Cases and authorities

PROCEDURE - application to stay proceedings under a construction contract and winding up proceedings pending outcome of arbitration application - where winding up proceedings involve the same parties and are based upon a Judgment debt between the parties - where undertaking given not to call on loans - whether overlap between winding up proceedings and arbitration - whether in public interest - whether additional order for security for costs ought be granted if winding up proceedings are stayed

CRIMINAL LAW - appeal against conviction - voluntary and deliberate failure to provide security for tax liabilities as required by the Commissioner under s 255-110 - time limits stipulated for compliance reasonable - no error of law

PRACTICE AND PROCEDURE - costs - application for personal costs order against solicitor - whether sufficient basis to make order where solicitor had advised making of application that had no reasonable prospects of success - application refused STRATA SCHEMES - proceedings between owners corporation and lot owners - application for personal costs order against compulsory strata managing agent for costs incurred and payable by owners corporation in connection with unsuccessful application and defence - application granted with respect to application but not defence - whether order should be made for differential levy on lot owners for costs payable by owners corporation under costs orders or for owners corporation's own costs - whether owners corporation to be restrained from making levies for its own costs

CRIMINAL LAW - Murder - Sentence - Where offender pleaded guilty to the murder of the infant son of his de facto partner - Where previous instances of mistreatment by the offender towards the infant - How such instances should be dealt with for the purposes of determining an appropriate sentence CRIMINAL LAW - Murder - Sentence - Where offender suffering from Post Traumatic Stress Disorder - Where offender also suffering from sequelae of serious physical injuries suffered in previous work accident and motor vehicle accident - Where evidence suggesting inadequacy of treatment since being taken into custody - Relevance of such matters on sentence

COSTS - specified gross sum costs order - lengthy and complicated proceedings - Plaintiffs obtain amounts less than offered by Defendant - numerous interlocutory costs orders - Plaintiffs unrepresented - cost and delay of costs assessment process - Defendant's costs far outweigh verdicts in favour of Plaintiffs - gross sum ordered - set-off of judgments in favour of Plaintiffs and cost judgment in favour of Defendant. DAMAGES - interest - offers by Defendant more favourable than Plaintiffs recover - whether interest payable beyond offers by Defendant - s 100(4) Civil Procedure Act.

CRIME - sentence - Crown appeal -respondent found guilty after a trial of 7 sexual offences including an offence of aggravated sexual intercourse with a child under 10 - cunnilingus - whether sentence manifestly inadequate

CRIMINAL LAW - evidence - tendency evidence - admissibility - whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) - whether judicial directions may ameliorate any prejudicial effect CRIMINAL LAW - evidence - context evidence - admissibility - whether evidence of the respondent's sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment - whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)

CRIMINAL LAW - appeal - conviction - sexual offences - Judge alone trial - whether verdicts inconsistent - time an essential element of the offences - difference in verdicts rationally explained and not inconsistent

CRIMINAL LAW - appeal against sentence - ongoing drug supply - misapprehension of fact about applicant's motivation - no evidence of financial gain - whether financial gain an element of the offence EVIDENCE - finding as to 'normal street purity' of drug - use of other cases as evidence of fact - judicial notice - lack of clarity of fact in issue - lack of notice to offender EVIDENCE - whether Evidence Act 1995 (NSW) applies in sentencing proceeding - what rules apply if Act does not apply - Evidence Act 1995 (NSW), s 4 PROCEDURAL FAIRNESS - judge relying on own enquiries about factual matter without notice to offender WORDS AND PHRASES - "common knowledge" - Evidence Act 1995 (NSW), s 144

DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - negligence - negligence by solicitors in preparing a financial agreement between spouses causing the agreement to be not binding - subsequent compromise of matrimonial litigation on terms less advantageous to one party than those provided for in the defective agreement - damages for negligence awarded to that party based on the difference between actual financial outcome and that which would have pertained had the agreement been binding - whether certain components wrongly included by primary judge

CRIMINAL LAW - murder trial - further application by Accused seeking exclusion of evidence which the Court had determined to admit - evidence from surviving daughter of murdered family concerning sexual interest shown towards her by Accused before and after murders - Court adheres to ruling that evidence admissible - application to exclude evidence refused

CORPORATIONS - winding up - liquidators - application for appointment of liquidator under Corporations Act 2001 (Cth) - where there has been a death in office of official liquidator - whether Court should exercise power to appoint replacement liquidator.

EQUITY – injunctions – interlocutory injunction – where determination of interlocutory application may have a practical final effect

PROCEDURE - notice of motion - defendants seek orders that plaintiffs attend medical consultations and dispensation from plaintiffs' right under r 23.5 of the Uniform Civil Procedure Rules NSW (2005) to have a medical expert present - whether power to dispense with such right under s 14 of the Civil Procedure Act 2005 (NSW) - natural justice dictated that the defendants be allowed to re-examine the plaintiffs - presence of other expert likely to be deleterious to examination - orders for examination made on condition that plaintiffs not entitled to have expert present

EVIDENCE- self-incrimination - Evidence Act 1995 (NSW) s 128 - where plaintiff seeks the grant of a certificate in respect of evidence to be given by a witness who has agreed to provide an affidavit but only on condition that such a certificate is granted - held requirements of s 128 not met and certificate cannot be granted because the witness has not objected to giving particular evidence under compulsion - Certificate refused - PROCEDURE - advance rulings and findings - s192A of the Evidence Act 1995 (NSW)

CONTRACT - multiple subsequent agreements - novation - whether parties intended subsequent agreements to replace earlier agreements CONTRACT - construction - whether obligation to pay conditional on grant of charge - whether failure to pay or grant charge in repudiation of agreement - where failure by all parties to enforce obligations abandonment of agreement

CRIMINAL LAW – EVIDENCE – admission of evidence - whether it would amount to an abuse of process to permit the admission of evidence that contradicts findings of fact made in a previous determination with regard to different orders sought

ADMINISTRATIVE LAW - judicial review - decision of State Parole Authority - plaintiff not provided with summary of document withheld pursuant to s 194 of the Crimes (Administration of Sentences) Act 1999 at parole hearing - defendants concede that plaintiff was denied procedural fairness at parole hearing

PROCEDURE - civil - judgments and orders - stay pending appeal; application for - MORTGAGES - default - Bill of Exchange defence struck out - default judgment for respondent - no application to set aside default judgment - no application to file further defence - sheriff to execute Writ of Possession - whether in the interests of justice to stay default judgment and orders pending appeal - whether appeal has reasonable prospects of success - balance of convenience

PROCEDURE - civil - judgments and orders - stay execution of Writ of Possession; Court of Appeal ordered that leave be granted to issue Writ of Possession - application to Court of Appeal to stay execution of Writ of Possession refused - application to High Court of Australia to stay execution of Writ of Possession refused - current application sought on essentially same basis as previous applications - no general point of principle

PROCEDURE - judgments and orders - enforcement of orders - determination of amount secured by mortgage - determination of amount of costs of executing writ of levy of property - variation of costs order earlier made - consequential orders

COSTS - plaintiff's victory pyrrhic - plaintiff failed in her aim to obtain an award of damages greater than the amount of workers compensation payments made to her before she commenced proceedings - plaintiff not entitled to costs of the proceedings

ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - appeal against finding of corrupt conduct under s 8 of the Independent Commission Against Corruption Act 1988 (NSW) - whether conduct could "adversely affect" the exercise of "official functions" by "public officials" - meaning of the expression "official functions" - meaning of the term "could" - degree of probability or certainty required for conduct to fall into category of conduct which "could" adversely affect the exercise of official functions - whether it is necessary to identify the public officials or authorities and the official functions in order to determine whether those functions could be adversely affected by the conduct - whether an official function identified by the Commission was actually a function that the Minister could exercise - Whether conduct would actually have had an adverse effect on the exercise of official functions - whether non-disclosure of information could have adversely affected official function of granting a mining lease - application of the Independent Commission Against Corruption Act 1988 (NSW), s 8. ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - whether findings of corrupt conduct made by the Independent Commission Against Corruption in relation to three issues or categories can be separated - whether each separate issue or category which is part of the finding of corrupt conduct must have been proved for the finding of corrupt conduct to stand ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - appeal against finding of corrupt conduct on ground that s 9 of the Independent Commission Against Corruption Act 1988 (NSW) not satisfied - criminality of corrupt conduct -whether plaintiffs had gained any financial advantage from alleged corrupt conduct - whether obligations on directors requires them to do any positive act, including a duty of proactive disclosure - whether prevention of loss in value of shares is a financial advantage - whether removal or reduction of risk to Company is a financial advantage - whether information already in the public arena need not be disclosed - whether in breach of s 184(1) Corporations Act 2001 (Cth) where not acting in capacity as a director - application of the Independent Commission Against Corruption Act 1988 (NSW), s 9(1)(a). ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - Appeal against finding of corrupt conduct on ground of denial of natural justice - whether denial of natural justice where parties not given notice of the way in which they are said to have acted corruptly - whether denial of natural justice where parties not cross-examined on elements of alleged offences underpinning finding of corrupt conduct - where written submissions given before the end of the Independent Commission Against Corruption hearing identifying the alleged criminality involved in the findings and no application to reopen public hearing to adduce further evidence ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - Appeal against finding of corrupt conduct - whether findings of corrupt conduct not supported by evidence ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - application by corporations for declarations that recommendations made by the Independent Commission Against Corruption are nullities - whether to grant declaratory relief where finding not amenable to review, where other claims have failed and where no utility in granting relief sought PROCEDURE - costs - general rule as to costs - where costs follow the event

REAL PROPERTY - lodging of caveat without reasonable cause - compensation - whether purchaser would have been able to settle had caveat not been lodged

BAIL - grant of bail where appeal against sentence is pending in Court of Criminal Appeal - special or exceptional circumstances exist - no unacceptable risk - unconditional bail granted

CRIMINAL LAW - sentence proceedings - plea of guilty - robbery in company while armed with an offensive weapon - irregularities in sentence proceedings - excessive intervention by sentencing judge - whether principles of procedural fairness observed - whether apprehended bias established - necessary for sentence proceedings to be re-heard by another judge.

CRIMINAL LAW - appeal - conviction - directions to jury - admissions made of offences with unspecified victim when accused medicated - directions sought and given went no further than suggesting unreliability - whether direction that the accused may have been referring to someone other than the complainant required - prejudicial effect of proposed direction CRIMINAL LAW - access to video of complainant's evidence in chief in jury room - general warning to jury about reliance on the video - whether further warning required when viewing video in jury room - procedure when jury seek access to video - video requested along with other evidence - Criminal Procedure Act 1986 (NSW), s 306X CRIMINAL LAW - appeal - sentence - whether trial judge failed to consider the mental health of the accused EVIDENCE - delay in making complaint about sexual offence - mandatory warning that delay does not by itself undermine a complainant's credibility - whether a warning was required that the complaint was not made at the earliest reasonable opportunity - whether there was "sufficient evidence" to require a warning - Criminal Procedure Act 1986 (NSW), s 294 EVIDENCE - delay in prosecution - whether accused suffered a significant forensic disadvantage - whether "good reasons" not to give warning - Evidence Act 1995 (NSW), s 165B

PROCEDURE - security for costs - whether special circumstances are established - whether the appellant's case is inherently weak

PRACTICE AND PROCEDURE - extension of time for filing notice of appeal - notice of appeal filed one day out of time - whether the appeal is totally without merit

TORTS - negligence - professional negligence - solicitors - solicitor acted for a pupil and his parents as plaintiffs in proceedings brought against a school from which the pupil was expelled - denial of natural justice alleged - the proceedings failed because the school's decision was held not amenable to judicial review and no basis for implication of a contractual term requiring natural justice had been shown - a negligence action brought by the parents against the solicitor was dismissed - the parents contended on appeal that the solicitor was in breach of duty because he did not advise the parents that they had no prospects of success in the earlier proceedings - the state of the law in Australia was accepted as being uncertain - but approaches in other common law jurisdictions indicated the availability of cogent arguments on the basis of implied contractual term and perhaps judicial review - the proposition central to the appeal was therefore not made good.

TORTS - negligence - customer injured while in hardware store by timber falling on him - inconsistent testimonial and documentary evidence as to how accident happened - verdict in favour of customer - trial judge relied on photograph of reconstruction of incident - failure to grapple with inconsistencies in evidence - failure to make clear findings of breach and causation - failure to address Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D and 5E - verdict set aside and retrial ordered

PROCEDURE - civil - interlocutory issues - injunctions - restraining defendants from engaging in conduct which constitutes an abuse of the process of the Court - restraining eviction under defaulted lease - validity of lease disputed -whether conduct which would affect the litigation - whether arguable basis for that conduct to occur - no conduct placing occupation in jeopardy - balance of convenience

PROCEDURE - civil - judgments and orders - stay pending appeal - appeal from NSW Civil and Administrative Tribunal - stay execution of writ of possession issued by NSW Civil and Administrative Tribunal; application for - plaintiffs in occupation of property for over 20 years - arrears of rent arguably not owed - no notice received

PROCEDURE - summary disposal - dismissal - Uniform Civil Procedure Rules 2005; r 12.7 - dismissal of proceedings for want of due despatch - proceedings commenced in the District Court of NSW - non-compliance by plaintiff with Court orders - current hearing date is the third set down - prejudice to defendant - significant costs incurred by defendant -whether dismissal would further the overriding purpose of Civil Procedure Act 2005 - interests of justice

FAMILY LAW AND CHILD WELFARE - Adoption - application for adoption by step father and birth mother where adult children and mother consent only to adoption by stepfather alone - evidence required if application intended to be for adoption by stepfather alone without disturbing parental relationship between mother and children

PROCEDURE - civil - judgments and orders - interpretation of orders - order that contract for sale of apartment be specifically performed - whether payment of unpaid purchase price a condition of transfer and registration of title - whether transfer and registration of title before payment in breach of court order - whether plaintiff entitled to retransfer of title - UCPR r 39.50 - where order does not specify a time by which condition must be fulfilled - whether UCPR r 39.50 capable of being read as undoing acts done pursuant to order before fulfilment of condition of payment PROCEDURE - civil - judgments and orders - interpretation of orders - whether interlocutory order "until further order" ceases to operate when final orders made - where final judgment does not expressly dissolve interlocutory order PROCEDURE - civil - effect of judgment - where order for specific performance determined amounts paid under contract and amount of purchase price unpaid - where order for specific performance not challenged on appeal - whether plaintiff able to argue that payments made by purchaser not actually made in discharge of contractual obligations CONTRACT - sale of land - termination - where contract subject to order for specific performance - whether termination valid without court order vacating order for specific performance - whether notice to complete necessary to make time of the essence - whether delay in paying unpaid purchase price repudiatory conduct giving rise to right of termination PROCEDURE - civil - application to set-off - whether third and sixth defendants entitled to set off remaining unpaid purchase price against costs awards in their favour

GUARANTEE AND INDEMNITY - release of guarantor - by express terms of the guarantee - construction of the guarantee - whether ambiguity - contra proferentem rule - proceedings on guarantee by creditor -summary dismissal application by guarantor - no unarguable case by Plaintiff

CRIMINAL - sentence - murder - joint criminal enterprise - early plea of guilty - whether offender remorseful - offender person of prior good character - prospects of rehabilitation - whether offender likely to re-offend - where crime perpetrated in home of deceased and result of considerable planning - whether crime in worst category of case - whether offender manipulated or influenced by co-offender - whether manipulation and influence reduces moral culpability - whether offender intended to kill deceased - whether statutory ratio of parole and non-parole periods should be varied due to anticipated need to supervise offender following release - whether sentence should take account of the need for general deterrence CRIMINAL - sentence - murder - joint criminal enterprise - verdict of guilty following trial - plea of guilty to manslaughter rejected - offender person of prior good character - whether offender likely to re-offend - no remorse shown by offender - crime perpetrated in home of deceased and result of considerable planning - whether crime in worst category of case - whether offender manipulated or influenced by co-offender - whether offender intended to kill deceased - whether sentence should take account of the need for general deterrence CRIMINAL - sentence - murder - joint criminal enterprise - verdict of guilty following trial - offender person of prior good character - offender unlikely to re-offend - good prospects of rehabilitation - offender remorseful - crime below the mid range of objective seriousness - where offender's role in joint criminal enterprise passive - whether statutory ratio of parole and non-parole periods should be varied due to psychiatric condition of offender - whether sentence should take account of the need for general deterrence

CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to three counts of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900 and one count of aggravated robbery involving the deprivation of personal liberty contrary to s.95 Crimes Act 1900 - indecent assault offence also taken into account on Form 1 - Applicant accosted victim (a stranger) in public street and forced her down alleyway at knifepoint - Applicant then engaged in one digital penetration offence and two penile/vaginal penetration offences before robbing victim of her wallet and running away - 29-year old offender - Applicant with polysubstance dependence and Cluster B Personality Disorder (Anti-Social and Borderline Personality Disorder) - concerns about risk of reoffending - whether findings of fact in relation to degree of premeditation and Applicant's level of intoxication lacked evidentiary basis - findings open on evidence - whether partially accumulated sentences imposed for penile/vaginal penetration offences effected double punishment of Applicant contrary to law - no error demonstrated - whether sentences manifestly excessive - objective gravity of offences - sexual attack by armed offender upon woman in public street - repeated sexual assault offences - importance of general deterrence on sentence for offences of sexual violence committed against stranger in a public street - sentences not unreasonable or plainly unjust - appeal dismissed

CRIMINAL LAW - appeal against conviction - appellant convicted of multiple offences relating to sexual assaults against two complainants - complainants were students at the school at which the appellant resided and was employed - jury in the first trial were unable to agree as to the counts and were discharged - appellant retried before another judge and jury - during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution - trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant - appellant was not cross-examined contrary to Palmer v R - principles as to impermissible cross-examination referred to in Gonzales v R [2007] NSWCCA 321 - whether there was a miscarriage of justice - basis upon which the appellant conducted his case that complainants and other witnesses had lied - conviction of the appellant was not unsafe or unsatisfactory - appeal dismissed

CRIMINAL LAW - sentence appeal - application for leave - six counts of assault female and commit act of indecency contrary to s 76 of the Crimes Act 1900 - two counts of sexual assault and commit act of indecency contrary to s 61E(1) of the Crimes Act 1900 - two counts of carnal knowledge contrary to s 67 of the Crimes Act 1900 - additional matters taken into account on a Form 1 - sentencing judge did not err in finding that delay did not mitigate the penalty - sentencing judge did not err in failing to take into account the likelihood that the applicant would serve his sentence in protective custody - sentencing judge did not err in failing to reduce the sentence imposed on account of past assistance to authorities in circumstances where no submission was made to the sentencing judge on the matter of past assistance - sentencing judge properly took into account the youthfulness of the applicant - leave granted - appeal dismissed

APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - whether decision involved a discretionary exercise of power COURTS AND JUDICIAL SYSTEM - intermediate appellate courts - interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence - different interpretations alleged as to meaning of "significant probative value" - Velkoski v The Queen [2014] VSCA 121 held "significant probative value" requires a higher degree of similarities to that required by this Court - whether difference exists - whether difference needs to be addressed and reconciled - Evidence Act 1995 (NSW), ss 97, 98 - Evidence Act 2008 (Vic), ss 97, 98 EVIDENCE - admissibility - tendency and coincidence evidence - similar circumstances alleged in separate and independent complaints against applicant - whether evidence had "significant probative value" - whether trial judge failed to identify issues at trial to determine probative value - degree of specificity of conduct in determining probative value of tendency or coincidence evidence - relevance of similarities in determining probative value of tendency evidence - whether probative value of evidence outweighed any prejudicial effect - Evidence Act 1995 (NSW), ss 97, 98, 101(2)

REAL PROPERTY - Torrens Assurance Fund - Registrar-General sought leave to enforce charge said to arise under Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6, on insurance moneys payable by insurer of solicitor whose conduct contributed to loss which was the subject of claim on Fund - nature of Registrar-General's right of subrogation under Real Property Act 1900 (NSW), s 133(2) - Registrar-General entitled to advantage of every right of claimant on Fund against any person in relation to claimant's "compensable loss" - claimant had no right of action against insurer under s 6(4) because "happening of the event giving rise to claim for damages or compensation" pre-dated making of relevant contract of insurance - accordingly no right to enforce statutory charge to which Registrar-General could be subrogated

COSTS - Calderbank offer of settlement proposed by the defendant - offer not accepted by the plaintiff - whether plaintiff was unreasonable to reject the offer of compromise - whether commencement and continuation of the proceedings in the Supreme Court was warranted pursuant to UCPR r 42.34 - judgment less than $500,000 threshold - claim involved neither factual nor legal complexity - each party to bear his/its costs of the proceedings up to and including the deadline to accept offer of compromise - plaintiff to pay the defendant's costs on an indemnity basis thereafter.

CRIMINAL LAW – trial – necessity to vacate proposed trial date on account of applicant to permanently stay the application

EVIDENCE - admissibility - tendency evidence - whether notice requirement should be dispensed with - whether unfair prejudice to do so

CIVIL LAW - MORTGAGES - claim by mortgagee for possession of land - application for stay of execution of writ of possession - multiple applications for stay - application by current tenant - change of circumstances -hardship - limited role of hardship - grounds for relief