Cases and authorities

PROCEDURE - Mareva orders - Application for freezing order pending hearing and outcome of appeal where there is an unpaid costs order of the judgment below - Application made on urgent ex parte basis - Whether to make interim freezing order, pending return of the motion, to restrain respondent from dealing with the proceeds of sale of property where likely that net proceeds of sale will be dissipated

CORPORATIONS – voluntary administration – creditor’s meeting – application by administrators for further adjournment of second meeting of creditors under Corporations Act 2001 (Cth) s 447A – where proceedings concerning validity of company’s administration yet to be completed – whether adjournment in best interests of creditors.

DEFAMATION - defences - defence of justification - plea of justification specifying Hore-Lacy meanings - whether open as a form of pleading in New South Wales

PROCEDURE - proceedings in which plaintiff bank seeks to enforce guarantee and obtain possession of defendant's home - self-represented defendant pleads Contracts Review Act defence - where plaintiff failed to serve evidence in accordance with court orders - where defendant sought to vacate hearing date due to default - where plaintiff served evidence raising new issues on defendant during adjournment application 7 business days before hearing - where new evidence included documents that should have been disclosed to defendant during discovery - where defendant contended was inadequate time before hearing date for him to prepare for hearing as well as respond to new evidence - where primary judge refused application to adjourn - whether clear case of material error

PRACTICE AND PROCEDURE - application to strike out statement of claim and application for summary dismissal - whether statement of claim disclosed arguable cause of action - held statement of claim did not disclose arguable cause of action - proceedings dismissed without prejudice to plaintiff's rights in relation to certain claims; COSTS - application for indemnity costs - no issue of principle - application refused

CRIMINAL LAW - sentence - parity - appellant pleaded guilty to knowingly taking part in one act of supply of prohibited drug - co-offender subsequently sentenced for an offence involving that and another act of supply and an offence of importing the drugs - whether appellant has justifiable sense of grievance in light of sentence imposed on co-offender in respect of the common offence - relevance of concurrence of co-offender's sentence with the sentence for his importation offence - sentences do not reflect marked differences between the offenders' respective offences and circumstances - appeal allowed

CRIMINAL LAW - murder - joint criminal enterprise - four co-accused charged with murder - three convicted of murder, the fourth of manslaughter - whether jury's verdicts inconsistent - evidence capable of sustaining a belief on the part of the fourth that he was acting in self-defence - appeal dismissed

CRIMINAL LAW - murder - joint criminal enterprise - whether manslaughter should have been left open to the jury - whether not open to jury to find mental state other than participation in joint criminal enterprise to cause grievous bodily harm - appeal dismissed

PROCEDURE – transfer of proceedings – related proceedings in Federal Circuit Court – no jurisdiction to transfer proceedings to Federal Circuit Court

ASSOCIATIONS – winding up – winding up in insolvency – “insolvency” – relevance of Corporations Act – relevance of purported statutory demand

CORPORATIONS – voluntary administration – creditor's meeting – extending convening period under s 439A – complex valuation issues – potential for a deed of company arrangement – no apparent prejudice to creditors or contributories.

CRIMINAL LAW - appeal against conviction - dangerous driving occasioning death - judge-alone trial - whether insufficient reasons given for conclusion as to dangerous driving - whether verdict unreasonable or not supported by the evidence - no contention that findings of fact were not open to be made - findings amply supported conclusion as to dangerousness of driving - verdict not unreasonable or unsupported

CRIMINAL LAW - appeal against sentence - multiple offences and offenders- erroneous Crown concession that reduction in earlier, related sentences warranted intervention - principal consideration is degree of accumulation, not concurrence - no lesser degree of accumulation warranted - no error in referring to criminal record as "aggravating circumstance" - sentences for aggravated break and enter offences manifestly excessive - lower objective seriousness than found by trial judge - commercial premises rather than private residential homes - stolen property unlikely to have had sentimental value - serious indictable offence and circumstance of aggravation both of limited seriousness - sentences quashed and offenders resentenced

CRIMINAL LAW - appeal against conviction - mental illness - murder- manslaughter - jury did not completely reject unanimous psychiatric evidence - trial judge provided clear direction relating to unanimous psychiatric evidence - not necessary to determine whether verdicts are unreasonable or cannot be supported when s 7(4) Criminal Appeal Act is raised - jury ought to have found that defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra - open to jury to reject defences in respect of killing of EW and wounding of VW CRIMINAL LAW - Crown appeal against sentence - trial judge did not fail to make factual findings in relation to the murder - no definitive finding of objective seriousness regarding counts 2 and 3 but not amounting to error - specific deterrence warranted more than little weight - little weight attributed to assistance to authorities - sentences for EW and VW demonstrably inadequate

CRIMINAL LAW - murder - appeal against conviction - no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - incumbent upon defence to elicit evidence to that effect - no miscarriage resulting from omission to give Murray direction - no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one - not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased - not persuaded that jury should have had a doubt that the applicant had the relevant mental state CRIMINAL LAW - murder - appeal against sentence - unproductive to single out one subjective feature, age, in sentence comparison - necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case - sentence not manifestly excessive

CRIMINAL LAW - SENTENCE - appeal - accessory after the fact to manslaughter - worst case - manifest excess - factors relevant to objective gravity - assessment of objective gravity - no error established

CRIMINAL LAW - SENTENCE APPEAL - plea of guilty - plea not referred to by sentencing judge - whether plea disregarded - guideline judgment on pleas of guilty - whether discount can be inferred - dangerous driving causing death - guideline judgments - sentence manifestly excessive - applicant resentenced

CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - applicant was victim's employer - fact that victim continued to report to work did not ameliorate the applicant's abuse of authority - pedantry particularly inappropriate when remarks on sentence delivered orally and ex tempore - actual or potential deportation irrelevant to the sentencing exercise but error was in applicant's favour - leave refused

CRIMINAL LAW - conviction appeal - detain with intention of obtaining an advantage - victim claimed to be detained in motor vehicle - victim escaped from motor vehicle and sought help from bystanders - substantial corroboration of victim's evidence provided by CCTV - bad character of victim - inconsistencies in victim's evidence - whether verdict unreasonable - advantage of jury - objective corroboration - appeal dismissed.

COSTS - offer of compromise - "walk-away" offer - substantial compromise in foregoing costs - special costs order made

APPEAL - decision of judge of Land and Environment Court (LEC) dismissing appeal against decision of commissioners of LEC on questions of law - leave to appeal limited to two matters - whether judge and commissioners erred in their assessment of the degree of effect on threatened species required for refusal of development application - whether judge and commissioners failed to consider any concurrence of Director-General - relevant matters to consider in determining development application and grounds of refusal are not limited to an effect on threatened species that is likely to be a significant effect - no actual or assumed concurrence of Director-General to be considered - development not on critical habitat and not likely to significantly affect threatened species - consent to be refused not granted - no concurrence of Director-General required or able to be granted in these circumstances - commissioners and judge did not err on questions of law - appeal dismissed with costs

ENVIRONMENT AND PLANNING - appeal against approval of a pedestrian management plan - whether approved pedestrian management plan satisfied a deferred commencement condition - whether underlying development consent only approved vehicular and not pedestrian use of a right of carriageway - development consent not ambiguous - whether reasons given by Land and Environment Court in granting development consent form part of consent - whether development application incorporated into consent expressly or by necessary implication

APPEAL - appeal from a decision of a Local Court Magistrate - appeal limited to errors of law or errors of mixed fact and law - no such error demonstrated in Magistrate's resolution of conflicting evidence

CIVIL LAW - application for mandatory psychiatric examination pursuant to s 15(4) of Crimes (High Risk Offenders) Act 2006 - application for interim supervision order pursuant to s10B of the Act - in the alternative, application for interim detention order pursuant to s 18B of the Act - discussion of statutory tests - whether defendant a "high risk violent offender" - no accommodation available to defendant on release - consideration of the futility of making an interim supervision order

PROCEDURE - civil - work injury damages - leave sought nunc pro tunc to commence proceedings - whether adequate explanation for delay - whether forensic prejudice

PROCEDURE - civil - summary dismissal; application for - where pleadings reveal no tenable cause of action

PROCEDURE - civil - possession matter - where degree of urgency - ex parte application for leave to file statement of claim and affidavits in court and order an early return

PRACTICE - Pleadings - Sufficiency - Requirement to plead material facts to support allegation of actual knowledge

EVIDENCE – case management of criminal proceedings – proposed tender of material by Crown late in trial – material not identified pursuant to s 142(1)(f) -- rejection under s 146 (1)

CONTRACT - Deed of Settlement - Release - Implied obligation of releasor not to derogate from grant of release, and not to prevent fulfilment of purpose of release - Negative contractual stipulation analogous to implied covenant not to sue - Enforceable by injunction. CONFLICT OF LAWS - Anti-suit injunction - Foreign proceedings maintained in breach of Australian contract - Injunction granted to restrain breach of contract.

CONTRACT - construction - variation of contract - convertible notes - whether plaintiff's convertible notes were converted at the rate specified in the terms of issue or whether the parties "otherwise agreed" - whether particular debt comprised "organic debt"; PRACTICE AND PROCEDURE - Blatch v Archer principle - whether inference available as to defendants' expert instructions

PRACTICE AND PROCEDURE - Judgments and Orders - Foreign States Immunity - whether registration of judgment and garnishee order inconsistent with foreign states immunity - whether immune from jurisdiction of Court - whether proceedings 'concern' a commercial transaction within the exception to foreign state immunity - where proceedings to register a foreign judgment - where underlying transaction of a commercial nature - where no dealings of the defendant were in issue in the proceedings - whether immune from execution -whether property for commercial purposes - meaning of "commercial purposes" and "commercial property" - whether property 'apparently not in use' and therefore commercial - whether sufficient evidence to show property not in use - application of ss 9, 11, 30, 32 of the Foreign States Immunities Act 1985 (Cth) PRACTICE AND PROCEDURE - Judgments and Orders - garnishee orders - whether Court has discretion in relation to setting aside garnishee orders - what is the ambit of the discretion - whether Court can take into account personal circumstances of garnishee PRACTICE AND PROCEDURE - Judgments and Orders - where Japanese judgment registered in Supreme Court of New South Wales - where garnishee order issued in relation to foreign judgment - whether Foreign Judgments Act 1991 (Cth) conflicts with Foreign States Immunities Act 1985 (Cth) - whether Foreign Judgments Act 1991 (Cth) constitutes a code - whether registration of judgment ought be set aside where failure to comply with service requirements in Foreign States Immunity Act 1985 (Cth) - whether orders and judgment made in default of appearance - interpretation of the Foreign Judgments Act 1991 (Cth) EQUITY - Trusts and trustees - whether aid given to another country for specified purposes constitutes a Quistclose trust - whether done of aid retains a proprietary interest in aid when purpose fails - whether purpose failed because of attachment of garnishee order at the time of attachment

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - assessment of whole person impairment by review panel - judicial review of decision of review panel - jurisdictional error - relevant considerations - relevance of contrary assessment by District court Judge - relevance of evidence of witnesses called in District Court proceedings - failure to take into account relevant considerations - whether proved by failure to refer to such considerations - failure to give reasons

ORDERS - consent orders - orders to dissolve trust and transfer legal ownership of property to beneficiary - where court approval required as plaintiff formerly lacked legal capacity

TORTS - negligence - motorcyclist injured after colliding with traffic barriers placed across roadway by malefactors - whether council undertaking road works is liable for injuries - whether council protected by special non-feasance protection for roads authorities in s 45 of Civil Liability Act - whether council owed plaintiff a duty of care for criminal acts of others

PROCEDURE - joinder - application by Anita's mother to be joined as a party pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 - parens patriae jurisdiction - whether joinder in best interest of the young person - powers and discretion of court

SUCCESSION - FAMILY PROVISION - The Plaintiff, a minor grandchild of the deceased, applies by tutor for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - The Defendant, a daughter of the deceased, to whom Probate of the deceased's Will was granted - No dispute that Plaintiff is an eligible person or that there are factors which warrant the making of his application - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff - Other claims by another daughter and another grandchild made for family provision orders and resolved - Estate distributed to Defendant as trustee of a testamentary trust - No question that Defendant will satisfy order for provision made in favour of the Plaintiff - Nature and quantum of provision to be made for the Plaintiff

SUCCESSION - family provision - claim by divorced former daughter-in-law of deceased - whether plaintiff an eligible person - relevant considerations STATUTORY CONSTRUCTION - meaning of 'member of household' - section 57(1)(e) Succession Act

CRIMINAL LAW - appeal against conviction - sexual offences against 15 year-old complainant - fundamental error in jury directions relating to consent and honest and reasonable mistake of fact - care needed when jury directed in the form of a question trail

CRIMINAL LAW - appeal against sentence - knowingly making an improvised explosive device with intent to injure - whether sentence was manifestly excessive - whether sentencing judge erred in finding that the applicant's motive increased the objective seriousness of the offending

CRIMINAL LAW - sentence appeal - causing death by dangerous driving - Crown appeal - respondent engaged in street racing - excessive speed - innocent driver killed - applicability of guideline judgment in R v Whyte [2002] NSWCCA 343 - findings of high level of moral culpability and significant objective seriousness - importance of general deterrence - effect of respondent's subjective case - application of residual discretion - appeal allowed and sentence increased.

CRIMINAL LAW - sentence appeal - two counts of detain for advantage in circumstances of special aggravation - two young men detained for different periods by applicant and her partner and subjected to substantial physical and psychological abuse - high level of objective seriousness and moral culpability - sentences not shown to be manifestly excessive - level of accumulation within the sentencing discretion of judge - appeal dismissed.

CRIMINAL LAW - sentence appeal - three counts of supply MDMA and two counts of supply cannabis - effective sentence of imprisonment with a non-parole period of 9 months and a balance of term of 18 months - plea of guilty at early point in time - failure by a sentencing judge to mention discount for early plea - whether applicant received discount for early plea - whether finding beyond reasonable doubt that the applicant was a "conduit" was open on the evidence - whether sentences manifestly excessive - appeal dismissed.

PROCEDURE - appeal - application for leave to appeal against interlocutory decision - whether primary judge erred in refusing application to further amend statement of claim - whether primary judge erred in refusing oral application for adjournment during reply submissions to put on evidence explaining lateness of application to further amend the statement of claim

PROCEDURE - appeal - separate determination of question - whether the trial judge erred in determining separate questions of law prior to the close of pleadings, where the parties agreed to that course - whether trial judge erred in determining separate questions without reference to proposed statement of claim PROCEDURE - pleadings - where statement of claim did not allege fraud and defence pleaded advocate's immunity - whether bad faith can be alleged in reply to advocate's or witness immunity TORTS - negligence - advocate's and witness immunity - whether trial judge erred in articulating and applying tests for advocate's and witness immunity - whether the scope of advocate's immunity extends to acts or omissions in bad faith - whether the scope of advocate's and witness immunity extends to statutory causes of action TORTS - negligence - witness immunity - where expert witness participated in expert conclave and gave evidence at costs hearing - whether trial judge erred in finding expert retained for the purpose of giving evidence

PROCEDURE - civil - separate question - whether matter ripe for determination, were facts agreed and breach clearly defined TORTS - negligence - defences - advocates' immunity - scope - whether advice intimately connected with conduct of proceedings - advice led to settlement of proceedings by way of consent order

EQUITY - Interlocutory application - Ex parte application - Anton Piller orders - Prospect of concealment or removal of evidence - Where ambit of information sought is narrow - Where the consequences of the orders will cause little or no prejudice to the defendant if there has been no recent creation, and will assist the plaintiff to prove his case if there has.

PROCEDURE - civil - strike out statement of claim; application to - where statement of claim not in conformity with the rules - referral of self-represented litigant to pro bono legal adviser for the purpose of redrafting pleadings

PROCEDURE - civil - summary dismissal; application for - where pleadings are embarrassing