Cases and authorities

SUCCESSION - family provision - claim by grandson from grandfather's estate - estate left to claimant's mother SUCCESSION - family provision - appropriate order EVIDENCE - expert - court appointed expert - under-utilisation - utility and desirability

PROCEDURE - civil - interlocutory issues - representative action commenced - whether discontinuance of representative proceedings should be ordered - s 166 Civil Procedure Act 2005- whether costs of representative proceedings likely to exceed costs of separate proceedings - whether all relief can be obtained by means of proceedings other than representative proceedings - whether representative proceedings will to provide an efficient and effective means of dealing with the claims of the group members - whether representative proceedings not resolving all issues in dispute is a sufficient basis for discontinuance - whether interests of justice for representation proceedings to be discontinued PROCEDURE - civil - interlocutory issues - extensions of time - Limitation Act 1623 (Imp) - Limitation Act 1969 s 60G - whether separate question or determination for trial - representative proceedings commenced - time not common issue - whether appropriate to hear an issue applicable to named plaintiffs and not group members before principal issues - whether likely to increase delay and prejudice - whether would require duplication of evidence - whether would increase party costs and impact upon judicial resources - whether separate determination would best advance the overriding purpose of the Civil Procedure Act

PROCEDURE - civil - summary disposal - dismissal - whether reasonable cause of action - whether claim that an authorised carer under Children and Young Persons (Care and Protection) Act 1988 is an employee of the State of NSW is reasonable - whether claim that indemnity from the State of NSW for loss or damage suffered by an authorised carer encompasses ordinary and usual expenses of rearing a child is reasonable STATUTORY INTEPRETATION - Children and Young Persons (Care and Protection) Act 1988, s 147 - "loss or damage", "authorised carer", "caused by a child or young person" WORDS AND PHRASES - "loss or damage" - Children and Young Persons (Care and Protection) Act 1988 s 147

APPEAL - civil - local court decision - appeal as of right - errors of law - whether no evidence for finding of fact - whether wrong finding against weight of evidence constitutes an error of law - whether error of law to treat pleaded collateral contract as synonymous with variation of contract. ADMINISTRATIVE LAW - natural justice - procedural fairness - error of law - whether denial of procedural fairness for local court to decide case on basis of cause of action not pleaded.

CRIMINAL LAW - sentence appeal - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - leave to appeal not required - extension of time not required - Muldrock error conceded - lesser individual sentences warranted but accumulation necessary - no utility in resentencing

CRIMINAL LAW - prosecution appeal against leniency of sentence - grounds for intervention - relevance of failure by sentencing judge to refer to prescribed penalties- relevance of failure to consider good behaviour bond - whether there was a failure to take criminal history into account - whether sentencing judge took into account Form 1 offence - failure to comply with Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 when discounting for assistance to law enforcement authorities - whether sentence imposed was manifestly inadequate CRIMINAL LAW - prosecution appeal - sentence - residual discretion to reject appeal where inadequacy established -failure by prosecutor to address at the time of sentencing that a minimum term of two years would be inadequate.

CRIMINAL LAW - sentence appeal - knowingly deal with the proceeds of crime - offender witnessed robbery and saw where proceeds were dumped - proceeds ($16,000) taken and spent by offender - whether sentence manifestly excessive - insufficient statistics to establish a sentencing trend - wide variation of factual circumstances in which such offences committed - inappropriateness of considering individual cases - necessary to approach matter by reference to established principle - ground of appeal not made out.

CRIMINAL LAW - conviction appeal - offences of entering dwelling house with intent to commit a serious indictable offence, robbery while armed and reckless wounding - key issue in trial identification - whether trial miscarried as a result of trial judge not discharging jury - evidence of a tattoo inadvertently coming before jury - whether impugned evidence seriously damaged defence case - discretionary exercise by trial judge - whether trial judge in special position of advantage - need for appellate court to decide whether risk of a substantial miscarriage of justice - need to consider whole of evidence and conduct of trial - effect of directions by a trial judge - whether verdict was unreasonable and not supported by the evidence - purported weakness of identification evidence - effect of intoxication of principal Crown witness - circumstances in which identification made - advantageous position of jury - grounds of appeal not made out.

CRIMINAL LAW - sentence appeal - offence of knowingly take part in the supply of a prohibited drug (cocaine) - whether error in the assessment of the discount for the plea of guilty - principles to be applied when assessing the utilitarian value of a plea of guilty - whether applicant bound by concessions made by counsel in sentence proceedings - parity - difference in roles of offenders - no basis for a justifiable sense of grievance - whether sentence manifestly excessive.

CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether error in finding the offence was aggravated by security guard - co-offender shot - whether applicant had justifiable sense of grievance given the degree of disparity - Form 1 offence taken into account - leave to appeal allowed - appeal dismissed

CRIMINAL LAW - appeal against conviction - sexual offences alleged by multiple complainants - tendency evidence - circular or coincidence reasoning - whether the trial judge misdirected the jury as to tendency. CRIMINAL LAW - appeal against conviction - evidence of complaint - whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence. CRIMINAL LAW - appeal against conviction - sexual experience of complainant - s 293 Criminal Procedure Act 1986 - whether error in refusing leave to cross-examine complainant about sexual experience. CRIMINAL LAW - appeal against conviction - s 38 Evidence Act 1995 - whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence - whether error in directions. CRIMINAL LAW - appeal against conviction - whether the trial judge erred in declining re-examination to re-establish credibility. CRIMINAL LAW - appeal against conviction - whether impermissible cross-examination of the appellant's character witnesses. CRIMINAL LAW - appeal against conviction - whether summing up was fair and balanced - whether the trial judge failed to adequately put the defence case to the jury. CRIMINAL LAW - Crown appeal against sentence - whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

CRIMINAL LAW - adjustment of sentence after High Court decision

CORPORATIONS -application for rectification of records maintained by ASIC - where judgment had been made that transfer of shares was a voidable transaction - whether records maintained by ASIC are capable of rectification - whether the Court has power to rectify records where content of notification required to be given to ASIC was incorrect.

FAMILY LAW - child welfare under state legislation - adoption - whether making of adoption orders clearly preferable to any other legal action which can be taken in respect of the care of the children - held, the making of adoption orders clearly preferable to any other action which can be taken with respect to the care of the children

CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for adjournment - no proper basis for adjournment - adjournment refused

Superannuation - Insurance - Claim for benefits - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including Plaintiff - Whether Plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Duty on a trustee of a superannuation fund in determining a claim for a benefit - Duty on an insurer in determining a claim for a benefit - Whether Plaintiff reasonably fitted by education, training or experience to carry out work - Whether insured able to engage in "regular remunerative work" - Review of decisions made by each of Trustee and Insurer

DEFAMATION- application to set aside subpoena addressed to Judicial Commission of NSW - documents regarding complaints against judicial officer - Judicial Officers Act 1986 (NSW) - no blanket exemption from production of documents concerning judicial officers - hearsay material indicating complaints against plaintiff - defence of substantial truth - pleading of aggravated damages by reference to falsity of imputations - whether subpoenaed documents have legitimate forensic purpose - "fishing expedition" - "on the cards" test - Alister v R (1984) 154 CLR 404 - class of documents sought by subpoena too wide - subpoena set aside in part.

CRIMINAL LAW – sentence appeal – doing an act with intent to pervert the course of justice – whether sufficient weight given to the applicant’s disclosure to police of his offence – whether applicant’s mental illness reduced the role of general deterrence – whether lesser sentence warranted

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 ss 94(5), 126 - claimant operated dry cleaning business - whether claims assessor erred in assessing damages for future economic loss by concluding in the absence of evidence that claimant would have been forced to close his business and seek salaried employment - held that assessor did not conclude this but simply that earnings of a salaried employee were an appropriate guide to minimum loss of business income - significance of claimant's failure to disclose full business earnings in taxation returns - discussion of assessor's obligation to give reasons

REAL PROPERTY - Transfer of property -Intent to defraud creditors - transfer set aside PROCEDURE - Adjournment application - Access to legal advice prior to hearing - Application denied

PRACTICE AND PROCEDURE - Costs - whether costs should be ordered to be paid by legal practitioner personally - whether costs of interlocutory proceedings should be ordered to be paid forthwith

PRACTICE AND PROCEDURE - civil - interlocutory application - security for costs -corporate plaintiffs' claims overlap with those of individual plaintiff - whether corporate plaintiffs should provide security

APPEAL - review of decision of single Judge of Appeal - Supreme Court Act 1970 (NSW) s 46 - whether there was "order" or "judgment" - where any order did not affect final result - review incompetent APPEAL - purported appeal from judgments and orders by notice of motion instead of summons for leave to appeal - failure to identify orders or judgments - failure to identify grounds of appeal PROCEDURE - application to vacate - application lacking in merit - no exceptional circumstances - application dismissed

CORPORATIONS - voluntary administration - creditor's meeting - application for extension of convening period of a meeting - where a deed of company arrangement may be proposed

EVIDENCE - unfair prejudice - no issue of principle

CRIMINAL LAW - special hearing - Crimes Act 1900 (NSW) Pt 4AC - dealing with proceeds of crime - section 192F - not necessary to prove a particular offence was committed - meaning of "particular offence" - particular offence rather than particular criminal event - verdict by direction

CRIMINAL LAW - murder - special hearing - accused voluntarily absented himself from the special hearing - whether the special hearing could continue in his absence

COSTS - whether costs should follow the event - whether conduct of the first defendant justified an award of indemnity costs

CORPORATIONS - deregistration - reinstatement under Corporations Act 2001 (Cth) s 601AH(2) - whether plaintiff is a person aggrieved by deregistration of a company - whether just to reinstate the registration of a company. CORPORATIONS - winding up - orders sought for voluntary winding up to be terminated immediately following reinstatement - whether winding up should be terminated.

DEFAMATION - whether imputations conveyed - whether defence of truth to all imputations established - no questions of principle.

COSTS - indemnity costs - Calderbank letter - whether it was reasonable for an offeree to reject a Calderbank offer - whether the rejection of a Calderbank offer before evidence had been served was reasonable - whether a "walk away" offer constituted a genuine offer - whether the offeree had been afforded an appropriate opportunity to consider and deal with the offer

PRACTICE and PROCEDURE - appeal - application to adduce further evidence - leave not required where complaint is erroneous rejection of proffered evidence at trial - request for issue of subpoena rejected where appeal challenges the setting aside of subpoena before trial

PRACTICE - joinder of parties - where appellant sole director of holding and subsidiary company - where appellant in his capacity as director purported to cause subsidiary to declare dividend in favour of holding company - where subsidiary and holding company went into administration - where appellant removed aircraft from company premises asserting entitlement to do so on basis aircraft had been transferred to holding company as in specie payment of dividend - where administrator alleged transfer of aircraft to be invalid and disputed holding company's title to aircraft - where appellant and holding company both joined as defendants to proceedings commenced by administrator seeking return of aircraft and declaration they were subsidiary's property - whether appellant a proper party to the proceedings in circumstances where he asserted he was acting in his capacity as director of the defendant company at all relevant times COSTS - indemnity costs - exercise of discretion to award costs - where appellant initially conveyed the impression he was defending proceedings brought against him - where appellant later served submitting appearance shortly before scheduled hearing date - where primary judge concluded the appellant properly advised should have known defence had "no chance of success" - where primary judge awarded indemnity costs against appellant - whether appellate court should interfere with order for indemnity costs

CRIMINAL LAW - trial - contempt of court - refusal by witness to give evidence

CRIMINAL LAW - trial - contempt of court - refusal by witness to give evidence

CRIMINAL LAW - murder - special hearing - additional counts not generally heard in Supreme Court included in indictment - one additional count based on different evidential foundation to count of murder - whether appropriate for Supreme Court to hear additional count

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURAL FAIRNESS - allegation of serious misconduct - plaintiff was suspended under a university policy - express obligation to afford procedural fairness - decision-maker's interview of complainant prior to the decision to suspend the plaintiff - statements made in interview not disclosed to the plaintiff before the decision to suspend was made - whether decision was made in breach of the obligation to afford procedural fairness to the plaintiff - whether interview material was required to be disclosed for the plaintiff to have an opportunity to respond on the issue of any risk to health and safety of the complainant and on the issue of measures to minimise any risk alternative to outright suspension - whether there existed apprehended bias in the decision-maker having made an earlier decision in favour of suspension - whether decision affected by error as to jurisdictional facts or jurisdictional error or improper purpose or Wednesbury unreasonableness - form of relief - declaration - leave to parties in respect of injunctive relief claimed

CORPORATIONS - share capital - shares - where declaration sought that company had power and authority to make share issue - where shareholders' agreement and company constitution included provisions regulating the issue of shares - whether agreement and constitution complied with - effect of non-compliance - declaration refused

CORPORATIONS - winding up - applications for winding up by court - termination of a winding up relating to a deed of company arrangement - where the company is likely to trade solvently while meeting its obligations - held, winding up to be terminated

SUCCESSION - FAMILY PROVISION - Eligible person - Close personal relationship - Living together but with separate residence maintained - Domestic support and personal care - Quasi-sibling friendship - Long term relationship

CONTRACTS - Contracts Review Act s 7 - whether loan contract and mortgage unjust - whether borrowers had means to repay loan - relevance of lender's failure to make enquiries concerning an asset of the borrowers to be used to repay loan - whether prior loan history warranted conclusion that borrowers lacked financial acumen - whether age of borrowers indicated that unable to protect own interests - significance of absence of independent legal or financial advice - factors to be considered in relation to relief

PROCEDURE - judgments and orders -correction under slip rule - Uniform Civil Procedure Rules r 36.17 - inherent power to amend to give effect to meaning and intention of court - whether respondent an active party to the appeal

WILLS PROBATE AND ADMINISTRATION - Intestate succession - Administrator unable to ascertain identity of deceased's parent - Administrator seeks order giving liberty to distribute estate on particular basis - Benjamin order

PRACTICE AND PROCEDURE - Settlement agreement substantially performed but no provision for disposition of proceedings - No further utility in proceedings - Proceedings dismissed with no order as to costs

REAL PROPERTY - licence to occupy space in defendant's premises - whether licence renewed CONTRACT - formation - offer and acceptance - informal agreements - whether email communications formed a contract ESTOPPEL - whether defendant estopped by representation from denying licence ESTOPPEL - whether parties conducted themselves on basis of assumed facts as to their relationship - estoppel by convention

PROCEDURE - civil - summary disposal - whether claim statute barred - whether right to bring the claim vested in the Official Bankruptcy Trustee

EVIDENCE - admissibility

EVIDENCE - without prejudice correspondence between party and insurer about indemnity for settlement offer - tender of reasons for judgment - Evidence Act - s 44, s 91 s and 131(1).

APPEAL AND REVIEW - criminal proceedings - application by plaintiff to transfer criminal proceedings to another court - Local Court refuses application - application to Supreme Court for order - no right of appeal - whether prerogative relief was sought - absence of the reasons of the Local Court - inappropriate to make declaration

CRIMINAL LAW - remarks on sentence - plea of not guilty - offender convicted of murder - accessory - little active role but aware for some hours that the offence was to occur - dispute as to facts on sentence - reliability of key witness - offender on parole at time of offence - sentence imposed