Cases and authorities

ADMINISTRATIVE LAW - orders sought under s 69 of the Supreme Court Act 1970 that complaints made under the Anti-Discrimination Act 1977 be listed for leave to appeal to the Administrative Decisions Tribunal or be referred to a judicial member of the Tribunal - complaints of unlawful discrimination on the basis of disability declined under s 89B of the Anti-Discrimination Act - statutory construction - cause of action - limitation of actions - whether Limitation Act 1969 applies to complaints made under the Anti-Discrimination Act 1977 - whether s 52 of the Limitation Act 1969 limits the discretion to decline complaints of disability discrimination under s 89B of the Anti-Discrimination Act - whether plaintiff had a legitimate expectation that his complaints would be referred to the Tribunal - whether there is a duty requiring complaints declined under s 89B of the Anti-Discrimination Act 1977 to be referred to the Tribunal

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether settlement deed a "construction contract" - whether payment under that deed a "progress payment" - CONTRACT - implied terms - whether an implied term that parties deal with each other in good faith and cooperate - UNCONSCIONABLE CONDUCT - requirements for conduct to be unconscionable PROCEDURE - civil - whether the court should permit party to amend its claim - effect of delay - requirement that responding party have sufficient time to respond

CRIMINAL LAW - sentence appeal - demand money by force while in company with intent to steal - Chinese student forced to pay money to former boyfriend - parity principle - recording of conviction only difference between sentences - parity principle not offended.

APPEAL - Crown appeal against manifest inadequacy of sentence - respondent found guilty by a jury of causing grievous bodily harm with intent - unprovoked assault constituted by repeated blows upon the victim causing bilateral fracture of the jaw - offending found by sentencing judge to amount to a gratuitous and vicious assault - where respondent had a history of violent offending and was on parole for similar offending at the time - youth of the respondent the sole mitigating factor found by sentencing judge -non-parole period of 3 years, 7 months and 6 days imprisonment, with a balance of term of 2 years, 4 months and 25 days imposed at first instance - sentence manifestly inadequate - particular need for a strong measure of general deterrence - respondent re-sentenced to a non-parole period of 5 years imprisonment with an additional term of 1 year and 18 months - finding of special circumstances not warranted

TORT - professional negligence - claim by director against public company's accountant - documents lodged with ASIC by accountant incorrectly showing directors and secretary appointed although they had not consented - accountant knew officers had not given written consents - ASIC subsequently disqualified director from managing corporations based in part on incorrect forms lodged by accountant - AAT imposed shorter period of disqualification for other deficiencies, separate from incorrect forms being lodged - primary judge found director instructed accountant to lodge forms without first obtaining written consents - primary judge found no breach of duty and no loss - Fox v Percy challenges to findings of primary judge - appeal dismissed because no loss - challenges to factual findings not made out PRACTICE - amendment - leave sought at hearing to amend notice of appeal - leave refused because of prejudice and unexplained delay

PRACTICE AND PROCEDURE - costs - application for indemnity costs - application for gross sum costs order - application for interest on costs - where costs incurred appear to have been disproportionately large - conflicting authorities on orders for interest on costs referred to

COSTS - Indemnity costs order based on a Calderbank offer DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Future Economic Loss and Past Gratuitous Care - Sections 13 and 15 of the Civil Liability Act EVIDENCE - General - Whether inference open from failure to call witness - Whether Court improperly applied the rule in Jones v Dunkel JUDGES - Grounds of review - Procedural fairness - Bias - Actual and/or apprehended bias - Whether judge indicated prejudgment TORTS - Negligence - Essentials of action for negligence - Duty of Care - Whether there was a breach of duty - Section 5B of the Civil Liability Act TORTS - Negligence - Essentials of action for negligence - Damage - Causation - Whether the (assumed) breach of duty was a necessary condition of the occurrence of harm - Section 5D of the Civil Liability Act PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Objection to Competency of appeal under r51.41 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 127(2)(c) of the District Court Act PROCEDURE - Adducing expert evidence - r31.28 Uniform Civil Procedure Act - Late filing and service of expert reports

PROCEDURE - civil - interlocutory issues - adjournment of hearing; application for - application by letter - contempt proceedings - defendant not present - unclear explanation for absence - defendant not legally represented - matter of public interest - defendant on notice of proceedings - defendant did not exercise liberty to apply - Civil Procedure Act 2005; s 58 - interests of justice

COSTS - Contested Probate Proceedings - No dispute about validity of Will - Dispute about validity of Codicil - Cross-Claimant does not seek to propound Codicil on third day of hearing - How the burden of costs should be borne - Both parties, who are siblings, are named executors but agree that they cannot administer the estate together - Utility of independent administrator to administer the estate - Independent administrator consented to by both parties appointed

CRIMINAL LAW - applicant charged with one count of murder and alternative count of being accessory after the fact to murder - separate trials; application for - whether risk of positive injustice in joint trial with co-accused - where potentially prejudicial evidence of co-accused to be tendered is not admissible against applicant - history of violent relationship between applicant and co-accused - fears of physical and psychological harm and impact upon applicant presenting reasoned defence at trial - balancing exercise of public interest considerations - cost, expense and inconvenience of separate trial where evidence will be substantially similar - importance of both accused appearing before jury where each attributes blame to the other for alleged crime.

INFANT SETTLEMENT - approval - settlement reflects acceptance that liability in dispute - no question of principle.

FAMILY PROVISION AND MAINTENANCE - Adult children - No issues of principle - Succession Act 2006, ss59, 60 COSTS - Offer of compromise - Use in family provision matters

SUCCESSION - Wills probate and administration - Testamentary instruments - "suspicious circumstances rule" - Evidence - Application to set aside subpoenas - Legitimate forensic purpose - application dismissed EVIDENCE - Facts excluded from proof - On grounds of privilege - Legal profession - Probate - Statements of witnesses to execution of will not privileged. "Rule in Re Fuld" - Claim to privilege dismissed

PROCEDURE - civil - judgments and orders - summary judgment - whether there is an underlying defence that has a real or more than fanciful prospect of success

CONTEMPT PROCEEDINGS - adjournment - no question of principle.

CRIMINAL LAW - sentences - totality principle - accumulation of sentences - whether sentence was manifestly excessive - break and enter - drive whilst disqualified - lengthy criminal record

PROCEDURE - civil - interlocutory - disqualification of trial Judge; application for - disqualification of all Justices of the Supreme Court of New South Wales from hearing proceedings; application for - apprehended bias - necessity for an independent and impartial tribunal - whether the Supreme Court of New South Wales is an interested party - whether principle of necessity is applicable

FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether secure accommodation order should be made

Practice - NSW Trustee and Guardian Act - Managed Person - private managers - Remuneration - allowance of just and reasonable remuneration out of managed estate - Regulatory regime

PERSONAL INJURY - occupiers' liability - plaintiff injured at resort in Fiji - forum non conveniens - whether local forum clearly inappropriate

GAMING AND WAGERING - public lottery - substantial unclaimed prize - plaintiff claiming to have entered winning numbers but unable to produce ticket - whether entitled to prize

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are family members and trustee company - Deceased left Will - Provision for the Plaintiff in form of special disability trust - Explanation given - Estate of reasonable value but not large - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made - Order for provision made

CRIMINAL LAW - Murder - Where accused diagnosed as suffering from schizophrenia - Where defence of mental illness raised - Where defence made out on the balance of probabilities - Accused not guilty on the grounds of mental illness

APPEAL - civil - application for leave to appeal - significantly less than $100,000 at issue - applicant's case no more than arguable - no issue of principle or question of general public importance - leave to appeal refused

TORTS - negligence - motor vehicle accident - collision between motor vehicle and child on scooter - where driver driving at excessive speed - whether driver failed to keep proper lookout TORTS - negligence - motor vehicle accident - causation - whether driver could have stopped vehicle before impact if driving at reasonable speed and keeping proper lookout - whether any negligence on driver's part a necessary condition of occurrence of harm - S 5D Civil Liability Act 2002 (NSW) - whether accident inevitable PRACTICE - amendment - where appellant sought leave at hearing to amend notice of appeal - whether leave to amend should be granted

APPEAL - competency - leave required unless matter at issue exceeds $100,000 - double appeal - challenge to costs at trial included in first appeal - whether costs at trial contribute to $100,000 threshold so that second appeal is as of right - appeal held to be incompetent - Supreme Court Act, s 101(2)(r) STATUTORY CONSTRUCTION - use of decisions on antecedents to s 101(2)(r) - Interpretation Act s 33

CONVEYANCING - whether time of the essence - under terms of settlement defendant was to purchase plaintiffs’ interest in real property. Plaintiffs not to present any transfer earlier than eight weeks - whether defendant obliged to complete right on expiry of eight weeks PRACTICE - proceedings settled - whether motion in proceedings competent to obtain damages for breach - Civil Procedure Act 2005 (NSW) s 73

PROCEDURE - application for temporary stay of proceedings

CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - plea of guilty - sentence imposed

ESTOPPEL - Equitable estoppel - Proprietary estoppel - Creation or encouragement of assumption - Representation by husband, and father, that he would transfer interest in family home to son - Estoppel operative in favour of wife and son

RESTRAINT OF TRADE - restraint in distributor agreement - proper construction of restraint - whether restraint contravened - whether business of fourth defendant is "similar" to that of second plaintiff - validity and reasonableness of restraint; CONTRACTS - whether oral collateral contract established; TRADE PRACTICES - misleading or deceptive conduct - whether oral representation established - 52 Trade Practices Act 1974 (Cth); PRACTICE AND PROCEDURE - amendment to pleadings - application made late in proceedings - would necessitate further adjournment - leave to amend refused

BUILDING AND CONSTRUCTION - Home Building Act - where requirement for home warranty insurance - whether unconscionable for insurer to require director of builder to execute deed of indemnity as condition of insurance - Insurance Contracts Act - duty of good faith - whether duty applies to third parties EQUITY - unconscionable conduct - where requirement for indemnity as condition of insurance - commercial vulnerability - where strong bargaining position of insurer is the result of statutory regime COSTS - where party has executed deed of indemnity - whether party entitled to assessment of legal costs payable under deed of indemnity - where substantial delay and issue not raised until closing submissions - where no challenge to evidence of payment of legal costs at trial

PROCEDURE - application for stay of execution of writ of possession - where orders made for possession in proceedings to which applicant was not a party - where applicant knew of those proceedings and did not assert a right to possession - where evidence did not support a finding that the applicant was living at the property the subject of the order for possession - where unexplained delay in bringing proceedings PROCEDURE - where rules make provision for service of notice on occupier when proceedings for possession are commenced - underlying purpose of the rule to allow an occupier the opportunity to assert rights - operation of rule superfluous where occupier had knowledge of the proceedings in any event - appropriate case in which to exercise the power to dispense with the requirement of the rule

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - application for an extended supervision order - defendant is a high risk sex offender - unacceptable risk of committing a serious sex offence if not kept under supervision - order that the defendant be subject to an extended supervision order for a term of three years

PRACTICE & PROCEDURE - application for leave to further amend further statement of claim - whether separate questions be answered - claim in contract and tort

PROCEDURE - costs - dismissal of proceedings PROCEDURE - appearance in absence of formal service - active participation in directions hearings - notice of appearance required - Uniform Civil Procedure Rules, r 6.1

PRACTICE - case management - application for late filing of notice of objection to competency for want of parties - time limits on oral address

APPEAL - civil - application for leave to appeal - refusal by solicitor to provide bill of costs in itemised form where request made after expiration of twelve months - Legal Profession Act 2004 (NSW), ss 332A and 350 - primary judge's order for delivery of itemised bill complied with - question sought to be pursued on appeal hypothetical - leave to appeal refused

APPEAL - civil - application for leave to appeal - proceedings brought on plaintiff's own behalf and as representative proceedings seeking damages for wrongful arrest, false imprisonment and assault - primary judge dismissed motion to strike out parts of pleading alleging special rule of attribution of knowledge applicable to New South Wales Police Force - allegations that arresting police officers knew or must have known of unreliability of COPS computer system and should therefore have known that arrests not justified - primary judge's decision discretionary and on a matter of practice and procedure - no arguable error in trial judge's exercise of discretion - grant of leave would further delay hearing at first instance - leave to appeal refused

DEFAMATION - television programme concerning plaintiff's conduct towards his wife whilst she was suffering from terminal cancer - damages - whether award of damages manifestly inadequate - whether award outside range of what could reasonably be regarded as appropriate in circumstances of case - whether evidence in mitigation justified conclusion that plaintiff suffered little if any damage - relevance of contextual imputations not found to be true DEFAMATION - relevance in assessing damages of objective assessment of consequences to plaintiff of publication - relevance of plaintiff's subjective response to publication DEFAMATION - in assessing damages evidence properly before the Court on other issues may be taken into account in assessing damages - Pamplin v Express Newspapers [1988] 1 WLR 116 and other authorities considered DEFAMATION - costs - whether trial judge erred in declining to award costs on indemnity basis - relevance of defendant's assessment of prospects of success in assessing costs - Defamation Act 2005 (NSW), s 40(2)(a) - relevance of plaintiff's conduct in proceedings and circumstance that award of damages slightly more than derisory in making differential costs order

PROCEDURE - security for costs - appeal against order requiring substantial security - action brought by insured against insurer where complicity of insured in fire causing the relevant loss is in issue - finding that there are real issues to be tried - suspicion that plaintiff not bona fide - impermissible use of suspicion in place of finding of lack of bona fides - any such lack in any event going to the central issue to be determined in the case - assessment of ability of plaintiff to fund costs - shown that various creditors unwilling to fund - not shown that they are unable to do so - such creditors are not "insiders" - relevance of unwillingness of arms length trade creditors to give financial support.

DEFAMATION - statements said to have published by the Maritime Union of Australia (MUA) - Bureau of Meteorology forecasts - severe weather conditions - ship master's discretion -"Cyclone Response Plan" -existence of "contingency plan" - "Job Hazard Analysis" (JHA) - impact of "storm surge" - expert report on behaviour of tropical cyclones - no expert evidence to support questions regarding Cyclone Response Plan. DEFAMATION - publication - MUA and Cootamundara Herald online articles - "bilateral" nature of publications - utterance comprehended by reader, listener or observer - publication of someone else's defamatory statement by use of a hyperlink - responsibility of person approving, adopting or promoting the defamatory statement of another - "shallow" or "deep" hyperlinks - Crookes v Newton [2011] 3 SCR 269 - MUA responsible for publication of Cootamundara Herald article. DEFAMATION - justification - truth - whether imputations carried by online articles were "substantially true" - particulars of truth - imputations not justified - substantial truth defence fails - absence of expert or similar evidence concerning ship master's conduct. DEFAMATION - Hore-Lacy defence -"common string" not established - defence fails. DEFAMATION - privilege - qualified privilege at common law - reciprocal duty or interest - whether reciprocity of duty and interest between publisher and viewer - unrestricted nature of the publication - qualified privilege defence fails. DEFAMATION - privilege - statutory qualified privilege - Defamation Act 2005 (NSW) s 30 - whether the conduct of the defendant in publishing defamatory matter was reasonable in the circumstances - threat posed by cyclone significantly overstated - defence of qualified privilege pursuant to statute fails. DEFAMATION - defence -expression of opinion - Defamation Act 2005 (NSW) s 31 - truth of material not established - opinions not based on proper material - defence under s 31 fails. DEFAMATION - damages - compensatory damages - damages to bear rational relationship to harm - damages for non-economic loss limited - Defamation Act 2005 (NSW) s 34 and s 35 - imputations conveyed by articles serious - publication of articles damaged reputation - damages for multiple causes of action may be assessed as single sum - separate publications warrants amount of damages to be individually specified. DEFAMATION - damages - aggravated damages - conduct must be lacking in bona fides, improper or unjustifiable - failure to apologise or remove article from website - conduct of cross examination - unjustifiable conduct established - aggravated damages awarded. DEFAMATION - damages - mitigation of damages - Defamation Act 2005 (NSW) s 38 - no evidence regarding "Fairfax settlement" and whether it released MUA from liability - basis for reducing damages awarded fails.

CORPORATIONS - voluntary administration - deed of company arrangement – application by administrator to vary deed – jurisdiction - whether the Court may void or validate deed

CRIMINAL - sentence - guilty verdict after trial - accused charged with obtaining financial advantage by deception contrary to s 134.1 of the Criminal Code Act 1995 - filing of deliberately understated tax return - determination of amounts understated and benefit obtained

PROCEDURE - orders sought consequential upon the Court's principal judgment: Ashrafinia v Ashrafinia [2013] NSWSC 1442 - contest over the administration of the remaining trust funds after the sale of the principal trust asset - whether funds should be paid into Court pending application for administration.

PROCEDURE - application to transfer proceedings to Supreme Court

NEGLIGENCE - Duty of care - roads authority - motorbike rider injured in collision with median strip fence - Standard of Care - Special Statutory Power - Additional more stringent standard - Civil Liability Act s 5B, s 5C, s 5D and s 43A.

TORRENS SYSTEM - Indefeasibility of title - Exceptions - Fraud - Personal equity - Real Property Act 1900 (NSW), s 42 CONTRACTS - Settlement agreement - Accord and satisfaction - Accord executory

CONTRACT- penalty - compromise of litigation - cross-claimant agrees to accept certain amount by instalments - provision that in event of default cross-claimant can enter judgment for higher amount - whether provision constitutes a penalty - higher amount implicitly acknowledged by cross-defendant as a present debt - no penalty PROCEDURE - civil - consent orders based on a contract of compromise - extension of time for compliance - whether exceptional circumstances shown - extension of time refused PROCEDURE - civil - consent orders providing for entry of judgment - whether grounds for stay - mistake - stay refused