Cases and authorities

EVIDENCE - admissibility - opinion; expert - medical report - assumptions as to medical history where no evidence to support them - whether common law rule in Ramsay v Watson applies to the Evidence Act 1995 (NSW)

CIVIL LAW - appeal against decision of Magistrate - failure to prosecute appeal - bizarre procedural history - confusion over identity of parties - summons dismissed

COSTS - indemnity costs orders sought by defendants - application for indemnity costs had not been foreshadowed when plaintiff joined proceedings - self represented litigant - delinquency of unsuccessful party - orders made

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Application made in anticipation of personal injury compensation - Protected person without other property - Application adjourned until after resolution of compensation litigation MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment and removal - Management and administration of property - Application for revocation of management orders - Protected person remains incapable of managing affairs - Protected person without property - No utility in continuation of management orders notwithstanding that the protected person is incapable of managing affairs - Revocation of management orders

SUCCESSION - FAMILY PROVISION - One Plaintiff, a widow of the deceased, and the other Plaintiff, a child of the deceased by a prior marriage - Each applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - Defendant also a child of the deceased by a prior marriage and a beneficiary named in the Will - Whether adequate and proper provision not made in Will of the deceased for either Plaintiff and, if so, the nature and quantum of the provision to be made for her and him

TORTS - negligence - non delegable duty - vicarious liability - whether school can receive indemnity or contribution from a teacher following the school entering into a settlement with student following the teacher's criminal misconduct towards the pupil

CRIMINAL LAW - sentencing - prosecution appeal - manifest inadequacy - failure to accumulate - circumstances of deprivation - intellectual disability - institutionalised offender - relevance of deterrence - whether sentencing Judge failed to consider deterrence - deterrence of limited relevance - sentencing of Aboriginal offenders - residual discretion - moderate increase in degree of accumulation

CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with a dangerous weapon and in company - whether applicants had justifiable sense of grievance given the disparity between their sentences and the sentence imposed on a co-offender - where the applicant had served time on bail in residential rehabilitation facilities - where the applicant had not complied with some of the bail conditions imposed - whether the sentencing judge erred in failing to take into account the time served on bail given the restrictive nature of the bail conditions - whether the sentencing judge failed to give appropriate weight to the subjective circumstances of the applicant - whether the sentencing judge had proper regard to the totality principle in accumulating the sentences imposed - consideration of subjective circumstances of each co-offender - consideration of Form 1 offences taken into account - whether sentences manifestly excessive

APPEAL - grant of leave to file a further amended statement of claim - whether that grant was made in error - whether the amendments only amounted to a different claim in law - whether prejudice would be occasioned to the defendants

APPEAL - application for leave to appeal - appellate intervention not justified

PRACTICE AND PROCEDURE - extension of time for service - respondent filed statement of claim pleading causes of action in defamation and others shortly before limitation period for defamation causes of action expired - statement of claim not served on applicant within time limited by UCPR 6.2(4)(b)(ii) - respondent decided not to serve statement of claim until judgment in an appeal from a decision which if correct afforded a defence of absolute privilege to his defamation causes of action was delivered and also to avoid aggravating situation with applicant in respect of whose conduct he had sought an APVO - after APVO order granted and appeal judgment delivered respondent obtained leave to serve statement of claim out of time - exercise of judicial discretion to extend time - whether "good reasons" for delay in service - whether knowledge of sufficient facts to plead statement of claim determinative against extension of time - effect of expiration of limitation period on extension of time for service application

PROCEDURE - pleading - plaintiff sought an order striking out an unrepresented defendant's defence - defence drawn by the defendant himself - being of the opinion that the defence disclosed no ground of defence, the primary judge ordered summary judgment for the plaintiff - no application for summary judgment before the court - no intimation to the defendant that summary judgment against him was a possible outcome - breach of procedural fairness and natural justice - on appeal, judgment set aside and defence struck out but with leave to replead

POSSESSION - application for a stay

PRACTICE AND PROCEDURE - application for leave to proceed against company in liquidation in proceedings for possession - no question of principle

EVIDENCE - Expert opinion - Distinction between proof of assumed primary facts and knowledge relied upon - Evidence Act 1995 (NSW), s 60

PROCEDURE - civil - pleadings - application for leave to file further amended Commercial List Statement and for related order for discovery - whether amendments raise at least an arguable case - whether amendments consistent with just, quick and cheap resolution of proceedings - whether in the interests of justice that amendments be permitted

JUDGES - bias - actual bias - apprehended bias - application to recuse - no evidence of bias

DEFAMATION - Defamation Act 2005 (NSW) - pleadings - imputations - Uniform Civil Procedure Rules 2005, r 14.30 - where ambiguity - not to be left to jury subject to clarification DEFAMATION - pleadings - whether matter published capable of conveying defamatory imputation

ADMINISTRATIVE LAW - Judicial Review - orders in nature of certiorari and mandamus - Whether jurisdictional error - Whether District Court correctly construed and applied s 19B(1)(d) Crimes Act 1914 (Cth) - Whether the discretion to impose a condition of the recognisance extends to the power to impose a requirement to perform unpaid work PRACTICE AND PROCEDURE - Judgments and Orders - Appropriate remedy where sentence below partly affected by jurisdictional error - Severance - Whether possible to sever only the impugned portion of the decision - Whether the impugned portion is inextricably linked

ADMINISTRATIVE LAW - judicial review - appeal to District Court against costs assessment limited to a decision "as to a matter of law" - alleged errors in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - scope of appellate jurisdiction of District Court - whether failure to give reasons constitutes a decision "as to a matter of law" - adequacy of reasons had been considered earlier in the supervisory jurisdiction of the Supreme Court - whether District Court was deprived of jurisdiction to consider the issue - whether the failure to consider the objection constituted a decision that, as a matter of law, it was not a mandatory consideration - Legal Profession Act 2004 (NSW), s 384 PRACTICE AND PROCEDURE - costs assessment - appeal to District Court limited to a decision "as to a matter of law" - applicant objected to payment of costs to respondent due to late amendment of claim - cost assessor and review panel rejected objection - applicant alleged error in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - extent of appellate jurisdiction of the District Court

PROCEDURE - notice of motion - order seeking stay of enforcement of judgment - stay of enforcement of judgment granted - balance of convenience favours the defendant given the imminence of an appeal to the High Court of the Hong Kong Special Administrative Region Court of Appeal and ensuring that the defendant not lose the opportunity to have the appeal determined fully on its merits - plaintiffs not entitled to be put in better position as a result of stay

PROCEDURE - costs - security for costs - whether corporate impecuniosity established – relevance of agreements to subordinate related debt to any costs order – plaintiff does not have to affirmatively prove solvency – discretionary considerations - delay – beneficial owner agrees to be liable for costs – presence of natural plaintiff within jurisdiction – proceedings with some features of oppression suit.

COSTS - application for indemnity costs - whether valid offer of compromise - absence of statement that offer made in accordance with the Rules - whether offer genuine compromise - whether finding that rejection of offer was reasonable is a basis for otherwise ordering.

PROCEDURE - Referee's report - adoption - whether to adopt referee's report - where party tried to reargue issues on the adoption which had already been decided by the Court INTEREST - which rate of interest should be applied - whether interest payable at pre-judgment rate or post-judgment rate from date of judgment until damages were assessed COSTS - departing from the general rule - conduct of parties - whether successful party entitled to costs of reference - where reference only necessary because of that party's failure to adduce sufficient evidence on question of cost of rectification - where other party tried to reargue matters before the referee which had already been determined by the Court COSTS - indemnity costs - no question of principle

PROCEDURE - Abuse of process - institution of proceedings - whether proceedings are abuse of process where plaintiff has not conducted preliminary assessment to satisfy itself that the material facts exist - held, no such requirement CORPORATIONS - Winding up - liquidators - proceedings by liquidators - insolvent trading - whether proceedings are abuse of process where liquidator has not adjudicated proofs of debt

TORTS - industrial accident - negligence - where carpenter injured in fall from defective scaffold - whether condition of scaffold causally related to fall - whether breach of duty by employer in failing to instruct plaintiff not to climb on scaffold or in failing to detect or warn of defect or associated danger - whether scaffolder in breach of duty by failing to erect or repair scaffold - whether defect caused by third party - whether plaintiff guilty of contributory negligence

DEFAMATION - principle of proportionality - where plaintiff alleging publication to only three people - action raising complex issues as to whether defendant liable for publication - where plaintiff acknowledging that any judgment in his favour would not be enforceable against the defendant - whether action liable to be stayed or dismissed as an abuse of process on the grounds that the legal costs and court resources required to determine the claim will be "out of all proportion" to the interest at stake

CRIME - sentence - drug offences - assessment of roles of co-offenders engaged in same drug transactions - parity

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application by company for order setting aside demand - where the affidavit accompanying the demand did not state the deponent’s belief as to absence of genuine dispute about the existence or amount of the debt - whether that deficiency was “some other reason” to set aside the demand within s 459J(1)(b)

PRACTICE AND PROCEDURE - costs - motion by former solicitor seeking relief over fruits of judgment - motion abandoned at hearing - no basis for costs order favourable to former solicitor

CORPORATIONS - External administration - voluntary administration - derivative action - whether statutory derivative action available - whether supervisory jurisdiction to permit contributory to sue in name of company administration

DEFAMATION - interrogatories - no question of principle.

PROCEDURE - Supreme Court procedure - New south Wales - Procedure under Uniform Civil Procedure Rules - Payment into and out of court - Due administration of funds in court - Partial payment out to satisfy claimed lien for legal costs - Prevention of abuse of processes of court - Deferral of consideration of other claims to funds pending administration of other proceedings.

CRIME – application for a stay – two conspiracy counts – whether double punishment – some overlap but elements different – application refused.

BUILDING AND CONSTRUCTION - breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B - reasonableness of owner's conduct after breach by builder - duty to mitigate - where builder refused to rectify defects - where owner lost confidence in builder - whether owner reasonable in rejecting later offer by builder to rectify defects - availability of damages for cost of rectification work

CRIMINAL LAW - conviction appeal - whether verdict of jury unreasonable and cannot be supported by evidence - charge of murder - two men involved in a street fight - conflicting evidence as to what happened - evidence of principal Crown witness unreliable in a number of significant respects - not open to jury to conclude beyond reasonable doubt that applicant had intent necessary for murder - murder conviction should be quashed - new trial on the charge of manslaughter.

CRIMINAL LAW - appeal - appeal against sentence - Muldrock error - standard non-parole period - supply commercial quantity of heroin - parity - co-offenders charged with different offences - rehabilitation - steps taken since original sentence imposed - special circumstances - appeal allowed - re-sentencing - less severe sentence warranted

CRIMINAL LAW - appeal against sentence - supply large commercial quantity of heroin - whether sentencing judge allowed sufficient discount for guilty plea

PRACTICE AND PROCEDURE - enforcement of a garnishee order

EVIDENCE – admissibility – whether photos enhanced from CCTV footage constitute a business record

DEFAMATION - form of pleadings - no question of principle

CIVIL LAW - dismissal for want of due dispatch - new legal representatives - arguable grounds - amended summons - balance of competing factors

BUILDING AND CONSTRUCTION - payment claims - whether there was a 'construction contract' in accordance with the Building and Construction Industry Security of Payments Act 1999 (NSW), s4 - definition and construction of 'construction contract' - definition and construction of 'arrangement' COSTS - departing from the general rule - where offer of compromise made

PRACTICE AND PROCEDURE -

PROCEDURE - judgments and orders - enforcement of garnishee order - cheque returned to solicitors for judgment debtor when settlement did not proceed - garnishee order served upon solicitors - whether solicitors were an equitable debtor of judgment debtor when garnishee order was served - whether a debt was "due or accruing" from the garnishee to the judgment debtor at the time of service of the garnishee order - Civil Procedure Act 2005 (NSW) s 117(1)

LANDLORD AND TENANT - termination of the tenancy - relief against forfeiture - principles applicable where there is delay in commencing proceedings, there is doubt about whether the lessee can pay future rent, and a lease has been granted to a new lessee - exercise of discretion to grant relief against forfeiture - conditions upon which relief should be granted.

BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) ss 18B and 18E - defective work - claim for breach of statutory warranties by owner-builder - whether work performed in a proper and workmanlike manner - whether materials used in construction were suitable for the purpose for which they were used - whether dwelling reasonably fit for occupation as a dwelling - assessment of damages for breach of statutory warranties TRADE PRACTICES - Competition and Consumer Act 2010 (Cth) - Australian Consumer Law s 18 - misleading or deceptive conduct - whether conduct consisting of the making of misrepresentations as to the qualities of a domestic residence sold to the plaintiffs was in trade or commerce - whether the conduct viewed in the light of disclaimers in advertising material, acknowledgments in the contract of sale and opportunities given to the purchasers to inspect the residence was misleading or deceptive or broke the chain of causation between the conduct complained of and the damages suffered DAMAGES - quantification of damages for misleading and deceptive conduct consisting of misrepresentations inducing the plaintiffs to purchase a defective dwelling TORTS - negligence - pure economic loss - existence of duty of care - whether owner-builder's husband owed purchasers a duty of care to avoid causing pure economic loss by ensuring work not defectively done TORTS - negligence - pure economic loss - existence of duty of care - whether owner-builder’s husband owed purchasers a duty of care to avoid causing pure economic loss by ensuring work not defectively done

CRIMINAL LAW - sentencing - manslaughter - excessive self defence - consideration of aggravating and mitigating factors - early offer to plead guilty to manslaughter - not accepted by Crown - sentence reduction - previous criminal convictions - conviction for serious personal violence offence - manslaughter committed whilst on parole - whether good prospects of rehabilitation - whether unlikely to re-offend - lack of remorse - objective criminality very serious - manifestly excessive response to circumstances - serious example of manslaughter

SUCCESSION Wills, Probate and Administration - Statutory Will - Minor Nil Capacity Case - Statutory powers of Court informed by protective jurisdiction - Consideration of benefit to, and interests of, incapacitated minor - Operation in context of statutory criteria.

PROCEDURE - stays - where applicant seeking stay prior to hearing of appeal - whether balance of convenience favoured stay - whether there was a serious question to be tried