Cases and authorities

CORPORATIONS – winding up – application by shareholder for winding up on just and equitable ground – deadlock – whether other shareholder should be joined as defendant

CRIMINAL LAW - EVIDENCE - witness - examination in chief - witness granted certificate pursuant to Evidence Act s 128 - whether the jury should be informed of the grant and its effect

PROCEDURE – interlocutory applications – application after judgment reserved for leave to adduce further evidence in support of application for stay – where evidence could have been adduced at hearing – where evidence validity to be decisive – refused

COSTS - costs foreshadowed to be defendant's costs in proceedings - whether plaintiff should pay defendant's costs of a motion seeking a more detailed response to a request for further and better particulars - whether appropriate for a small proportion of costs to become the subject of a separate order

Legal profession - retainer - authority to institute proceedings - whether retainer to prove claim in liquidation sufficient authority for institution of appeal to the court from liquidators' rejection - where retainer includes authority to take such further steps as may be necessary and to follow the procedure under the schemes of arrangement - held, insufficient authority for institution of proceedings

PROCEDURE - writ of execution issued by the Court of Appeal - application for stay of execution pending determination of application for special leave to appeal to the High Court - whether the fact that the subject property is a family home represents special circumstances for the purposes of the test in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681 - whether "substantial prospect" that special leave will be granted - where the dispute was essentially factual - whether stay likely to occasion loss to respondent - balance of convenience considered - all issues determined unfavourably to applicants.

CRIMINAL LAW - EVIDENCE - admissibility - post mortem photographs - whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant

Bail - detention application - Bail Act 2013 (NSW) s 50(1) - revocation of bail - whether bail refusal under Bail Act 1978 constitutes a bail decision under Bail Act 2013 - relevance of Crown case and nature of offences to risk assessment - alleged involvement in organised criminal activity - bail refused.

DEFAMATION - whether the plaintiff has failed to comply with Court directions - whether the plaintiff has failed to prosecute proceedings with due despatch

CONTRACTS - defendant was legally represented at the time he entered into the loan agreement and mortgage - loan was not shown to be improvident or neither was the defendant demonstrated to be under the influence of his son or subject to any relevant disability or disadvantage - no unfairness was demonstrated by the defendant - the defendant complied with the loan agreement for the first seven years of its operation

[CORPORATIONS] - service of statutory demand under s 109X(1)(a) of the Corporations Act 2001 (Cth) - where claim that service was effected by "leaving it at" the company's registered office - where registered office is a residential unit in a block of residential units - where evidence that statutory demand left "in the mailbox near the entrance to the property" - whether service validly effected

ADMINISTRATIVE LAW - Judicial review - whether decision by university justiciable - application for judicial review

CRIMINAL LAW - appeal - conviction - sexual offences - Crimes Act 1900 (NSW) - multiple grounds pleaded - whether primary judge erred by failing to order separate trials for each of four complainants - whether primary judge erred by admitting evidence of tendency with respect to each respective complainant - sections 97 and 101 Evidence Act 1995 (NSW) - no jurisdiction to entertain this ground - issue litigated in DAO v R [2011] NSWCCA 63 - whether verdicts unreasonable and cannot be supported by evidence - jury ought to have entertained a doubt about the allegations made by two complainants - open to jury to be satisfied beyond reasonable doubt of guilt with respect to remaining two complainants - unable to exclude real possibility jury used flawed cases in support of their conclusions on remaining allegations - appeal against convictions allowed - convictions quashed - sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 quashed and verdicts of acquittal entered - sentences in respect of counts 9 to 21 inclusive quashed and new trials ordered

SENTENCING - robbery in company with wounding - offender with intelligence in the "low extreme range" - whether moral culpability affected - findings of sentencing judge addressed offender's criminal culpability - no error established.

SENTENCING - possession of child abuse material - production and dissemination of child abuse material - aggregate sentence - totality - error in accumulation of "indicative" or notional sentence - whether indicative sentences for production and dissemination of fiction story by short message service (SMS) were manifestly excessive - re-sentencing.

CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sexual assault against a child under the age of 10 - multiple counts - multiple victims - statutory ratio between non-parole period and balance of term - whether lesser sentence warranted at law - relevance of post offence conduct and custodial conditions - re-sentence

CRIMINAL - Crown appeal on sentence - Federal offences - Customs officer - objective seriousness - parity - general deterrence - non-parole period - application of combined discounts - manifest inadequacy

PRACTICE AND PROCEDURE - Costs - Costs of appeal - General rule- costs follow the event - What is the practical result of the claim - Departing from the general rule - Where there has been a mixed outcome in the proceedings

CRIMINAL LAW - inadmissible opinion evidence given by witness in the witness box - evidence prejudicial to accused - application by defence counsel for discharge of whole jury - whether there is a high degree of necessity for the jury to be discharged - need to consider the inadmissible evidence in the context of all of the evidence foreshadowed and led in the trial so far - ability to delete inadmissible evidence from transcript provided to jury

CRIMINAL LAW - EVIDENCE - admissibility - Evidence Act 1995 s 138 - exclusion of improperly or illegally obtained evidence - accused a vulnerable person - whether requirements of Law Enforcement (Powers and Responsibilities) Act 2002 and Law Enforcement (Powers and Responsibilities) Regulation 2005 complied with

CRIMINAL LAW - proceeds of crime - proceeds assessment order - restraining orders

CRIMINAL LAW - proceeds of crime - proceeds assessment order - restraining order

DEFAMATION - pleadings - defendant's objections to imputations - whether the concept of negligence is different from the concept of incompetence - whether the words "acted negligently" is unclear in meaning - whether imputations differ in substance - whether the matter conveys that the plaintiff had a 'duty of care' -objection on the grounds of capacity

CRIMINAL LAW - proceeds of crime - proceeds assessment order - restraining orders

COSTS - Calderbank offers - plaintiff had no reasonable appreciation of the strength of the first defendant's defence when the first offer was made but was in a good position to assess her prospects of success with the second offer - unreasonable of plaintiff not to accept first defendant's second offer - plaintiff's failure to accept the second and third defendants' offer required the defendants to expend further sums to defend the proceedings - second and third defendants entitled to costs on a higher basis from day after offer was made

COSTS - motion to strike out pleading - application to amend - motion not proceeded with.

COSTS - application by defendants to consolidate six proceedings into one and alternatively into three - each party enjoying partial success - whether differential costs order appropriate

DEFAMATION - "corruption" imputations - whether bad in form

SUCCESSION - family provision - whether applicant an "eligible person" under Succession Act 2006 (NSW), s 57(1)(e) or s 57(1)(f) - whether applicant "wholly or partly dependent on the deceased" and "a member of the household of which the deceased person was a member" - whether applicant and deceased in a "close personal relationship" at the time of deceased's death COSTS - family provision - whether circumstances warrant departure from general rule in UCPR r 42.1 that costs follow the event

DEFAMATION - costs - entitlement of a party to interests on costs - indemnity costs

REAL PROPERTY - possession of land - default under mortgage - loan amount used to purchase land - defence under Contracts Review Act - unconscionability - summary judgment sought - whether a defence to claim for possession PROCEDURE - joinder of parties - claim by guarantor to be joined to proceedings as cross-claimant - similar claims by borrower and guarantor - order for joinder made

WORKERS COMPENSATION - case listed for hearing - whether hearing date should be vacated due to failure by plaintiff to comply with timetable - whether plaintiff should be ordered to pay costs

[SUCCESSION] - Deceased died intestate - application of Chapter 4 of the Succession Act 2006 - property settlement between deceased and ex-wife - claim by the deceased's ex-wife that she was in a de facto relationship with the deceased at the time of his death - property settlement between deceased and estranged wife -claim by the estranged widow to entitlements on intestacy under the Act - claims for provision under s 59 of the Act by ex-wife and three of the deceased's five children (issue from first marriage). [EVIDENCE] - where two witnesses who had provided affidavits not called - applications to read affidavits - where one witness willing to give evidence by video-link from Greece - party relying on proposed evidence not willing to fund costs of video linkage process - where other witness not served with subpoena - no proper explanation - applications to read affidavits refused.

Administrative law - declaratory relief - Consumer, Trader and Tenancy Tribunal - failure to comply with directions as to expert's report - application for adjournment refused - failure to consider s 35(a) CTTT Act - declaration of denial of procedural fairness.

PROCEDURE - notice to produce - administrative law proceedings - notice served shortly after summons commencing proceedings - plaintiff seeks leave to amend summons - notice to produce premature - use of notice to obtain discovery - need for exceptional circumstances for discovery in administrative law matters - notice set aside

COSTS - application to set aside costs order made by magistrate - whether magistrate had jurisdiction to make an order for costs pursuant to s 69 of the Local Court Act following a "no jurisdiction" finding - meaning of "application proceedings" - implied power of the Local Court to award costs in application proceedings

PROCEDURE - application for leave to appeal against striking out of statement of claim and dismissal of proceedings - no coherent cause of action disclosed - leave to appeal refused

LEGAL AID - pro bono assistance - limited reference already made to see if defendant had arguable defence - counsel willing to continue to appear at hearing - special reasons - reference extended

TUTOR - removal and appointment of tutor - UCPR 7.14 - whether in the interests of justice for tutor to carry on proceedings without a solicitor

TORTS - negligence - motor vehicle accident - collision between motor vehicle emerging from driveway and cyclist - whether driver breached duty of care - sections 5B and 5C Civil Liability Act 2002 - whether cyclist was contributorily negligent - proportionment of liability between driver and cyclist - whether collision was a blameless motor accident as defined by s7A Motor Accidents Compensation Act 1999.

APPEAL - appeal against decision of Appeal Panel upholding Administrative Decision Tribunal's decision to confirm respondent's decision as financial manager of protected person's estate to sell family home - appeal grounds involve no question of law - no question of principle COSTS - exercise of discretion - whether costs should follow event that appeal dismissed - respondent part of executive government and subject to Model Litigant Policy - decision which was subject to appeal not acted upon and no longer relevant - appellant litigant in person - no attempt by respondent to avoid need for hearing of appeal - failure to adhere to requirement of Policy - departure from ordinary rule justified

PROCEDURE - application for prerogative relief in respect of a decision of the District Court on appeal from the Local Court - applicant convicted of offences under legislation concerning cruelty to animals - ancillary orders placed horses in the possession of the respondent - appeal to District Court dismissed - applicant seeks interlocutory order preserving horses - no articulation of any basis on which principal relief might be granted - interlocutory relief refused

WORKERS' COMPENSATION - appeal to Deputy President - errors of fact alleged against arbitrator - appeal limited to any error of fact, law or discretion - whether Deputy President failed to exercise appellate jurisdiction by restricting inquiry to errors of law - whether Deputy President failed to engage with the evidence to determine whether there were any errors of fact - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 WORKERS' COMPENSATION - jurisdiction of Workers Compensation Commission - dispute over liability for weekly payments of compensation - no determination of a dispute over a "work capacity decision" by an insurer permitted - decision by insurer to dispute liability not a "work capacity decision" - whether jurisdiction excluded over matters which fall within the description of a "work capacity decision" - effect of transitional provisions - Workers Compensation Act 1987 (NSW), ss 43, 44, Sch 6 Pt 19H cl 3, cl 14 - Workers Compensation Regulation 2010 (NSW) Sch 8 cl 3

SUCCESSION - FAMILY PROVISION - Application by three Plaintiffs for a family provision order under the Succession Act 2006 - One Plaintiff is the stepdaughter of the deceased and the other two are children of the deceased - Order sought out of the notional estate of the deceased - The Defendant the widow of the deceased - Deceased died intestate - No grant of administration - No dispute as to each Plaintiff's eligibility - No dispute as to factors warranting the making of the stepchild's application - Whether to make a family provision order in each case - If order for provision made, nature of order for each Plaintiff - Competing claim of the Defendant - Widow a beneficiary of her mother's estate - Provision made for each Plaintiff - How that provision to be met to be first determined by Defendant

CRIMINAL LAW - sentence appeal - one count supply a large commercial quantity of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act - one count participate in a criminal group contrary to s 93IK(1) - whether sentencing judge erred in commencing the sentence only two months before the completion of the earlier non-parole period being served - whether the sentencing judge made inadequate allowance for the finding of special circumstances when setting the non-parole period on Count 1 - whether the sentencing judge erred in selecting the commencement date for the sentences imposed - leave to appeal granted - appeal allowed - applicant re-sentenced

CRIMINAL LAW - sentence - Crown appeal - Respondent pleaded guilty and sentenced in relation to three counts of assault, one count of assault occasioning actual bodily harm and one count of manslaughter - offences occurred on a single evening during which substantially intoxicated Respondent repeatedly attacked randomly selected strangers on public streets with punches to face and head - second attack resulted in manslaughter - Respondent comprehended force of blow to deceased and observed victim prone on ground before running away and committing three further offences - young offender subject to conditional liberty - disadvantaged upbringing - whether sentencing Judge's reasons infected by specific errors - failure to take into account need for general deterrence in relation to crimes of violence committed by intoxicated persons against vulnerable and unsuspecting victims in public places - failure to take into account specific deterrence in circumstances where offender had unresolved aggression and alcohol issues, previous conviction and subject to conditional liberty - error in characterising offences as "spontaneous" and in failing to find intent to injure - individual sentences and total effective sentence failed to reflect gravity of offending - no single category of "one-punch" manslaughter cases revealing range of sentences - context, surrounding circumstances and consequences of offending conduct meant sentences manifestly inadequate - residual discretion should not be exercised - Respondent re-sentenced - total effective term of 13 years and eight months' imprisonment with non-parole period of 10 years and two months

CRIMINAL - conviction - evidence - whether verdict unreasonable on evidence - jury's rejection of complainant's evidence on other counts - whether evidence for counts the appellant was convicted on had distinguishing features from evidence for other counts - advantage of the jury in seeing and hearing evidence EVIDENCE - admissibility - whether appellate court should view tapes not in evidence at trial

CRIMINAL LAW - EVIDENCE - admissibility - Criminal Procedure Act 1986 (NSW) s 281 - whether admissions were made "in the course of official questioning"

COSTS - non party costs order - when non party costs order against director appropriate

COSTS - Whether costs should follow the event - where notice of motion not pressed at hearing - where notice of notion unlikely to have been brought if successful party had complied with notice to produce served on them prior to filing of notice of motion - where notice of notion unlikely to have been brought if appropriate response had been given to letter seeking financial information prior to filing notice of motion