Cases and authorities

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - application for extended supervision order - dispute as to length of order and whether electronic monitoring condition should be imposed – where assessed risk of re-offending is moderate to high – where offender denies responsibility and has resisted treatment – order made for five years including electronic monitoring condition

CRIMINAL LAW – Crimes (High Risk Offenders) Act – application for extended supervision order – dispute as to length of order and certain conditions – where defendant diagnosed with paedophilia and substance use disorder – where assessed risk of re-offending is high – order made for five years

ADMINISTRATIVE LAW - judicial review - error of law - decision maker acted beyond jurisdiction - WORKERS COMPENSATION - Workers Compensation Commission - permanent impairment - limited referral from Registrar to Approved Medical Specialist - Approved Medical Specialist decision appealed to Medical Appeal Panel - re-examination by Approved Medical Specialist - reconsideration by Medical Appeal Panel

CRIMINAL LAW - sentencing – manslaughter – victim killed in fight – offender and deceased known to one another – violence involving alcohol – victim with undiagnosed aneurysm – aneurysm bursts during fight – offender on conditional liberty at time of fight with prohibition on drinking alcohol – general and specific deterrence

PRACTICE AND PROCEDURE – application for stay of costs order pending appeal – no evidence of impecuniosity of applicant – no suggestion that respondents unwilling or unable to repay if appeal succeeds – offer of undertaking to give notice of enforcement proceedings COSTS – costs of motion – refusal of motion regardless of proffered undertaking – costs of late affidavit of respondents excluded

CONTRACTS – discharge, breach and defences to action for breach – repudiation and non-performance – what amounts to repudiation – anticipatory breach – whether particular conduct of the purchaser under a contract for the sale and purchase of a business was repudiatory – held that it was not – availability of a justification that was in fact not relied on was irrelevant to the issue of repudiation – whether, if there were repudiation, the vendor had accepted it – held that it had not – CONTRACTS – discharge by agreement – whether the parties abandoned their contract – held that they did.

TRUSTS – charitable trusts – Attorney General brought proceeding to enforce charitable trust – purported creation of charitable trust – whether valid – transfer of trust property by putative trustees to respondent company – whether primary judge erred in allowing company to amend its defence and withdraw admission that trust existed – whether the company took the transfer of the property with notice that it was intended to hold the property on charitable trust – whether a solicitor who drafted relevant documents was an agent of the company – whether agency could be inferred from informal communications – application to adduce further evidence on appeal refused – appeal dismissed

RESTITUTION – application by appellant to re-open – perceived need for court to decide issue not decided – whether Mr Gould had relevant authority of the appellant

APPEAL – civil - pleadings - amendment - grounds of appeal - refusal to allow amendment - amendment sought shortly prior to hearing - opportunity to raise ground at hearing - evidence could have been led at hearing EVIDENCE – sufficiency - weighing conflicting evidence - expert opinions - evidence of value of company - experts using different methods - valuation accepted by primary judge significantly lower than book value of company - whether primary judge erred in accepting valuation or whether valuation plainly erroneous

CONTRACTS – intention – family arrangements - whether intention to create legal relations in a domestic or social context – role of presumptions CONTRACTS – intention to create legal relations – objective test – oral agreement – imprecise terms - language of obligation – nature of arrangement – where some obligations unenforceable CONTRACTS – certainty – imprecise terms – language of obligation CONTRACTS – accord and satisfaction – release – whether there was an offer and acceptance CONTRACTS – unconscionability – unfair or oppressive conduct – whether evidence of undue pressure EQUITY – estoppel - assumption or representation – degree of certainty required – nature of transaction - domestic or commercial EQUITY - estoppel – promissory estoppel – whether must be defensive or negative in substance EQUITY – estoppel – detriment – whether any detrimental reliance – nature of promises EQUITY – trusts – intention to create a trust – whether fiduciary obligation breached APPEAL – civil – rejection of evidence at trial – whether trial judge erred - deference to trial judge – advantage of seeing witness

PROCEDURE – pleadings – statements of claim – application for striking out of statement of claim – where statement of claim pertains to tort of deceit – failure of statement of claim to particularise conduct amounting to tort of deceit – availability of alternative causes of action not pleaded – held, statement of claim struck out

COSTS – recovery of costs – interlocutory application for contempt filed by liquidator – where liquidator has consented to dismissal of application – whether liquidator entitled to costs of proceedings – where interlocutory application doomed to fail – held, liquidator not entitled to costs order

EQUITY – interests - Personal Property Securities Register - frivolous recording of interests on the Register - where registrations frustrated completion of sale of vehicle - multiple occurrences - order to remove registration - further ambulatory order that any subsequent registrations be removed at plaintiff’s request to the Registrar

SUCCESSION – Wills, Probate and Administration – Probate and letters of administration – Contested application for admission of informal will to probate - Costs – General principles – Costs ordinarily follow event, subject to established exceptions in probate cases – Costs remain in discretion of court – Where plaintiff and defendant, as only interested parties, engage in ordinary adversarial litigation, appropriate order may be for costs to follow event rather than be paid out of deceased estate.

CRIMMINAL LAW – assumed identities – undercover police officers – application for suppression orders under assumed identities legislation – orders to be made unless “interests of justice otherwise require” – suppression orders made – ancillary orders made CRIMINAL LAW - non-publication orders – integrity of administration of justice – order necessary to protect trial process – order will protect Commissioner’s position regarding police operation – no need to consider other bases for orders

CONTEMPT OF COURT – procedure – notice of motion - alleged contempt - breach of Court orders - contempt charges where money orders are not complied with - contempt charges for behaviour in court regarding words spoken, or otherwise written and filed, in court - contempt charges for deliberate failure to comply with a subpoena - contempt charges for reneging on an agreement underpinning a consent order PROCEDURE – contempt of court - adjournment– informal and unsupported adjournment application - refused PROCEDURE – contempt of court - notice of motions – orders seeking that the case be thrown out with costs and hearing dates be vacated – no appearance – no basis for adjournment - motions dismissed for want of prosecution

SUCCESSION – Wills, probate and administration – Statutory will – Protective jurisdiction – Purposive character of jurisdiction – Protection of person in need of protection – Consideration of interests, and benefit, of protected person – Family settlement MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Management and administration of property – Statutory will - Allowance of provision for family out of protected estate – Approval of family settlement – Principles applicable PRACTICE – NSW Trustee and Guardian Act – Management and administration of property – Statutory will - Allowance of provision for family out of protected estate – Approval of family settlement – Material considerations

APPEAL - sentencing - break, enter and steal, aggravated break and enter, larceny, armed robbery - extent of jurisdiction conferred by s 43 Crimes (Sentencing Procedure) Act 1999 (NSW) - principle of finality - Achurch v The Queen [2014] HCA 10 - s 43 limited to the correction of the imposition of penalties contrary to the law - appeal dismissed APPEAL - appeal against severity of sentence - whether appropriate weight attributed to applicant’s personal circumstances - Bugmy v The Queen [2013] HCA 37 - sufficient weight attributed - appeal dismissed

APPEAL - sentencing - discharge of firearm with intent to cause grievous bodily harm - possession of prohibited and unregistered firearms - whether inadequate weight given to statutory maxima and non-parole periods - whether inadequate or excessive weight assigned to various sentencing considerations - attribution of weight assigned to primary judge - Bugmy v The Queen [2013] HCA 37 APPEAL - aggravating circumstances must be proved beyond reasonable doubt - use to be made of victim impact statements not subject to cross-examination - victim the subject of doubtful assessment of credibility - degree of injury, loss or harm not shown to be more substantial than ordinarily expected CRIMINAL LAW - appeals - purpose of Crown appeals - Green v The Queen; Quinn v The Queen [2011] HCA 49 - no principle sought to be established identified - appeal dismissed

PROCEDURE – civil – application – postponement of conclave of experts – previous application to defer conclave refused – significant cost and disruption if conclave cancelled – application dismissed – no question of principle

[INJUNCTION] – application to continue injunction against Minister for Family and Community Services from removing a child in the care of the plaintiff – whether evidence to substantiate fear for child’s welfare

PROCEDURE – discovery – preliminary discovery – defamation – injurious falsehood – Uniform Civil Procedure Rules 2005 – interlocutory injunction to restrain publication – whether reasonable enquiries have been made under r 5.3(1)(a) UCPR – whether shortness of time between inquiries and bringing application makes inquiries unreasonable – whether making order consistent with overriding objective of the just, quick and cheap resolution of issues in proceedings – whether such low prospects of a prepublication injunction that granting preliminary discovery is a practical futility – whether prior publication of allegedly defamatory imputations – regard to principle of free speech

DEFAMATION – defences – adequacy of particulars of defence of truth

POSSESSION OF LAND – interlocutory rulings - rental income – leave to file amended defence - costs

CRIMINAL LAW – costs – application for certificate under Costs in Criminal Cases Act – whether reasonable to institute proceedings – where nolle prosequi filed – impact of Court of Criminal Appeal’s finding that fresh evidence affected credibility of material witness – assessment of other evidence available to the Crown – institution of proceedings reasonable – certificate refused

CRIMINAL LAW – particular offences – offences against the person – murder – trial by judge alone – consideration of the affirmative defence of mental illness – accused did physical act – accused suffering from disease of the mind that led to a defect of reason – accused did not appreciate the moral wrongfulness of his act – verdict not guilty on the ground of mental illness

PROCEDURE – review of Registrar’s assessment of remuneration to be paid to trustees - where trustees had been appointed by court to sell property under s 66G of the Conveyancing Act - where plaintiff required to persuade reviewing court that order to set aside or vary Registrar’s decision is in the interest of justice - where no evidence given that trustees’ costs were excessive - where evidence justified remuneration sought

COSTS – Indemnity Costs

CONTRACT – Settlement Agreement executed by parties to Equity Division proceedings after mediation – whether Settlement Agreement binding and enforceable – whether Settlement Agreement was an accord executory or an accord and satisfaction

BAIL – release application – show cause requirement

[PROCEDURE] – whether an order for disclosure of transactions made in respect of a freezing order was beyond power – whether order “appropriate” under UCPR r 25.12

PROCEDURE - revocation of orders by the Court - NSW Trustee and Guardian seeks an order revoking orders the Court made on 15 February 2012, appointing a financial manager to the affairs of the third defendant - whether a declaration that the defendant is incapable of managing his own financial affairs should be revoked - the proceedings are due to be finalised at a hearing on 25 February 2015 - whether the financial management orders should be revoked now.

SUMMARY JUDGMENT – Contracts Review Act – no evidence from defendant capable of raising defence – application granted.

CRIMINAL LAW – evidence – context evidence – where Crown alleged manslaughter by gross criminal negligence – where Crown sought to rely upon other evidence of neglect by the accused towards the deceased – whether evidence admissible

ADMINISTRATIVE LAW – workers compensation - judicial review – error of law – procedural fairness -whether appeal panel failed to consider the plaintiff’s oral submissions

CRIMINAL LAW – appeal against conviction – whether trial miscarried by reason of Crown’s closing address – no miscarriage – appeal dismissed

APPEAL - stay - relevant considerations – no question of principle

EQUITY – trusts and trustees – powers of trustees – maintenance and advancement – power of trustee to “advance or raise any part or parts of the whole of the capital or income of the Trust Funds and to pay or to apply the same as the Trustee shall think fit for the maintenance education advancement in life or benefit of any of the Specified Beneficiaries” – where trustee revalued sole asset constituting the trust property and resolved to “distribute” the whole of the resultant revaluation reserve to two beneficiaries jointly – whether the particular power was thereby exercised – whether those beneficiaries could bring an action in debt against the trustee – whether the trustee had by a subsequent deed validly covenanted to make payment to the particular beneficiaries – LIMITATION OF ACTIONS – covenant to pay on demand – time runs from time of covenant notwithstanding absence of demand – whether the cause of action was acknowledged within the originally applicable limitation period so as to cause a renewed limitation period to apply – EQUITY – trusts and trustees – terms of trust – express power to vary in any way – particular power to alter vesting date – purported exercise of the general power so as to alter the vesting date retrospectively – whether the general power was available in the face of the express power – whether a particular limit upon the general power operated to preclude the variation purportedly made

WORKERS COMPENSATION – employer’s liability – occupational diseases – when liability of employer taken to arise – construction of s 151AB Workers Compensation Act 1987 – whether ‘disease’ in s 151AB(1)(a) refers only to the injury or harm which is the subject of the claimed liability – where claimed liability is for injury or disease caused by exposure to silica dust during particular period – whether liability taken to arise when worker last employed in that period – distinction between ‘divisible’ and ‘indivisible’ harm or injury – decision in Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 applied

WORKERS COMPENSATION - employer’s liability – occupational diseases – when liability of employer taken to arise – construction of s 151AB Workers Compensation Act 1987 (NSW) – whether ‘disease’ in s 151AB(1)(a) refers only to the injury or harm which is the subject of the claimed liability – where claimed liability is for injury or disease caused by exposure to asbestos fibre during particular period – whether liability taken to arise when worker last employed in that period – distinction between ‘divisible’ and ‘indivisible’ harm or injury

[PROCEDURE] – whether funds paid into Court by the defendant following summary judgment should be released to the plaintiff after delay in making part of the payment – whether earlier orders requiring payment into court should be varied – whether order for summary judgment should be stayed

COSTS – where proceedings initiated by plaintiff in Federal Court did not advance case – where proceedings in Supreme Court only partly successful – where much of relief sought abandoned by plaintiff – were Calderbank offer made inclusive of costs so as not to permit comparison with outcome.

PRACTICE – Parties – Incompetence – Serious question as to whether party had become incompetent during proceedings – Urgent appointment of enduring guardian as tutor – UCPR Pt 7,r 7.18

CRIMINAL LAW – Proceeds of crime – application to revoke restraining order or to exclude certain property from restraining order – applicant unrepresented – legal aid application pending – adjournments granted to allow applicant to pursue legal aid application CRIMINAL LAW – Costs – application for costs thrown away – where second defendant unprepared to proceed – application granted

COSTS – costs of a non-party – s 98 Civil Procedure Act 2005 – whether there were exceptional circumstances - whether it was necessary for a non-party to be separately represented

Procedure – whether s 6 LRMPA application should be dealt with after judgment delivered – whether any accidental slip or omission – whether any irregularity – whether s 6 application abandoned at trial – application raised in closing address – procedural fairness

ADMINISTRATIVE LAW – appeal pursuant to s 54 against a defendant of the New South Wales Civil and Administrative Tribunal – whether a stay of proceedings in the Tribunal should be granted pending determination of the appeal

CIVIL – Appropriateness of appointment of trustee for sale of real property when interests of tenants in common are subject to possible adjustment in the Family Court – application for transfer of proceedings seeking possession pursuant to a mortgage when proceedings are on foot between two tenants in common in the Family Court and in which mortgagee has been joined as a party

SUCCESSION – family provision order – application by two adult sons of testator SUCCESSION – family provision order – freedom of testamentary disposition SUCCESSION – family provision order – factors to be taken into account when making family provision order – appropriate order