Cases and authorities

JURISDICTION - Court of Appeal - whether appeal properly lay to the Court of Appeal

INJUNCTIONS – order made by duty judge to restrain proceeds of sale of property – dispute as to quantum to be restrained – no question of principle

SUCCESSION – family provision – application under s 59 Succession Act 2006 (NSW) – whether adequate provision made for applicant – adult applicant – applicant grandchild of deceased – applicant an eligible person in this case – estate inadequate to justify family provision order in favour of applicant – claim dismissed

PROCEDURE - Supreme Court procedure - New South Wales - power to deal with moneys paid into Court PROFESSIONS AND TRADES - lawyers - liens - fruits of litigation lien - liens asserted by different firms of solicitors over single fund paid into Court - whether solicitors' failure to make adequate disclosure of estimated costs and to render detailed bills constituted grounds for rejecting assertion of lien - whether assessment of costs should be referred to a costs assessor as referee or determined pursuant to procedures under Legal Profession Act 2004 (NSW)

PROCEDURE – undertakings to the court – application to be relieved from undertakings – where party giving undertaking claims impecuniosity – where no disclosure of how funds have been applied – held, heavy burden on applicant for relief from undertaking not discharged.

COSTS - summary criminal proceedings - whether binding contract for payment by prosecutor of costs of defendant's costs established through correspondence

PROCEDURE - claim for possession and debt - motion for leave to filed amended defence - prior defence struck out by consent - new defence identical in part to struck out defence - defence alleges that loan should not have been made by reason of inability of borrowers to service loan - loan for commercial and development purposes - defence struck out

CRIMINAL LAW - sentence - murder - manslaughter - co-offenders - serious offences - victim impact statement - totality and parity - special circumstances - aggravating factors - mitigating factors - personal circumstances - deterrence

EVIDENCE - expert evidence - whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation - whether evidence was unfairly prejudicial - where excluding evidence would effectively determine the issue of substance to which that evidence was directed EVIDENCE - expert evidence - whether to reject evidence of valuations prepared for non-litigation purposes - where valuations were business records - whether r 31.23 only applies to reports prepared by an "expert witness" - whether court should "otherwise order" - whether evidence would be unfairly prejudicial - where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses - where signatories not involved in preparation of joint expert reports EVIDENCE - expert evidence - expert valuation of land - whether one expert's evidence to be preferred - where one expert witness briefed with substantially more information - where other expert prepared a "blind" valuation - where expert town planning advice not available to original valuer - where expert town planning advice nevertheless relied upon by one expert witness - where expert town planning advice speculative NEGLIGENCE - duty of care - whether mediator and valuer owed a common law duty of care to plaintiffs - whether plaintiffs were vulnerable - where valuer did not know the purpose for which the valuation was to be used - whether reliance is sufficient to establish vulnerability - whether plaintiffs could have protected their own interests - whether valuation negligent - whether valued at highest and best use of the site - whether negligent in valuing property without expert town planning advice - whether no valuer acting prudently and reasonably could arrive at the value in the valuation report - whether mediator negligent in instructions to valuer - whether mediator owed parties in dispute a duty of care in instructing valuer - whether mediator breached duty of care - whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer - whether mediator protected from liability as acting in capacity as mediator MISLEADING AND DECEPTIVE CONDUCT - expert valuation of property - whether value attributed to property was misleading or deceptive - whether direct or indirect reliance on valuation - whether the valuation causative of loss

[PRACTICE AND PROCEDURE] - application to amend List Statement - whether there is utility in granting leave - whether the claim as amended is so untenable that it cannot be sustained

CRIMINAL LAW - sentence - convicted after trial - murder

CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly inadequate - objective seriousness of offence - whether special circumstances justified variation of statutory ratio - residual discretion to decline to interfere with sentence

APPEAL AND NEW TRIAL - application for leave to re-open - application refused by primary judge - whether the primary judge made an error of discretion

INTEREST - judgments - payments made to plaintiffs under first instance judgment that was reversed on appeal - amounts repaid by plaintiffs after appeal decision - claims by defendant for interest on judgment amounts from the time when paid to the plaintiffs until the time repaid - whether interest should be awarded at pre-judgment or post-judgment rate COSTS - costs at first instance - plaintiffs ordinarily entitled to order for payment of the whole of their costs notwithstanding that they might not have recovered the whole of the amount they claimed - defendant/appellant succeeded in defeating a distinct part of claim against it - defendant/appellant to pay 50 per cent of plaintiffs'/respondents' costs at first instance

NEGLIGENCE - respondent injured after falling from moving train operated by appellant - whether sufficient evidence to enable affirmative conclusion to be drawn that respondent's body was protruding significantly from train doors when train left station - whether conflicting inferences of equal degree of probability - whether primary judge's acceptance of evidence of respondent's brothers was glaringly improbable or otherwise flawed - whether State was denied procedural fairness by supposedly late formulation of case against it - appeal allowed

CROSS-VESTING – application to have proceedings transferred to another State – delay in having application determined due to error on the part of defendant applicant – consequent inconvenience to plaintiff

APPEAL - from Local Court - claim for trespass to land - neighbour cuts down trees on Plaintiff's land - various procedural errors alleged - whether errors of law - one party calls another party to give evidence - whether an abuse of process - magistrate permits discontinuance against one defendant - whether consent of other defendant needed - apprehended bias -failure of appellant to object at trial to matters now complained of - whether waiver by failing to raise matters

DEEDS - deed of release - other matters - construction of deed of settlement and release and annexed supplementary deed - whether deeds provide complete defence to plaintiffs' claim - held deeds provide a complete defence - proceedings summarily dismissed

ADMINISTRATIVE LAW - procedural fairness - whether duty to accord procedural fairness before suspending licence - whether duty excluded - whether no breach because “overall process” was fair - whether relief should be refused because of futility - whether relief should be refused because of the availability of an appeal DELEGATED LEGISLATION - construction - literal meaning nonsensical - whether purposive construction available - relevance of rules not being carefully drafted DELEGATED LEGISLATION - validity - non-purposive rule-making power - whether power authorised a rule which prohibited rather than merely regulated - whether rule within subject matter of power GAMING AND RACING - harness racing - construction and validity of national and local rules - challenge to validity of AHRR 90, 90A, 91 and 188A dismissed

PROCEDURE - access to audio recordings of court proceedings - whether the written transcript evinces any relevant inaccuracy

PRACTICE - application of dismissal for want of competency - delayed service of notice of appeal - application not made promptly - application for dismissal for want of prosecution - evidence of ability to fund appeal - extension granted, subject to guillotine order

PRACTICE - application to issue subpoenas and for discovery - no legitimate forensic purpose

APPEAL - application of leave to appeal from grant of leave to discontinue - no question of principle - leave refused

APPEAL - application for leave to appeal from an interlocutory judgment granting leave to proceed against a defendant outside New South Wales - where applicant contends he has not submitted to jurisdiction - where applicant has challenged the merits of the plaintiff's claim - where final orders have been made in substantive proceeding - no prejudice to applicant in refusing leave

CORPORATIONS – winding up – application by liquidator for special leave to distribute surplus of assets in the liquidation of company – where contributories do not oppose application – whether surplus of assets exists – whether special leave should be granted to liquidators to distribute surplus assets of company

PROCEDURE – application to vary order – where variation of order required to prevent sale of property the subject of security interests prior to the hearing of an interlocutory application – consideration of interests of and potential prejudice to third parties and the receiver – held, order varied.

WILLS - Construction - where will establishes special disability trust - where discretionary powers of special trustee - nature of interest of beneficiary of special disability trust - whether certain clauses inconsistent with primary objects of trust - whether certain clauses contrary to public policy - whether trustee placed in position of conflict of interest - whether grant of declarations of any utility

CRIMINAL LAW - appeal - sentence - child sexual assault offences - child abuse material offences -- criticisms of conduct of lawyers acting for applicant on sentence not made out - unjustified reduction of discount for some pleas of guilty but no material effect on aggregate sentence - no error in discounts not being precisely quantified -claim to be in protective custody not made out - aggregate sentence not manifestly excessive CRIMINAL LAW - sentence - aggregate sentence - unnecessarily detailed approach of specifying non-parole periods and commencement dates for indicative sentences - principles and statutory provisions concerning aggregate sentencing - contentions about assessment of indicative sentences misplaced

APPEAL - appeal against conviction - applicant convicted of attempted sexual intercourse without consent with a person under the age of 10 years - whether verdict unreasonable or insupportable having regard to evidence - Whitehorn v The Queen [1983] HCA 42 - Douglass v The Queen [2012] HCA 34 - complainant's evidence given by video - recordings of interview with police - whether manner of giving evidence undermined the principles of fair trial - whether probative value of the evidence outweighed by prejudicial effect - Evidence Act 1995 (NSW), s 137 CRIMINAL LAW - appeal - admissibility of evidence - whether probative value of evidence outweighed by danger of unfair prejudice - credibility of witness

CRIMINAL LAW - appeal against sentence - two offences of sexual intercourse without consent - whether sentences were severe and manifestly excessive - applicant unrepresented - whether false advice was received from incompetent legal representatives - whether expert medical report tendered by defence were not considered by sentencing judge - whether sexual abuse inflicted upon the applicant during childhood was not adequately taken into account by sentencing judge - leave to appeal be granted but appeal be dismissed

CRIMINAL LAW - appeal against sentence - break, enter and steal - possess child abuse material - whether sentence is manifestly excessive

APPEAL - application for leave to appeal - whether the primary judge was correct to find that the powers under rr 36.15 and 36.16 were enlivened so as to permit the setting aside of two earlier sets of orders - whether the application should be adjourned to allow the joinder of necessary parties

ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - power to investigate "corrupt conduct" - whether allegations capable of falling within the meaning of "corrupt conduct" - whether conduct could "adversely affect" exercise of official functions by any public official - whether status of the applicant is an irrelevant consideration - whether conduct could pervert (or be an attempt to pervert) the course of justice - power to conduct "public inquiry" - whether legally unreasonable to conduct "public inquiry" - Independent Commission Against Corruption 1988 (NSW), ss 7, 8, 13, 31 ADMINISTRATIVE LAW - reasons for administrative decisions - obligation of the Independent Commission Against Corruption to provide reasons - power of the court to direct a public authority to provide a statement of reasons in "judicial review proceedings" - whether order would be inconsistent with requirement of an officer of the Commission not to divulge or communicate information -- Independent Commission Against Corruption 1988 (NSW), s 111 - Uniform Civil Procedure Rules 2005 (NSW), r 59.9 CRIMINAL LAW - offence - perverting course of justice - whether "course of justice" includes police investigations - alleged attempt to divert police from conducting a blood alcohol test by pretending to have chest pains - whether "course of justice" perverted by deflecting possible court proceedings resulting from investigations - Crimes Act 1900 (NSW), ss 312, 319

TORTS - False arrest and false imprisonment - Requirement to inform arrested person of the true ground on which the arrest is made - Whether respondent was given sufficient detail of the reason for arrest - Whether in the circumstances it was not reasonably practicable to provide further detail TORTS - Maliciously inducing arrest - Whether complainant, motivated by malice and without reasonable and proper cause, caused or procured the arrest TORTS - Malicious Prosecution - Whether prosecutor acted without reasonable and probable cause and acted maliciously - Reasonable and probable cause and malice are two separate issues and must each be proved - Whether primary judge erred in finding that the appellant acted maliciously - Whether prosecutor acted upon an improper purpose - Concept of malice requires that the sole or dominant purpose of the prosecutor was something other than the proper invocation of the criminal law TORTS - Malicious Prosecution - Procurement of prosecution - Whether complainant actively instigated and maintained the prosecution - Whether the discretion of the prosecuting officer was misled by false information from the complainant concerning facts relating to the alleged offence which were only within the knowledge of the complainant

APPEAL AND NEW TRIAL - review of single judge of appeal - nature of such a review - whether the orders single judge of appeal should be varied, by reason of error or of a change of circumstances - Supreme Court Act 1970 (NSW), s 46(4) APPEAL AND NEW TRIAL - security for costs - whether there has been a change of circumstances that would stultify the appeal if the order for security for costs made by the single judge of appeal were not reconsidered - whether the appeal has reasonable prospects of success

ADMINISTRATIVE LAW - judicial review - summons to produce documents issued by ICAC - ICAC Act s 35(1) - whether primary judge erred in finding summons authorised by s 35 - whether decision to issue summons was for a purpose other than an investigation - whether decision to issue summons illogical, irrational or unreasonable - whether ICAC failed to accord procedural fairness to appellant ADMINISTRATIVE LAW - judicial review - notice to produce served on ICAC by appellant - whether primary judge erred in setting aside notice to produce - whether primary judge erred in finding ICAC Act, s 111(3) applies to ICAC as a separate legal personality - whether primary judge erred in concluding s 111(3) applies to documents created internally by ICAC CONSTITUTIONAL LAW - implied freedom of communication on governmental and political matters - whether primary judge erred in finding s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose and therefore consistent with the implied freedom CONSTITUTIONAL LAW - judicial review - whether primary judge erred in finding s 111(3) consistent with power of Supreme Court to grant relief in relation to jurisdictional error

COSTS - appeal - application for indemnity costs - whether conduct of respondent prior to the default judgment justified order for indemnity costs of the appeal - whether conduct of unsuccessful respondent to appeal justified indemnity costs order PRACTICE AND PROCEDURE - appeal - default judgment set aside on appeal - request that Court make orders in respect of proceedings in the Common Law Division - Uniform Civil Procedure Rules 2005 (NSW), rr 9.1, 14.3 and 36.16

ADMINISTRATIVE LAW - judicial review - error of law - whether District Court erred as to scope of statutory obligations of owners' corporation to maintain and repair common property - appeal from decision of Consumer, Trader and Tenancy Tribunal dismissed - no appeal from order of District Court - substantive issue between the parties no longer exists - respondents seeking to maintain favourable costs order in court below - public interest in addressing erroneous construction of powers and obligations of an owners' corporation -whether relief should be declined on discretionary basis STRATA TITLES - owners' corporation - powers and duties - maintenance and repair of common property - lot owner altered common property without authorisation - whether owners' corporation's obligation to "maintain" common property to be read down by reference to duty to "keep in good and serviceable repair" - whether obligation to maintain common property extends to removing unauthorised alteration - entitlement to order for access against occupier - Strata Schemes Management Act 1996 (NSW), ss 62, 65, 145

STRATA TITLE - owners corporation commenced proceedings without approval of general meeting - whether exemption applied - Strata Schemes Management Regulation 2010 (NSW) reg 15, construed - proceedings not approved by general meeting prior to hearing - effect of non-compliance with Strata Schemes Management Act 1996 (NSW), s 80D - proceedings dismissed PRACTICE - separate questions - answers to separate questions required dismissal of proceedings - motion filed to have regard to ratification after judgment delivered - whether motion should have been entertained

CORPORATIONS - commencement of proceedings by owners corporation without authority - effect of ratification by general meeting STATUTORY CONSTRUCTION - whether Strata Schemes Management Act 1996 (NSW), s 80D required obtaining approval for litigation before commenced - construction of Act as a whole - use of dictionary definitions - whether proceedings commenced without prior approval invalid or a nullity STRATA TITLE - proceedings commenced by owners corporation without prior approval at general meeting - general meeting subsequently approves litigation - whether contravention of Strata Schemes Management Act 1996 (NSW), s 80D - whether effect of contravention that proceedings be stayed or dismissed

CRIMINAL LAW - sentence - murder - conviction after trial - intent to cause grievous bodily harm - spontaneous unexplained killing - offender intoxicated - history of substance abuse - mental condition of minor significance - below mid-range seriousness

CORPORATIONS – statutory demand – application to set aside statutory demand – whether defect in statutory demand – whether necessary for statutory demand to identify the primary taxation debts allocated to the relevant RBA – whether an absence of account number constitutes a defect

DEFAMATION – pleadings – determination of defendant’s objections to plaintiff’s pleadings

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – applicant and deceased estranged – formerly loving relationship – applicant provided assistance in deceased’s business – applicant not responsible for estrangement – costs of proceedings – where amount of costs incurred forms an unusual proportion of the value of the estate – attitude of Court

Plea of guilty to murder – reversal of plea – perceived improper conduct by legal representatives – application refused

CORPORATIONS - receivers and managers - appointment before proceedings commenced - claim for possession pursuant to a mortgage - neither leave obtained nor consent given - consent by receiver and manager later given - leave to commence nunc pro tunc

MENTAL HEALTH - Guardians, Committees, Administrators, Managers and Receivers - Fees and remuneration - Gifts and allowances out of a protected estate - Application by a protected estate manager for an allowance for past gratuitous care from estate of person since found capable of managing his affairs - Appilcant failed to account for estate property under management - Order for allowance out of estate not supported by, or in interests or for benefit of, former protected person - Application dismissed.

PROCEDURE - costs - notice of motion - orders seeking judgments to be set aside - whether judgments entered irregularly - costs assessor certificate - review panel certificate - whether court had jurisdiction to enter judgment in favour of plaintiff - whether costs assessor had power to consider and resolve the question of whether the disputed memoranda had been paid - defendant bound by certificates - certificates have not been suspended and may be enforced - Court has jurisdiction to enter judgment in favour of plaintiff - filing of costs assessor's certificate may not be aside under Rule 36.15 PROCEDURE - notice to produce - notice to produce set aside

CORPORATIONS - Winding up - Statutory demand - Application to set aside a creditor's statutory demand - preliminary question - identification of the date of service of the statutory demand - timing of service crucial to outcome of proceedings - registered office on first floor - mailbox on ground floor