Cases and authorities

CRIMINAL LAW - appeal against sentences - possession of pseudoephedrine as a precursor intending that it be used by another person in the manufacture of a prohibited drug - supply of pseudoephedrine as a prohibited drug - whether sentencing judge erred in assessment of objective seriousness - whether sentences individually and in aggregate manifestly excessive - parity - principles of totality

CRIMINAL LAW - Crown appeal against sentence - multiple armed robberies - shoot with intent to murder - significant objective seriousness - Court invited by Crown to view CCTV footage - waste of time - motive related to drug addiction - no error in concluding that crimes not motivated principally by greed - aggregate sentence - principle of totality - no utility in assessment of overall sentence in singling out one component and regarding balance as being referrable to remainder - sentence not manifestly inadequate

CRIMINAL LAW - appeal against conviction after plea of guilty - ongoing supply of methylamphetamine - applicant involved in supply of drug to undercover officer on three occasions - no evidence of financial material benefit to him on two occasions

CRIMINAL LAW - stated case - Criminal Appeal Act 1912 (NSW), s 5B - whether stated case raises a question of law CRIMINAL LAW - Appeal in the District Court against conviction in the Local Court by way of rehearing - Fresh evidence - Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) - whether adducing fresh evidence in the "interests of judgment" - post-conviction admission made to Corrective Services Officer during interview to assess applicant's suitability for intensive correction order - interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) - whether applicant denied common law right of silence WORDS AND PHRASES - "interests of justice"

CRIMINAL LAW - Crown appeal against sentence - knowingly take part in supply of prohibited drug - conspiracy to supply prohibited drug - whether sentence is manifestly inadequate

CRIMINAL LAW - Crown appeal against sentence - robbery with an offensive weapon causing grievous bodily harm - whether sentence manifestly inadequate - whether sentencing judge erred in assessment of the prospects of rehabilitation of one respondent - consideration of the respondents' respective roles in the criminality - subjective circumstances of each respondent "wholly exceptional" - discussion of the discretion reposed in a sentencing judge

CRIMINAL LAW - Appeal - conviction and sentence - unreasonable verdict - manifest excess - no arguable case - no doubt as to verdict - sentence within range

CRIMINAL LAW - Appeal - Prosecution appeal against sentence - Remittal from High Court - Manifest inadequacy - Objective seriousness - Whether factor aggravating or mitigating - Subjective circumstances - Social deprivation -Aboriginal offender - Manifestly lenient - Error of law CRIMINAL LAW - Appeal - Sentencing principles - Residual discretion not to intervene - Delay after plea - Imminent release on parole - Change in Crown position - Residual discretion exercised - Appeal dismissed

CRIMINAL LAW - appeal and new trial - particular grounds of appeal - fresh evidence - general principles - appeal against conviction - whether the evidence is "fresh" - whether fresh evidence credible - whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused CRIMINAL LAW - appeal and new trial - procedure - notices of appeal - time for appeal and extension thereof - whether leave to appeal should be granted out of time where the prosecution does not oppose the grant of leave

CRIMINAL LAW - appeal against sentence - supply prohibited drug - deal with proceeds of crime - whether sentence manifestly excessive - whether discount for assistance inadequate

CRIMINAL LAW - appeal against sentence - attempt to possess commercial quantity of heroin - guilty plea - parity

APPEAL - whether appeal lies as of right - failure to demonstrate reasonable prospect of increasing wealth by $100,000 if the appeal succeeded

APPEAL - application for leave to appeal - no reasonable prospects of success if leave granted

PROCEDURE - costs - gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) - assessment of costs on an indemnity basis - Uniform Civil Procedure Rules 2005 (NSW), r 42.5

ADMINISTRATIVE LAW - appeal limited to question of law - whether error of law by Consumer, Trader and Tenancy Tribunal - whether District Court erred in failing to identify error of law by Tribunal - whether ground relied on by way of judicial review argued in District Court - whether any error of District Court involved jurisdictional error, error on face of record not being relied on LANDLORD AND TENANT - retirement villages - termination of residence contract for breach of village contract - alleged breach by applicant in failing to occupy premises - whether breach justified termination order - whether Tribunal failed to consider whether the "circumstances of the case" warranted exercising power to terminate - Retirement Villages Act 1999 (NSW), s 134

CORPORATIONS - winding up - winding up in insolvency - voidable transactions - time limit for bringing of proceedings by liquidators under Corporations Act 2001 (Cth) s 588FF in respect of voidable transactions - time extended upon liquidators' ex parte application by a "shelf" order under s 588FF(3)(b) applying to all proceedings against all persons - that "shelf" order later set aside as it relates to proceedings brought against Commissioner of Taxation - finding that directors of the company who would be liable under statutory indemnity to indemnify the Commissioner for loss or damage suffered through voidable transaction order were denied opportunity to be heard on the extension application and that there was a breach of the duty of candour to the court - liquidators challenge the order setting aside the "shelf" order as against the Commissioner - whether the relevant directors were entitled to an opportunity to be heard - nature of the "right", "interest" or "expectation" giving rise to right to be heard discussed - nature and implications of s 588FGA liability of directors discussed - PROCEDURE - miscellaneous procedural matters - ex parte application - setting aside on application of a person denied an opportunity to be heard

TORTS - negligence - local council's duty of care to pedestrian using footpath - whether the council breached its duty of care by failing to repair tree root damage - whether the pedestrian was taking reasonable care for his safety - whether it was open to the pedestrian to pass by the footpath without treading on the tree roots TORTS - negligence - causation - whether the pedestrian suffered knee injury as a result of a fall from tripping on a tree root in the footpath - whether the pedestrian complained to his general practitioner about a knee injury shortly after the fall

PROFESSIONS AND TRADES - lawyers - duties and liabilities - advocate's immunity from suit - whether the immunity applies where proceedings in respect of allegedly deficient services rendered in connection with litigation are brought upon a statutory cause of action for misleading or deceptive conduct.

INDUSTRIAL LAW - interpretation of award - overtime entitlement for work in excess of "daily roster pattern" - interpretation of "daily roster pattern" - reliance on work schedule principles applicable to full-time correctional officers - whether primary judge erred in finding "daily" pattern was to be viewed over 24 hour rolling period - whether primary judge erred in finding that entitlement to overtime exists where casual officer works more than one 8 hour shift in any 24 hour period JUDGMENTS & ORDERS - declaration - interpretation of award - whether declaration appropriate relief when effect on rights uncertain - Industrial Relations Act 1996 (NSW) s 154

PROFESSIONS AND TRADES - lawyers - complaints and discipline - complaint initiated by the Legal Services Commissioner in relation to a lawyer allegedly failing to comply with a practice note of the Children's Court and failing to comply with a direction of a Children's Court magistrate - Commissioner determined to reprimand the lawyer - appeal to the Administrative Decisions Tribunal (later the NSW Civil and Administrative Tribunal) - whether the Tribunal erred in considering matters extraneous to the original complaint - Legal Profession Act 2004 (NSW), ss 537-540 ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - whether the Tribunal conducted its review of the Commissioner's decision in a way that went beyond its jurisdiction - Administrative Decisions Tribunal Act 1997 (NSW), s 63; Legal Profession Act 2004 (NSW), s 540

PROFESSIONS AND TRADES - lawyers - unqualified persons - lay associates - appeal by lay associate against prohibiting order made by NCAT under Legal Profession Act 2004 (NSW) - where appellant was a "paralegal" held out as firm's "general manager - where a person referred by financial advisory firm was put through to the appellant upon contacting the firm seeking matrimonial, testamentary and investment advice - where the appellant prepared a loan agreement between that person as lender and himself as borrower, took it to her home and received a loan of $600,000 from her - whether the lay associate engaged in conduct that, if he were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct - finding adverse to him in that respect upheld - whether the making of a prohibiting order was a disproportionately severe response to the conduct engaged in - held that it was not - observations on the structure of the disciplinary provisions concerning lay associates and the ability they create for the Law Society to fashion, on application, a regime for re-engagement appropriate to particular circumstances .

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - contact orders - whether the primary judge erred in making non-binding "notations" providing for contact rather than contact orders - whether the primary judge provided sufficient reasons for his decision - Children and Young (Care and Protection) Act 1998 (NSW), s 86

INSURANCE - trade credit insurance - Insurance Contracts Act 1984 (Cth) s 28(3) - respondent insurer rejected claim made by appellants under trade credit insurance policy indemnifying appellants against customer's insolvency - whether insurer entitled to reduce its liability to nil due to appellants' failure to comply with duty of disclosure - whether insurer would have issued policy if non-disclosure had not occurred - whether insurer discharged legal onus of proof by calling ultimate decision-maker despite not calling subordinate employees to give evidence - whether primary judge acted contrary to principle in Jones v Dunkel by inferring that evidence of subordinate officers would have assisted insurer's case - content of insured's evidentiary burden under s 28(3) of the Insurance Contracts Act 1984 (Cth) - appeal dismissed EVIDENCE - evidentiary onus - respondent insurer rejected claim made by appellants under trade credit insurance policy indemnifying appellants against customer's insolvency - whether insurer entitled to reduce its liability to nil due to appellants' failure to comply with duty of disclosure - whether insurer discharged legal onus of proof by calling ultimate decision-maker despite not calling subordinate employees to give evidence - content of insured's evidentiary burden under s 28(3) of the Insurance Contracts Act 1984 (Cth)

RESUMPTION AND ACQUISITION OF PROPERTY - easement acquired over land used for open space - determination of compensation - whether error of law in determining comparable sales - whether error of law in making adjustments to comparable sales - no error of law shown

EASEMENTS - construction - whether permissible to have regard to the terms of other easements in same registered memorandum - relevance of structure of definitions - relevance of textual similarities - relevance of defined term itself RESUMPTION AND ACQUISITION OF PROPERTY - easement acquired over land managed by reserve trust - determination of compensation - Crown Lands Act 1989 (NSW), s 106A COSTS - offer of compromise - operation of rules and discretion in proceedings where "costs follow the event" is not the starting point

EMPLOYMENT - contract of employment - redundancy - meaning of "redundant" in context of respondent's employment contract - whether respondent's role had been effectively emptied of its duties and abolished - evidence of differences in duties performed by respondent and apparent successor not sufficient to render respondent's role redundant - finding of redundancy by the primary judge not supported by evidence CONTRACT - contract of employment - share options - employment contract provided that the chief executive of the respondent's employer would recommend to employer's parent company that respondent be granted 40,000 options - whether primary judge erred in finding the employer did not breach employment contract in failing to convey recommendation to decision-maker - evidence established the recommendation was provided to the relevant decision-maker within the parent - breach of contract not established

COSTS – indemnity costs – Calderbank offer – no point of principle

NEGLIGENCE - helicopter company contracted by local council to conduct an aerial survey - where helicopter struck an overhead power line and crashed into a valley killing all those on board including two council employees - where helicopter flying at an altitude of approximately 120 ft - where swathe cut in vegetation below power lines - where power lines not otherwise marked by energy provider - proceedings brought by members of the family of deceased against the helicopter company and the council - where energy provider joined by cross-claim - proceedings brought by helicopter company against energy provider council for damages to helicopter and loss of profits - council joined by cross claim - liability of parties AVIATION - helicopter company contracted by local council to conduct an aerial survey - where helicopter struck an overhead power line and crashed into a valley killing all those on board including two council employees - whether claims brought by the family of one council employee were governed by legislation limiting the liability of the carrier WORDS AND PHRASES - passenger

Bail application – applicant convicted of murder – concession by Crown that conviction must be quashed by Court of Criminal Appeal in due course – determination made pursuant to Bail Act 2013 before commencement of Bail Amendment Act 2014 – “absolutely exceptional circumstances” identified – bail granted

JUDICIAL REVIEW – application by prisoner for review of decisions relating to conditions of his incarceration – refusal to give prisoner diet of salad and raw vegetables notwithstanding medical certificate – further decisions made after proceedings commenced overriding medical certificate and relying on new medical certificate from a different doctor – decision-making process not yet at an end – need to adjourn proceedings to abide conclusion of further decision-making process

PRACTICE AND PROCEDURE – proceedings settled in principle after hearing of interlocutory application but before publication of reserved judgment – parties seeking publication of judgment in any event so as to assist in the resolution of a claim for costs by a third party – difficulty of determining issue raised where relevant considerations skewed by fact of settlement – referral to mediation including third party

SUCCESSION - family provision and maintenance - plaintiff second husband of testator – marriage lasted 15 years – testator made will shortly before death – testator gave careful consideration to dividing her estate between her husband and her two sons – plaintiff received half of matrimonial home – matrimonial home property of testator before marriage – orders sought by plaintiff relatively small increment on plaintiff’s financial circumstances before application made – provision in will for proper maintenance and advancement in life of plaintiff not inadequate – testator’s sons have competing financial needs– application out of time – application dismissed

CRIMINAL LAW - sentence - offender charged with murder - offender pleaded guilty at a late stage to the lesser offence of manslaughter - offender entitled to a discount of 15% - joint criminal enterprise - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that a report be prepared for the purposes of ascertaining whether there are circumstances falling within the provisions of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987- sentencing proceedings stood over

CORPORATIONS - share capital - reductions of share capital - Corporations Act 2001 (Cth) ss 256A-256E - management and administration - meetings - validity of shareholder's requisition for meeting - defendant shareholder sought to requisition meeting to propose resolution for constitutional amendment permitting company in general meeting to reduce share capital and further resolution to effect reduction of share capital - defendant shareholder served second requisition conditional on first resolution not being passed proposing resolution for removal of some directors of plaintiff and their replacement by plaintiff's nominees and further provided for removal of any directors appointed between service of requisition and date of meeting - where legal proceedings pending in overseas jurisdiction against plaintiff and related entities - where plaintiff's liability to claimants contingent on outcome of pending legal proceedings and quantum not yet determined - whether Corporations Act 2001 (Cth) s 256B permits shareholders to effect capital reduction other than by approving proposal to do so made by the board - whether company precluded from making proposed reduction which might materially prejudice its ability to pay creditors - whether resolution relating to removal of directors conditions on other resolutions not being passed bad by virtue of conditionality or because directors might cause company to contravene Act or for infringing Corporations Act 2001 (Cth) s 203D

REAL PROPERTY - caveats - extension of caveat - alleged representation by defendant that she would transfer portion of property - whether gave rise to a proprietary estoppel - whether balance of convenience warranted extension of caveat -whether transfer of disputed land likely at final hearing - likely minimum equity

CIVIL LAW - application to vacate trial date - application to amend statement of claim -- desire to include second defendant - delay on both sides - proposed defendant in liquidation - requirement to identify insurer - relevant considerations - costs penalty

ADMINISTRATIVE LAW - appeal - appeal from decision of Civil and Administrative Tribunal - suspension of local government councillor - penalties available - distinction between penalties preventing councillor from carrying out civic duties and other penalties - absence of dishonesty or intentional concealment - miscarriage of tribunal's discretion - resentence

COSTS - indemnity costs - where application for preliminary discovery in relation to unidentified vendor of painting - where application for interlocutory injunction - where leave sought by plaintiffs to discontinue proceedings - where late enquiries revealed no basis for proceeding with application - whether defendant entitled to indemnity costs

SUCCESSION - Wills, Probate and Administration - Making of a will - Execution - Informal document intended to be will - Disputed document written by hand in notebook - Deceased had no other known wills - No dispute that document was prepared by deceased - Whether document was intended to be will - Deceased signed document at the top and tail of each page other than last - Testamentary intention clear from the language of document - Extrinsic evidence consistent with document - Disputed document admitted to probate

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - payment claim made after termination of contract - claim seeking retention moneys and other amounts - whether payment claim valid - whether reference date available for claim - whether contract provides that reference dates cease on termination

PROCEDURE - notices of motion - order seeking to restore Local Court as second defendant - no objection to order - notice of motion - application to dismiss summons - refused - security for costs sought refused

PROCEDURE - notice of motion - order seeking concurrent hearing refused - order seeking discovery refused - leave sought to issue subpoenas at present refused - order seeking transfer of files from Land and Environment Court to Supreme Court refused - orders made

COSTS - applications made for costs in respect of Notices of Motion in circumstances where the parties were not wholly successful or unsuccessful in respect of the Notices of Motion - application of UCPR 42.7(2) in interlocutory applications

INSURANCE - indemnity - directors and officers cover - whether insured entitled to indemnity for legal costs incurred at an ICAC hearing - whether insured knew that submission made to Government Department false or misleading - whether insured knew that public inquiry into grant of mining exploration licence likely - whether insured fraudulently in breach of duty of disclosure - whether insured fraudulently misrepresented the position when answering questions in proposal; EVIDENCE - allegation of fraudulent misrepresentation and non-disclosure - onus - whether clear and cogent proof established - whether Jones v Dunkel inferences to be drawn where case of fraud sought to be established in part from documentary and circumstantial evidence

REAL PROPERTY - Torrens title - trusts - vesting of trust property in new trustee - whether Registrar General has duty or discretion to record vesting upon application by new trustee REAL PROPERTY - Torrens title - instruments generally - when Registrar General may refuse to register an instrument REAL PROPERTY - Torrens title - legal proceedings generally - review of decisions of Registrar General - nature of review - function of court on review - parties to review proceedings - joinder of parties

CONTRACT - RELIEF - specific performance - where option to purchase in lease document - where provision in contract for preparation of plan - whether option validly exercised - whether agreement void for uncertainty - whether agreement unenforceable for illegality - whether lease validly terminated - utility of declaration of valid termination where declaration of exercise of option to purchase also valid CONTRACT - RELIEF - specific performance - whether damages in lieu of specific performance appropriate - where damages claimed for reduction in income, being donations to religious temple, if specific performance unavailable and plaintiff forced to relocate - whether damages to be assessed at time of breach or date of judgment

PRIVATE INTERNATIONAL LAW - choice of law - torts - agreement as to applicable law - common law of England and Wales TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - duty of care - standard of care - health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom in 2003 TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - breach of duty - second defendant - ought to have ordered a colonoscopy be undertaken to ensure whole of the left colon up to and including splenic flexure was visualised, whether - third defendant - performed endoscopy procedure without due care and skill by failing to insert endoscope to sufficient distance to visualise splenic flexure, whether - failed to appreciate investigation was incomplete and refer for further investigation, whether - investigation accorded with acceptable professional practice in the United Kingdom at that time, whether - in 2003 following the 2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland would be following acceptable practice, whether - particular doctor free to proceed in a way which did not conform with the Guidelines if the doctor judged that the particular circumstances warranted a different approach - breach of duties established TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - causation - wrongful act, neglect or default was the sole or substantial cause, or a material contribution to, the death giving rise to the claim, whether - delay in treatment of colorectal tumour was a cause in law of death, whether - cause of death - death due to complications attributable to obstructed bowel and emergency operations, whether - death due to terminal cancer, whether - stage of tumour in 2003 - benign and not metastasized, whether - malignant and metastasized, whether - expert evidence of tumour volume doubling time - expert evidence of development of metastases - malignant tumour in 2003 - metastatic spread beyond immediate region of tumour in 2003 - treatment which would have been administered had the cancer been discovered in 2003 - planned surgical removal of tumour and affected lymph nodes and chemotherapy administered - no bowel obstruction and emergency surgery in 2006 would have occurred - causal connection between bowel obstruction and death - compensable loss established - extent of loss - likely survival period - additional two years DAMAGES - torts - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK), s 1A - bereavement - statutory sum - financial loss - loss of financial support to end of November 2008 - loss of services - loss of caregiver services - loss of services to family generally LIMITATION OF ACTION - negligence - torts - personal injury - psychiatric injury - nervous shock - Limitation Act 1980 (UK), ss 11, 14 - accrual of cause of action - date of knowledge of plaintiff - onus on plaintiff to establish requisite date of knowledge fell within a period of three years before she commenced her claim - statute barred TORTS - negligence - personal injury - psychiatric injury - nervous shock - secondary victim - proximity - considerable period of time elapsed between tortious conduct of defendants and injury suffered - lack of requisite proximity

CIVIL PROCEDURE - application to set aside default judgment - defendant failed to file a Defence within the prescribed time - consideration of whether the defendant has a bona fide defence available - application dismissed

DAMAGES - negligence - personal injury - assessment of quantum of damages - non-economic loss - loss of earnings - out of pocket expenses - future domestic assistance or attendant care - additional travel and holiday costs - sexual services

CIVIL LAW - Crimes (High Risk Offenders) Act 2007 - application for a continuing detention order - application for extended supervision order - defendant commenced intensive rehabilitation program since imposition of interim detention order - consideration of the availability of appropriate accommodation - whether the plaintiff has satisfied the Court that there is a high degree of probability that, if released without supervision, the defendant poses an unacceptable risk of committing a serious violent offence - whether adequate supervision will be provided by an extended supervision order