Cases and authorities

CRIMINAL LAW - appeal against sentence - aid and abet attempted importation of commercial quantity of border controlled drug - issue of criminal liability after reporting offence to police - error in placing undue weight on sentences imposed in other importation cases - single case erroneously given determinative significance - no instinctive synthesis - purposes of sentencing not properly accounted for

CRIMINAL LAW – remarks on sentence – plea of guilty – accessory after the fact to murder – objective seriousness of the criminality low – powerful subjective circumstances – assessment of past and future assistance

CORPORATIONS – personal property securities – registration of PPSA interest – extension of time for registration of PPSA interest – where failure to register due to inadvertence – whether parties acted to detriment in absence of registration – balance of convenience

DEFAMATION - for comment to arise as a defence the facts upon which the comment is, said to arise must be stated in the publication but the evidence of the facts need not - discussion on the need for a contextual imputation to be "additional" - comparison of harm done

PROCEDURE - notice of motion - orders seeking expedited hearing - orders not opposed - orders made

PROCEDURE - application by plaintiff under section 12 of the Criminal Assets Recovery Act 1990 (NSW) for variation of orders previously made by Supreme Court - order seeking to appoint receiver to property - application by defendant for adjournment of hearing - adjournment application refused - consent variation approved

COSTS - multiple claims in probate and family provision proceedings - where moneys appropriated from estate - where competing claims in relation to reasonableness of conduct of the proceedings

PROCEDURE - civil - pleadings - adequacy of pleadings CORPORATIONS LAW - insolvency - leave to continue proceedings against companies in liquidation PROCEDURE - civil - joinder of defendants - joinder of insurers of defendant corporations

SUCCESSION - FAMILY PROVISION - The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - Two of three Defendants are also adult children of the deceased and beneficiaries named in the Will - No actual estate of the deceased - Third Defendant the Trustee of a discretionary trust which controls property of value - Second Defendant registered proprietor of property transferred shortly before death of the deceased - No provision made in Will for the Plaintiff - Explanation given in Will - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him - Whether property of the Trust and/or property held by the second Defendant should be designated as notional estate of the deceased

ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal - denial of natural justice - ex parte hearing - whether there should have been a rehearing on the ground that party not present due to medical reasons - whether refusal of application to grant rehearing constituted a denial of natural justice

CORPORATIONS external administration - voluntary administration - deeds of company arrangement - whether the Court should adjourn hearing of application for winding up under s 440A(2) - whether administration rather than liquidation is in the better interests of the creditors - where last minute revised deed proposal offers prospect of recovery of 100 cents in dollar - where only unrelated creditor approves adjournment - where related creditors have reasonable commercial interest in the deed proposal

HIGH RISK OFFENDER - application for extended supervision order - issues of duration of the order, appropriate conditions

COSTS - whether costs should follow the event - whether costs order reflecting the outcome of interlocutory application should be made separately from an order in respect of the costs of the proceedings as a whole.

POSSESSION - application for possession of property - defendant trustees do not consent to nor oppose the orders for possession - cross-claim be dismissed - orders made

PROCEDURE - order sought to stay eviction - granted

CORPORATIONS - winding up - liquidators - application for directions - liquidator's remuneration

PLANNING LAW - flood affected land - significance of probable maximum flood - need for flood evacuation - no question of principle

EQUITY - trusts - resulting trusts - purchase of asset in name of de facto partner - presumption of resulting trust - whether presumption rebutted

CRIMINAL LAW - appeal - sentence - Crown appeal - respondent appeal - manslaughter - guilty plea - head sentence 6 years 8 months - non-parole period of 5 years CRIMINAL LAW - appeal - sentence - Crown appeal - whether the sentencing Judge erred in his treatment of the sentencing statistics for manslaughter - sentencing Judge had 'particular regard' to sentencing statistics - sentencing Judge stated he was constrained to provide a sentence as guided by overall pattern of current sentencing - error demonstrated - sentencing discretion neither constrained nor guided by overall patter from statistical material for manslaughter CRIMINAL LAW - appeal - sentence - Crown appeal - whether the sentencing Judge erred by failing to take into account the need for specific and general deterrence - no express reference - general deterrence - importance of general deterrence in offences involving gratuitous unprovoked violence - importance of general deterrence in offences involving violence towards the elderly - specific deterrence - lack of remorse - no finding that the respondent was unlikely to reoffend - importance of specific deterrence - error demonstrated CRIMINAL LAW - appeal - sentence - Crown appeal - whether the sentencing Judge erred in failing to make a finding in accordance with Veen v The Queen [No 2] (1987 - 1988) 164 CLR 465 that the respondent's prior criminal record meant there was a greater need for retribution, deterrence and protection of society - prior criminal history - previous offence of similarity - no specific finding made as to the impact of prior history on the sentence - error demonstrated CRIMINAL LAW - appeal - sentence - Crown appeal - whether the sentence was manifestly inadequate - serious offence of manslaughter - elderly victim - no provocation - high moral culpability - starting point of 7 years manifestly inadequate CRIMINAL LAW - appeal - sentence - respondent appeal - whether the sentencing Judge erred in not finding that there were special circumstances permitting a variation in the statutory ratio between the head sentence and the non-parole period - whether first time in custody constituted a special circumstance - whether being on protection in custody constituted a special circumstance - discretionary findings - no error demonstrated CRIMINAL LAW - appeal - sentence - re-sentencing - whether the Court ought exercise its residual discretion not to intervene - need for general deterrence when elderly or vulnerable people are attacked in public places - public confidence in the judicial system - starting point of 12 years imprisonment - 5% discount for guilty plea - head sentence of 11 years 4 months - special circumstances - need for longer period of supervision - non-parole period of 8 years

APPEAL - Grounds - Failure to give adequate reasons - Whether reasons given failed to reach minimum acceptable level to constitute a proper exercise of judicial power APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Where findings are based on assessment of credit - Due weight to be given to the trial judge's advantage of seeing the witnesses give oral evidence -Principles in Fox v Percy apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences JUDICIAL REVIEW - Grounds of review - Procedural fairness - Bias - Apprehended bias - Whether primary judge impermissibly and excessively interfered with the appellants' cross-examination - Whether primary judge's conduct as a whole indicated apprehended bias - Where a party fails to object at trial - Waiver of objection JUDICIAL REVIEW - Grounds of review - Procedural fairness - Where appellant seeks a new trial - Whether some substantial wrong or miscarriage has been occasioned - Whether primary judge erred in permitting respondent to rely on an issue not pleaded in the defence - Where issue has been particularised in a Scott Schedule prior to trial

APPEAL - extension of time to file notice of appeal - relevant considerations - whether in interests of justice to extend time - UCPR 51.16 - failure to serve notice of intention to appeal - three month delay in filing notice of appeal - whether applicant should be left to remedy against legal representatives APPEAL - stay - relevant considerations PRACTICE - notice of intention to appeal filed but not served within 28 days of material date - whether a nullity or irregularity

EVIDENCE - advance ruling as to admissibility of evidence - hearsay evidence - where applicant seeks to tender transcripts of evidence from respondent's criminal trial - notice of intention to adduce hearsay evidence where maker available to be called - where no written objection to tender - Evidence Act 1995 (NSW), ss 64, 67, 68

FAMILY LAW – Adoption – discharge of adoptions order – procedure on application for discharge – fraud duress or other improper means – other exceptional reason

EQUITY - Application for leave to file an Amended Statement of Claim - Application for extension of caveat - Whether the previous summary dismissal of claims constitutes a hearing on the merits on the causes of action governed by a deed - Whether the application constitutes an abuse of process - Application under s 140 of the Civil Procedure Act 2005 to transfer proceedings between District Court and Supreme Court

PRACTICE AND PROCEDURE - application to have defamation proceedings tried with a jury of 12 rather than 4 - where plaintiff suing on an imputation that he murdered his girlfriend - defendants pleading defence of truth - plaintiff previously convicted of murder in a high profile trial and subsequently acquitted by Court of Criminal Appeal - desirability of larger jury to determine that issue in the civil proceedings

EQUITY - trusts and trustees - application for judicial advice under s 63 of the Trustee Act 1925 (NSW) - application for judicial advice by executors and trustees whether justified making distribution to beneficiaries on particular basis - where will provided for reduction of beneficiary's entitlement under will by such amount which remained outstanding on loan granted to that beneficiary by another beneficiary - whether executors and trustees justified in adjusting beneficiaries' entitlements based on their knowledge of amount of loan outstanding after considering the available evidence

SUCCESSION - wills, probate and administration - where executrix and trustee mortgaged property subject of right of residence under will in support of loan for her own benefit - where executrix and trustee defaulted on loan and mortgagee obtained possession and exercised power of sale depriving cross-claimant of right of residence - breach of trust and claim for equitable compensation - whether cross-claimant entitled to equitable compensation for breach of trust - held cross-claimant so entitled - family provision and maintenance - Family Provision Act 1982 (NSW) - where need to make application for family provision arose due to executrix and trustee's breach of trust - unopposed application for extension of time for making of application - application granted - appointment of representative of estate under UCPR r 7.10 - appointment of representative of estate where executrix and trustee committed breach of trust and third cross-defendant consented to appointment as representative of estate

COSTS - no order as to principle

PROCEDURE - contempt, attachment and sequestration - contempt of court - penalty - disputed issues remaining before orders can be made to give effect to penalty judgment in proceedings - time to effect repayment of relevant monies to companies - enforcement - where order of indemnity costs held to be sufficient penalty - whether plaintiff's costs should be assessed and payable forthwith.

CORPORATIONS - winding up - litigation funding agreement - orders sought under s 477(2B) Corporations Act 2001 (Cth) approving entry into litigation funding agreement - whether entry into the agreement is proper exercise of the liquidator's power - whether appropriate to give direction under s 479(3) Corporations Act protecting liquidator from claim of breach of duty in respect of the funding agreement - entry into retainer and costs agreement.

CRIMINAL LAW – EVIDENCE – charge of conspiracy with intent to defraud or dishonestly influence the Commissioner of Taxation – prior compulsory examinations of accused by the Australian Crime Commission – transcripts of compulsory examinations and other compulsorily acquired materials provided to proposed witness for the prosecution – evidence of the witness founded to a degree on the compulsorily acquired materials - whether witness should be prohibited from giving evidence in a subsequent criminal trial PRACTICE AND PROCEDURE – application for a permanent stay – whether prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial – whether the trial should be permanently stayed as a result of the compulsory examinations

MENTAL HEALTH -Guardians, committees, administrators, managers and receivers - Appointment -Application for appointment of a protected estate manager - Relationship with Common Law compensation proceedings -Interim and final damages awards PRACTICE - NSW Trustee and Guardian Act - Appointment of estate manager - Relationship with Common Law compensation proceedings where interim damages awarded -Procedure

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declarations - whether court should make declarations sought by plaintiff - discretionary considerations - where subject matter was not subject of contest - generality of terms - utility of declarations.

CORPORATIONS - management and administration - where fourth plaintiff and sixth defendant entered into agreement for, inter alia, issue of shares in first defendant - where agreement provided that all "major decisions" of first defendant must be agreed by minimum five out of seven directors of its board and for equality of representation on board of subsidiary holding relevant assets - where resolutions purportedly passed by four directors of first defendant to enable removal of second plaintiff as director of that subsidiary without contemporaneous appointment of director nominated by fourth plaintiff to that subsidiary - construction - whether purported passing of relevant resolutions constituted "major decisions" of first defendant - whether declaratory and injunctive relief sought by plaintiff should be granted.

REAL PROPERTY - application under Conveyancing Act, s 88K for imposition of easement - motion for summary dismissal - Anshun estoppel - whether plaintiff was unreasonable in not bringing present claim in earlier proceedings - whether same issues of fact and law from earlier proceedings raised in current proceedings - summary dismissal not appropriate

NEGLIGENCE - deceased's vehicle passed through exterior fence on second level of commercial car park - fact finding - role of faulty wheel stop in cause of accident - fence non-compliant with relevant standard - role of fence in cause of accident. DUTY OF CARE AND BREACH - owner of commercial car park - duty owed to users of car park - obligation to inspect for repairs and defects - scope of obligation to take action in response - burden of doing so. TRADE PRACTICES ACT 1974 (CTH) - implied term - whether contract between driver of vehicle and operator of car park - whether contract for supply of services to consumer - whether wife of deceased driver can bring claim under Compensation to Relatives Act 1897 (NSW) in respect of breach of contract containing term implied by Trade Practices Act - whether such a claim is governed by Civil Liability Act 2002 (NSW). NEGLIGENCE - liability of Council - power and functions exercised by Council from 1985 to 1991 in relation to development approval for car park, building approval for car park, inspection and licensing of car park - whether Council owed user and occupants of car park a duty of care in respect of exercise of statutory powers - whether Council committed misfeasance or non-feasance - whether Council breached duty - whether Council protected from liability by s 43A of Civil Liability Act - applicability of s 44 of Civil Liability Act. DAMAGES - nervous shock and claim under Compensation to Relatives Act - relevance of possibility that but for husband's death plaintiff would raise adopted child - plaintiff's economic loss - mixture of contract income and wages - plaintiff's share of late husband's likely income.

CONTEMPT OF COURT - sentencing - summary jurisdiction -breach of consent orders preventing conduct with respect to residential building work - serious example of contempt - deliberate and intentional conduct with knowledge of Court's orders - prior criminal history - apology and repayment of monies; whether represents genuine contrition - fine; whether appropriate - term of imprisonment; whether appropriate - no notice pursuant to Uniform Civil Procedure Rules, r 40.7 - no informal warning - discretion to impose term of imprisonment; whether appropriate to exercise - need for specific deterrence - suspended term of imprisonment - community service order

CRIMINAL LAW - murder - trial by judge alone - where accused and the deceased shared a cell in custody - deceased found dead in cell - circumstantial evidence establishing beyond reasonable doubt that the act of the accused caused the death of the deceased CRIMINAL LAW - murder - defence of mental illness - unanimous evidence of the availability, to the accused, of the defence of mental illness

COSTS - general rule that costs follow the event; exceptions to the - possession proceedings - tenancy - proceedings initiated by landlord - claim for possession - defendant vacated property - Notice of Discontinuance filed by plaintiff - whether discretion should be exercised to make costs order in favour of plaintiff Civil Procedure Act 2005, s 98 - Uniform Civil Procedure Rules 2005, r 42.19 - whether sound positive ground or good reason for departing from ordinary course - practical success of plaintiff - proceedings properly initiated - repeated attempts prior to initiating proceedings to have defendant vacate premises - valid notice of termination - unreasonable conduct of defendant

APPEALS - challenge to primary judge's findings of fact - whether findings glaringly improbable - whether open to primary judge to determine allegation of forgery on onus MORTGAGES - forged direction to disburse funds - whether obligation to repay extended to sums disbursed pursuant to forged direction PRINCIPAL AND AGENT - ratification - whether ratification where no knowledge of forged direction

EVIDENCE – re-examination – relevance – prejudice.

EQUITY - Equitable remedies - equitable compensation - plaintiff entitled to equitable compensation measured by reference to the value of expectation that the plaintiff was induced to adopt in reliance upon defendant's representations - valuation of relevant property and assessment of compensation

PRACTICE AND PROCEDURE - judgment and orders - enforcement - garnishee order obtained ex parte - relevant authorities not disclosed - garnishee order set aside; PRACTICE AND PROCEDURE - funds paid into court - claim for payment out of court

WORKERS COMPENSATION - coal industry - meaning of the expression "employer in the coal industry" - employee of drilling company injured while working at a coal mine - claim for damages by injured employee against drilling company - refusal of indemnity by drilling company's workers compensation insurer - whether "special" insurer of employers in the coal industry liable for injured employee's claim for damages.

COSTS - plaintiff commenced proceedings against two defendants - plaintiff successful against only one defendant - successful defendant had previously made an offer of compromise - whether the plaintiff is entitled to a Bullock or Sanderson order in respect of its costs liability to the successful defendant - whether the second defendant is entitled to an order for indemnity costs from the date of its offer of compromise

PROCEDURE - civil - interlocutory issues - directions - preparation for hearing - orders made for conclave of experts - attempts made by plaintiff to draft questions to put to experts - defendants refused to agree on questions - Practice Note No. SC Gen 11 -requires that parties should agree on the questions to be answered - failure of defendants to comply with Practice Note and Court orders - questions to be put to experts

HABEAS CORPUS - writ of habeas corpus; application for - whether available - lawful custody - whether conditions of incarceration have rendered lawful custody unlawful - lack of access to facilities to prepare for appeal - whether deferring of parole application was beyond authority of the State Parole Authority - custody lawful - no basis for issue of a writ of habeas corpus

CRIMINAL LAW - CONVICTION APPEAL - assault occasioning actual bodily harm - applicant and victim both prisoners - fight as a result of which victim suffered serious injury to an eye - whether verdict of jury was capable of being supported by the evidence - whether jury adopted an inappropriate line of reasoning - whether inconsistency in jury acquitting on primary judge but convicting on secondary charge - verdict open to jury - SENTENCE APPEAL - challenge to fact finding of sentencing judge - basis for challenge not established - appeal dismissed.

SENTENCING - sentencing procedure - destroying items knowing they would be used in judicial proceedings - possession of drug manufacturing apparatus - whether sentencing judge erred in sentencing the applicant on facts that gave rise to a more serious offence - application of De Simoni principle - not inaccurate to describe elements of offence as designed to "frustrate" judicial proceedings - applicant did not possess mental element beyond that specified in first offence charged - whether sentence imposed for second offence was "too severe" - level of criminality correctly characterised - sentence for second offence not unreasonable or unjust - leave sought to adduce further medical evidence - threshold for admission of material met - whether material justifies any reduction of the applicant's non-parole period - concerns raised by evidence before Court do not warrant reduction in sentence - appeal dismissed.

CRIMINAL LAW - SENTENCE - appeal - commencement date of sentence - commencement date contrary to statute - adjustment of sentence by sentencing Judge - slip rule - correction of sentence under s 43 Crimes (Sentencing Procedure) Act - increase of effective sentence in correcting sentence - error - principle of finality - maintenance of findings as to totality - manifest excess - unsophisticated fraud offences - proportionality - accumulation and special circumstances - sentence quashed and new sentence imposed