Cases and authorities

PROCEDURE - civil - preliminary discovery - whether filing statement of claim precludes application for preliminary discovery - whether requirements for preliminary discovery met - whether rules 5.2 and 5.3 Uniform Civil Procedure Rules impermissibly blended - whether cause of action identified - whether categories of discovery too broad

COSTS - costs of interlocutory motion - costs in the cause - whether costs order should be varied - where both parties enjoyed a measure of success

PRACTICE - civil - Vexatious Proceedings Act 2008, s 14 - leave to institute proceedings; application for - seeking an order that plaintiff be appointed as tutor for son in existing proceedings - supporting affidavit requirements -Vexatious Proceedings Act 2008, s 15 - dismissal of application - affidavit substantially complies with minimum statutory requirements, whether - dismissal

ADMINISTRATIVE LAW - judicial review - decisions of public officials of the Worker's Compensation Commission of New South Wales - decision of Approved Medical Specialist - decision of delegate of the Registrar of WCC - whether decisions infected by jurisdictional error - legal status of Workcover Guidelines - whether decision of approved medical specialist in accordance with guidelines - whether lawful for delegate to treat reconsideration and appeal as alternatives between which an injured worker must elect

CRIMINAL LAW - procedure - submission by Attorney General to Court of Criminal Appeal of questions of law after accused acquitted of murder of child - trial judge made order for production by Department of Family and Community Services of reports concerning deceased child - whether Court precluded from making order by s 29 of Children and Young Persons (Care and Protection) Act 1998 (NSW) - principle of legality requires that s 29 be read down so as not to interfere with accused's right to fair trial STATUTORY INTERPRETATION - principle of legality - whether legislature intended to abrogate accused's right to fair trial by preventing the Court from making orders for production of reports by third parties - whether Department of Family and Community Services a "person" - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29 CONSTITUTIONAL LAW - limits on legislative power of States - power of Parliament to regulate criminal trials by enacting laws relating to evidence and procedure - whether statutory prohibition on Court compelling production of reports concerning children would be repugnant to or incompatible with institutional integrity of Supreme Court - legislation not invalid under principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

CRIMINAL LAW - appeal against sentence - deal with proceeds of crime - obtain financial advantage by deception - offences under s 178BA(1), s 193B(1) and s 300(2) Crimes Act 1900 - whether sentence manifestly excessive being unreasonable and plainly unjust

CRIMINAL LAW - appeal against conviction - charge of deemed supply of MDMA - Drug Misuse and Trafficking Act 1985 s 25(1), s 29 - judge alone trial - whether verdict unreasonable - whether on the whole of the evidence it was open to the judge to be satisfied of guilt beyond reasonable doubt

ENVIRONMENT AND PLANNING - use of building - temporary accommodation for backpackers - use of contempt proceedings to enforce prohibition on use the subject of consent orders PROCEDURE - Land and Environment Court - civil contempt - consent orders made restraining use of premises for "backpackers accommodation" - whether evidence established the premises were being used for "backpackers accommodation" as defined by local environmental plan - whether trial court could rely on failure of defendants to give evidence STATUTORY INTERPRETATION - definition in statute - use of defined term to inform definition - whether such use permissible - whether definition to be construed separately from its operative provision WORDS AND PHRASES - "backpackers accommodation" - "temporary accommodation" - Waverley Local Environmental Plan 1996

PROCEDURE - costs - claim for debt - defendant executes Personal Insolvency Agreement after filing defence - proceedings thereby stayed - whether plaintiff can seek costs notwithstanding the stay - whether appropriate to make costs order - admissions by defendant of debt in Statement of Affairs - whether court can determine that plaintiff would have succeeded in the proceedings

DEFAMATION - pleading - form of imputations - no question of principle

SUCCESSION - Plaintiff's application to restrain executor of a will from realising one of the assets of the estate - Where executor proposes to sell one parcel of real property of the estate - Where basis of Plaintiff's claim is that she seeks an order that it be provided to her absolutely - Whether seriously arguable case that she may obtain a family provision order of the whole of the real estate - Balance of convenience

COSTS - Calderbank letter - whether invalid offer of compromise was effective as a Calderbank letter - whether unreasonable for defendants to refuse offer - contribution between defendants for plaintiff's costs.

APPEALS AND REVIEW - Appeal against magistrate's refusal to grant access to subpoenaed material - legitimate forensic purpose - orders by consent - no matter of principle

PRACTICE AND PROCEDURE - summary disposal - application for dismissal of second Plaintiff's proceedings for want of due despatch - No evidence filed in support of second Plaintiff's Summons - Dismissal of proceedings - UCPR r 12.7

Practice and procedure - Application to amend pleadings during course of long and complex proceedings - No issue of principle - Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60 and 62

CONTRACTS -principal and agent - existence of relationship of agency - where plaintiff and first defendant entered into pass through arrangement to provide professional consulting services to third party - whether relationship between plaintiff and first defendant constituted an agency - whether plaintiff conferred any authority on first defendant to affect its relations with third party. EQUITY - trusts and trustees - express trust - existence of trust - intention - where no separate account established by first defendant to retain relevant monies by third party for plaintiff - whether relevant monies received by first defendant from third party was held on trust for plaintiff.

PRIVATE INTERNATIONAL LAW - stay of proceedings - generally - forum non conveniens - application under (CTH) Trans-Tasman Proceedings Act 2010 - proceedings for leave to bring derivative action alleging breach of directors duties, and oppression, in respect of Australian company the shareholders in which are New Zealanders - whether High Court of New Zealand is the more appropriate court to determine the matters in issue - whether exclusive choice of court agreement - whether High Court of New Zealand has jurisdiction to grant relief under (CTH) Corporations Act

BUILDING AND CONSTRUCTION – whether payment claim is valid – where claimant served two payment claims in relation to the same reference date – whether payment claim served in breach of s 13(5) is valid – whether there was a unilateral withdrawal of a payment claim – where withdrawal not consensual – where nothing said or done to indicate claimant no longer relied on payment claim – application of s 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION – whether service of payment claim valid – where payment claim not accompanied by supporting statement in the form prescribed by regulations – meaning of “must not” – whether requirement to include supporting statement is jurisdictional – whether s 13(7) intended to invalidate service of the payment claim – application of s 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION – adjudication determinations – whether as a matter of discretion to nonetheless withhold relief – whether first defendant led into its actions by conduct of the plaintiff – whether to withhold relief as amount of claim relatively small and within jurisdiction of Local Court

CRIMINAL LAW – Crown applies to re-open or lead in reply evidence and cross-examine accused – re-open refused – Crown allowed some evidence in reply – prejudice to co-accused.

EQUITY - application by defendant to re-open case after judgment pronounced but before final orders entered - material relied on in support of application available but not tendered at any point - whether appropriate to order money be paid into Court or enter judgment COSTS - where plaintiffs successful on motion to adopt report of referee - where order for joint and several liability made at time of reference without affecting power of Court as to costs - where significant period of time taken up by referee coming to a proper understanding of plaintiff's records - whether basis for ordering otherwise than costs following the event - whether the cross-claim of the defendant should be stayed pending quantification and payment of amount owed to referee

REAL PROPERTY - possession of land - defendant placed into liquidation - no defence disclosed - liquidator not opposing judgment for possession - defence struck out - judgment entered

BUILDING AND CONSTRUCTION - first adjudicator unable to assess defendant's delay damages claim on evidence before him - whether an issue estoppel arose - whether further adjudication application for same delay damages an abuse of process

CRIMINAL LAW - Crown appeal against sentence - sentencing judge's approach both contrived and unauthorised - importance of backdating a sentence - revocation of bail is not an available sentencing option - no power to revoke bail for a collateral purpose - sentencing ought not be conducted in a two-stage process - the importance of addressing all relevant purposes of sentencing - failure to take into account general deterrence- failure to assess objective seriousness - remarks on sentence insufficient - sentence manifestly inadequate - residual discretion exercised in particular circumstances

CRIMINAL LAW - grounds of appeal - scope - whether ground of appeal wide enough for ground as to whether individual offence was manifestly inadequate CRIMINAL LAW - sentencing - manifestly inadequate - individual offences - failure to consider general deterrence - whether sentence in range of sentences that could have been imposed CRIMINAL LAW - sentencing - manifestly inadequate - total sentence - overall criminality - different criminal nature of each offence - accumulation CRIMINAL LAW - residual discretion - whether to exercise - need to send clear guidance to sentencing courts

ABORIGINAL LAND RIGHTS - claim to Crown lands - claim precluded by opinion of the Minister that land needed or likely to be needed as residential lands - whether opinion required to be held by the Minister personally at the time of the claim - application of the Carltona principle - whether sufficient that the relevant opinion was held by departmental officers at the time of the claim - Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b1) ADMINISTRATIVE LAW - delegation of statutory powers - implied delegation of power to form opinion - application of Carltona principle - question of statutory interpretation

EQUITY - equitable remedies - injunctions - application for interlocutory mandatory injunction - where lessee seeks order that lessor undertake works to property - where lessee is not at risk of suffering damage - where damage, even if it were suffered, is not substantial - where problems have been evident for at least 2 ½ years - whether matter of urgency

PROCEDURE – disclosure – documents – application to set aside notice to produce and subpoenae for production – whether disclosure sought necessary – whether disclosure sought premature – necessity and relevance of documents sought

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

EQUITY - Application to set aside consent orders - Application under 'the slip rule' 36.17 of the Uniform Civil Procedure Rules 2005 - Application under the inherent jurisdiction of the Court - Where there is no ambiguity in the consent orders - Where there is no clerical mistake, error arising from an accidental slip or omission identified - Rule 36.17 not applicable in the circumstances - Where there is no conduct to invalidate the plaintiff's agreement to the consent orders

TORTS - negligence - tripping over sill on ferry - whether should have been painted to show height - whether contributory negligence

DEFAMATION - internet site - damage to reputation - truth not established - insufficient reciprocity of interest to warrant qualified privilege - damages awarded - permanent injunction granted BREACH OF CONFIDENCE - principles discussed - facts not established - inconsistency between equitable damage and account for profit discussed

ADMINISTRATIVE LAW - judicial review - consent orders - approval of settlement - orders seeking to quash a decision made by a Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - jurisdiction - orders sought to be made declined - jurisdiction not established

EQUITY - confidentiality - breach of duty of confidentiality - defences - plaintiff seeks an injunction to prevent the defendant from disclosing information to the NSW Police - whether defendant is obliged under s 316 Crimes Act to disclose the information - whether the defendant has a "reasonable excuse" not to disclose the information

COSTS - exception to the general rule that costs follow the event - multiple issues - plaintiff substantially successful on issue of confidentiality – whether costs should be apportioned.

CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – where presumption of insolvency arises from failure to comply with statutory demand – where company opposes application by disputing accuracy of statutory demand – whether company should be wound up.

PROCEDURE – subpoena and notices to produce – privilege – legitimate forensic purpose

FAMILY LAW AND CHILD WELFARE - application for parentage order under Surrogacy Act 2010 (NSW) s 14 - summonses initially sought transfer of parentage only from surrogate mother to intended mother - where birth certificate recorded surrogate mother as child's mother and intended father as child's father - necessity for parentage order transferring parentage from both surrogate mother and her husband to intended mother and father - birth of child must be registered in accordance with statutory requirements - where intended father's registration as father on birth certificate before parentage order made in contravention of statutory requirements - registration of surrogate mother's husband as child's father on birth certificate precondition to making parentage order - whether court satisfied that "exceptional circumstances" justify making parentage order despite precondition not being met - Surrogacy Act 2010 (NSW) s 18 - parentage order made

PROCEDURE - application for leave to file amended originating process and statement of claim - joinder of party to proceedings -whether permitting additional issues to be raised in these proceedings and joinder would facilitate the just, quick and cheap resolution of real issues in proceedings - principles of case management - whether proposed pleadings state the claim with sufficient clarity - whether proposed pleadings disclose reasonable causes of action - reflective loss - whether shareholder can claim compensation in oppression suit quantified by reference to personal loss derived from company's loss - particularisation of loss and causation.

JUDGMENTS - offer of compromise - offer accepted - when payment pursuant to judgment is to be made - when interest runs on judgment - Social Security Act - notice precluding payment of compensation

TORTS - negligence - separate determination of liability - in light of joint position of parties no discussion of legal principle required - whether plaintiff can establish on the balance of probabilities that the driver of a vehicle that crossed into oncoming traffic and collided with the plaintiff's vehicle was conscious and in control of his vehicle at the time of the collision

CONTRACT - construction - Bond Deed Poll incorporating terms and conditions of Exchangeable Bonds - Bonds to be exchanged on maturity into shares listed on the Australian Securities Exchange calculated by reference to their Current Market Value - if the amount of the Bonds plus interest exceeds the Current Market Value of the shares the defendant must pay the plaintiff a Cash Settlement Amount equivalent to the shortfall - Current Market Value in the first instance is the volume weighted average price (VWAP) over 20 trading days prior to Maturity Date - if the Issuer reasonably considers VWAP Value not to reflect Current Market Value it may issue an Alternative Valuation Notice - the terms and conditions include a procedure for the parties each to appoint an Independent Valuer to assess market value and the average of the two valuations is taken - defendant issued an Alternative Valuation Notice - each of the parties appointed an Independent Valuer - whether Alternative Valuation Notice was invalid as being out of time or because defendant did not reasonably consider that VWAP value was not market value of the shares - whether valuations by the Independent Valuers are not binding on the parties as not being in accordance with the Bond Deed - HELD Alternative Valuation Notice valid - valuation by Independent Valuer appointed by defendant not binding - valuation by Independent Valuer appointed by plaintiff binding

CRIMINAL LAW - appeal against sentence - manslaughter as a result of substantial impairment - related offences of killing animal with intent to inflict severe pain - judge did not disregard effect of depression on impairment - impairment not significantly greater than required for finding of substantial impairment - asserted error in disregarding mental condition in assessing moral culpability not established - general deterrence a relevant consideration in substantial impairment manslaughter - finding not required in this case that less weight should be given to general deterrence - no evidence that mental condition would make custody more onerous - sentences and degree of accumulation not manifestly excessive

CRIMINAL LAW - appeal against conviction - appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years - complainant made a statement after the offences took place to the effect that she was a virgin - defence counsel intended to use that statement to demonstrate a prior inconsistent statement - whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 - whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations - whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence - whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence - whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence - whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences - application of rule 4 of the Criminal Appeal Rules - appeal dismissed

CRIMINAL LAW - appeal against sentence - aggravated robbery in company - whether a justifiable sense of grievance has been engendered by the differential approach of the prosecution to the facts tendered in the sentence proceedings of the co-offender - whether sentencing judge erred in partially accumulating sentences

CRIMINAL LAW - appeal against sentence - threaten injury to person with intent to prevent lawful detention - guilty pleas - whether sentence was manifestly excessive

CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error - solicit to murder - referral of "the whole case" - significance of motive for sentencing purposes

CRIMINAL LAW - sentencing - offences of drug supply, possess prohibited weapon and possess false identification documents - effect on third parties if custodial sentence imposed - applicant's brother with multiple health issues including muscular dystrophy - applicant is brother's carer - exceptional circumstances shown - impact on sentence - non-parole period significantly shortened - whether sentencing exercise correctly approached - intensive corrections orders - no error shown

APPEAL - application for leave to appeal - whether the primary judge's discretionary decision disclosed House v The King error PROCEDURE - appointment of tutor, UCPR r 7.14 - whether it is in the interests of justice for the tutor to carry on proceedings without a solicitor

PRACTICE AND PROCEDURE - Applications - Leave to appeal against dismissal of summons seeking judicial review of failure of the respondent to refer a complaint to the Administrative Decisions Tribunal - Whether leave should be granted - Whether applicant has suffered from an injustice which is reasonably arguable - Decision of the President of the Anti-Discrimination Board to decline to accept a complaint pursuant to s 89B(2)(b) Anti-Discrimination Act 1977 where the conduct complained of occurred more than 12 months earlier - Whether complaint should have been referred to the Tribunal - No error in primary judge finding that the Tribunal has no power to review decision to decline a complaint under s 89B - Limitation Act 1969 irrelevant to decisions made under s 89B(2)(b)

COSTS - costs of appeal - general rule that costs follow the event - departing from the general rule - where there has been a mixed outcome in the proceedings - global view of the outcome of proceedings appropriate.