Cases and authorities

EQUITY - application for judicial review of orders made by Consumer Trader and Tenancy Tribunal - summons filed out of time - motion to extend time pursuant to UCPR r 59.10 - where review originally sought in District Court within relevant time period - exercise of discretion to extend time - where lack of satisfactory explanation as to delay - where lack of practical utility - where difficulty in identifying jurisdictional error on an impressionistic basis

SUCCESSION - Two Plaintiffs, each of whom is a child of the deceased, make a claim for a family provision order - One of the Plaintiffs is a person under a legal incapacity - No dispute as to the Plaintiffs' eligibility - Some provision made for each Plaintiff in the Will of the deceased, but only after the death of the first Defendant, the widow of the deceased - Grandchild of the deceased also a contingent beneficiary upon death of the widow - Whether family provision order should be made for either Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision of each Plaintiff - Necessary to make adjustment order under s 66 of the Act

SUCCESSION - family provision - large gifts of property made by wealthy testator - relatively small estate remaining - whether gift of shares incomplete so that shares form part of estate - relevant property transactions - whether gifts entered into with intention of denying or limiting provision out of estate - whether inadequate provision made out of estate for plaintiff - whether family provision order should be made - whether notional estate orders should be made in relation to distributions from estate - orders made for lump sum legacy and costs - Succession Act 2006 (NSW) s 80(2)(a)

APPEALS - whether necessary to deal with notice of contention - not fully argued, not free from difficulty, not determined by primary judge - Kuru v New South Wales [2008] HCA 26; 236 CLR 1 applied CORPORATIONS LAW - liquidator's rejection of proof of debt - proof based on erroneous construction of regulation - appeal dismissed ENVIRONMENT AND PLANNING - contributions in respect of waste received at waste facility - occupier operated quarry and received waste from off-site - inadequate records of waste received kept - EPA based contribution on estimate of waste at the waste facility and determined contribution accordingly STATUTORY CONSTRUCTION - construction of regulation - construction as a whole and in context - weight to be given to minor textual differences - anomalies arising on one construction - scope of regulation-making power - whether construction beyond scope of or inconsistent with Act - preference to be given to construction which is within power

CRIMINAL - conviction - whether verdict unreasonable - whether jury verdicts inconsistent - whether open to jury to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial CRIMINAL - directions to jury - whether failure to leave provocation - whether evidence raised defence - whether subsumed by self-defence - substantial miscarriage of justice CRIMINAL - procedural fairness - principle of open court - exceptions - jury deliberations - what constitutes jury deliberations - whether judge should have disclosed content of communication between judge and jury - s 68B Jury Act CRIMINAL - jury directions - manner of jury deliberation on alternative charges JUDGMENT AND ORDERS - Court of Criminal Appeal - no majority as to orders -need for outcome - method adopted - least unsatisfactory outcome

APPEAL - liability - injury resulting from fracas in backyard - applicant alleged assault and battery - evidence not accepted - finding not inconsistent with objective facts - evidence relevant to liability properly before trial judge - Fox v Percy [2003] HCA 22; 214 CLR 118 applied PRACTICE AND PROCEDURE - appeal - out of time - prospects of success if extension granted - finding turned on evidence of witnesses - applicant's account not acccepted - no reasonable prospect of success

PROCEDURE - notice of motion - order seeking an adjournment - order seeking witness to attend Court to give evidence - orders refused - reasons

[INJUNCTIONS] - where adverse findings made in respect of respondent's conduct in receiving assets knowing it was for purpose of putting them beyond the reach of the liquidator and persons claiming an entitlement - whether findings proper basis for granting injunction.

PROCEDURE - judgments and orders -whether matter appropriate for reference out of technical issues - whether there should be joint expert report and conclave before any order made for reference out - no question of principle

POSSESSION - application for "interim order" of possession - no question of principle.

REAL PROPERTY - possession of land - guarantor/mortgagor self-represented - consideration of defences pleaded - defence struck out

PROCEDURE - discovery and interrogatories - interrogatories - special reasons - whether necessary to order interrogatories - established - other objections - interrogatories to be amended to reflect concessions and agreements made

COSTS - indemnity costs - Calderbank offer - whether genuine offer of compromise - whether unreasonable to reject offer

PRACTICE AND PROCEDURE - interlocutory relief - injunction - previous application for injunctive relief no bar to subsequent application on different ground - relevant principles in granting interlocutory injunctive relief in defamation proceeding - defendant restrained until further order from publishing the Article and Twitter publication - defendant restrained until further order from publishing the imputations set out in the statement of claim - defendant restrained until further order from publishing any matter of and concerning the plaintiffs to the same effect as the Article, the Twitter publication or the imputations - costs reserved

EQUITY - trusts and trustees - application for judicial advice pursuant to s 63 of the Trustee Act 1925 - proceedings between trustees and beneficiaries or third parties - insolvent deceased estate - whether executors justified in pursing special leave application - application for judicial advice refused

PROCEDURE - reasons for refusal of adjournment and disqualification applications - no notice or motion - adjournment sought due to financial circumstances, question of prejudice, criminal interference, legal aid appeal - pro bono legal advice - dissatisfaction with prior legal advice - further referral sought not granted - disqualification - actual bias - no bias established - refused

COSTS - whether costs should depart from the general rule costs as agreed or assessed - defendants treated as one defendant - Suitors' Fund Act 1951 - certificate granted

PROCEDURE - notice of motion - order seeking settlement approval - settlement approved

COSTS - general rule that costs follow the event - proceedings cross-vested from the IRC - whether costs orders of the current proceedings should cover the IRC proceedings - costs thrown away by reason of the plaintiffs' application for adjournment of the IRC proceedings - whether mixed success by plaintiff against multiple defendants justifies any reapportionment of costs - interest on costs - usual order for interest on costs that plaintiff is entitled to interest on the proportion of its costs allowed, being calculated from the day that the underlying costs were in fact paid by the plaintiff - whether usual order for interest on costs applies to protracted proceedings - reasons for protracted nature of litigation.

CRIMINAL LAW - summary jurisdiction - two offences under Road Transport (General) Act 2005 - offence as consignor of goods - offence as loader of goods - breach of load restraint requirements - guilty pleas CRIMINAL LAW - sentencing - Road Transport (General Act) 2005; s 177 - double jeopardy - operative facts the same in substance - whether court is constrained from imposing more than one penalty - principle of totality.

APPEAL - appeal from Local Court - corruptly offering to give an agent a benefit as inducement or reward for doing or not doing something in relation to the affairs or business of the agent's principal - adequacy of reasons in dismissing the information - whether matter should be remitted - meaning of "agent" - purporting to be an agent - meaning of "corruptly"

PROCEDURE - notice of motion - adjournment application - refused - further disqualification application - refused - temporary stay pending an appeal against this decision - not appropriate to stay proceedings - application for trial by jury - application previously made - refused - appointment of another judge from another jurisdiction to hear case - refused - application to set aside September judgment - no basis for orders sought - orders sought in motions refused

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 by Court of Criminal Appeal infected by Muldrock error

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 infected by Muldrock error

CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - standard-non parole period remains important guidepost where offence is in mid-range of objective seriousness - when not given determinative significance, lesser sentences warranted - appeal upheld and new sentences imposed

CRIMINAL LAW - appeal - s 5AB Criminal Appeal Act 1912 (NSW) - sentence - s 91K(1) Water Management Act 2000 (NSW) - multiple grounds pleaded - whether error in primary judge's assessment of objective gravity - whether primary judge erred in construction of s 52 Water Management Act - whether primary judge erred by failing to take into account relevant consideration - error found - Court has jurisdiction to entertain appeal against publication order made under s 353G(1)(a) Water Management Act 2000 - appeal allowed - conviction confirmed - orders (2)-(7) made by Land and Environment Court vacated and orders substituted

CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to aggravated indecent assault of person under 16 contrary to Crimes Act 1900, s.61M and attempt to choke with intent to commit an indictable offence contrary to Crimes Act 1900, s.37 - further offences taken into account by way of Form 1 - Applicant (20 years old) broke into sleeping 15-year-old victim's home, placed bag over his head and tied him to bed - total effective sentence of 10 years' imprisonment with non-parole period of six years - early guilty plea - Applicant suffering possible sadomasochistic paraphilia disorder - whether failure to give proper weight to Applicant's subjective circumstances - whether error in application of totality principle - whether error in failing to take account of Applicant's presentence bail conditions - whether error in assessment of objective seriousness of offences or in failing to give reasons in relation to s.61M(2) offence - whether sentences otherwise manifestly excessive - no error demonstrated EVIDENCE - fresh evidence - Applicant had tendered psychiatric and psychological reports at sentencing hearing - Applicant sought to tender on appeal psychiatrist's report from a different psychiatrist who examined him after sentence - circumstances in which the Court may receive additional evidence absent error - evidence rejected

APPEAL - criminal - miscarriage of justice - whether accused misled by trial judge - accused represented by counsel - whether consent to view in his absence was a true and informed consent - whether trial miscarried CRIMINAL LAW - appeal against conviction for murder - application for extension of time - notice of intention to appeal filed within time - numerous extensions of time granted while accused sought legal aid - notice expired - request for extension of time after expiration refused by deputy registrar - whether an extension of time should be granted - Criminal Appeal Act 1912 (NSW), s 10; Criminal Appeal Rules rr 3A, 3B CRIMINAL LAW - trial procedure - view - attendance of accused - trial judge directed a view in absence of the accused - whether trial judge misled accused - whether accused properly advised by counsel - whether trial miscarried - right to attend CRIMINAL LAW - appeal - trial - miscarriage of justice - conduct of defence counsel -- accused expressed desire to attend view - trial judge used language that might suggest accused had no right to attend - counsel obtained further instructions that view could proceed without the accused - allegation that counsel misled accused in confirming there was no right to attend - no incompetence of counsel alleged - accused bound by the conduct of counsel - whether evidence of communication between counsel and accused admissible EVIDENCE - criminal - direction for view - jury entitled to draw inferences from view - absence of accused, represented by counsel - Evidence Act 1995 (NSW), ss 53, 54 EVIDENCE - view taken in absence of accused - challenge to consent to be absent from view - whether subject belief of accused relevant - whether advice given by counsel relevant - no challenge to competence of counsel

CRIMINAL LAW - Crown appeal against sentence - federal offender - offender convicted by jury of dealing with proceeds of crime in excess of $100,000 contrary to s 400.4(1) of Criminal Code Act 1995 (Cth) - offender falsely caused Australian Taxation Office to pay refunds of 21 taxpayers totalling $357,568 into accounts controlled by offender - offender used funds to support extravagant lifestyle - sentence imposed at trial of 3 years 6 months with a non-parole period of 2 years 4 months - consideration of operation of federal money laundering offences - comparison with comparable cases - virtually no mitigating circumstances - application of Elias v The Queen [2013] HCA 31; 248 CLR 483 - sentence manifestly inadequate - offender resentenced to imprisonment for 8 years with a non-parole period of 4 years 6 months

PROCEDURE - Appeal from a decision of Associate Judge - Interlocutory decision - Uniform Civil Procedure Rules, r 49.4 - Where proceedings wrongly instituted in Court of Appeal - Remitter to Division of the Supreme Court - Supreme Court Act 1970, s 51(2) PROCEDURE - Costs - Proceedings wrongly instituted in Court of Appeal

DISMISSAL - no reasonable cause of action disclosed

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - interim supervision order

PROCEDURE - judgments and orders - judgment on admissions - whether appropriate case to grant judgment on admissions - whether to grant leave to move for summary judgment

PROCEDURE - civil - pleadings - application to strike out replies filed to defences - UCPR r 14.28 - whether replies an abuse of process - whether replies have a tendency to cause prejudice, embarrassment or delay

EQUITY - parties entitled to proceeds of sale of property - no dispute as to existence of improvements to property or that some money borrowed under mortgage to fund improvements - dispute over exact sum spent on improvements as opposed to personal expenditure - where paucity of documentation in relation to some amounts said to be expended on improvements - where Court does "the best it can"

COSTS - costs to be paid on indemnity basis - unreasonable for plaintiff to reject defendant's open offer to walk away from proceedings and not seek costs

CONTRACTS - General contractual principles - Variation of contracts - Proof of terms of variation - Pre-contractual conduct CONTRACTS - General contractual principles - Variation of contracts - Proof of terms of variation - Post-contractual conduct - Whether admissible as admissions EVIDENCE - Admissions - Whether admissible on questions of mixed fact and law EVIDENCE - Witnesses - Cross-examination - Rule in Browne v Dunn - Where witness gives no evidence of alleged event ESTOPPEL - Equitable estoppel - Reliance

CORPORATIONS - insolvency - voidable transactions - Corporations Act 2001, s 588FF - whether shelf orders are valid STATUTORY INTERPRETATION - principles - relationship between subsections - purposive approach - conflicting purposes - provision conferring power on court COURTS AND JUDICIAL SYSTEM - precedent - departure from previous decision - intermediate appellate courts - applicable test - whether previous decision plainly wrong PROCEDURE - Uniform Civil Procedure Rules, r 36.16(2)(b) - whether the power to set aside an order made in the absence of a person is discretionary

TORTS - negligence - road accident cases - liability of drivers of vehicles - duty of care and standard of care owed to pedestrians - pedestrian waiting to cross the road and apparently watching the approaching vehicle - pedestrian walks into the side of the vehicle - pedestrian significantly intoxicated - significance of that factor

PROFESSIONS AND TRADES - lawyers - duties and liabilities - duty of solicitor to client after conclusion of retainer - duty confined to protection of the former client's confidences and the integrity of the judicial process and the due administration of justice - TORTS - collateral abuse of process - resort by judgment creditor to bankruptcy notice - whether the creditor's actions amounted to the tort of collateral abuse of process - requirement that plaintiff show some overt act or threat beyond obtaining issue of the process and deploying it in the ordinary course - that requirement not satisfied - tort in any event confined to court process - TORTS - collateral abuse of process - where solicitor acted for judgment creditor in obtaining issue of the bankruptcy notice and serving it - liability in tort can be incurred only by a party to the process

PROCEDURE - tutor - replacement tutor - requirement for legal representation

FAMILY LAW AND CHILD WELFARE - the Family Law Act 1975 (Cth) and related legislation - evidence - legal professional privilege - expert report relating to child - whether privilege excluded or overridden EVIDENCE - facts excluded from proof - on grounds of privilege - litigation privilege - child welfare proceedings - whether paramountcy principle overrides privilege - held, it does not

FAMILY PROVISION AND MAINTENANCE - Applicant former long time de facto of deceased who left him and now in new relationship - No factors warranting application and no inadequate provision - Succession Act 2006, s 59(1)(b) and (c)

EQUITY - gifts - donatio mortis causa - whether deceased's actions constituted a valid donatio mortis causa - whether delivery of documents for a bank account and fixed term deposit to the plaintiff was of the means or part of the means of getting at the property, or, the essential indicia of title - whether land can be the subject of a gift mortis causa - whether delivery of house keys and council rate notice sufficient to effectuate gift mortis causa

REAL PROPERTY - possession of land - plaintiff is registered proprietor - defendant asserts de facto relationship with plaintiff as a defence - no proceedings taken asserting de facto relationship in Family Court or Federal Circuit Court until proceedings for possession commenced - no application for extension of time when relationship as asserted by defendant terminated more than two years earlier - defendant swore in earlier proceedings that there was no genuine relationship - defence struck out

APPEAL- Appeal - General principles - Right of appeal -When appeal lies - From interlocutory decisions - Leave to appeal CRIMINAL LAW - Appeal - Interlocutory orders - Section 5F(3) Criminal Appeal Act 1912 - Interlocutory order not to order separate trials - Application of Section 21 Criminal Procedure Act - Question of admissibility of evidence central to decision of primary judge - Admissibility of coincidence evidence - Section 98 and 101 Evidence Act 1995 - Whether leave ought to be granted

CRIMINAL LAW - conviction appeal - supply not less than a commercial quantity of methylamphetamine - whether trial judge erred in not discharging jury following an application for discharge on the basis that a prosecution witness had given evidence amounting to the bad character of the appellant - whether verdict of the jury was reached through pressure of time restraints rather than proper deliberation

PROCEDURE - witnesses - orders sought to require witnesses to give evidence - failure to give any notice of application - failure to take steps to have subpoenas issued - s 192 of the Evidence Act - orders sought declined

CONTRACTS - Contracts Review Act 1980 (NSW) - alleged unconscionable, misleading or deceptive conduct - no representation by bank manager that loans would be restructured where he had no authority-combining of facilities not the cause of defendant's losses - allegations of duress and fraud not made out - bank entitled to use the financials of the company of which the defendant was sole director and shareholder for loan application - pressure to enter into contract was self-imposed- cause of defendant's default on loan and inability to refinance due to company's unpaid tax debts MORTGAGES - allegation that bank ought to have sold property earlier not made out as no such duty owed- bank could not sell the property with vacant possession without court order as defendant was registered proprietor and refused to yield possession