Cases and authorities

CRIMINAL LAW - evidence - severance of counts - assault occasioning actual bodily harm - separate trial - murder - accused state of mind - transactional evidence

PRACTICE AND PROCEDURE - costs - applicant solicitor brought proceedings against former clients for recovery of professional fees - whether primary judge erred in ordering that each party pay their own costs incurred up to date of offer of compromise - no good reason to depart from general rule that costs follow the event - not incumbent upon applicant to refute allegations against her by respondents that were withdrawn - no issue of principle

CONTRACT - construction of termination clause in employment contract - notice of termination given by employee - whether employer able to give a later notice so as to shorten the effective notice period - whether contractual right of either party to terminate by notice is exhausted once exercised by one or other party - whether exercise of right to fix period of notice above stipulated minimum period constrained by implied obligations of reasonableness and good faith

CRIMINAL LAW - EVIDENCE - admissibility - lay opinion evidence - whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness's perception of the matter or event.

CRIMINAL LAW - joint application for a view pursuant to s 53 of Evidence Act 1995 - consideration of statutory factors

CRIMINAL LAW - evidence - identification evidence - modes of identification - other visual identification - single photograph - accompanying online news article CRIMINAL LAW - evidence - identification evidence - admissibility - single photograph - unreliability - displacement effect CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; s 137 - prejudicial evidence - probative value - unfairly prejudicial to accused - whether danger of unfair prejudice to the accused outweighs probative value

CORPORATIONS - managed investments - responsible entity - trust scheme of arrangement - application for judicial advice

COSTS - Calderbank offer - defendants unreasonably refused plaintiff's offer - costs awarded on an indemnity basis from the date of offer - setting aside orders made by a registrar - obligations on parties to give proper discovery

CORPORATIONS - Voluntary Administration - Deeds of Company Arrangement - Generally - Appliation for an order (in the nature of judicial advice) under s 447D of the Corporations Act 2001 (Cth) - Application for an order under s 447A of the Act to vary the operation of Part 5.3A so as to limit the liability of Deed Administrators in relation to property sold as property of the company without notice of an adverse claim

PROCEDURE - plaintiff makes 2012 claim for professional negligence against two solicitors in respect of separate 2003 commercial transactions - defendants' motions to strike out pleading under Uniform Civil Procedure Rules, r 13.4 and 14.28 - whether amendments sought futile - whether plaintiff's claim statute barred - whether plaintiff's claim an abuse of process whether plaintiff's pleading embarrassing - plaintiff moves to amend pleading.

CRIMINAL LAW - application under s. 78 of the Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether evidence of Muldrock error - error established - application granted

CRIMINAL LAW - application under s. 78 of the Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentence imposed at first instance and/or by Court of Criminal Appeal was infected by Muldrock error - no such error established - application refused

CRIMINAL LAW - appeal against sentence - sexual assault - multiple offences - historical offences - juvenile offender - delay between commission of offence and sentence - aggregate sentences of imprisonment - whether indicative sentences took guilty plea into account - whether sentencing judge took applicant's youth and immaturity into account - whether aggregate sentence manifestly excessive - re-sentence

PROFESSIONS AND TRADES - lawyers - remuneration - taxation and assessment of costs - assessment under Legal Profession Act 2004 (NSW) - costs payable as a result of an order for the payment of an unspecified amount of costs made by a court - three such orders made by different courts - single application for assessment in respect of the three orders - determination by costs assessor upon that application - single purported certificate of determination - whether processes as adopted formed the foundation for application for review by a review panel - alleged failure of review panel to make a "review" - alleged failure of review panel to give adequate reasons - whether limit on costs recoverable under costs order against a legally assessed person operates for the benefit of the person's partners - scope of order for costs where order made after rehearing following hearing by arbitrator - costs of costs assessment - whether Legal Profession Act s 369(3)(c) applies to assessment of party/party costs as well as practitioner-client costs - LEGAL AID - legal assistance schemes - who is "legally assisted person" under the Legal Aid Commission Act 1979 (NSW) - ADMINISTRATIVE LAW - judicial review - whether review of appellate decision extends to first instance decisions - whether failure of appellate court to identify legal error in decision below constitutes reviewable error - scope of evidence in judicial review proceedings - "record" of court under review - Supreme Court Act 1979 (NSW), s 69

CORPORATIONS - winding up - stay application, no issue of principle

COSTS - application by plaintiff to enforce settlement deed - whether the defendant should pay the plaintiff's costs concerning a notice of motion - each party to bear his own costs of the plaintiff's motion

CRIMINAL LAW - EVIDENCE - voice identification evidence - admissibility - proposed evidence received on voir dire by way of statement - whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused - how trial judge should properly approach this balancing exercise

PROCEDURE - civil - summary disposal - dismissal - want of prosecution - dismissal of notice of motion where party bringing the motion stayed by dint of s 471B Corporations Act 2001

COSTS - Calderbank offer - defendants unreasonably refused plaintiffs' offer - costs awarded on an indemnity basis from the date of offer

PROCEDURE - civil - separate questions - whether decision of separate questions of liability finally disposed of proceedings

CONTRACT - breach by defendant admitted - causation - breach caused plaintiff's loss in fact - whether defendant legally responsible for plaintiff's loss - scope of defendant's responsibility - test for defendant's responsibility - novus actus interveniens - free, deliberate and informed act of plaintiff - reasonable conduct by plaintiff as between plaintiff and defendant - plaintiff could have avoided entire loss by submitting a further redemption request to the defendant - plaintiff intentionally remained in the market in the hope of receiving a higher return - plaintiff failed to take reasonable steps to avoid loss - failure to mitigate - defendant not responsible for plaintiff's loss

CRIMINAL LAW - committal proceedings - application for direction that victim attend for cross-examination - refusal of magistrate to give direction - whether appeal available under Crimes (Appeal and Review Act) - whether prerogative relief available - need to show special reasons in the interests of justice - inconsistencies between victim and another witness - no jurisdictional error shown

PROCEDURE - civil - summary disposal - dismissal - three causes of action - Uniform Civil Procedure Rules 2005; r 13.4 - frivolous and vexatious proceedings - discretionary exercise - whether reasonable cause of action - whether abuse of process PROCEDURE - civil - summary disposal - dismissal - expiration of limitation period - Limitation Act 1969 - whether extension of time could be granted PROCEDURE - civil - summary disposal - dismissal - bankruptcy - discharged bankrupt - whether causes of action vested in the Official Trustee PROCEDURE - civil - summary disposal - dismissed - Statement of Claim bad in form - Uniform Civil Procedure Rules 2005; r 14.28

PROCEDURE - application for stay of proceedings pending application for leave to appeal - competence absent filing of originating process seeking leave to appeal PROCEDURE - principles governing appellate review of discretionary interlocutory decision on matter of practice and procedure PROCEDURE - application for stay of proceedings in District Court pending determination of summons seeking leave to appeal - applicable test - stay refused

JURISDICTION - leave to appeal - competence - where associate Judge ordered respondent conduct remediation work on tenant applicant's premises pursuant to residential tenancy agreement - where both parties sought orders after entry of judgment in respect of remediation work - where associate Judge dismissed applicant's motion and declared respondent had complied with remediation order - whether application for leave to appeal to Court of Appeal competent JURISDICTION - leave to appeal - competence - where Registrar refused applicant's motion for adjournment and extension of time to file further submissions - where associate Judge upheld Registrar's decision on review pursuant to UCPR 49.19 - whether application for leave to appeal competent PROCEDURE - Judgments and orders - enforcement - application for relief after final orders - implied liberty to apply - scope of - where orders sought ancillary or incidental to enforcement - whether orders final or interlocutory PROCEDURE - leave to appeal - whether leave to appeal should be granted - associate Judge refuses to allow applicant to rely upon late served expert evidence - whether applicant afforded "fair trial" - just determination of the proceedings - dictates of justice - application of case management principles

[COSTS] - where appellant successful on appeal - where appellant in default of orders and directions in the lower court when proceedings dismissed - where solicitors for appellant at fault - appropriate costs order in the circumstances

WORKERS' COMPENSATION - leave to appeal - appeal from Deputy President limited to decisions in point of law - decision of Deputy President on appeal from interlocutory decision of arbitrator - decision of Deputy President interlocutory -leave required - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 WORKERS' COMPENSATION - claim for compensation -- medical practitioner recommended footwear to protect worker's varicose veins - worker requested proper footwear from employer - whether request for "therapeutic treatment given by direction of a medical practitioner" constitutes claim for compensation - whether cost need be incurred for a claim to be made - failure to make claim in accordance with applicable guidelines - Workers Compensation Act 1987 (NSW), ss 59, 60 WORKERS' COMPENSATION - proceedings to obtain compensation - concession that claimant needed to establish relevant incapacity for claim - Deputy President held that concession was mistaken - whether Deputy President erred in permitting claimant to depart from concession - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 354(3) WORKERS' COMPENSATION - time of injury - injury occurs at time of incapacity - whether meaning of incapacity restricted to when an entitlement to weekly compensation arises - Workers Compensation Act 1987 (NSW), s 16(1)(a)(i) WORDS AND PHRASES - "claim for compensation" - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 261 - "incapacity" - Workers Compensation Act 1987 (NSW), s 16(1)(a)(i)

INSURANCE - accident insurance - appellant unable to work due to injured ankle - whether appellant's disability resulted from an accidental injury "solely, directly and independently of a pre-existing condition" - effect of a previous injury to both ankles INSURANCE - accident insurance - whether insurer admitted it had accepted the appellant's claim under the policy

APPEAL - road safety offences - appeal to Supreme Court from sentence imposed by Local Court - appeal restricted to a ground that involves a question of law alone - scope of appeal - necessity to identify question of law in abstract terms - alleged manifest inadequacy in sentence does not raise question of law alone - use of transcript of exchanges between counsel and the Bench to contradict sentencing judgment - misapprehension of jurisdictional limit of Local Court immaterial to sentence imposed - error in relation to maximum sentence for some offences - raises question of law - scope of discretion conferred by s 59(b) of Crimes (Appeal and Review) Act 2001 - error solely caused by statement to the Court by prosecutor - whether Court should consider "merits" of sentence when exercising discretion not to intervene.

LANDLORD AND TENANT - rent or occupation fee - claim that tenancy has been terminated - no rent of occupation fee paid despite order to do so - pending determination of proceedings occupation to be paid

LEGAL AID - pro bono assistance - claim for termination of residential tenancy - cross-claim by tenant - pro bono assistance provided for advice and the drafting of pleadings - further referral for continuing assistance - special reasons demonstrated.

CONTRACT - breach - contract permitting plaintiff to hold motor sport event - exclusivity provision - whether defendant breached provision by allowing other promoters to conduct events substantially similar to plaintiff's event - no breach established EQUITY - remedies - rectification - alleged common intention not established NEGLIGENCE - existence of duty of care - whether duty owed by one contracting party to another to ensure no breach of exclusivity provision - duty not found to exist TRADE AND COMMMERCE - representations made in contractual negotiations - whether misleading or deceptive - no misleading or deceptive conduct found - Fair Trading Act 1987 (NSW) s 42 CONTRACT - breach - obligation to hold good faith negotiations - content of obligation - no failure to honestly and genuinely participate in negotiations - no breach established REMEDIES - restitution - mistake - fees paid in belief that local council was duly authorised to charge the fees - whether council duly authorised to charge the fees - council had authority to charge the fees - mistake not established LOCAL GOVERNMENT - power of Council to charge fees to hire motor racing circuit - whether only power is given by Part 10 of Chapter 15 of Local Government Act 1993 (NSW) - whether Council had power to charge fees under Chapter 6 of Local Government Act or general power to contract

SECURITY FOR COSTS - review of Registrar's orders - security for cross-claim - whether cross-claim defensive - whether a material change of circumstances justifies an increase of security ordered in separate but related proceedings

PROCEDURE - application for summary judgment on or to strike out some claims -whether claims are for "Consequential Loss" as defined by the contract between the parties - whether regard must be had to the facts to determine whether claims fall within "Consequential Loss" - whether appropriate case for strike out or summary disposal of claims PROCEDURE - costs - general rule costs follow the event of the motion

CONTRACT - construction of contract - whether capital gains tax deductible from vendor finance repayment - construction of the words "all outgoings paid" in a share sale agreement - meaning of "outgoings" - meaning of "paid" - whether there is any double counting in the claimed deduction of monies from the repayment of vendor finance.

CRIMINAL LAW - sentence - murder - victim under three years' age - intention to cause grievous bodily harm - infliction of fatal injuries were culmination of punishment or torture - failure to seek medical attention after injury, which attention may have prevented death

REAL PROPERTY - possession of land - defendant alleged to be trespasser - defence alleging agreement to pay money for right of occupation - failure of defendant to comply with order for provision of particulars - no appearance of defendant - defence struck out - stay on plaintiff obtaining default judgment until adjourned date

CONTEMPT OF COURT - whether the Court has jurisdiction to make coercive orders against the States or Commonwealth of Australia for wilful failure to comply with orders for discovery - whether the States or Commonwealth can be charged with wilful contempt - whether enforcement orders in the nature of sequestration or fines can be made against the States or Commonwealth - whether charge of contempt should be made against parties for failure to comply with orders where there is genuine debate as to whether orders have been complied with.

FAMILY PROVISION AND MAINTENANCE - Adult children - No issue of principle - Succession Act 2006, ss 59, 60

SUCCESSION - family provision and maintenance - claim for family provision order by grandchild of the deceased - Family Provision Act 1982 (NSW); EQUITY - TRUSTS AND TRUSTEES - s 63 of the Trustee Act 1925 (NSW) - application for judicial advice that trustees are justified in setting aside a particular sum to ensure payment of an annuity to be paid from a trust established under the will of the deceased - s 81 of the Trustee Act 1925 (NSW) - application for an order varying the trust instrument so as to permit accumulation of income and payment to beneficiaries which will have a beneficial tax effect on particular beneficiaries who would otherwise pay tax in an amount exceeding the full amount they will actually receive - power of court to approve advantageous dealings - whether applicable to amendment of trust instrument; TAXES AND DUTIES - income tax and related legislation - s 97 of the Income Tax Assessment Act 1936 (Cth) - trust income - income tax position of trust beneficiaries.

CRIMINAL LAW - sentence - manslaughter - guilty plea directly contradicted offender's evidence in his previous trial - key witness inaccurate about sequence of events but otherwise reliable - offender inflicted grievous bodily harm upon deceased upon discovering deceased was HIV positive - minor provocation in circumstances where offender made no inquiry as to the HIV status of the deceased and offender was prepared to engage in sexual acts not knowing whether person had HIV - objectively serious offence having regard to brutality of assault and relatively minor provocation - statistical analysis of sentences imposed for manslaughter unhelpful given their varied factual nature - no adverse movement of sentencing practices since commission of crime in 1991 established - no concurrence appropriate with sentence for unrelated offences of sexual intercourse without consent - lack of remorse - offender not entitled to leniency given offender's criminal history before and after his killing of deceased - low prospects of rehabilitation given offender's subjective circumstances - small utilitarian value of guilty plea due to its timing - offender's institutionalisation by reason of lengthy incarceration not a special circumstance

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that the offender serve as a juvenile offender until the day upon which he attains the age of 21 years

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness

CONTRACT - termination - harsh or unjust - contracts review act - where party entered into joint venture using borrowed funds guaranteed by other party

PROCEDURE - subpoena for production of documents - notice of motion seeking to set aside subpoena - whether subpoena is substitute for discovery - whether subpoena an abuse of process - relevance - whether legitimate forensic purpose - "on the cards" test - medical negligence proceedings and related claim for damages - family law proceedings

TAXATION AND REVENUE - assessment for land tax - land used for primary production - whether the plaintiffs' land is exempt from land tax pursuant to s 10AA(2) of the Land Tax Management Act 1956 - whether use of land for plaintiffs' cattle had "significant and substantial commercial purpose or character"

REAL PROPERTY - possession of land - proposed sale by mortgagee in possession - caveator claiming interest in the land - desire by mortgagor to sell to purchaser in advance of auction - application to restrain auction by mortgagee - mortgagees duties regarding payment of proceeds of sale

CONTRACT - proper construction of contract of employment - whether second defendant breached provisions of contract - whether conduct complained of occurred during term of employment; TORT - economic tort - whether first defendant knowingly and intentionally induced breach of contract; REMEDIES - injunction - whether second defendant should be restrained from breaching negative covenant in contract of employment - whether granting injunction would have practical effect of a decree of specific performance of contract for personal services

PRACTICE AND PROCEDURE - summary dismissal - strike out - no material facts capable of supporting a cause of action PRACTICE AND PROCEDURE - communications from parties to presiding judge's chambers - practice to be followed