Cases and authorities

STATUTORY INTERPRETATION - principles - legislative intention - giving effect to express words - relationship between clauses - cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) STATUTORY INTERPRETATION - principles - limited conferral of jurisdiction on a court - cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) ADMINISTRATIVE LAW - jurisdictional error - different considerations for administrative tribunal and inferior court - Industrial Commission - misconceive extent of powers

APPEAL - general principles - interference with discretion of court below - interlocutory orders - joinder and addition of parties - whether applicant had established arguable defence to proceedings brought by plaintiff APPEAL - practice and procedure - general principles - admission of fresh evidence - whether evidence could have been obtained for use at first instance APPEAL - practice and procedure - when appeal lies by leave of court - interlocutory orders and judgments

COSTS - security for costs - whether plaintiff would be able to meet an adverse costs order - discretionary factors - whether order would stultify proceedings - whether the plaintiff is effectively in the position of a defendant - where defendant already has security for costs

PROCEDURE - Courts and judges generally - courts - transfer of proceedings - where related proceedings pending in Federal Court - where centre of gravity in Supreme Court - where Supreme Court is court of liquidation - whether more appropriate for proceedings to be determined by Federal Court - held, not

APPLICATION - application to strike out summons for appeal from Local Court costs order - effect of Practice Note - whether a legal practitioner who is a barrister is entitled to costs when also a litigant - no basis to suggest that the Magistrate's discretion to exclude the evidence miscarried - relevance of lack of fee agreement - no arguable ground - summary dismissal appropriate

PROCEDURE - summary dismissal - extended estoppel - proceedings purporting to challenge the making of a sequestration order against the plaintiff - appeal from making of sequestration order unsuccessful - collateral attack on sequestration order in equity proceedings already dismissed - plaintiff now a vexatious litigant - proceedings dismissed

CRIMINAL LAW - manslaughter - appeal against sentence - whether factual findings contravened rule in R v De Simoni - whether miscarriage of justice by reason of solicitor's failure to obtain psychologists and psychiatrists reports - whether miscarriage of justice through wrong admission of intent to kill as opposed to intent to cause grievous bodily harm - appeal allowed and applicant resentenced

CRIMINAL LAW - murder trial - deceased child victims - surviving sibling - parents of children also deceased - statutory regime prohibiting publication of names of children - whether consent ought be given for publication of names of deceased child victims - public interest test - open justice principle - consent given to publication of names of deceased child victims - surviving sibling does not consent to publication of her identity - statutory prohibition on publication remains in place concerning surviving sibling

PROCEDURE - criminal - direction - warning as to reliability of evidence - right to silence - whether Mule direction appropriate

CORPORATIONS - winding up - winding up in insolvency - creditors statutory demand - application to set aside - genuine dispute - offsetting claim

CORPORATIONS - registration and dissolutions - reregistration - where sought by creditor for purposes of being sued - whether company should be wound up on reinstatement - held, it should not

COSTS - Calderbank offer - whether offer embodied a genuine compromise - costs payable on ordinary basis

APPLICATION - application under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) against decision of the NSW Parole Authority - abuse of process -no evidence of Authority failing to take into account importance of a period of parole before the conclusion of offender's sentence - score on Static 99 a matter of opinion rather than fact - no false, misleading or irrelevant information

COSTS - whether Supreme Court has jurisdiction to make a costs order on an appeal against an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) - proportion of costs to be awarded where several parties involved in proceedings - where one party seeks to defend orders on grounds that were found to be untenable - where party seeks to defend order that was unauthorised by the Court Suppression and Non-Publication Orders Act 2010 (NSW) because it was too wide

PRACTICE AND PROCEDURE – Application to amend claim on first day of hearing – No issue of principle

EASEMENTS - Creation - Power to order - Drainage easement - Costs where reasonable offer of compensation not accepted before proceedings commenced - Conveyancing Act 1919, s 88K

PROCEDURE - civil - whether plaintiff satisfied conditions for an order for preliminary discovery - whether application brought for a proper purpose

PROCEDURE – miscellaneous procedural matters – funds in court – whether reasonable for plaintiff to pay funds into court – where plaintiff on notice of multiple interests – where instructions not clearly unanimous

PROCEDURE - civil - pleadings - application to have pleadings struck out - whether pleadings have the tendency to cause prejudice, embarrassment or delay - whether it is necessary to strike out the proceedings in the interests of justice

EVIDENCE - evidence on examination or by audio-visual link - whether in interests of justice to order evidence on examination - application of Evidence on Commission Act 1995 (NSW) s 6(2)

PROCEDURE - Subpoenas - application to set aside - whether subpoenas should be set aside where documents already likely to have been provided as part of discovery - whether other subpoenas should be upheld on condition that one party pay costs of production and review.

COSTS - importance of 'usual order as to costs' - discouragement of costs applications that seek to qualify, vary or overly refine the general rule

PRACTICE AND PROCEDURE - costs - whether any order for costs should be made when both claim and cross claim unsuccessful - whether plaintiffs should pay costs thrown away by vacation of earlier hearing date - offer of compromise - whether unreasonable of plaintiffs to not accept offer

Succession - Wills Probate and Administration - Mirror wills prepared for, and executed by, husband and wife - Signatures of both duly witnessed - By mistake, husband and wife each signed will prepared for the other - Probate sought of husband's will - Effect may be given to testamentary intentions of deceased either by admission of the document prepared for the deceased to probate as an informal will (pursuant to Succession Act 2006 NSW, s 8) or by rectification of the document signed by the deceased (pursuant to s 27 of the Act) - Document prepared for deceased, but not in fact signed by him, admitted to probate as informal will.

CONTRACTS - construction - loan agreements - where defendant entered into managed agricultural investment scheme and executed loan agreements with initial managing entity of the scheme - where rights to debt owed by defendant was assigned to plaintiff under sequence of assignments - where plaintiff has demanded repayment of relevant principal sum and interest - whether assignor had incurred harvesting and marketing costs under relevant agreement - whether it can be established that a particular amount is owed by defendant in respect of such costs - whether defendant made income from interest in project available in its entirety to relevant representative under loan agreements - whether limited recourse provision in loan agreement ceased to have effect - whether default occurred under loan agreements. PROCEDURE - where plaintiff now claims different amount of harvesting and marketing costs from amount originally pleaded on basis of different evidence - no amendment application made - whether defendant would suffer real prejudice by change in plaintiff's claim. WORDS AND PHRASES - "income" - "made available".

CRIMINAL LAW - sentence - offender acquitted of murder but found guilty of manslaughter - fact finding on sentence - whether manslaughter by unlawful and dangerous act or excessive self defence - role of intoxication - victim impact - prior criminal record - psychiatric condition - prospects of rehabilitation - discount for offer of plea prior to trial - remorse - whether special circumstances.

CRIMINAL LAW - sentence - supply prohibited drug - whether good character should be accorded less weight for drug offences - parity - same judge sentences both offenders - submission at sentencing hearing by applicant that parity principle not engaged - appeal ground based on lack of parity

COSTS - indemnity costs; applications for - Calderbank letters; whether - unreasonable rejection - whether letters contained a real element of compromise - whether durations of offers were reasonable - COSTS - gross sum costs; applications for - Civil Procedure Act, s 98 - discretion to make a gross sum costs order - whether costs assessment process would be protracted and unduly complex - whether plaintiff would be able to discharge costs liability - whether order would achieve finality in proceedings - whether sufficient evidence to support application - whether in the interests of justice - COSTS - interest on costs orders; applications for - Civil Procedure Act, s 101 - whether would further the overriding purpose of the Civil Procedure Act

COSTS - exceptions to the general rule that costs follow the event - whether offer of compromise or Calderbank letter complied with the Uniform Civil Procedure Rules r 42.15A - whether no order as to costs should be made - whether family provision claims warrant special principles as to costs - whether conduct of the second defendant should affect an order as to costs -whether an order capping costs is appropriate - plaintiff ordered to pay costs on the ordinary basis up until letter of compromise and thereafter on the indemnity basis

SUCCESSION - family provision and maintenance - factors relevant to the making of a family provision order under s 59 - provision required for "proper" maintenance and advancement in life under s 59(1) - importance of testator's judgment as to appropriateness of provision where minds could legitimately differ - Succession Act 2006 (NSW), s 59

FRAUD - recovery of moneys paid pursuant to fraudulent misrepresentations

APPEAL -failure to identify any grounds of appeal or any basis for this court to set aside judgment- availability of avenue of relief in Local Court which ought be pursued before proceedings commenced in Supreme Court

CORPORATIONS - winding up - voluntary winding up - orders sought for staying of winding up of relevant companies - whether principles in respect of grant of interlocutory relief applicable to issue of staying of winding up - whether relevant applicants have standing - whether winding up should be stayed - whether appointment of administrators or receivers to relevant company was 'necessary' - whether solvency established - discretionary considerations of commercial morality and public interest - whether there has been serious impropriety in conduct of companies' affairs - position of liquidators and creditors - whether share held in relevant company was held on trust for relevant applicant - whether the decision by receivers to have relevant company wound up is reviewable under Corporations Act 2001 (Cth) s 1321. CORPORATIONS -winding up - voluntary winding up - where orders made to stay winding up - whether receivers and secured creditor should provide to relevant persons a payout figure for amount of money payable to secured creditor - whether liquidators and receivers should be directed to deliver up company's books and stock - where previous court order made in respect of appointment of receivers to companies - whether respondents should be restrained from dealing with property - whether order to appoint receivers to property should be set aside.

COSTS

TORTS - negligence - duty of care - workplace injury - duty of principal to independent contractor - whether duty to control system of work of independent contractor - whether principal owed duty to provide the necessary manpower to contractor for compliance with usual industry practice

EVIDENCE - Reliance on Expert Evidence in Judicial Review Proceedings - Uniform Civil Procedure Rules 2005 r 31.19 - Whether evidence was "reasonably required" to resolve the proceedings - Whether Court erred in refusing to grant leave to rely upon evidence PROCEDURE - Judgments and Orders - Statement of Reasons for Decision - Whether the primary Judge's reasons were inadequate

SUCCESSION - family provision and maintenance - distribution of estate - satisfaction of order for provision from notional estate SUCCESSION - family provision and maintenance - costs - whether order for costs to be made from notional estate - Succession Act 2006, s 99(1) PROCEDURE - costs - general rule costs follow the event - exceptions to general rule - conduct of parties - no disentitling conduct

CORPORATIONS - External Administration - winding up - winding up in insolvency - substitution of plaintiff - where original plaintiff paid out and not proceeding

CIVIL PROCEDURE - procedural fairness and denial of natural justice - joining of parties - where plaintiff in current proceedings is not a party to earlier related proceedings - ensuring that proceedings are properly constituted so as to prevent order for possession and ensuing writ from being set aside on basis that party affected by orders and writ was not joined to the proceedings.

ADMINISTRATIVE LAW - judicial review - decision of State Parole Authority - Serious Offenders Review Council recommended offender be "considered for release on parole" - final decision of Parole Authority to refuse parole did not constitute rejection of advice of Serious Offenders Review Council - error in finding that offender lacked motivation for undertaking therapy or rehabilitation at hearing - erroneous finding was influential in final decision - failure to put finding to offender at hearing constituted denial of procedural fairness - lack of evidence regarding conduct in community was relevant consideration - potential for proceedings under Crimes (High Risk Offenders) Act 2006 (NSW) was not a material consideration - orders in the nature of certiorari and mandamus made CRIMINAL LAW - parole - application for direction under s 155 Crimes (Administration of Sentences) Act 1999 (NSW) refused - absence of "false, misleading or irrelevant" information PROCEDURE - judicial review - person serving sentence for serious indictable offence does not require leave in order to challenge the decision of the State Parole Authority to refuse parole - Felons (Civil Proceedings) Act 1981 (NSW), s 4

CRIMINAL LAW - pretrial rulings - indictment alleging five counts of murder - victims were relatives of Accused’s wife killed in their sleep with blunt instrument and by asphyxia - defence objections to several categories of evidence to be led at trial - whether evidence in relation to possible blood stain found on Accused’s garage floor relevant and admissible - whether subsequent DNA analysis of stain relevant and admissible - whether DNA analysis evidence should be excluded under Evidence Act 1995, ss.135 or 137 - whether Crown ought be granted leave to rely on additional report of DNA expert - whether evidence of Accused cutting up shoe boxes improperly obtained for purposes of Evidence Act 1995, s.138 and should be excluded - objections to evidence overruled - leave granted to rely on additional report of DNA expert

PRACTICE AND PROCEDURE - withdrawal of admissions and amendment of pleadings - principle to be applied - admission probably correct - irremediable prejudice

CORPORATIONS - liquidation - liquidator's applications - financial services licensee required to maintain trust account - trust account deficient - whether liquidator is entitled to be paid on an indemnity basis from the trust account for reasonable remuneration and expenses - whether money paid into the account by the company should be dealt with as an asset of the company and be paid to the liquidator - trust account allowed to go into debit - creditors entitled to participate in distribution of the account - whether money should be distributed pari passu to eligible creditors - Whether distribution to be in accordance with claimants' ability to trace - Corporations Act 2001 (Cth), ss 479, 511, 764A, 766A, 766C, 981A-981H - Corporations Regulations 2001 (Cth), regs 7.8.01-7.8.03 - Trustee Act 1925 (NSW), s 63 - Insurance (Agents and Brokers) Act 1984 (Cth), s 28

WILLS, PROBATE AND ADMINISTRATION - will and estates - construction of will - determination of burden of debts, funeral, testamentary and administrative expenses - value of plaintiffs' entitlements under will - Probate and Administration Act 1898 (NSW) s 46C, Schedule 3 - Conveyancing Act 1919 (NSW) s 145 WILLS, PROBATE AND ADMINISTRATION - family provision claim - property in respect of which order may be made - whether assets of family trust are liable to be designated as notional estate - prescribed transactions - construction of provisions of Succession Act 2006 (NSW) - whether will made adequate provision for plaintiffs' maintenance and advancement in life - determination of burden of orders for provision - Succession Act 2006 (NSW) ss 55, 75-77, 80, 83, 87-89 - Family Provision Act 1982 (NSW) ss 21-23 - Interpretation Act 1987 (NSW) s 33

CRIMINAL LAW - sentence - accessory after the fact - murder - nature of accessorial conduct - parity considerations

CRIMINAL LAW - sentence - Crown appeal - manifest inadequacy - substantial concurrence of sentence with sentence already imposed - drug offences - relevance of respondent's role and quantity of drugs

PROCEDURE - courts and judges - recusal - no matter of principle

CORPORATIONS - External administration - Winding up - Winding up in solvency - creditors statutory demand - where time for compliance extended following dismissal of application to set aside pending appeal from dismissal - where appeal not instituted due to procedural errors within extended time - whether extension can be varied after time for compliance expired under r 36.16 - held it can PROCEDURE - Judgments and Orders - Amendment - slip rule - no slip - on motion filed within 14 days - where not opposed and no prejudice - order made

STAY - stay pending appeal - where plaintiffs entitled to fruits of costs judgment following success at trial and in the Court of Appeal - where defendants seek special leave to appeal to High Court - whether appeal has realistic or demonstrated prospects of success - where appeal patently without merit - no basis for stay demonstrated

Succession - Will construction - Gift to sister of deceased - Substitutionary gift to "such one of her children as shall survive me and if more than one in equal shares" - Whether "children" of sister includes "step-children" of sister