Cases and authorities

MENTAL HEALTH - management and administration of property - general matters - financial management - NSW Trustee and Guardian Act 2009 (NSW) s 86 - application for revocation of financial management order - whether circumstances of case warrant revocation - whether test of capacity to manage one's affairs involves consideration of subjective circumstances of individual in question or objective assessment of ability to deal competently with "ordinary routine affairs of man" - held test involves consideration of subjective circumstances - application granted

CIVIL LAW - summary judgment - judgment for possession of land - where loan used to discharge pre-existing mortgage - liability for principal sum - right of mortgagee to possession - where borrower disputes validity of original mortgage

CRIMINAL LAW - mental health - where finding made on the limited evidence available the offender murdered her 6 month old daughter - necessity to impose a limiting term - seriousness of offending - whether offending pre-meditated - necessity not to allow evidence of mental illness to overwhelm appropriate consideration of the circumstances of the offending - whether offender had demonstrated remorse - whether offender be appropriate vehicle for general deterrence

PRACTICE AND PROCEDURE - application for variation of orders - where previous appeal allowed and proceedings remitted to Magistrate in the Local Court to be further dealt with - motion subsequently brought seeking that the matter be referred to a different Magistrate - where the issue had been raised in argument at the hearing but was ultimately not pressed - whether court's jurisdiction to vary the order is enlivened - whether slip rule applies - notice of motion dismissed.

Sentence - murder - domestic violence offence

PROCEDURE - civil - judgments and orders - set aside judgment; application to -Uniform Civil Procedure Rules 2005, r 13.15 - judgment and orders made irregularly, illegally or against good faith, whether - consent judgment - consent conditional, whether - conduct of plaintiff against good faith, whether - delay - principle of finality - COSTS - costs in the cause

CRIMINAL LAW - appeal against sentence - three drug offences - whether the sentencing judge erred in failing to adequately discount the applicant's sentence on the basis of his assistance to the authorities - whether the sentencing judge applied the correct maximum penalty - whether the sentencing judge erred in structuring the sentences - whether the degree of accumulation between the individual sentences is manifestly excessive and led to a total effective sentence which is manifestly excessive - principles in Kentwell

CRIMINAL LAW - sentence appeal - whether the sentence imposed was too severe - whether the sentencing judge erred in failing to take into proper consideration the applicant's intellectual disability - whether the sentencing judge erred in finding that the applicant was the mastermind behind the offences and sentencing him as the principal offender - parity

CRIMINAL LAW - appeal against sentence - whether the sentencing judge erred in rejecting the possibility of the charges being dealt with summarily as a circumstance for reducing sentences - whether the sentencing judge erred in adopting an averaging approach to the reduction for plea - whether the sentencing judge erred in finding that the applicant showed an attitude of continuing disobedience warranting emphasis on specific deterrence - whether the sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters - whether the total sentence was unduly harsh or severe

CRIMINAL LAW - appeal against sentence - whether procedural fairness denied in failing to warn sentence imposed would be accumulated contrary to submissions by the Crown - whether there was a failure to account for the applicants' personal and mental health problems - whether sentences imposed are manifestly excessive - whether applicants have a justified sense of grievance arising from disparity and lack of proportion with sentences imposed on other offenders

CRIMINAL LAW - sentence appeal - manslaughter and being an accessory after the fact of murder - admissibility of "fresh" evidence - whether a miscarriage of justice occurred in sentence proceedings - whether assistance provided by applicant - low value of assistance - no reduction in sentence appropriate - subjective case adequately evaluated - sentence not manifestly excessive - no slip in sentence imposed.

CRIMINAL LAW - appeal against conviction - conspiracy - circumstantial case - whether verdict unreasonable or unsupportable - whether applicant should be re-sentenced for second count that was not subject to appeal.

APPEAL - application for leave to appeal - decision below refusing to grant judicial relief in respect of decisions of Consumer Trader and Tenancy Tribunal - application refused - no issue of principle

WORKERS COMPENSATION - s 151D Workers Compensation Act 1987 - leave to commence proceedings more than three years after injury - respondent accepted appellant demonstrated prima facie case on liability - respondent did not contend actual prejudice but relied on presumptive prejudice - appellant relied on explanation for delay given by solicitor on basis of information and belief - adequacy of explanation for delay - where primary judge rejected application - whether exercise of discretion miscarried EVIDENCE - s 75 Evidence Act 1995 - whether sufficient for appellant to rely in interlocutory application seeking extension of time to commence proceedings upon evidence from solicitor on information and belief to explain delay

PRACTICE AND PROCEDURE - default judgment - respondent solicitor obtained default judgment against appellant for recovery of legal fees incurred by appellant - judicial registrar rejected appellant's application to set judgment aside because application out of time - time to apply to set aside default judgment not restricted by UCPR r 36.16 - delay in application relevant to exercise of discretion but not to power to set aside default judgment - whether appellant adduced sufficient evidence of arguable defence to respondent's claim - default judgment set aside PRACTICE AND PROCEDURE - pleading - short form pleading - pleading of facts in short form in respect of certain money claims - requirement to give particulars - need for strict compliance with rules permitting short forms of pleading - what constitutes condition precedent to cause of action to recover legal costs - UCPR rr 14.11, 14.12

TORTS - appellant accidentally shot when firearm discharged bullet in the course of a hunting expedition - shooter in rear tray of utility - appellant and driver in cabin - prey identified in front of vehicle - whether driver at fault - whether statutory third party policy responded - s 3A Motor Accidents Compensation Act 1999

BUILDING AND CONSTRUCTION - adoption of referee's report - UCPR, r 20.24 - application of parties opposing adoption of referee's report on certain matters - whether third defendant developer a "developer" under Home Building Act 1989 (NSW), s 3A and thus liable to plaintiff owners corporation under s 18C for contractor's breach of s 18B implied warranties - whether claim brought under s 18C an apportionable claim - whether referee erred in selecting cheaper option for rectification of laundry waste defects - where referee applied relevant Australian Standard but failed to consider compliance with contractual specification - where insistence on contractual compliance not unreasonable - Bellgrove v Eldrige and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd - whether plaintiff failed to mitigate its loss by pursuing claim against second defendant insurer diligently - whether third defendant entitled to indemnity from first defendant insurer - whether certain defects due to design default and thus excluded from cover by terms of insurance policy - where multiple causes of damage and not all causes covered by insurance policy - Wayne Tank principle BUILDING AND CONSTRUCTION - adoption of referee's report - where issue before referee raised questions of law, court to consider the issue afresh - whether developer able to be held liable under s 18C where contractor not in breach of s 18B implied warranties - whether defect within scope of contractor's duty

PROCEDURE – civil – application – re-open Second Cross-claim to adduce further evidence – proceedings have been fully determined – applicant has previously made deliberate decision not to participate in hearing - prejudice to cross-claimants if application granted – potential for inconsistent findings if new evidence adduced – contrary to administration of justice for Court to make inconsistent findings – not in interests of justice to grant application – application dismissed

CIVIL LAW - stay of execution of writ

CIVIL LAW - pro bono legal assistance - relevant considerations - means of plaintiff - availability of legal representation - complexity of the matter - competent and determined law firm representing defendant

PROCEDURE - judgments and orders - amending, varying and setting aside - application by defendants to set aside or vary judgment and leave to reopen under Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) - where reasons for judgment delivered but orders not entered - whether misapprehension of facts established - whether leave should be granted to defendants to reopen case - whether judgment should be set aside or varied.

COSTS - indemnity costs appropriate - cross-claim doomed to fail - statute-barred based on the cross-claimant's own admissions and undisputed facts - delinquent conduct in the course of the proceedings, including giving false evidence and false instructions to his legal representatives

PRACTICE AND PROCEDURE – undertakings to the court – application for discharge from undertaking – relevant principles – where purpose of undertaking has been defeated by its breach – where not satisfied that breach was flagrant or wilful – where proceedings would otherwise be stultified proceedings – stay discharged upon those beneficially interested acknowledging personal liability for undertaking and providing security

PRACTICE AND PROCEDURE - vexatious proceedings - former director of company in liquidation instituting small number of vexatious proceedings against liquidator appointed by the court - difficulty serving defendant with originating process - importance of protecting an official liquidator against harm arising directly from the discharge of his office

APPEAL - appeal to the Court from the Local Court - purported appeal as of right -challenge to the competency of the appeal - need for leave - abandonment of appeal immediately before competency was to be determined - defendant seeks indemnity costs - proportionality - amount in dispute in the appeal was $10,000 - costs on a gross lump sum basis

COSTS - indemnity costs - offers of compromise not accepted by unsuccessful plaintiff - prima facie entitlement of defendant to indemnity costs - whether Court should order otherwise - whether genuine offer of compromise - whether unreasonable to not accept offer

PROCEDURE - notice of motion - leave sought to maintain proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW) - leave not opposed - order made

CRIMINAL LAW - sentence - murder of police officer - intention to kill - significant cognitive impairment - life sentence not mandatory - above middle range objective seriousness but reduced moral culpability - good rehabilitation prospects but lack of genuine remorse CRIMINAL LAW - sentence - joint criminal enterprise - manslaughter of police officer - use offensive weapon with intent to hinder arrest - substantial impairment - reduced moral culpability - lack of remorse - reasonable prospects of rehabilitation

PROCEDURE - Supreme Court procedure - Application by Defendants for appointment of tutor for self-represented Plaintiff - Opposition by Plaintiff - Meaning of "person under legal incapacity" in UCPR - Applicable principles - Difficulty in nominating tutor who consents to act - Adjournment of application to determine whether, if a tutor cannot be nominated, a declaration and order may be made under s 41 of the NSW Trustee and Guardian Act 2009 (NSW) Plaintiff's application for trial by jury - Whether "interests of justice" require trial by jury

PROCEDURE - civil - interlocutory issues - application to vary security for costs order to increase amount of security provided - whether increase in costs incurred by defendant that was not anticipated at time of original application for security is a material change in circumstances

PRACTICE AND PROCEDURE - stay pending application for special leave to appeal to High Court - factors relevant in ordering a stay - prospects of success of special leave application - prejudice to the applicants and respondent if stay ordered or not

CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly excessive - relevance of starting point to appropriateness of sentence - objective seriousness of offence - relevance of brazen nature of offence - "ram-raids" as a class of offence - comparable cases of ram-raid

CRIMINAL LAW - appeal - appeal against conviction - whether trial judge directed jury to find that offender was person in photographic evidence - whether juror fell asleep during trial - whether facilities for jury deliberation induced poor judgment - whether jury induced to give verdict before prepared to do so - whether trial judge erred in directing offender to answer questions in English - effect of interpreter falling asleep during trial - whether offender's legal representative mistaken or negligent in failing to call witnesses - whether absence of certain evidence occasioned miscarriage of justice CRIMINAL LAW - appeal - appeal from sentence - whether sentence manifestly excessive - whether inappropriate weight accorded to offender's psychological condition - whether offender's status as first-time offender accorded adequate weight - whether sentencing judge failed to consider offender's mental health history and family circumstances

APPEAL AND NEW TRIAL - order for new trial - findings based on inadmissible evidence - whether unchallenged findings sufficient to determine liability without need for a retrial - inconsistencies between witnesses' account of accident - whether inconsistencies can be resolved by appellate court - opportunity at trial to assess reliability of accounts on the basis of witnesses' oral presentation DAMAGES - assessment - whether allowance for lost earning capacity inadequate - whether allowance for future domestic assistance inadequate - whether trial judge erred in reduction for vicissitudes EVIDENCE - admissibility - expert opinion evidence - evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event - whether opinion based wholly or substantially on specialised knowledge of the expert - extent of expert's specialised knowledge - whether expert had any specialised knowledge in psychology - Evidence Act 1995 (NSW), s 79 TORTS - negligence - motor vehicle accident - unidentified vehicle(s) involved in accident - inconsistent accounts as to nature and actions of the unidentified vehicle - trial judge resolved inconsistency by finding there were two vehicles involved - whether evidence sufficient to determine what caused the accident - whether evidence sufficient to find there were two vehicles - whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent

CRIMINAL LAW - good character direction in respect of co-conspirator - clarification of facts - questions regarding circumstantial evidence - direction of law concerning execution of contracts - application for directed verdict - jury access to summing-up.

CONSTITUTIONAL LAW - judicial power of Commonwealth - plaintiff's property seized by Commissioner of Australian Federal Police pursuant to search warrant - decision taken not to prosecute plaintiff for offences against Trade Marks Act 1995 (Cth), s.148 - Commissioner sought order for destruction of seized property under Crimes Act 1914 (Cth), s.3ZQZB(3) and (4) - subsections permit magistrate in exercise of discretion to order destruction of property seized by Commissioner if satisfied there are reasonable grounds to suspect that property likely to be used in commission of serious offence if returned to person from whom seized - Crimes Act 1914 (Cth), s.3CA purports to confer function on magistrate in personal capacity and not as court or member of a court - whether despite s.3CA function exclusively judicial in nature and legislation invalid - function not exclusively judicial CONSTITUTIONAL LAW - heads of Commonwealth legislative power - whether sufficient connection between exercise of function by magistrate and trade mark power under s.51(xviii) of the Constitution - sufficient connection found CONSTITUTIONAL LAW - acquisition of property - whether order for destruction of plaintiff's property constitutes an acquisition by the Commonwealth of property to be undertaken on just terms for the purpose of s.51(xxxi) of the Constitution - no acquisition of proprietary interest by the Commonwealth - in any event provision incongruous with notion of acquisition of property on just terms

EQUITY – equitable remedies – injunctions – interim injunctions – requirement for expedition – delay – where third party rights have intervened

CIVIL LAW - application for a stay of orders

EQUITY - trusts and trustees - trust funds - trustees maximum entitlement to fees now established - whether balance of trust should be paid to beneficiary - whether undisputed amount of trustee's fees should be paid to trustee

TORTS - negligence WORKERS COMPENSATION - employment - mining industry - plaintiff injured in workplace accident at a coal mine in 2010 - plaintiff suffered spinal injury - liability admitted during the hearing -defence of contributory negligence withdrawn during the hearing DAMAGES - consideration of the quantum of the plaintiff's claim - principles to be applied in determining partial or total incapacity for work - determination that the plaintiff is unable to return to any form of work -whether damages for future loss of earnings should be awarded on the basis of a retirement age greater than 65 years - determination of the plaintiff's likely retirement age - assessment of plaintiff's future needs - determinations made in accordance with the provisions of the Workers Compensation Act having regard to Sch 3 Part 18

REAL PROPERTY - possession of land - defendants give vacant possession of land after default - one defendant re-takes possession - proceedings for possession repeated failures by defendants to file defences - no explanation for failures - default judgment entered

REAL PROPERTY - possession of land - default under mortgage - defendant admits all allegations in statement of claim - judgment non admissions - summary judgment

CRIMINAL LAW - remarks on sentence - plea of guilty to murder during trial - offender bashed deceased in his own home - intention to inflict grievous bodily harm, not death - spontaneous offence - some evidence of remorse - offender had serious and longstanding problem with alcohol - offender on conditional liberty at the time of the offence

ADMINISTRATIVE LAW - challenge to the decision of The Independent Liquor and Gaming Authority to reduce trading hours of the plaintiff's premises from 3am to midnight on Sunday nights - no error shown in reasons - correct test applied - allegations of actual and apprehended bias arising from contact between Authority and Police and public statements made by Chair of Authority - no actual or apprehended bias - Authority was open to persuasion - relevance of decision made by group - members of Authority entitled to form preliminary views about applications based on experience - judicial decision-making not the relevant paradigm STATUTORY INTERPRETATION - whether "public interest" to be taken into account - importance of objects clause - meaning of "independent" in connection with Authority - whether requirements in s 49(8) of Liquor Act should be read into the Authority's power to vary of its own initiative in s 51(9)(b) - clear statutory wording required to bring about that result CIVIL PROCEDURE - extension of time granted - reasonable for plaintiff to await forthcoming reasons before formulating the grounds in the summons

SENTENCE - manslaughter - unlawful and dangerous act - one punch - unprovoked assault - no remorse - no evidence of intoxication - mid range objective seriousness - general deterrence

PERSONAL INJURY - application for an extension of time pursuant to s 60G of the Limitation Act 1969 (NSW) - claim arises from the diagnosis of the plaintiffs' sons as having a full mutation consistent with a diagnoses of Fragile X Syndrome - plaintiffs claim damages for mental harm and claim the defendant laboratory breached its duty of care in failing to test the first plaintiff's carrier status for Fragile X Syndrome - cause of action arguably accrued on the date of birth of each of the plaintiffs' two sons - application for an extension of time on the basis that after becoming aware of their sons' conditions the plaintiffs acted with reasonable expedition and that the extent of any damages awarded is likely to be significant - extension of time granted

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudicator failed to exercise powers in good faith - Whether adjudicator erred in his approach to the application of s 20(2B) and 22(2)(c) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

WORKERS COMPENSATION - enforcement of statutory debt under notice to reimburse - summary dismissal of defence and cross-claim in enforcement proceedings - whether matters determined by Workers Compensation Commission can be re-litigated in Local Court

CRIMINAL LAW - question arising as to the causal element in the various counts - challenge to listing of the conduct of each of the co-accsued.

PRACTICE AND PROCEDURE – interlocutory issue – electronic discovery – proposed Document Management Protocol – whether the field of metadata should include relative file path data – whether making order consistent with the overriding objective of the Civil Procedure Act 2005 of the just, quick and cheap resolution of issues in proceedings – little or no significant additional cost in context of discovery – relative file path data will have a functional utility – likely to benefit all parties – appropriate for the relative file path data to be included