Cases and authorities

FAMILY LAW AND CHILD WELFARE – ADOPTION – child from a Convention country – Application of reg 15 Family Law (Hague Convention on Intercountry Adoption) Regulation 1998 – Adoption Act 2000 (NSW) not applicable – Meaning of arrangements for adoption – Required evidence – Proof that arrangements for adoption are in accordance with the laws of the State of origin – Application of presumption of regularity

CORPORATIONS – winding up – failure to comply with creditors’ statutory demand – whether presumption of insolvency rebutted – stay of winding up order where offer of finance available

CORPORATIONS - winding up - winding up in insolvency - stay of proceedings and suspension of enforcement process - leave to begin application for special leave to appeal against company - whether leave under s 471B required - whether leave should extend to appeal

NOTICE TO ADMIT FACTS - Little or no benefit

ACCESS - documents relevant to imminent sentence hearing

CRIMINAL LAW - Appeal - Application for a permanent stay of prosecution for multiple counts of sexual assault - Where applicant found unfit to stand trial - Where Director of Public Prosecutions had determined to proceed to special hearing in any event - Where offending conduct occurred more than 40 years ago - Where the making of allegations arose as the result of recovered memory - Where only expert evidence supported the conclusion that such process was unreliable - Where material evidence no longer available due to lapse of time - Where primary judge dismissed application for a stay - Where error in exercise of discretion made out - Where discretion re-exercised - Stay of proceedings granted

CONSTITUTIONAL LAW - validity of prohibition in State legislation on preliminary discovery - essential characteristics of state courts - no warrant for concluding that preliminary discovery was an essential characteristic STATUTORY CONSTRUCTION - principles - natural meaning of text - unlikelihood of alternative meaning - obligation to construe so as not to exceed legislative power

WILLS AND ESTATES - family provision claim - Family Provision Act 1982 (NSW), s 31 - approval of release of rights to further claim - no question of principle

CRIMINAL LAW - murder - grievous bodily harm with intent - previous trial but no verdicts reached - trial by judge alone - causation - reasonable possibility that stab wounds inflicted by Ian Dacey did not substantially or significantly contribute to death of deceased - common ground that grievous bodily harm was caused - satisfied beyond reasonable doubt that grievous bodily harm was intentionally caused - satisfied beyond reasonable doubt that Ian Dacey did not believe it was necessary in order to defend brother - joint criminal enterprise to assault but no foresight of grievous bodily harm

PRACTICE AND PROCEDURE - security for costs - whether to order security for costs in relation to corporate plaintiff - where individuals who stand behind company have given a personal guarantee with respect to any order as to costs made against the plaintiff and an undertaking to the court not to dissipate their assets - whether discretion to order security for costs is unconfined - guidelines that Court is to take into account in determining security for costs application - where security for costs order would stifle litigation - whether plaintiff ought to have investigated litigation funding or adverse costs insurance - where both defendants are major corporations

PRACTICE and PROCEDURE - transfer of proceedings commenced in District Court to Supreme Court - whether there is sufficient cause

PROCEDURE - civil - adjornment due to non-appearance by self-represented plaintiff - illness

SEARCH WARRANTS - Validity - Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings - Whether judicial proceedings are required to be on foot in order for such offence to be made out - Whether search warrant invalid SEARCH WARRANTS - Validity - Whether reasons stated in the application for a search warrant were truthful - Where Court was invited to conclude that the stated reasons were a "cover" for another undisclosed reason - Where no such proposition was put to the applicant for the search warrant when cross examined - Breach of the rule in Browne v Dunn - Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application STATUTORY INTERPRETATION - general principles to be applied

CRIMINAL LAW - sentence - offender acquitted of murder but found guilty of manslaughter - unlawful and dangerous act - no direct evidence as to precisely how injury causing death was occasioned - resolution of uncertainty as to the basis upon which offender is to be sentenced - offence aggravated by not seeking medical attention for victim - moderate to high risk of reoffending.

CRIMINAL LAW - Whether accused fit to stand trial - Necessity to resolve competing expert opinions - Accused not fit

PROCEDURE - civil - funds paid into Court in course of proceedings, together with accrued interest, to be paid to plaintiff; application for - Uniform Civil Procedure Rules; r 41.3 - possession proceedings initiated by plaintiff - funds paid into Court pursuant to Court Orders in possession proceedings to enable settlement of the sale of property to occur - paid on account of reasonable estimated future costs of plaintiff - defendants intended to commence proceedings against the plaintiff - proceedings instead commenced against receivers appointed by plaintiff - receivership proceedings - acknowledgment in receivership proceedings that the monies were held for broader purpose - plaintiff remained liable for receivers' costs - whether terms of acknowledgment are sufficiently clear to enable the Court to make the order sought - COSTS - general rule that costs follow the event

REAL PROPERTY – easements – power of court to impose order easement – requirements of drainage easement required by council – whether easement reasonably necessary for effective use and development of dominant tenement –Conveyancing Act 1919 (NSW), s 88K REAL PROPERTY – easements – costs of proceedings for order imposing easement – costs payable by applicant subject to other order – pre-trial offers of compensation in excess of appropriate level of compensation found at trial – offer of compensation in the form of Calderbank offer – trial judge awarded costs against defendant on the basis that rejection of offer was unreasonable – whether costs should turn on rejection of compensation – land owner resisting imposition of easement – Conveyancing Act 1919 (NSW), s 88K(5) PRACTICE AND PROCEDURE – procedural fairness – appellant self-represented litigant with limited command of English – respondent informed appellant of steps to be taken prior to hearing – timely service of evidence – fresh material served shortly before trial – no adjournment sought – whether trial judge failed adequately to assist an unrepresented party WORDS & PHRASES – “reasonably necessary” – Conveyancing Act 1919 (NSW), s 88K

CRIMINAL LAW - bail - pending appeal - need to show special or exceptional circumstances - application dismissed

TORT - negligence - breach - plaintiff slipped on wet pavement outside shopping centre - pavement had been recently painted with non-slip paint six months before accident - pavement remained prone to being slippery when wet despite non-slip paint - expert report from plaintiff suggested slip occurred in area not treated with non-slip paint - no evidence or complaint of slipping in the area where plaintiff injured - trial judge held application of non-slip paint a reasonable precaution to foreseeable risk of harm - trial judge did not accept that plaintiff had slipped in area not treated with non-slip paint - whether trial judge erred in not finding the slip occurred in area where non-slip paint had not been applied - whether trial judge erred in finding reasonable precautions had been taken despite pavement remaining prone to being slippery when wet - Civil Liability Act 2002 (NSW), s 5B CONTRACT - principal and agent - obligation to indemnify agent - claim for costs arising out of proceedings relating to the proper performance of any of the powers, duties or authorities of the agent - principal refused to indemnify on the basis that claim against agent was one of non-performance - interpretation of indemnity clause - whether indemnity extended to the non-negligent performance of the agent's duties

PRACTICE AND PROCEDURE - consequential orders - proceedings remitted to Common Law Division to determine quantum of damages - no issue of principle

SUPERANNUATION - additional amount payable to a disabled member of the police force who was required to be exposed to "risks to which members of the general workforce would normally not be required to be exposed in the course of their employment" - construction of s 10(1A)(c) of the Police Regulation (Superannuation) Act 1906 (NSW) - degree of specificity with which "risks" should be characterised - whether the risks to which the respondent was exposed were sufficiently exceptional - whether the additional amount awarded by the trial judge was commensurate with those risks

APPEAL - application for leave to appeal -where primary judge dismissed proceedings against two defendants for not being prosecuted with due despatch - where there had been a failure to bring pleading into good order - whether primary judge erred in deciding that there ought be no further opportunity to remedy the pleading APPEAL - application for leave to appeal - where primary judge struck out claim against one defendant with leave to re-plead for failing to plead a reasonable cause of action against that defendant - where it was alleged the defendant was an original publisher of the whole of the broadcast - whether leave to appeal should be granted where plaintiff had leave to re-plead at first instance PROCEDURE - discovery and interrogatories - interrogatories - application for leave to appeal - where primary judge granted leave to administer interrogatories but not in plaintiff's chosen form and the plaintiff chose not to administer any interrogatories - whether primary judge erred in exercise of discretion such as to warrant appellate intervention

COSTS - challenge to special order that successful plaintiff be paid only a percentage of his costs - not unreasonable for defendant to refuse Calderbank offer - no error in rejecting submission that defence was improperly maintained - power to reduce costs even where a plaintiff obtained a substantial verdict in his favour - costs discretion re-exercised in light of other errors disclosed in reasons TORTS - negligence - owner and operator of concrete batching plant failed to inspect and maintain all structural elements - plant collapsed on truck driver - challenge to findings of liability and breach based on impermissible use of hindsight - challenge to drawing of inference from owner's failure to adduce evidence of results of forensic investigation into collapse - primary judge expressly found owner liable without needing to rely on inferences - damages - factual challenges to heads of economic and non-economic loss

CRIMINAL LAW – juries - application that the whole jury be discharged following the discharge of a juror in accordance with s 53A of the Jury Act 1977 – no risk of a substantial miscarriage of justice – trial to continue with remaining eleven jurors

CRIMINAL LAW – juries – juror misconduct – internet research by juror as to identity of the deceased – examination by judge of juror in question and foreperson – discharge of juror

EVIDENCE – admissibility of evidence relating to a knife found in the vicinity of the crime scene

COSTS - No matter of principle

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - whether delay was plainly unreasonable or delinquent - costs on the ordinary basis

CIVIL - s 102(2) Roads Act - Hexham Bridge - truck load over height - whether negligence or culpability is a necessary ingredient of a claim - whether RTA officer directed re-configuration of load which increased the height above the maximum permissible - whether RTA officer breached his duty of care - INSURANCE - whether truck driver was reckless - conditions of insurance policy - whether driver had actual knowledge of the danger - whether finding of driver's recklessness entitled insurers to refuse indemnity - whether s 234 Roads Act protects RTA and State from suit - whether RTA officer was employed in the service of the Crown - CAUSATION - whether RTA officer's negligence was a necessary condition of damage - whether RTA officer was acting in good faith - whether inconsistency between s 49 Roads Transport (General) Act and s 234 Roads Act - whether s 102 Roads Act displaces concepts of the law of damages - consideration of cost of making good the damage - whether cost of investigating damage falls outside s 102 whether principles of reasonableness have relevance - DAMAGE - pre-existing damage - whether recovery limited to making good damage to bridge caused in accident - whether defendant must take bridge as it found it - whether defendant's liability reduced for pre-existing damage - findings as to pre-existing damage - findings as to damage caused in the accident - expert evidence - emergency repairs - mechanical damage and other inspections - traffic control - whether defendant liable for replacement of ropes and counterweights - lift span repairs - structural bridge repairs - mechanical - electrics - referral to referee.

EVIDENCE ON COMMISSION - examination of witness for civil proceedings in Poland - claim of privilege by witness under article of Polish Code of Civil Procedure

CONTRACT - construction of joint venture agreement - whether pre-existing bank debt to be paid by plaintiffs with own funds or by joint venture with funds borrowed for proposed development - extrinsic materials - whether permissible to rely on pre-contractual negotiations in aid of construction or to establish intention of parties - whether permissible to rely on post-contractual conduct as admission to prove a fact relevant to parties' contractual obligations - where no admission identified - where post-contractual conduct relied on to establish intention of parties CONTRACT - relief - whether mutual mistake to support order for rectification - where no common intention of the parties PROCEDURE - civil - pleadings - application to amend case to include claim for rectification for unilateral mistake - where proposed amendment deficient - where amendment sought on final day of hearing - where witnesses would need to be recalled if amendment allowed

CRIMINAL LAW - Appeal - Appeal against sentence - Whether trial judge made an erroneous conclusion

CRIMINAL LAW - Appeal - Where evidence of applicant being institutionalised - Where evidence of applicant's difficulties in re-integrating into the community following previous release from custody - Where such evidence was the subject of submissions - Where sentencing judge omitted to refer to that issue on sentence - Error established CRIMINAL LAW - Where sentencing judge failed to take into account evidence relevant to a finding of special circumstances - Error in exercise of discretion established - Finding of special circumstances made - applicant re-sentenced

APPEAL - application for leave - failure to give adequate reasons - error of law accepted, but relief refused - decision supported by unchallenged evidence - no adequate basis to doubt correctness of decision of primary judge REAL PROPERTY - strata title - non-payment of special levy - liability of unit holder - whether notice served by posting to correct address

ADMINISTRATIVE LAW - judicial review - decision of Independent Commission Against Corruption not to disclose basis upon which a summons to produce documents was issued to plaintiff - notice to produce served by plaintiff - application by Commission to set aside notice to produce - ICAC Act s 111(3) - whether s 111(3) applies to the Commission as a separate legal personality - whether s 111(3) applies to documents created by the Commission ADMINISTRATIVE LAW - judicial review -summons to produce documents issued by Commission to plaintiff - ICAC Act s 35(1) - plaintiff's application to set aside summons - whether summons authorised by s 35 - whether Commission took into account relevant considerations in issuing the summons - whether decision to issue summons reasonable - whether decision to issue summons illogical, irrational or not based on findings or inferences of fact - whether Commission failed to accord procedural fairness to plaintiff CONSTITUTIONAL LAW - judicial review - whether s 111(3) inconsistent with power of Supreme Court to grant relief in relation to jurisdictional error - whether Court has effective supervision of decisions made by the Commission under s 111(3) CONSTITUTIONAL LAW - implied freedom of communication on governmental and political matters - whether s 35(1) inconsistent with the implied freedom - whether s 35 effectively burdens freedom of communication on government or political matters in its terms, operation or effect - whether a legitimate statutory purpose can be identified - whether s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose

CIVIL LAW - approval of agreed damages - s 76 Civil Procedure Act - car accident - future earnings of young person - quantum of possible damages - legal incapacity - settlement - beneficial to plaintiffs interests

PROCEDURE - civil - application for summary dismissal - whether report of ICAC amenable to judicial review - whether utility in declaratory relief

PROCEDURE - civil - interlocutory issues - application to revoke order for hearing of separate questions

SUCCESSION - Family provision - claim made by widow of the deceased - whether adequate and proper provision made in will of the deceased - where deceased provided right of residence to the widow in will - where completing claims by two young adult children of former marriage - what provision ought to be made for widow of deceased - whether provision ought to be made as percentage or lump sum legacy - what amount of legacy ought to be made.

PROCEDURE - judgments and orders - stay of proceedings pending application for leave to appeal - where stay or refusal will practically determine appeal - where appeal relies on evidence not previously adduced - where appeal relates to discretionary decision on a matter of practice and proceedings - balance of convenience.

PROCEDURE - interlocutory application - Uniform Civil Procedure Rules 2005 rule 28.2 - whether quantum of damages should be determined separately - damages claim an alternative to primary claim for relief - whether evidence relevant to damages claim will be relied upon in the primary proceedings

PROCEDURE - contempt, attachment and sequestration - contempt of court - penalty - whether orders can be made returning relevant monies to companies' bank accounts - whether orders made by consent constituted an implied contract between the parties - considerations relevant to imposition of penalty - whether order for costs against contemnor on indemnity basis constitutes a sufficient penalty.

APPEAL FROM LOCAL COURT - whether the Magistrate properly applied the test for summary judgment - whether there was a triable issue APPEAL FROM LOCAL COURT - application for leave to appeal from a costs order in the Local Court

CORPORATIONS - winding up - winding up in insolvency - creditors statutory demand application to set aside for "some other reason" - where debt claimed is a judgment debt and leave to appeal from judgment has been refused - whether pendency of application for special leave to appeal affords "some other reason"

APPEAL FROM LOCAL COURT - real property - contract for sale of land - split deposit payable by instalments - whether second payment is a penalty - damages - rent earned from the property by the purchaser prior to completion

TORTS - negligence - professional negligence - solicitors - solicitor retained to prepare will - testatrix died before will prepared - duty of care owed by solicitor to disappointed beneficiary - scope of such duty dependent on terms of solicitor-client retainer - where solicitor and client agreed that solicitor would present draft of will at an agreed future time about two weeks after initial consultation - where the agreed time suited the convenience of both the solicitor and the client - client 94 years old - whether the terms of the retainer were such as to require immediate steps to sign informal will - whether solicitor was or should have been aware that the client might die or lose testamentary capacity within the agreed period of about two weeks PROFESSIONS AND TRADES - lawyers - solicitors - duties to client when instructed to prepare will.

CONTRACT LAW - contract for the sale of land - notice to complete - settlement location in dispute - termination of contract - termination invalid - recovery of deposit under s 55(2A) conveyancing act 1919 EVIDENCE LAW - affidavit not properly sworn - definition of public document - evidentiary value of statements made by solicitors

PROCEDURE - summary dismissal - no question of principle