Cases and authorities

CRIMINAL LAW - appeal - application for permanent stay - need to identify fundamental defect and unfair consequences or proceedings amount to abuse of process- illegal compulsory examination of charged person about charges - no evidence of actual unfairness caused - no access to transcript of examination

CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same - whether indictment gives rise to plea in bar or abuse of process or one conviction must be quashed to avoid double punishment as whole of criminality is encompassed in one offence - whether plea in bar exists requires consideration of what elements must be proved not what evidence might be called - supply offence had additional element of a commercial quantity - theoretically possible to know drug is precursor but not prohibited drug - laying of charges could not be abuse of process were offences different in important respects - charges reflect whole criminality of accused CRIMINAL - appeal - sentence - whether interrelated nature of supply and possession offences considered in determining objective seriousness of supply offence - whether in assessing objective criminality trial judge was obliged to find appellant only in possession of drug for purposes of supply - relevance of Crown case at trial CRIMINAL - appeal - sentence - fact finding of sentencing judge - whether reasonable for judge to infer appellant's knowledge of size of drug enterprise CRIMINAL - appeal - sentence - Muldrock error - conceded by Crown CRIMINAL - appeal - sentence - parity - need to re-sentence to ensure relativity of appellant's role is reflected where co-offenders more senior in drug enterprise were resentenced

CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same CRIMINAL - appeal - sentence - whether interrelated nature of supply and possession offences considered in determining objective seriousness of supply offence CRIMINAL - appeal - sentence - fact finding of sentencing judge - whether reasonable for judge to infer appellant's knowledge of size of drug enterprise CRIMINAL - appeal - sentence - Muldrock error - conceded by Crown CRIMINAL - appeal - sentence - parity - need to re-sentence to ensure relativity of appellant's role is reflected where co-offenders more senior in drug enterprise were resentenced

CRIMINAL - appeal - sentence - whether 40 per cent discount for assistance and plea appropriate - late plea - early offers to plea conditional - strong Crown case - relevance of Crown decision following plea to not proceed with retrial of co-offenders CRIMINAL - appeal - sentence - appropriate ratio between head sentence and non-parole period - whether appropriate weight given to applicant's custodial conditions and hardship to applicant's family

CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same CRIMINAL - appeal - sentence - whether sentencing judge failed to consider delay between commission of offence and sentencing - failure to raise delay with sentencing judge - no explanation for failure provided on appeal - sentencing appeals are a reviewing of the exercise of a discretionary judgment not rehearing a plea in mitigation CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - difficulty when comparing sentences imposed with respect to different offences with different maximum penalties - difficulty where co-offender is charged with different offence with lower maximum penalty despite conduct being objectively more serious - need for sentences to reflect the different criminal culpability between co-offenders with more senior roles in the drug enterprise

CRIMINAL - appeal - conviction - whether verdict unreasonable - appellant acquitted of importation of border controlled precursor - appellant convicted of supply of prohibited drug - drug in both offences the same - mental element of both offences formed in same period - acquittal of importation offence on reasonable doubt as to mental element - whether failure to convict on importation offence rendered conviction on supply offence unreasonable - consideration of jury questions CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of importing border controlled precursor where precursor and prohibited drug the same CRIMINAL - appeal - sentence - De Simoni principle - whether judge impermissibly considered conduct relating to drug importation offence when sentencing for supply offence - practical necessity requires references to context in which offending occurred and surrounding circumstances CRIMINAL - appeal - sentence - whether manifestly excessive - whether any error in assessment of criminal culpability and appointment of appellant's role in drug syndicate CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - position of trial judge

CRIMINAL LAW - appeal - appeal from sentence - whether offences in worst category of case - offender's intended use of firearms - whether evidence supported finding as to intended use of firearms CRIMINAL LAW - appeal - appeal from sentence - whether lawyer's delay provided appropriate basis for reducing discount CRIMINAL LAW - appeal - appeal from sentence - parity - whether principles of parity in sentencing applicable CRIMINAL LAW - appeal - appeal from sentence - whether relevance ascribed to offender's subjective features and history of social deprivation consistent with Bugmy v R [2013] HCA 37; (2013) 249 CLR 571

APPEAL - application for leave - summary dismissal of claim - no reasonable prospect of success - leave refused

APPEAL - application for leave - refusal to set aside statutory demand - no question of general principle - reasonably clear injustice not shown - leave refused

APPEAL - application for leave to appeal - where Supreme Court dismissed appeal against orders of Local Court magistrate - where applicant unrepresented in Local Court - where magistrate refused to allow applicant to cross-examine certain witnesses and refused applicant leave to file second further amended summons - whether Supreme Court erred in finding applicant was not denied procedural fairness

DEFAMATION - imputations - innuendo - extrinsic facts - whether the reputation of a third party can constitute an extrinsic fact relied on to support an innuendo absent proof that the reputation is based on fact PRACTICE AND PROCEDURE - costs - defamation proceeding - no order as to costs - whether successful plaintiff properly deprived of costs - whether defendant should have received costs on the basis of a timely apology which was not accepted - whether either party should have leave to appeal against no costs order

PRACTICE and PROCEDURE - appeal - power to reopen judgment and set aside orders - orders entered - failure to address submission - failure to refer to authorities relied on by applicants

CRIMINAL LAW - objection to evidence on the basis of relevance, hearsay and prejudice.

COURTS AND JUDGES - application for disqualification on basis of apprehended bias (pre-judgment arising from interlocutory rulings and alleged credit finding)

EQUITY – trusts and trustees – removal and replacement of trustees

CORPORATIONS – voluntary administration – deeds of company arrangement – order sought to extend date of termination of deed of company arrangement – where consent order previously made for deed of company arrangement to terminate on relevant date under Corporations Act 2001 (Cth) ss 445D and 447A – where company is solvent – whether date of termination of deed of company arrangement should be extended.

ADMINISTRATIVE LAW - application for judicial review - whether decision of the proper officer of the Motor Accidents Authority infected by jurisdictional error - whether proper officer asked himself an incorrect question when deciding whether to refer a dispute to a medical appeal panel - whether proper officer went beyond gatekeeper function

HIGH RISK SEX OFFENDER - application for interim supervision order - application for mandatory forensic assessment - no dispute as to making of orders - dispute as to conditions attaching to interim supervision order - no question of principle

CORPORATIONS - winding up - liquidators - ex parte application for issue of warrants under Corporations Act 2001 (Cth) s 530C - whether relevant persons have removed relevant property of company to prevent or delay liquidators from taking control of property - whether a purported transfer of relevant property precludes the issuing of a warrant - undertakings as to damages - whether there is a proper basis for warrants to be issued - whether warrants should be subject to conditions - whether liquidators should otherwise be authorised to take possession of vehicles under Uniform Civil Procedure Rules 2005 (NSW) r 25.3 or inherent jurisdiction.

TRUSTS - trustees for sale - dispute about sale between trustees for sale of Torrens title property and one of its co-owners - whether directions should be made to expedite sale of the property.

EQUITY - Interlocutory application - motion for summary dismissal - where an order for security for costs has been made - where the plaintiff has failed to pay security - where the plaintiff has provided no evidence of ability to provide security - where there is prejudice to the defendant

PROCEDURE – pleading – documents – necessity to plead effect of document and not merely incorporate by reference

CIVIL LAW - medical negligence - application for proceedings commenced in the District Court of NSW to be transferred to the Supreme Court of Queensland - identification of the more appropriate forum for proceedings

EVIDENCE - pre-trial application for exclusion of expert evidence - whether admissibility should be dealt with on an interlocutory basis by judge who may not be the trial judge - whether evidence complies with test for admissibility of expert opinion evidence - whether general discretion to exclude evidence should be exercised - pre-trial application for directions with regard to expert evidence - consideration of the role a judge should play in determining what evidence is presented

SUCCESSION - Wills, Probate and Administration - Protective jurisdiction - Allowance of provision for family out of protected estate - Statutory will - Approval of family settlement - Principles applicable MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Management and administration of property - 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 - Allowance of provision for family out of protected estate - Approval of family settlement - Material considerations

ADMINISTRATIVE LAW - challenge to findings of ICAC - "insufficiency of evidence" - illogicality and irrationality - satisfaction of decision maker required, not objective existence of circumstances - summons dismissed

DEFAMATION - allegation of theft - only issue was substantial truth - factual determination - no issue of principle

PROCEDURE - UCPR r 42.21 - failure by plaintiff to pay security for costs - application for dismissal within short time frame - exercise of the Court's discretion

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - offender who was threatened with violence due to his non-payment of a drug debt arranged for a group of men to come to his residence at the time appointed for repayment to protect him - offender orchestrated conflict that led to death - planning and deliberation involved - response inimical to civilised society and the rule of law - limited remorse - offence committed while on parole - no special circumstances

BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) s 7C makes void a provision in contract requiring disputes under contract to be referred to arbitration - whether whole or only part of agreed dispute resolution regime is such a provision - whether other parts of regime remain effective - severance ARBITRATION - agreed dispute resolution regime containing provision requiring disputes to be referred to arbitration - provision rendered void by statute - whether other parts of regime remain effective - severance CONTRACTS - illegality - provision requiring disputes under contract to be referred to arbitration - provision rendered void by statute - whether other parts of regime effective - severance PRACTICE AND PROCEDURE - civil - stay of proceedings - agreement providing for disputes to be determined in accordance with regime involving expert determination - proceedings commenced contrary to agreement - dispute simultaneously the subject of court proceedings and expert determination - stay granted

PROCEDURE - application for summary dismissal of application for judicial review - ADMINISTRATIVE LAW - judicial review - mandamus - where mandamus sought against minister for disability services to perform his duty under the Disability Services Act 1993 according to law - whether funding of certain style of housing for people suffering with disability not done in conformity with the objects of the act - whether "decision" amenable to judicial review - whether justiciable issue - whether attempt to engage court in merits review of ministerial policy decisions

Negligence - school and pupil - council pool sporting activity - swimming

APPEAL - notice of discontinuance - notice filed by liquidator of two appellants, without notice to remaining appellants - whether consent of all "active parties" obtained - whether notice of discontinuance by some but not all appellants effective - notice held ineffective COURTS - power to control proceedings - importance that appeal books reflect only the evidence admitted at first instance - material not before primary judge apparently added to appeal books by fourth appellant - fourth appellant not an Australian legal practitioner - fourth appellant given opportunity to provide explanation MORTGAGES - default - exercise of power of sale - obligation to exercise reasonable care, not merely good faith - Corporations Act 2001 (Cth), s 420A - whether breach by advertising "mortgagee sale" - whether breach by misdescribing suburb - whether mortgagee obliged to wait for mortgagor to complete proposed sale - no breach established PRACTICE - parties - where person joined as additional plaintiff by amendment - where joinder said to be in error - whether merely typographical error - person joined until such time as removed from proceedings TORRENS TITLE - mortgage - power to take possession - not qualified by service of motion under Real Property Act 1900 (NSW) s 57(2)(b) TRUSTS AND TRUSTEES - mortgage of property held on trust - trust has no separate legal personality - registered mortgage by trustee did not disclose that mortgage was granted as trustee to secure performance of guarantee - mortgage valid and enforceable by mortgagee

ENVIRONMENT AND PLANNING - validity of construction certificates - primary judge erred in finding that construction certificates were not inconsistent with development consent - whether finding of inconsistency would render construction certificates invalid - scope and purpose of statutory regime construed as a whole does not require a finding of invalidity where construction certificates found to be inconsistent with development consent ENVIRONMENT AND PLANNING - where construction certificates found to be inconsistent with development consent - whether development was carried out otherwise than in accordance with the development consent - application of s 80(12) of the Environmental Planning and Assessment Act - construction certificates deemed to form part of development consent ENVIRONMENT AND PLANNING - responsibility for carrying out development - whether respondent could be held responsible for any failure to carry out the development in accordance with the Environmental Planning and Assessment Act ENVIRONMENT AND PLANNING - exercising a function under the Environmental Planning and Assessment Act - respondent developer was not exercising a power, authority or duty directly conferred or imposed by the Act APPEAL - where primary judge in the Land and Environment Court erred in finding construction certificates were inconsistent with development consent - whether Court of Appeal can make findings to resolve the factual question - whether Court of Appeal can proceed assuming that factual finding to resolve question of law as to validity of challenged construction certificates

CRIMINAL LAW - EVIDENCE - expert evidence - whether opinion as to usual causes of fires in "meth labs" unfairly prejudicial - evidence allowed - hearsay evidence - evidence that gas burner "on" - expert who examined premises overseas - whether "unavailable to give evidence" - no notice given - no evidence of steps taken to secure attendance - unclear whether evidence based on personal observation - unclear whether evidence a conclusion - no evidence of basis of conclusion - danger of unfair prejudice - evidence rejected

COSTS - Proceedings for removal of one joint executor/trustee resolved on morning of hearing - No issue of principle

FAMILY PROVISION AND MAINTENANCE - Claim against mother's estate by adult son who had been dependent on parents his entire life - No issue of principle - Succession Act 2006, ss 59, 60

APPLICATION - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentence infected by "Muldrock error" - offence of murder - guilty plea - "Muldrock error" did not arise in sentence judgment - no other mitigating circumstance raised - application refused.

GUARDIANSHIP - Protected person - Financial Management - Appointment of receiver and manager of protected estate

CRIMINAL LAW - sentence - murder - pre-meditated killing for financial gain - offender terminally ill

PROCEDURE - Discovery - Application for preliminary discovery - Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1)(a) - Whether plaintiff may have a claim for relief- where plaintiff had made reasonable enquiries- whether an order for preliminary discovery should be made

CIVIL LAW - application for summary dismissal by five of a multiplicity of defendants in proceedings arising out of collapse of ABC Learning Centres - plaintiffs underwrote the issue of $600 million worth of reset convertible notes - correct test for summary disposal - liability of company secretary/general counsel and non-executive directors for false and misleading representations - answers in management questionnaire completed in advance of notes issue - liability for Directors' Declaration made pursuant to Corporations Act - whether representations properly pleaded - whether representations of fact or opinion - implied representations arising from statements of opinion - whether conduct "in trade or commerce" - whether conduct "in relation to a financial product or service" - disjunctive pleading or reliance - whether amendments were brought within limitation period - application to amend statement of claim

DEFAMATION - defences - offer to make amends - requirements of a valid offer - whether offer reasonable in all the circumstances DEFAMATION - damages - prominent article in major newspaper - imputations attributed to female teacher of sexual impropriety with boys - case of wrongful identification - plaintiff not named in matter complained of but identified by the inclusion of incorrect detail - proper approach for assessing extent of harm - factors aggravating damages

APPEAL - Muldrock error - error in finding that the appellant was on bail at the time of the offending - error in assessing evidence of appellant's mental illness - necessity to exercise sentencing discretion afresh APPEAL - sexual offending - where relationship between appellant and the victim had ended - where offending occurred in premises previously shared by the appellant and the victim - whether this was an aggravating factor APPEAL - sentence - sexual offending - whether some other sentence was warranted in law and should have been passed - relevance of appellant's mental and physical illness - conditions of custody - seriousness of offending - no other sentence warranted - sentence not manifestly excessive - appeal dismissed

CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge found that the applicant knew that the money was proceeds of crime - where applicant charged with an offence which alleged that it was reasonable to suspect that the money was proceeds of crime - whether findings of the sentencing judge breached principle in De Simoni - whether the circumstances which led to that finding were unfair to the applicant CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge assessed applicant's assistance as modest - where assistance resulted in the apprehension and prosecution of another offender and the recovery of a substantial amount of money - whether assessment of assistance correct - whether sentencing judge took into account irrelevant considerations in assessment CRIMINAL LAW - sentencing - money laundering offences - where applicant pleaded guilty at the earliest available opportunity - where 25 per cent discount allowed - where applicant's assistance not given proper weight - error established - applicant resentenced

CRIMINAL LAW - Appeal against conviction - trial before judge alone - appellant convicted of sexual assault and indecent assaults - whether verdicts unreasonable - whether error in complainant giving evidence pursuant to Criminal Procedure Act 1986 (NSW), ss 306U and 306ZB - whether error in discounting appellant's prior good character - appeal against conviction dismissed. CRIMINAL LAW - Crown appeal against sentence - whether error in imposing wholly concurrent sentences - whether sentences unreasonable or unjust - Crown appeal allowed.

CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving of unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses - discrepancies in their descriptions - both child witnesses identify very distinctive feature of assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to jury - no miscarriage of justice - this ground of appeal dismissed - matter remitted to District Court for new trial.

CRIMINAL LAW - sentence - robbery with wounding - deferral of sentence under s 11 Crimes (Sentencing Procedure) Act - crown appeal - where deferral appropriate - sentencing judge places emphasis on rehabilitation - no finding of objective seriousness - custodial sentence ordinarily required - sentence of deferral manifestly inadequate

CRIMINAL LAW - proposed direction of law - whether expert evidence - use and role of evidence entirely factual.

PROCEDURE - application to dismiss statement of claim - proceedings brought by plaintiff 22 years after the event - plaintiff's right to damages extinguished under Civil Aviation (Carriers' Liability) Act