Cases and authorities

FAMILY LAW AND CHILD WELFARE - adoption - absence of consent to adoption by parents - whether appropriate to dispense with requirement of parental consent - adoption orders made - approval given to a change of surname

[CONTEMPT] - where two local government politicians fall out in respect of a failed joint venture agreement - where court proceedings in respect of the joint venture concluded - where unsuccessful party publishes material on the Internet claiming that the successful party is a "criminal" - whether party publishing the material actuated to exact a reprisal because the other party successfully defended proceedings - whether the law of contempt applies to conduct where proceedings have concluded. [CONTEMPT] - where admissions of deletion of emails after service of a Notice to Produce. [CONTEMPT] - whether publication of material on websites scandalises the Court. [CONTEMPT] - where allegations of breach of implied undertaking - where publication of affidavits served but not deployed in proceedings at time of publication on the Internet.

POSSESSION - joint tenancy between plaintiff and plaintiff's wife not severed - the plaintiff did not give the property to his wife as part of a marriage settlement - on death of plaintiff's wife property passed by survivorship to the plaintiff - in any event the plaintiff was the beneficiary of his wife's estate - s 13 of the Succession Act 2006 (NSW) not applicable as decree absolute of dissolution of marriage occurred before 1 March 2008 - order for possession granted

PUBLIC ASSEMBLY - application by Commissioner of police for order prohibiting protest by Palestinian group at opening of Israeli film festival - disruption of vehicular and pedestrian traffic - possible violence

[CONTEMPT] - considerations in respect of findings of guilt on Charges of contempt of Court - where offending publication no longer accessible - where third party (a person previously acting as a solicitor for the contemnor) communicates with Court whilst judgment reserved - where appropriate to have evidence in respect of certain health issues of contemnor before further consideration of any punishment to be imposed

PROCEDURE - civil - judgments and orders - UCPR r 36.16 - application to vary or set aside judgment - application to reopen on ground that court proceeded on misapprehension of fact - application to set aside judgment on ground that judgment debt not paid - application by defendants for order for stay pending appeal - where no grounds of appeal indicated by defendant - where bank undertook to advance funds to defendant to satisfy judgment - whether bank entitled to stay of enforcement of its undertaking pending appeal

PROCEDURE - Judgments and orders - Amending, varying and setting aside, re-opening to reconsider a point under Uniform Civil Procedure Rules r36.16 - Whether the Court proceeded on a misapprehension as to the facts or the evidence - Whether the Court overlooked or failed to consider submissions made by the respondents on appeal

PRACTICE AND PROCEDURE - Application for stay of execution - no issue of principle

CRIMINAL LAW - bail - application for an adjournment - applicant's pending matters will be resolved shortly - applicant 14 years old - exception to general approach to bail application listed for hearing

CRIMINAL LAW - Offence of supplying prohibited drug - Trial before judge alone - Where Crown relied on circumstantial case - Where trial judge satisfied beyond reasonable doubt of applicant's guilt - Whether verdicts unreasonable or could not be supported by the evidence EVIDENCE - Where hearsay representations admitted without objection - Where trial judge relied upon representations as evidence of the truth - Whether open to the trial judge to do so - Whether evidence admissible as an exception to the hearsay rule in any event

CRIMINAL APPEAL - leave to appeal against sentence - no failure to state the commencement date with respect to each of the sentences imposed since aggregate sentence imposed - aggregate sentence - indicative sentence - significance of court record of sentence imposed - whether sentence was manifestly excessive

CRIMINAL LAW - Crown appeal against sentence - further hearing of appeal on remittal from the High Court of Australia - sentence imposed at first instance was manifestly inadequate - exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 - consideration of factors relevant to the exercise of the residual discretion - respondent's deteriorating health since sentencing - the effect of re-sentencing on the respondent's rehabilitation - expiration of the non-parole period imposed at first instance - delay in hearing of the appeal - time spent in quasi custody - respondent re-sentenced

Practice and procedure - leave to amend - draft amended summons served after submissions filed - objections to amendments to be determine in light of submissions - costs - seeming non-compliance with Civil Procedure Act 2005 (NSW), s 56

APPEAL - competency of an appeal to the Common Law Division of the Supreme Court from reasons given by a costs assessor - whether the reasons constituted a "decision" within s 208L of the Legal Profession Act 1987 (NSW)

CIVL LAW - Crimes (High Risk Offenders) Act 2006 - psychiatric evaluation - interim orders - non publication orders

APPEALS - appeal against judgment entered in the Local Court - proceedings brought in the Local Court by a barrister against a solicitor for unpaid fees - where barrister had already made an application to have the fees assessed under the Legal Profession Act 2004 - where assessor returned the file without making an assessment - whether assessment "complete" within the meaning of the statute - whether solicitor immune from suit in the Local Court

INTERLOCUTORY APPLICATIONS – application to amend grounds of opposition to statutory demand – whether winding up proceedings arguably constitute an abuse of process – leave for director to represent company – revocation of leave

CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - effect of discrimination and social exclusion on behaviour - treated akin to Fernando prinicples - sentence imposed

COSTS - whether defendants were seeking an indulgence when seeking orders that the plaintiffs be medically examined and orders dispensing with the requirement in rule 23.5 of the Uniform Civil Procedure Rules 2005 (NSW) that a medical expert of the plaintiffs' choice be present for such examinations -not an indulgence for the defendants to seek such orders - plaintiffs ought bear costs of the hearing of the motion because they were unsuccessful

COSTS - indemnity costs - plaintiffs unsuccessfully advanced case based on allegations of fraud - allegations found to be without foundation - allegations made with knowledge of falsity - order for indemnity costs made

EVIDENCE - expert report - expertise - Evidence Act 1995 s 79 - whether expert possessed specialised knowledge based on training, study or experience - whether expert report otherwise concerned with matters of relevance to the proceedings

POSSESSION OF LAND - unregistered interest created by instalment contract of sale between registered proprietor and purchaser - instalment contract varied - registered proprietor transfers to a volunteer - whether volunteer fraudulent - whether volunteer takes title free from purchaser's unregistered interest CONTRACT - instalment contract for the sale of land - registered proprietor and purchaser agree to sell the land and divide proceeds - whether registered proprietor in breach of contract by declining an offer to purchase made by a third party and by transferring the property to a volunteer

CRIMINAL APPEAL - appeal against sentence - whether failure to apply 25% discount when setting aggregate sentence - whether aggregate sentence is manifestly excessive - relevance of indicative sentences - whether sentencing judge erred in findings on prospects of rehabilitation - whether indicative sentences for Counts 1 and 4 too high and too great a weight given to objective seriousness and Form 1 matters - whether there was a failure to apply totality having regard to earlier periods in custody

CRIMINAL LAW - appeal - conviction - accused convicted of offence against s 86(3) of Crimes Act 1900 (NSW) - specially aggravated kidnapping - whether trial miscarried by reason of prejudice occasioned by Crown prosecutor in closing address - address by Crown prosecutor - reversal of onus of proof - whether impossible for trial judge to give directions to rectify possible harm occasioned by Crown prosecutor's inappropriate remarks - whether directions given ineffective to cure prejudice from remarks - impropriety fully mitigated by summing up - whether defence of honest and reasonable but mistaken belief raised by accused - Proudman v Dayman [1941] HCA 28; 67 CLR 536 - evidentiary onus on accused - evidentiary onus not discharged - no error in manner in which trial judge directed jury with regard to defence of honest and reasonable mistake - verdict not unsafe and unsatisfactory - appeal dismissed

CRIMINAL LAW - Crown appeal against sentence - Respondent pleaded guilty to 20 serious child sexual abuse offences contrary to Crimes Act 1900, ss.66C(2), 66C(4), 91H(2), 61M(2) and 61J(1) and 344A - representative counts - 11 further Form 1 offences taken into account on sentence - offences committed against seven male victims between 2005 and 2011 - victims aged nine to 16 years - Respondent aged 55 to 62 years - Respondent friendly with families of several victims - offences occurred while victims under authority of Respondent - offending conduct involved calculated grooming of victims through provision of money, gifts, alcohol, cigarettes, cannabis and interstate trips - Respondent directed sexually explicit questionnaires to victims - questionnaires designed in part to identify further prospective victims - total effective sentence of 12 years and six months' imprisonment with non-parole period of eight years and six months - significant degree of concurrency in relation to individual sentences imposed - sentences with respect to two victims wholly concurrent - no period of imprisonment referable solely to offences committed against two other victims - whether sentences imposed on Respondent for offences committed against one particular victim manifestly inadequate - manifest inadequacy not demonstrated - whether Respondent's overall sentence manifestly inadequate - large number of offences with substantial maximum penalties - Respondent's age not significant mitigating factor given pattern of offending up to time of arrest - s.91H(2) offence of considerable objective gravity - need for sentences in child sexual abuse cases to reflect the long term and serious harm done to individual victims - sentencing to reflect fact there were several victims of separate criminal conduct - sentences manifestly inadequate due to insufficient accumulation of individual sentences - residual discretion not exercised - Respondent resentenced - total effective sentence of imprisonment for 17 years with non-parole period of 12 years

CRIMINAL LAW - appeal - sentence - whether trial judge erred in not giving effect to findings of special circumstances - principle of totality - manifest excess and parity - principles discussed - appeal dismissed

CRIMINAL LAW - appeal - interlocutory issues - PROCEDURE - criminal justice stay warrant; application for - applicant seeking to stay in Australia to conduct appeal against conviction in Court of Criminal Appeal - Migration Act 1958 (Cth) - power of the Court to grant criminal justice stay warrant - Supreme Court Act 1970 - PROCEDURE - parties - standing - whether applicant has standing to apply for criminal justice stay warrant - Migration Act 1958 (Cth); Pt 2 Div 4

CRIMINAL LAW - appeal - child sexual assault - victim offender's daughter - offences seven years apart - whether sentencing judge erred in finding offence not isolated - alleged use of wrong statistics - Ellis discount - alleged failure to consider rehabilitation and remorse - error demonstrated - no lesser sentence warranted in law.

CRIMINAL LAW - practice and procedure - application for an extension of time within which to appeal - applicant seeking leave to withdraw plea of guilty - applicant pleaded guilty to one count of sexual intercourse without consent - whether applicant understood effect of plea of guilty - whether applicant suffering from a schizophrenic episode when he entered plea of guilty - limitations of medical evidence - importance of evidence of events contemporaneous with entry of plea of guilty - unreliability of applicant as an historian - complete and logical explanation for plea of guilty available - no reasonable prospects of success - application for extension of time refused.

APPEAL AND NEW TRIAL - nature of appeal - appeal from decision in "point of law" - plaintiff suffered from terminal lung condition - plaintiff claimed damages against appellant on the basis that lung condition was asbestosis - appellant argued the lung condition was idiopathic pulmonary fibrosis - trial judge held that the appellant's expert witnesses had conceded that the longevity of the disease established that it was probably asbestosis - whether there was an error in point of law in finding that the appellant's expert had made such a concession - whether any error by the trial judge amounted to an error in point of law - Dust Diseases Tribunal Act 1989 (NSW), s 32 DAMAGES - general damages - whether award of general damages disproportionate or excessive - principles on appeal of award of damages - no norm or standard should be derived from other decisions to determine whether award disproportionate - appeal limited to errors of law requires award to be so disproportionate it cannot be assumed the judge operated within the law TORT - negligence - causation - plaintiff had been exposed to asbestos by appellant - plaintiff claimed inhalation of asbestos had caused asbestosis - asbestosis and idiopathic pulmonary fibrosis share similar clinical symptoms - whether medical evidence established that the plaintiff was suffering from asbestosis

ADMINISTRATIVE LAW - relevant and irrelevant considerations - need to consider purpose for which said to be relevant - statement of principle in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 discussed LOCAL GOVERNMENT - elections - application to tribunal to dismiss councillor for irregularity in manner of election - councillor alleged not to have been a "resident" at the time of nomination - councillor had relocated to local government area shortly before nominating - order to dismiss councillor made by tribunal for failure to comply with residency requirements - whether tribunal misunderstood nature of inquiry - meaning of "place of living" - whether tribunal impermissibly relied upon subjective considerations when determining "place of living" - whether tribunal erred in determining "place of living" by reference to other places of living - Local Government Act 1993 (NSW), ss 269, 329 PRACTICE AND PROCEDURE - costs - parties to bear own costs in proceedings unless ordered otherwise - power of former Administrative Decisions Tribunal to order costs if satisfied "that it is fair to do so" - Administrative Decisions Tribunal replaced by Civil and Administrative Tribunal (NCAT) - NCAT ordered costs in favour of the respondent - whether a right of appeal exists against the costs - Administrative Decisions Tribunal 1997 (NSW), s 88 - Local Government Act 1993 (NSW), ss 329, 330 WORDS AND PHRASES - "place of living" - "resident" - Local Government Act 1993 (NSW), s 264

ADMINISTRATIVE LAW - judicial review - applicant convicted of two offences of driving whilst licence suspended - whether District Court erred in declining to set aside second conviction - employment and business exigencies did not constitute an excuse for committing the offences - relevance of basis for suspension of driver's licence - no jurisdictional error established TRAFFIC LAW - licensing of drivers - automatic suspension of driver licence on accrual of demerit points - offence of driving whilst licence suspended - defences of honest mistake and business exigencies rejected by trial court and on appeal - whether jurisdictional error by District Court

APPEAL - challenge to findings of fact - deference to trial judge EQUITY - fiduciary duty - employee in position of conflict - accessory liability for knowing assistance in dishonest and fraudulent design - meaning of "dishonest and fraudulent design" - whether necessary to show knowledge of absence of informed consent - measure of equitable compensation FRAUD - pleadings and course of trial - whether finding of dishonesty available PRECEDENTS - departure from decision of another intermediate appellate court - where not necessary to do so in order to resolve appeal - where issue was important, causing inconsistent formulations of principle - precedential status of a decision which did not itself develop the common law but merely explained decision of High Court - comity

PROCEDURE - interlocutory injunctions - application for interlocutory injunction pending hearing of application for leave to appeal and if granted appeal - injunction sought to restrain the sale of property by mortgagee in possession - whether mortgagor must pay into court the sum owing under the mortgage - whether an exception to the "general rule" applies - whether the mortgagor must provide the usual undertaking as to damages

CONTRACTS - general contractual principles - conditions precedent - whether conditions precedent had been satisfied or waived - whether conditions were 'precedent' or 'subsequent' - where condition precedent expressly for the benefit of one party - where conditions precedent include a requirement to reasonably satisfy a party that conditions precedent in another agreement, involving different parties, had been satisfied or waived - where parties to other agreement entered into deed to postpone date for compliance with conditions precedent - where parties to other agreement signed letter indicating conditions precedent had been satisfied - whether parties could be 'reasonably satisfied' of conditions precedent which had not, in fact, be satisfied - whether extending time for fulfilment of conditions precedent amounted to a waiver of conditions precedent - whether letter signed by parties to other agreement sufficient to 'reasonably satisfy' of fulfilment of conditions precedent where parties had a financial interest in fulfilment of the agreement EQUITY - equitable remedies - specific performance - damages - whether to grant damages or specific performance of a subscription agreement - whether a company's unissued capital has any value

CORPORATIONS – deregistration – application to reinstate company under Corporations Act (2001) Cth s 601AH(2) – whether plaintiff is a person aggrieved by deregistration of company – whether just to reinstate the registration of company.

COSTS and final orders

ADVOCATES' IMMUNITY - barrister and solicitor sued for work done in court or closely connected therewith - unclear whether contract or tort - work done on criminal proceedings - plaintiff convicted - conviction upheld on appeal and grounds related to impugned conduct were dismissed - no possible damage - immunity applies - abuse of process - proceedings summarily dismissed

PRACTICE AND PROCEDURE - stay of proceedings - costs - application by defendant for stay of proceedings until payment by plaintiff of costs ordered by the High Court of Australia

PROCEDURE - cross-vesting - proceedings commenced in Supreme Court of New South Wales - application for transfer to Supreme Court of Queensland - interests of justice

EQUITY - trusts - resulting trusts - money borrowed for the purpose of establishing term deposits to be held as security in the name of another - whether intention to create trust established - whether presumption of resulting trust rebutted

PROCEDURE - application for appointment of tutor under UCPR r 7.18 - where application made by opposing party - where substantive dispute relates to construction of a will - where individual for whom tutor is to be appointed suffers from chronic psychiatric condition - where individual previously sought to make a submitting appearance - whether submitting appearance the result of apathy or a considered approach - appointment of tutor made

Witness protection program - subsequent legislation - powers of Commissioner of Police - functions of ministers - distinction between power and duty - mandamus inappropriate

CRIMINAL LAW - sentencing - manslaughter by unlawful and dangerous act - within lowest range of culpability - impact of offender's psychiatric condition - effect of drugs ingested by deceased - discount for offer of plea before trial

COSTS - application for costs of a costs application

COSTS - gross sum costs; application for - Civil Procedure Act, s 98 - discretion to make a gross sum costs order applicant impecunious and in debt - whether costs liability is likely to be discharged - whether there is adequate information before the Court to enable the Court to properly and fairly assess the costs incurred - whether costs assessment process would be protracted - whether costs assessment would increase delay and expense - whether in the interests of justice

WORKERS COMPENSATION - entitlement to compensation - whether the Appeal Panel of the Workers Compensation Commission wrongly determined liability and causation in the place of an arbitrator - whether the matter was capable of referral to an approved medical specialist under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether the arbitrator characterised the injury as a "frank injury" or as an exacerbation or aggravation of a pre-existing condition - whether the Appeal Panel erred in failing to address s 323 of the Act

POSSESSION - stay application - late completion of contract for sale of land - procedural fairness

PRACTICE AND PROCEDURE - search order - ex parte application - preservation of evidence

POSSESSION - application for stay of writ of possession - stay granted on hardship grounds