Cases and authorities

CORPORATIONS - winding up - winding up in insolvency - application to extend time for compliance with creditors statutory demand following dismissal of application to set aside demand pending appeal from such dismissal - whether arguable appeal demonstrated - where primary judge applied prerequisite of substantial injustice to application to set aside for "other reason" under s 459J(1)(b) - held, arguable appeal - where the appeal would be rendered nugatory unless extension is granted - whether security should be required for debt and/or for costs of appeal - held, security, not required.

PROCEDURE - courts and judges generally - courts - application to set aside a notice to produce in part - where notice seeks production of all defendant's bank statements for a period of 17 years - whether notice being used as a substitute for discovery - held, notice does not seek discovery, nor attempt to circumvent any relevant limitation placed on discovery - whether notice issued for a legitimate forensic purpose - held, notice issued for a legitimate forensic purpose, namely to test veracity of defendant's account - whether notice oppressive - held, notice not unnecessarily wide in time but defendant relieved from compliance in respect of certain accounts which are unlikely to contain relevant evidence

CRIMINAL LAW - sentencing - appeal against degree of accumulation - two offences resulting from one course of offending - no contravention of totality principle

CRIMINAL LAW - sentence - appeal - alleging error based on exchanges in course of the hearing - relevance of secondary count being included in principal count - framing of charges under prosecutorial discretion - whether leave to appeal ought be sought on grounds contrary to concessions made before primary judge -whether procedural unfairness occurred when primary judge fixed non-parole period in excess of a prior indication - no denial of procedural fairness- whether sentence was manifestly excessive - caution to be exercised when drawing direct comparisons with other sentences

CRIMINAL LAW - procedure - juries - majority verdict - Jury Act 1977 (NSW) s 55F - meaning of "deliberation" - whether eight hours had elapsed - whether jury continued to deliberate after note sent to the judge - whether lunch time is to be counted in the eight hour period

CRIMINAL LAW - sentence appeal after referral - indecent assault and sexual intercourse without consent - Muldrock error conceded - conditions of custody unusually arduous - applicant admitted guilt and expressed remorse after sentence imposed - whether lesser sentence warranted in law

PRACTICE - adjournment - by consent - granted having regard to pending decision in Federal Court

DAMAGES - effect of employer's liability on apportionment - necessary to recalculate damages for economic loss following a finding of liability against the employer - application of Workers Compensation Act 1987 (NSW) s 151Z PROCEDURE - costs - workers compensation regime prevents recovery of costs by a successful plaintiff against an employer

EVIDENCE - hearsay evidence - evidence admissible - reasons

EVIDENCE - objection to hearsay evidence

COSTS - calderbank letter - indemnity costs - defendant joined as necessary party by plaintiff at insistence of another defendant - Sanderson order

TRUSTS AND TRUSTEES - Practice and procedure - Application for advice - Form and content of application - Trustee not to seek advice without having formed own view - Counsel's opinion - Trustee Act 1925 (NSW), s 63

PROCEDURE - miscellaneous procedural matters - referral of proceedings for mediation - where application made at final hearing

LOCAL COURT APPEAL - jurisdiction of Local Court - claim in restitution following acceptance of repudiation - claim in restitution following rescission - whether "money claim".

PROCEDURE - civil - summary disposal - demurrer - whether there is more than a fanciful prospect of success - misleading and deceptive conduct - whether defendant engaged in trade or commerce PROCEDURE - civil - documents or pleadings - strike out ; application to - defective pleadings

FAMILY LAW AND CHILD WELFARE - adoption - whether applicable requirements satisfied - whether adoption is in best interests of the child - adoption order made - application for approval of change in child's surname - whether change of name is in best interests of the child - approval for change of name given

FAMILY LAW AND CHILD WELFARE - adoption - whether applicable requirements satisfied - whether adoption is in best interests of the child - adoption order made - application for approval of change in child's surname - whether change of name is in best interests of the child - approval for change of name given

CRIMINAL LAW - practice and procedure - application for a trial by judge alone - whether in the interests of justice

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 - where applicant convicted of murder - error not made out - application refused

PRIVATE INTERNATIONAL LAW - stay of proceedings; application for - forum non conveniens - whether New South Wales is a clearly inappropriate forum for determination of substantive proceedings - whether continuation of proceedings oppressive or vexatious - connecting factors - proper law of tort and contract - evidence of foreign law - availability of relevant witnesses - cost and inconvenience - availability of insurance indemnity - access to justice - impact of adverse psychological effects on plaintiffs if matter litigated in alternative forum - international nature of business offered by defendants - case management considerations.

APPEAL - application for stay of money judgment pending appeal - no matter of principle

CONSEQUENTIAL ORDERS -correction of orders under slip rule - correction of clerical mistake of incorrect year in order extending time to appeal - correction of an order so as to set aside only one rather than all of lower court's orders not within slip rule - alternative power to vary order - application made within 14 days of entry of order - not appropriate to vary order setting aside lower court's orders that were outside power - appropriate with consent to vary order so as not to set aside lower court's order as to costs

TORT - negligence - contributory negligence - motor vehicle accident - cyclist struck by car - trial judge not satisfied that either party had green light - both parties failed to keep proper lookout - assessment of proportionate responsibility should be made on common factual basis

ADMINISTRATIVE LAW - jurisdictional error - precondition for the existence of jurisdiction - whether appellate jurisdiction of the Full Bench of the Industrial Relations Commission depended on its satisfaction that a relevant error affected decision under appeal or upon demonstration of error to the reviewing court - Industrial Relations Act 1996 (NSW), s 191 ADMINISTRATIVE LAW - jurisdictional error - whether Full Bench of the Industrial Relations Commission erred in its redetermination of the matter - whether the Full Bench, having accepted misconduct, asked itself whether the proposed dismissal was harsh, unreasonable or unjust - Industrial Relations Act 1996 (NSW), s 89(7) ADMINISTRATIVE LAW - implied duty to give reasons - whether inadequacy of reasons constitutes jurisdictional error - obligation of the Full Bench of the Industrial Relations Commission to give reasons when not sitting as a court - statutory scheme under the Industrial Relations Act 1996 (NSW) considered INDUSTRIAL LAW - disciplinary proceedings - whether threatened dismissal harsh, unreasonable or unjust - public sector employment - application to restrain threatened unfair dismissal - review of employer's decision - jurisdiction of Industrial Relations Commission

PROCEDURE - judgment and orders - scope of power to make orders in supervisory jurisdiction - whether court can make only order properly available below -whether court can make order as to costs in court below - Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 and Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 considered PROCEDURE - entry of judgment and orders - clerical mistake - proposed orders mistakenly entered - power to correct mistake or error in judgment or order - removal of orders from record - Uniform Civil Procedure Rules 2005 (NSW), r 36.17

TORTS - negligence - 9 year old child injured when rode bicycle into an unfenced concrete drainage channel - drainage channel and surrounding grassed slope under care and control of appellant - presence of drainage channel not obvious from adjacent cycleway - appellant aware of risk of injury to children from unfenced drainage channel - expert report of engineer admitted without objection - whether trial judge bound to accept expert opinion - extent to which precise sequence of events leading to accident needed to be foreseen - application of sections 5B and 5C of Civil Liability Act 2002 - whether child engaged in a "dangerous recreational activity" at time of injury - s5L Civil Liability Act 2002 - application of s42 Civil Liability Act 2002 - whether resources of appellant sufficient to construct fence - ambiguity of evidence - defence not made out.

ADMINISTRATIVE LAW - judicial review - grounds of review - whether the determination of the Registrar of Workers Compensation Commission was affected by jurisdictional error - whether Registrar acted outside statutory powers - whether Registrar was functus officio

WILLS, PROBATE AND ADMINISTRATION - probate - validity of will - whether suspicious circumstances attend the execution of the will - whether the deceased knew and approved the contents of the will - whether grant of probate should instead be ordered for prior will - whether an order should be made under s 6 or s 8 of the Succession Act - whether costs should be paid out of the estate or no order as to costs - probate in solemn form of the will granted to the plaintiff - Succession Act 2006 (NSW) ss 6, 8

CONTRACT - terms in attached printed form - terms inappropriate to contract in question - how contract construed COPYRIGHT - what rights does customer have to use report of engineer it bespoke for possible litigation purposes

DEFAMATION - defences - whether statutory defence of honest opinion of a commentator and common law defence of comment of a stranger liable to be struck out - where newspaper refusing to provide particulars identifying the commentator - application of the newspaper rule

COSTS - personal injury - indemnity costs application - whether Court should otherwise order because new case propounded at trial - whether time allowed to consider offer was reasonable. STAY - whether judgment should be stayed pending appeal - plaintiff and his family of limited financial means - whether arguable basis for appeal.

ENVIRONMENT AND PLANNING – major infrastructure development – Environmental Planning and Assessment Act 1979, Pt 3A ENVIRONMENT AND PLANNING – major infrastructure development – public interest – Ecologically Sustainable Development ADMINISTRATIVE LAW – appeal on a question of law – error of law – procedural fairness ADMINISTRATIVE LAW – appeal on a question of law – mandatory considerations – ‘focal point’ or ‘fundamental element’ ADMINISTRATIVE LAW – appeal on a question of law – irrelevant considerations ADMINISTRATIVE LAW – orders in the nature of prerogative relief – Supreme Court Act 1970, s 69

CRIMINAL LAW - sentence appeal - application for leave - one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 - one count of possess a prohibited weapon contrary to s 7(1) of the Weapons Prohibitions Act 1998 - sentence in relation to the prohibited weapons offence was manifestly excessive - sentencing judge erred in concluding that the only appropriate sentence in relation to the prohibited weapons offence was one of imprisonment - sentencing judge erred in failing to take into account the applicant's psychiatric condition when assessing objective seriousness of the offence and the impact of a custodial sentence on the applicant - leave granted - appeal allowed - sentence quashed and set aside - applicant re-sentenced

APPEAL - respondent in liquidation - leave to proceed required - grant of leave not opposed by liquidator - proof of debt not a realistic possibility in the circumstances - leave granted

Contracts Review Act 1980 - whether finding that loan contract and third party mortgages were unjust should be upheld - whether primary Judge erred in declaring the loan contract and mortgages to be wholly unenforceable - whether allowance should have been made for moneys used by the borrowers to discharge existing mortgages - whether the earlier mortgages were themselves unjust

COSTS - discontinued proceedings - whether primary judge erred in ordering parties to pay own costs - whether discontinuing plaintiff achieved practical success - whether achieving some practical success sufficient to justify costs in discontinuing plaintiff's favour - whether defendant had acted unreasonably - primary judge did not err - leave to appeal refused PROCEDURE - leave to reopen - whether primary judge erred in refusing to grant leave to reopen - whether sufficient justification given to reopen - no sufficient justification given - primary judge's decision did not involve an error of law - primary judge's decision did not cause substantial injustice - leave to appeal refused PROCEDURE - Court of Appeal - review of decision of single judge of appeal - decision that party had not waived privilege by serving written submissions - applicants not demonstrated relevant error in single appeal judge's decision - application to discharge decision dismissed EVIDENCE - appeal against costs decision - application to receive evidence on the appeal - whether special grounds justifying receiving the documents into evidence - applicants failed to establish that evidence would have led to a different costs decision by primary judge - notice of motion dismissed

PRACTICE AND PROCEDURE - self-represented litigant - where statement of claim drafted by plaintiff struck out as embarrassing - plaintiff failing to serve amended pleading within time allowed - whether proceedings should be struck out for want of due despatch

DEFAMATION - imputations - objections as to form

PROCEDURE - civil - notice to produce - UCPR rule 21.10 - whether documents "referred to" in affidavits or pleadings - whether "specific documents" clearly identified in notice - notice to produce set aside PROCEDURE - civil - notice to produce -substitute for discovery - tendency to subvert object of Equity Practice Note No. 11 - notice to produce set aside PROCEDURE - civil - subpoenas - abuse of process - subpoenas capture large numbers of documents not shown to be relevant - subpoenas set aside PROCEDURE - civil - parties - court ordered mediation - dispute as to when mediation should occur - mediation ordered to take place once all affidavit evidence served and before applications for discovery

PROCEDURE - whether proceedings should be referred for mediation over plaintiff's objection

WORKERS' COMPENSATION - appeal - psychological injury resulting from confrontation with co-worker in course of employment - confrontation related to family dispute - whether employment a "substantial contributing factor" to injury -whether the basis for the confrontation needs to be related to employment - confrontation unlikely to have occurred but for meeting during working hours - Workers Compensation Act 1987 (NSW), s 9A WORKERS' COMPENSATION - appeal from Deputy President limited to decisions in point of law - whether Deputy President committed error in point of law in upholding an appeal from arbitrator - alleged error being absence of any error of fact, law or discretion by arbitrator - no error of law in erroneously determining a question of fact - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353

CRIMINAL LAW - conviction appeal - appellant inadvertently convicted of both offence of common assault and identical offence on a back up charge under Criminal Procedure Act 1986 (NSW), ss 165 to 169 - conviction on latter quashed CRIMINAL LAW - sentence appeal - assessment of objective seriousness of offence - whether sentencing judge erred in characterising applicant's role in joint criminal enterprise - whether open to sentencing judge to conclude applicant was the instigator of the joint criminal enterprise - appeal dismissed

TAXATION - income tax - director penalty notice - repeal of Division 9 of Part VI of the Income Tax Assessment Act 1936 (Cth) -effect of transitional provisions in Tax Laws Amendment (Transfer of Provisions) Act 2010 (Cth) - whether Acts Interpretation Act 1901 (Cth) operated to preserve the Commissioner's right to recover the penalty - effect of Schedule 7 of the Tax Laws Amendment (2011 Measures No 7) Act 2011 (Cth) - whether fresh director penalty notice required to be served

DAMAGES - motor vehicle accident - damages for commercial domestic assistance - gratuitous domestic assistance currently provided - whether gratuitous domestic assistance would continue - Motor Accidents Compensation Act 1999 (NSW), ss 128, 141B TORTS - negligence - contributory negligence - motor vehicle accident - whether error in finding no contributory negligence by pedestrian - failure of plaintiff to use a pedestrian crossing - failure to keep a proper lookout - Motor Accidents Compensation Act 1999 (NSW), s 138

PRODUCTION OF DOCUMENTS - documents produced in answer to a purported order of the Court of Criminal Appeal - no such order - documents ordered to be returned.

FAMILY LAW AND CHILD WELFARE - the (Cth) Family Law Act 1975 and related legislation - children - recovery order - in aid of secure accommodation order - jurisdiction

CAVEAT - removal - no question of principle.

CONTRACT - construction of agreement - agreement to settle litigation - settlement agreement provides for revised completion arrangements of an existing contract for the sale of land, the Church Street contract - whether any interest payable to the vendor under the sale contract must be calculated from the original completion date specified in that contract, or from a later completion date said to be specified by the settlement heads of agreement.

LOCAL COURT - appeal - whether Magistrate erred in allowing witness to give evidence via mobile phone - whether Magistrate erred in failing to give adequate reasons

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 infected by Muldrock error - where applicant convicted after trial of one count of sexual intercourse with a child - error established - application granted