Cases and authorities

PROCEDURE - judgment and orders - orders consequential on findings pursuant to the Contracts Review Act - whether borrowers under an unjust loan who had the benefit of using loan funds to discharge prior mortgages should pay interest on the loan sum used for that purpose - whether the lenders are entitled to security for that sum

EQUITY – trusts and trustees - trustee’s applications – judicial advice PROCEDURE – compromise – infants – whether interest in proceeds of sale under s 66G is money recovered in proceedings – held it is not

SUCCESSION - FAMILY PROVISION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendants are children of the deceased by a prior marriage to whom administration of the deceased's Will granted - No provision made in the Will of the deceased for the Plaintiff - Whether family provision order should be made and, if so, the nature and quantum of the provision to be made

CORPORATIONS - External administration - winding up - insolvent trading - application for judgment in default of appearance - where leave to proceed has been granted against foreign defendant - whether default judgment procedure available in proceedings under Corporations Rules - whether company insolvent when debts incurred - measure of damages under s 588M

LEGAL PRACTITIONERS - decision by Council of the Law Society of NSW to suspend practising certificate and appoint a manager - complaints of refusal to comply with requests of investigator and of obstructing investigator - dispute as to meaning of sections of Legal Profession Act 2004 - appeal against suspension and appointment of manager - hearing de novo - meaning of sections 267, 268 and 270 of Legal Profession Act 2004 - whether suspension necessary in the public interest - whether complaints made out.

PROCEDURE - civil - summary dismissal - Amended Statement of Claim - no cause of action articulated - Uniform Civil Procedure Rules 2005 - non-compliance with proper pleading requirements - PROCEDURE - civil - summary disposal -dismissal - standing - bankruptcy - discharged bankrupt - no assignment of choses in action by Trustee in Bankruptcy - no standing - PROCEDURE - civil - summary dismissal - Limitation Act 1969 - expiration of limitation period - statute barred - abuse of process - COSTS - general rule that costs follow event

DEFAMATION - whether non-publication order of District Court judge should be continued

PROCEDURE - notice to produce - subpoena to produce - whether material has a legitimate forensic purpose - whether production of material oppressive

MISLEADING CONDUCT - reliance and causation - relevance to reliance of claimant's disclaimers and acknowledgements of non-reliance MISLEADING CONDUCT - characterisation of conduct - relevance to characterisation of alleged misleading conduct of claimant's disclaimers and acknowledgements in contract

DEFAMATION - pleadings - objections to imputations - whether imputations are ambiguous - whether imputations are reasonably capable of being conveyed

DEFAMATION - pleading - where matter complained of consisting of 3 articles published on the same pages of the newspaper - application by defendant to strike in a fourth article published on the same page - entitlement of plaintiff to choose mode of pleading

PRACTICE AND PROCEDURE - discovery - application for discovery order - whether the categories for discovery relate to a fact in issue in the proceedings - whether sufficient nexus to the case pleaded - whether order should be made in relation to documents subject to litigation privilege

EQUITY - Property - Application under 6.30, 7.6 and 7.10 of the Uniform Civil Procedure Rules - Where one party died after the commencement of proceedings - Where no probate or letters of administration has been granted or sought - Where no representative of the estate has been appointed - Where there is no person willing to represent the estate - Where the registered proprietor asserting a trust declared in favour of the deceased is a defendant - Order pursuant to UCPR 7.10 for the proceedings to continue in the absence of a representative of the deceased person's estate

CRIMINAL LAW – Conspiracy to murder – application for directed verdict of acquittal – whether sufficient evidence identifying accused as a participant in alleged conspiracy – where Crown relied upon direct and circumstantial evidence to establish identification – test to be applied when Crown relies upon inferences – application rejected

CRIMINAL LAW – evidence – where Crown sought to tender evidence of three telephone conversations immediately before closing its case – where evidence had been available for a considerable period beforehand – where Crown on notice of the relevant issues - evidence not previously disclosed to the accused – where counsel for accused had completed cross-examination of the Crown’s principal witness – whether procedural unfairness is capable of giving rise to unfair prejudice for the purposes of s. 137 of the Evidence Act – probative value outweighed by the danger of unfair prejudice arising from a series of circumstances - evidence rejected

PROCEDURE - pleadings - medical negligence - strike out - whether proceedings should be dismissed - orders conditional on agreement by defendants not to rely on limitation defence in future proceedings

CRIMINAL LAW - remarks on sentence - offender found guilty of murder by jury - death by ligature strangulation - offender intended to kill deceased - offender had previous criminal conviction for violence - established problem with prohibited drugs

CRIMINAL LAW - sentence - murder - multiple offenders - guilty plea - youth of offender

PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - costs of primary issues in substantive proceedings - whether commencement and continuance of proceedings in Supreme Court was warranted for purposes of UCPR r 42.34 - reserved costs orders. PROCEDURE - costs - application for order for payment of costs on a gross sum basis under Civil Procedure Act 2005 (NSW) s 98 - whether a specified gross sum order should be made - relevant considerations - costs of assessment - party's capacity to meet a costs order.

TAXES AND DUTIES - payroll tax - assessment for payroll tax - where local councils delegated function of developing and maintaining airport to plaintiff - whether plaintiff's employment of employees or payment of employees' wages for purpose of operating airport were delegated functions or functions incidental thereto - Interpretation Act 1987 (NSW) s 49 - exempt wages - Payroll Tax Act 2007 (NSW) s 58 - whether wages are taken to have been paid or payable by councils because they were paid or payable by plaintiff as councils' delegate and thereby exempt from payroll tax - effect of s 49(6) of Interpretation Act 1987 (NSW) EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - trustee's right of exoneration - where plaintiff held moneys on trust for councils - whether wages paid by councils within meaning of Payroll Tax Act 2007 (NSW) s 58 because paid from trust moneys to which councils were beneficially entitled

CRIMINAL LAW - procedure - sever charges on indictment, application to - murder charge - two conspiracy charges - Criminal Procedure Act 1986, s 21 and s 29 - accused person may be prejudiced or embarrassed in his defence by reason of being charged with the conspiracy charges, whether- evidence of conspiracy counts admissible on the murder count -directions by trial Judge on conspiracy counts - will overly complicate trial, whether - will distract the jury from its determination in the murder count, whether - interests of administration of justice - interests of justice - severance refused

CRIMINAL LAW – riot – twelve persons or more “present together” using or threatening unlawful violence – applicant used unlawful violence when protesting on the roof of a building – prosecution alleged persons on roof were “present together” with persons on the ground using or threatening unlawful violence – trial judge directed jury that “present together” meant being in the same place – whether trial judge misdirected jury as to the meaning of “present together” – whether “present together” requires physical proximity between persons – relationship between “present together” and other elements of the offence – whether persons found not guilty of riot could be amongst the 12 persons “present together” – Crimes Act 1900 (NSW), s 93B CRIMINAL LAW – procedure – whether trial judge erred in not allowing cross-examination of a witness as to whether he had viewed footage of the events on the internet. CRIMINAL LAW – procedure – juries – whether trial judge erred in not discharging the jury following publication of a prejudicial article – whether trial judge erred in failing to give the jury access to transcripts of counsels’ addresses and the judge’s summing up. CRIMINAL LAW – appeal against sentence – greater restrictions involved in immigration detention while awaiting trial – whether trial judge should have accounted for this in sentencing – whether trial judge was aware of the nature of the applicant’s detention while awaiting trial

CRIMINAL LAW - appeal - procedure - reconstitution of the Court; application for - apprehended bias, whether - remarks in case management hearing - lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question being decided, whether - no apprehended bias CRIMINAL LAW - appeal - procedure - leave to vary orders of Court of Criminal Appeal; application for - Criminal Appeal Rules; Rule 50C -- whether Court proceeded on a misapprehension of fact or law - misapprehensions of law - fraud exception to finality of litigation, whether - access to documents - no misapprehension of law - misapprehension of Court of Criminal Appeal in considering whether the convictions were unsafe or unsatisfactory, whether - misapplication of the principles in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, whether - correct application - misapprehensions of fact - multiple documents - not tendered at trial - not put before Court as fresh evidence - no misapprehension of any fact on material before the Court - attempt to reargue unsuccessful appeal - representation at trial - dealt with comprehensively by Court of Criminal Appeal - attempt to reargue unsuccessful appeal

CRIMINAL LAW - appeal against conviction - perverting the course of justice - appellant claimed to have sound recordings of police officers soliciting a bribe - in civil proceedings the appellant was directed to produce the sound records, but failed to do so, leading to his being charged - whether failure to call officer said to have been recorded led to a miscarriage of justice - whether failure to comply with Crown's duty of disclosure - whether error in appellant's criminal record being placed before the jury - whether other alleged errors led to miscarriage of justice - appeal dismissed

APPEAL - leave to appeal - District Court cross-claim dismissed for failure to comply with directions - such failure undisputed - judge also referred to District Court's lack of jurisdiction - cross-claimant aware for several months of contention that court lacked jurisdiction - no attempt to obtain transfer to a competent court - cross-claim in any event academic following judgment on substantive claim and other cross claims - no prospects of success in appeal against discretionary decision on a matter of practice and procedure

APPEAL - leave to appeal - where no reasons for judgment given ordering security for costs - whether appropriate vehicle to consider issues arising COSTS - security for costs - where two separate sets of proceedings - whether defendant in one proceeding may obtain security for costs incurred in other proceeding in which it is moving party - UCPR, r 42.21(1), Corporations Act 2001 (Cth), s 1335(1)

TORTS - negligence - whether primary judge failed properly to consider issues of scope of duty of care, risk of harm, breach and causation as required by s 5B, s 5C and s 5D Civil Liability Act TORTS - negligence - appellant required to clean kitchen benches in accordance with work instructions prepared by respondent - work instructions required appellant to wash bench with detergent and then rinse with hot water - absent hot water supply from tap appellant heated hot water on stove - hot water burnt appellant - appellant claimed respondent negligent for requiring him to heat water in circumstances where he could not gauge its temperature - where primary judge dismissed claim on basis appellant deliberately boiled water - basis on which case dismissed not relied upon by respondent and not put to appellant PROCEDURAL FAIRNESS - whether appellant denied a fair trial - whether primary judge's conclusion appellant deliberately boiled water open on evidence - obligation of witnesses answering questions by counsel - where appellant not given opportunity to respond to primary judge's hypothesis - reliance on medical histories to found inference adverse to appellant APPEAL - new trial - whether substantial miscarriage of justice - whether primary judge's error material to outcome APPEAL - competence - whether leave to appeal required - where small sum involved - whether question of principle or issue of general public importance involved APPEAL - whether appeal as of right - whether matter at issue amounting to a value of $100,000 or more - obligations of legal practitioners preparing affidavit as to "material facts" seeking to establish appeal as of right - District Court Act 1973 (NSW), s 127(2)(c); Uniform Civil Procedure Rules 2005 (NSW) r 51.22

APPEAL - grounds - apprehended bias - application to trial judge to recuse herself because ruling on admissibility suggested acceptance of the evidence - whether a reasonable fair-minded observer would apprehend bias DEFAMATION - imputations - broadcast as to risks identified with infant sleep positioners overseas - infant sleep positioner manufactured and sold by applicants featured on broadcast without being named - alleged defamatory imputations that the applicants sold and offered for sale a product subject to recall and unsafe - whether defamatory imputations conveyed - whether imputations would diminish the applicants' standing in the eyes of the ordinary reasonable person DEFAMATION - defences - substantial truth - whether defamatory imputations as to the safety of infant sleep positioners were substantially true - reliance on expert evidence on the risks associated with infant sleep positioners to establish substantial truth - Defamation Act 2005 (NSW), s 25 DEFAMATION - defences - justification - contextual truth - imputation not substantially true - whether broadcast carried contextual imputations that were substantially true - whether defamatory imputation could do no further harm to reputation because of contextual imputations - Defamation Act 2005 (NSW), s 26 DEFAMATION - cause of action - whether corporate plaintiff an excluded corporation - corporation is an "excluded corporation" if it employs fewer than 10 persons - whether persons confined to employees - Defamation Act 2005 (NSW), s 9(2)(b) EVIDENCE - relevance - admissibility - applicants sought to give evidence as to whether dangers in other sleep positioners applied to their products - whether non-expert opinion evidence admissible to prove falsity of a defamatory imputation EVIDENCE - expert opinion - whether expert qualified to give opinion on the specific characteristics of the applicants' infant sleep positioner - whether expert had a preconceived opposition to infant sleep positioners - Evidence Act 1995 (NSW), s 79 TORT - injurious falsehood - malice - whether failure to obtain comment from supplier was so reckless as to warrant inference of malice WORDS AND PHRASES - "employs" - "persons" - Defamation Act 2005 (NSW), s 9

TRUSTS AND TRUSTEES - powers of trustees - statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW), s 81 - power to undertake a "transaction" may be conferred - whether amendment of the trust instrument is a "transaction" - whether the concept of amendment of the trust instrument as distinct from the terms of the trust is a meaningful concept - the court's jurisdiction is exercisable only when it is of the opinion that conferral of a particular power on the trustee is expedient in the management or administration of the trust property - general power of the trustee to alter the terms of the trust at will cannot be regarded as so expedient - particular specific and limited powers facilitating efficient tax management held to involve relevant expediency

DEFAMATION - imputations - whether capable of arising - no question of principle

PRACTICE AND PROCEDURE - adoption of referee's report - whether referee erred in finding proceedings statute barred - whether the "appeal" referred to in s 48A of the Home Building Act 1989 creates a separate cause of action - whether referee denied plaintiff procedural fairness - whether referee failed to give reasons for conclusions on quantum

PROCEDURE - possession of land - inactive defendants - defence struck out - cross-claim dismissed

DEFAMATION - pleading - objections to imputations - objections to particulars of aggravated damages

EVIDENCE - relevance - probative value - danger of unfair prejudice

CONTRACT - whether void ab initio for want of ministerial approval under Papua New Guinea statute - application of Foreign Corporations (Application of Laws) Act 1989 (Cth) - whether plaintiff estopped from asserting contract void ab initio - proper construction of termination clause - proper construction of investment mandate - whether defendants' conduct in breach of investment mandate - whether plaintiff established damage resulting from breach of investment mandate - proper construction of exclusion clause - whether defendant entitled to rely on exclusion clause; CORPORATIONS - whether defendant obliged to hold an Australian Financial Services License for purposes of s 911A of the Corporations Act 2001 (Cth) - whether defendant provided "financial services" for the purposes of s 766A - whether defendant provided "financial product advice" for the purposes of s 766B - whether defendant dealt in a "financial product" for the purposes of s 766C - whether defendant did not deal in a financial product by reason of Corporations Regulations 2001 (Cth) reg 7.1.35 - whether defendants provided services "in this jurisdiction" for the purposes of s 911A - whether defendants entitled to derivative crown immunity - whether plaintiff lost any statutory right of rescission under s 925A by reason of unreasonable delay under s 925A(2) or affirmation under s 925A(3); MISLEADING OR DECEPTIVE CONDUCT - whether defendants engaged in misleading or deceptive conduct for the purposes of s 1041H of the Corporations Act or s 12EA of the Australia Securities and Investments Commission Act 2001 (Cth) - warranty that held all necessary licenses and authorities - whether plaintiff would not have entered contract but for misleading or deceptive conduct; CONTRACT - proper construction - whether defendants obliged to deduct GST in relation to fees rendered to plaintiff - whether defendant entitled to calculate fees by reference to undrawn fees; TORT - injurious falsehood - whether plaintiff made false and malicious statement concerning defendants' business

SUCCESSION - FAMILY PROVISION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant, the sole executor named in the Will of the deceased - Some provision made in the Will of the deceased for the Plaintiff - Whether family provision order should be made, and if so, the nature and quantum of the further provision to be made

PRACTICE AND PROCEDURE - costs - whether plaintiff had achieved substantial success - whether both defendants should pay plaintiff's costs

ADMINISTRATIVE LAW - judicial review - review of decision of Review Panel - no error - no question of principle

COSTS - Proportionate liability - Offer of Compromise -

CORPORATIONS - External administration - winding up - liquidator's applications - for directions permitting liquidator to sell trust assets - where company is trustee of self-managed superannuation fund - whether liquidator's statutory power of sale extends to trust assets - held, it does not - whether company ought to remain as trustee when by doing so it commits an offence against superannuation law - held, it should not - whether directions sought can be made under s 479(3) - held, they cannot - advice given that liquidator would be justified in applying to be appointed receiver of trust assets to enforce right of indemnity.

INTERLOCUTORY PROCESS -whether to allow access to documents produced on subpoena - confidential medical records - partial access already occurred - application dismissed

CRIMINAL LAW - appeal against sentence - manslaughter - excessive self-defence - no real threat of violence - degree to which response was unreasonable was quite extreme - sentence not unreasonable or plainly unjust

CRIME - appeal - sentencing - aggregate sentence - indicative sentences revealing departure from the principles stated in Pearce v The Queen

CRIMINAL LAW - sentence appeal - applicant convicted of murder - alleged error in making non-parole period 80 percent of head sentence and in failing to find special circumstances - no oversight by sentencing judge - considered choice by judge to increase non-parole period beyond statutory ratio - failure by defence counsel to raise special circumstances during sentence proceedings - no error on part of sentencing judge.

CRIMINAL LAW - sentence appeal - application for extension of time - doing an act with the intention of influencing a witness and possessing child pornography - applicant already serving a sentence for two serious indictable offences when sentenced for these offences - whether failure to consider alternative to custodial sentence - whether principle of totality properly applied - whether applicant's age should have been taken into account as a mitigating factor - no adequate explanation for delay - interests of justice did not require the granting of an extension of time - adequate consideration given to need to impose a custodial sentence - principle of totality properly observed - applicant's age fully taken into account - application for extension of time refused.

CRIMINAL LAW - appeal - sentence - Crown appeal - five offences against Crimes Act 1900, s 61I - two offences against Crimes Act 1900, s 61L - aggregate sentence - head sentence 4 years - non-parole period of 2 years 6 months - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give proper consideration to accumulation, concurrency and the principle of totality - indicative sentences - finding offences were part of overall act of sexual aggression - need to acknowledge separate harm done by different criminal acts - reasons for accumulation and concurrency explained by indicative sentences - reference to totality - no discrete error of law - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give any weight to personal deterrence and general deterrence - not specifically identified - referred to objects of sentencing - particular of manifest inadequacy - no discrete error of law - CRIMINAL LAW - appeal sentence - manifest inadequacy; whether - specific and general deterrence - not likely to re-offend - good prospects of rehabilitation - delay after verdict - length and terms of bail - factors to be taken into consideration - strong subjective case - objective seriousness - not above mid-range - aggravating factors - offences occurred in victim's home - accumulation - each offence individually serious - variation of statutory ratio - manifestly lenient - error of law - CRIMINAL LAW - appeal - sentence - residual discretion not to intervene - evidence on appeal - hardship in custody - obsessive-compulsive disorder - no medical treatment - victim of assaults - limited English - difficulty communicating - lengthy and difficult time on bail awaiting sentence - residual discretion exercised - appeal dismissed

PROCEDURE - summons seeking relief under s 69 of the Supreme Court Act from orders of the District Court - notice of motion seeking summary dismissal of the summons - summons filed out of time - whether there is any prospect of an extension of time being granted - whether there is any basis on which the relief sought in the summons would be granted in any event

ADMINISTRATIVE LAW - tribunals - courts and tribunals permitted to consider "spent convictions" - whether a tribunal exercising merits review is permitted to consider "spent convictions" where the original decision-maker is prohibited from doing so - Criminal Records Act 1991 (NSW), ss 12, 16 FIRE, EXPLOSIVES AND FIREARMS - firearms licences - licence must not be issued if the applicant is not a "fit and proper person" - discretion to refuse if issuing the licence would be "contrary to the public interest" - whether Criminal Records Act 1991 (NSW) precludes consideration of "spent convictions" in determining whether an applicant is a "fit and proper person" - whether Commissioner of Police prohibited by Criminal Records Act 1991 (NSW) from considering the underlying conduct of the "spent conviction" - whether spent convictions can be considered in determining public interest - Firearms Act 1996 (NSW), s 11 - Criminal Records Act 1991 (NSW), s 12 STATUTORY INTERPRETATION - inconsistent statutes of single legislature - Firearms Act 1996 (NSW), s 11 and Criminal Records Act 1991 (NSW), s 12 - whether the provisions can operate together harmoniously - whether there is an implied repeal of the earlier provision - purpose of the provisions - whether an implied repeal arises where the alleged inconsistency is between an interpretative provision and a substantive provision

PROCEDURE – costs – general rule that costs follow the event – whether reason shown to depart from general rule – whether costs should be payable forthwith.