LIMITATION OF ACTIONS – land held in co-ownership – co-owner fraudulently procures transfer to himself of co-owner’s interest – transfer registered in 1995 – by 1998 defrauded party aware of fraud – proceedings not commenced until 2013 – cause of action for recovery of land – whether cause of action does not accrue until fraudster is in adverse possession – whether fraudster in adverse possession – Limitation Act 1969 ss 27, 38, 47

Building and Construction – Validity of payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) – Whether payment claims were valid payment claims for the purposes of s 13(2) of the Act Building and Construction – Natural justice – Whether payment claims contained sufficient information so as not to deny natural justice

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act – decision of a claims assessor – past economic loss – whether the claims assessor provided adequate reasons

ADMINISTRATIVE LAW – judicial review of decision of medical assessor of Medical Assessment Service of Motor Accidents Authority - plaintiff injured when motor cycle upon which she was being carried as a pillion passenger collided with a vehicle - whether decision vitiated by jurisdictional errors and procedural errors - whether decision was unreasonable

CRIMINAL LAW – sentence – guilty verdict – one charge of manslaughter by an unlawful and dangerous act

PROCEDURE – application for summary dismissal based on Limitation Act 1969 (NSW) – whether seriously arguable that claims not statute-barred LIMITATION OF ACTIONS – contracts, torts and personal actions – when time begins to run – when loss or damage accrues in actions for negligence – whether seriously arguable that loss or damage not incurred on entry into contract LIMITATION OF ACTIONS – equitable compensation – when equity will apply Limitation Act by analogy – what constitutes unconscionable conduct sufficient to prevent the application of Limitation Act by analogy – whether arguable at least at appellate level that equity when acting in its exclusive jurisdiction has discretion not to apply Limitation Act by analogy if to do so would be unjust

CRIMINAL LAW - murder - trial by judge alone - whether accused guilty or not guilty - defense of mental illness

CORPORATIONS – debts – statutory demands – application by plaintiff to set aside statutory demand for premiums for workers compensation insurance payable to defendant under Workers Compensation Act 1987 (NSW) – genuine dispute ground under Corporations Act 2001 (Cth), s 459H – where debt not capable of being subject of “genuine dispute” because effect of Workers Compensation Act is that debt is payable in same way as a judgment debt – “some other reason” ground under Corporations Act, s 459J – circumstances not sufficiently similar to claim for payment of judgment debt that may be set aside on appeal – consideration of question whether determination of amount of premiums payable made by defendant or defendant’s agent susceptible to judicial review

APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – dispute about loan agreement - unrepresented litigant – limitation defence available but not relied upon at trial – whether the Magistrate failed to sufficiently draw attention to the availability of a limitation defence – whether plaintiff denied procedural fairness

CRIMINAL LAW – where appellant has served sentence – where appellant has extensive criminal history for serious sexual assault offences – where appellant is a “high risk sex offender” for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5B HIGH RISK SEX OFFENDER – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) s 9(1)(a) – appeal – no error in the exercise of discretion HIGH RISK SEX OFFENDER – conditions of supervision order imposed pursuant to Crimes (High Risk Offenders) Act 2006 (NSW), s 11 – correct test for imposition of conditions – link between condition and risk of future offending HIGH RISK SEX OFFENDER – conditions of supervision order imposed pursuant to Crimes (High Risk Offenders) Act 2006 (NSW), s 11 – correct test for imposition of conditions – role of onerous or punitive nature of condition HIGH RISK SEX OFFENDER – application for extended supervision order – imposition of conditions related to consumption of alcohol and illicit drugs

TRUSTS AND TRUSTEES - "discretionary trust" - appointor purported to exercise powers inconsistently - standing - whether eligible beneficiaries of discretionary trust had standing to bring derivative action - where proceedings had been brought against eligible beneficiaries - where eligible beneficiaries claimed to have become trustee and appointor - whether special circumstances established - eligible beneficiaries had standing TRUSTS AND TRUSTEES - fiduciary duties - whether purported appointment of eligible beneficiary who acted as trustee's solicitor as appointor a breach of duty - obligation to consider scope of fiduciary obligations - no breach established

REAL PROPERTY – torrens title – caveats – extension of caveat – whether seriously arguable case for extension – whether balance of convenience favours extension

PROCEDURE – costs – interlocutory proceedings – costs in the cause – where Plaintiff only successful in part – whether departure from general rule.

CRIMINAL LAW – murder - evidence – relationship evidence – whether particular issues in the relationship between the accused and the deceased should be rejected – evidence having probative value – no unfair prejudice

CRIMINAL LAW – evidence – expert evidence – footprints in blood – comparisons with impressions of feet of witnesses including accused – whether area of specialised knowledge – blood drying times - whether police officer had specialised knowledge

PROCEDURE – costs – general rule that costs follow the event – whether reason shown to depart from general rule – where creditor opposed distribution by Receivers.

CRIMINAL LAW – appeal - appeal against sentence – money laundering offence – whether error in assessment of offender’s objective criminality – counsel on appeal bound by concession made in court below – assessment of offender’s prospects of rehabilitation open to trial judge – no error established CRIMINAL LAW – appeal – appeal against sentence – money laundering offence – importance of general deterrence - where applicant subject to good behaviour bond at time of offence – where applicant has longstanding drug problem – sentence not manifestly excessive

Assessment of damages; claim by owners corporation in respect of defects in the common property; exclusion of damages wholly within lots; exclusion of GST component.

CRIMINAL LAW – practice and procedure – application by media for access to CCTV footage and audio recording of Triple-O call played in open court during trial by jury of accused indicted for murder – CCTV in private residence – interests of open justice – administration of justice - potential prejudice to jury members – evidence classified as ‘sensitive’ – interests of family of the deceased – fair reporting – ability to capture and replay footage would place public in substantially different position to those in courtroom

PRACTICE AND PROCEDURE – application for stay of writ of possession – applicant seeking leave to appeal from refusal of judge to set aside default judgment – whether evidence supportive of proposed grounds of defence – leave to serve subpoena on respondent Bank – interim stay granted to allow application to be presented in a timely manner

EVIDENCE – expert evidence – admissibility – supplementary report served late – where supplementary report responds to prospective failure of party to prove underlying assumptions by limiting assumptions – where within scope of existing expert evidence – admitted EVIDENCE – documentary evidence – admissibility – apparently generally accepted analysis of data of financial statements of listed companies – where not bona fide in dispute and strict proof would cause undue delay and expense - admitted EVIDENCE – relevance – document tendered to prove knowledge of incorrect accounting treatment of transactions – where document addressed taxation not accounting treatment of transactions – rejected EVIDENCE – prior convictions – whether conviction admissible if person convicted is not party to civil proceedings in which it is tendered – admissions in previous criminal proceedings – exceptions to inadmissibility – rule in Hollington v Hewthorn - (Cth) Evidence Act 1995, s 92(2) – rejected EVIDENCE – expert evidence – late service – where evidence proceeds by ongoing expert discourse – where evidence refines and clarifies issues and is within general scope defined by evidence already served – admitted

CRIMINAL LAW – special hearing – murder – issue of substantial impairment

MEDICAL NEGLIGENCE – where infant plaintiff suffering from viral sepsis – where she alleges defendants failed to treat the condition appropriately or in a timely way – where plaintiff seeks leave to discontinue against first defendant – where second defendant does not consent unless conditional costs orders made – leave granted

PRIVILEGE – privilege against self-incrimination – where cross defendant objects to filing evidence or giving discovery upon basis of the privilege – whether real or appreciable risk of prosecution

APPEAL – application for leave to appeal – interlocutory decisions – no prospects of success - leave refused

CRIMINAL LAW – Detention Application under Bail Act 2013 – offences of aggravated sexual assault – consideration of bail concerns under Act – assessment of whether unacceptable risk unless Detention Application granted – no bail concerns that cannot be met by conditions – Detention Application refused.

CRIMINAL LAW – sentence appeal – offences of break enter and commit a serious indictable offence being an indecent assault and intentionally inflict actual bodily harm to have sexual intercourse – whether error in assessment of objective seriousness of offending – whether sentences manifestly excessive – whether misstatements of facts in sentencing judgment were indicative of error – factual errors minor – no error in assessment of objective seriousness – sentence not manifestly excessive – appeal against sentence dismissed.

PROCEDURE – notice of motion filed after decision reserved and before judgment given – whether motion misconceived