Cases and authorities

PROCEDURE - discovery and inspection of documents - applicant seeking leave to appeal against a decision of a judge of the Dust Diseases Tribunal of NSW on a matter of practice and procedure - Part 23 Supreme Court Rules 1970 - whether the primary judge's reference to documents which could inform the ultimate questions was misconceived - whether the primary judge incorrectly relied upon the train of inquiry test in ordering discovery

PROCEDURE - where court is exercising civil jurisdiction - where no signed copy of the conditional good behaviour bond is held by the sentencing Court - s 97 Crimes (Sentencing Procedure) Act 1999 - whether proceedings should be remitted to the District Court to exercise its criminal jurisdiction - where order for remission no longer sought

ADOPTION - application for adoption in respect of three children - application for order dispensing with consent of natural parents - where making of an adoption order would provide a secure basis for the exploration of children's relationship with natural mother - where court satisfied that an order dispensing with the consent of the children's natural parents is in the best interests of each child - where court satisfied that the making of an adoption order would be clearly preferable to any other action that could be taken in relation to the care of the children

CORPORATIONS - management and administration - application for appointment of a receiver - where receiver appointed by interlocutory orders made ex parte - whether jurisdictional requirements of s 1323 Corporations Act 2001 (Cth) were satisfied. PROCEDURE - judgments and orders - application to set aside orders made appointing - where orders made in the absence of a party - whether the Court's discretion properly exercised. PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - whether the conduct of the application was unreasonable.

LANDLORD AND TENANT - order of Consumer Trader and Tenancy Tribunal terminating residential tenancy agreement - application by tenant to stay eviction - tenant not present at hearing through illness - unsuccessful appeal by tenant to District Court alleging error of law on Tribunal's part - unsuccessful application by tenant to Supreme Court (Equity Division) alleging procedural unfairness - tenant applies to Common Law duty judge for stay of eviction - jurisdiction to grant stay limited under CTTT Act - application refused

ADMINISTRATIVE LAW - prerogative orders - application for order in the nature of certiorari to quash decision of Consumer, Trader and Tenancy Tribunal (CTTT) - applicant absent from hearing before CTTT because of illness - whether CTTT proceedings lacked procedural fairness - discretionary nature of certiorari - whether order in nature of certiorari should be granted when Consumer, Trader and Tenancy Tribunal Act 2001 s 68 provides for rehearing - on rehearing applicant failed to address substantive merits of case - whether process is procedurally fair is to be determined by examining entirety of process including any rehearing

MORTAGE - application for an injunction preventing auction of properties mortgaged to the second defendant bank - whether the bank through its agents in possession, the first defendants, has adequately marketed the properties for sale - plaintiff has a conditional offer of refinancing - whether the plaintiff has a prima facie case against the mortgagee under Corporations Act 2001, s 420A - whether the balance of convenience favours the grant of an interlocutory injunction - general rule discussed that an injunction will not be granted unless the amount of the mortgage debt is paid into Court - whether exceptions to that rule may apply because the amount of the debt is in dispute or because a refinancing proposal is available - whether damages would be an adequate remedy.

JUDICIAL REVIEW - appeal from Local Court - question of law - construction of contract - whether lessor converted removable fittings and fixtures owned by lessee - whether lessee converted property owned by lessor - costs.

FAMILY LAW - Adoption - Application for orders dispensing with consent of natural parents - Ancillary orders dispensing with notice to natural parents also sought - Whether after the natural parents can be found - Name - Application for approval for change of last name - Whether name change is in child's best interests

CRIMINAL LAW - serious sex offender - application for interim detention or supervision order - high risk offender - intellectual difficulties - little insight into offending - no appropriate accommodation - interim detention order made

PROCEDURE - application by Defendant to vacate hearing date - application based on impecuniosity of Defendant - inadequate information about financial position - failures to comply with court directions - application refused

CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - wounding with intent to cause grievous bodily harm - attack on taxi driver with glass - no explanation for delay - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity of offence and aggravating factors - whether sentence manifestly excessive - no Muldrock error - no failure on part of judge to take into account relevant matter - no material error in sentencing exercise - sentence not manifestly excessive - application refused

CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - robbery in company with infliction of grievous bodily harm - application for legal aid previously refused - legal aid provisionally granted on basis of Muldrock ground - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity - no Muldrock error - no House v The King error - no error in characterisation of level of injuries - application refused

CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - guilty plea - specially aggravated break, enter and steal - every circumstance of aggravation in s 105A(1) Crimes Act 1900 present in offence - whether trial judge erred in approach to standard non-parole period - whether Muldrock error - whether substantial injustice would follow from refusal of application - standard non-parole period did not have determinative significance - application refused

PRACTICE AND PROCEDURE - security for costs ordered five months previously - no security provided - further opportunity to provide security granted - guillotine order in event no security granted

CORONERS - inquests and inquiries - power to require a witness to give evidence over objection, subject to issue of certificate conferring use immunity - Coroner satisfied that "interests of justice" required witness to give evidence - judicial review of Coroner's decision to require evidence to be given over objection - meaning of "interests of justice" - no judicially reviewable error shown - consideration whether "global" objection consistent with provisions authorising objection to "particular evidence" or evidence on a "particular matter" JUDICIAL REVIEW - Coroner's reasons - typographical error in expression - failure to deal with one submission - matter could not have materially affected decision - no judicially reviewable error shown STATUTORY INTERPRETATION - whether conflict between immunity conferred by certificate in Coroners Act 2009 and requirement to have regard to reasons in Industrial Relations Act 1996 - provision in latter Act providing that nothing in it limits or otherwise affected admissibility of proceedings in any other court or tribunal - later, specific Act prevails over earlier, general Act

EVIDENCE - dispute as to whether payments to company by way of loan or investment in shares - plaintiffs did not call witness who could have given direct evidence of relevant conversations - whether Jones v Dunkel 101 CLR 298 inference should have been drawn - whether witness in plaintiffs' camp - nature of inference that was permissible to draw

APPEAL - civil - Dividing Fences Act 1991 - whether power under Act to order removal of fence - whether "fencing work" includes removal of fence - whether proper notice under s 11 was served by appellant owner requiring adjoining respondent owner to contribute to removal of fence erected by respondent owner - where respondent owner who erected fence initially served notices on appellant requiring contribution but then erected fence without seeking contribution - where respondent owner's fence determined to be a sufficient dividing fence - where appellant owner purported to apply under Act to remove fence

TAXES AND DUTIES - land tax - land used for primary production - whether use had a significant and substantial commercial purpose or character under s 10AA(2)(a) of the Land Tax Management Act 1956

DEFAMATION - imputations - objections to form - whether capable of being conveyed -- where article exposes plaintiff to ridicule - content of requirement to specify act or condition allegedly imputed to plaintiff in cases of denigration or ridicule

GUARDIANSHIP - plaintiff injured in motor vehicle accident - plaintiff unable to manage her affairs - order made for managers of plaintiff's estate - improvement in plaintiff's condition - application to revoke earlier declaration an appointment of guardian

SUCCESSION - Family provision - Application by widow - Where married for twenty years with no benefaction for widow - Where all property left to children of earlier marriage - Provision ordered. SUCCESSION - Family provision - Deed of release - Where plaintiff made deed of release before death - Where couple had made after marriage statement of intention as to disposition of assets upon death - Whether documents binding on plaintiff - Succession Act 2006, s 65.

JUDGMENTS - setting aside - judgment irregularly entered - consent judgment for second defendant - first defendant not consulted - judgment set aside

PROCEDURE - application to strike out defence - failure of defendant to comply with orders to serve evidence - defence struck out - default judgment

CRIMINAL LAW - sentence appeal - whether applicant has a justifiable sense of grievance as a result of disparity between the non-parole component of his sentence and the non-parole component of sentence imposed upon one of two co-offenders - whether sentencing judge made an error of law by failing to adequately state reasons for difference in sentence between applicant and co-offender - whether sentence manifestly excessive

CRIMINAL LAW - sentence appeal - wounding with intent to cause grievous bodily harm - aggravated kidnapping - sustained assault and restraint of intellectually impaired woman - asserted error in having regard to features of harm caused in kidnapping offence beyond basic requirement of actual bodily harm - asserted error in benefit to victim taken into account when considering utility of guilty plea - asserted error in failing to give weight to mental conditions of offender not related to offence - no error in finding offence more serious because harm significantly beyond basic element - remorse not expressed until after exculpatory police interview and eventual pleas of guilty - benefit to victim not a consideration on that account in any event - remarks relating to mental illness terse but context indicates full consideration - no errors made out

CRIMINAL LAW - sentencing - murder - elderly victim with pre-existing medical conditions - intoxication - general deterrence - special circumstances.

EQUITY - subrogation - guarantor's claim to be subrogated to creditor's securities - creditor not made whole - guarantor attended on creditor's solicitors unannounced - guarantor proffered cheque for amount said in statement by creditor to be owing on loan facility less adjustment - creditor claims greater amount due under loan facility - whether creditor estopped from denying amount owing as per its statement - whether purported tender of cheque sufficient to entitle guarantor to be subrogated to creditor's securities - whether there can be subrogation to securities when creditor had appointed receivers pursuant to those securities

DEFAMATION - pleadings - plaintiff seeking to sue on oral publication - where several separate statements pleaded as if they were one single continuous publication - where plaintiff chose not to interrogate after obtaining leave to do so

CRIMINAL LAW - sentencing - murder - intention to kill - exceptionally savage and sustained unprovoked assault of disabled older man in his own home - mistaken vigilantism - use of a weapon - serious example of offence - partial defences of provocation, excessive self-defence and substantial impairment rejected - some evidence of mental illness to slightly reduce importance of general deterrence - risk of future offending against other inmates

DEFAMATION - Costs - whether to be assessed on indemnity basis

PROCEDURE - judgments and orders - order sought declaring value of shares and related orders - where the Court of Appeal has provided directions on the determination of the value of the shares and made related orders in earlier judgment - whether declaratory relief necessary. PROCEDURE - judgments and orders - enforcement of judgment and orders - order sought lifting stay of judgment in earlier proceedings - order sought for stay of current judgment pending appeal - whether the defendants' interests are protected. PROCEDURE - costs - general rule costs follow the event - costs of issues - where each party seeks a costs order against the other for costs incurred by a valuation exercise - whether either party acted unreasonably in the conduct of proceedings.

PRACTICE - Subpoenas - Review of Acting Registrar's decision refusing to set aside subpoena - Extent to which relevance of documents sought can be defined by reference to affidavits rather than pleadings

CRIMINAL LAW - sentence - re-sentence - where fixed term originally imposed for offence carrying a standard non-parole period - necessity to correct sentence - where overall term of imprisonment imposed was intended to reflect the totality of the offending

CRIMINAL LAW - murder - pretrial application to exclude evidence - statement of witness who has since died - exception to hearsay rule where witness unavailable - whether requirements of s.65(2) Evidence Act 1995 satisfied - whether evidence should be excluded under s.137 Evidence Act 1995 - requirements of s.65(2) established - evidence should not be excluded under s.137

BANKING - banker and customer - mortgagee in possession exercising power of sale - duty under s 85 of the Property Law Act 1974 (Qld) - whether Bank failed to take reasonable care to ensure that the mortgaged property was sold at the market value TRADE PRACTICES - s 52 of the Trade Practices Act 1974 (Cth) - Fair Trading Act 1989 (Qld) - whether advertisements were misleading or deceptive or likely to mislead or deceive - whether any misleading or deceptive representations were made TORTS - duty of care - whether agent acting on behalf of mortgagee in possession owes a duty of care to a mortgagor

COSTS ORDER - whether offer of compromise on terms that a verdict be entered for defendant and each party bears their own costs constitutes an offer for the purposes of UCPR r 20.26 - where proceedings dismissed because plaintiff did not appear at hearing - whether a gross sum for costs should be awarded - where plaintiff unlikely to satisfy a costs order made against him.

RESULTING TRUST OF PROPERTY - alternatively constructive trust - whether money given by plaintiff to defendant was a gift or loan - credibility of witnesses - conversion of property by failing to return it.

CRIMINAL LAW - application for extension of time to appeal sentence - guilty plea - aggravated sexual assault (in company) and solicit to murder - unexplained and gross delay - provisional grant of legal aid on basis of Muldrock error ground - whether trial judge erred in finding aggravating factors - whether trial judge erred by failing to give effect to finding of special circumstances - whether trial judge fell into Muldrock error - whether sentence for solicit to murder offence and aggregate sentence manifestly excessive - trial judge erred in determining that actual or threatened violence was aggravating factor of solicit to murder offence - feature of offence that is inherent to offence cannot be taken into account as aggravating factor - no Muldrock error - no failure to give effect to finding of special circumstances - sentence not plainly unjust - whether error was material such as to warrant lesser sentence in law - no lesser sentence warranted in law - application refused

PROCEDURE - civil - request for suppression order - whether suppression necessary to prevent prejudice to proper administration of justice - public interest in open justice

APPEAL - challenge to findings of fact - challenge to contingent finding of contributory negligence - retrial required EVIDENCE - client legal privilege - whether statement of defendant obtained by investigator for use by insurer is privileged - whether trial judge correctly assessed dominant purpose of statement - whether document a confidential communication - Evidence Act 1995 (NSW), ss 117, 118 NEGLIGENCE - motorcycle accident - damages agreed - whether question of liability was correctly determined - trial judge reasons do not record process of resolving disputed facts - erroneous fact-finding process

TORTS - negligence - breach of duty of care - motor vehicle accident - the appellant was travelling on a bicycle and went under a bus - whether the driver breached his duty of care by failing to keep a look-out - Manley v Alexander [2005] HCA 79 considered - whether the driver was paying "reasonable attention" to what was happening on or near the roadway - held that the driver did not breach the duty of care TORTS - negligence - contributory negligence - whether the trial judge properly compared the degree of the parties culpability and the relative importance of each party's acts in finding the appellant's contributory negligence to be 70 per cent - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 applied - no error in finding appellant's contributory negligence to be 70 per cent DAMAGES - torts - negligence - personal injury - whether trial judge erred in allowing cost of certain prosthesis when the appellant was unlikely to use the prosthesis to fullest extent - whether trial judge erred in allowing certain amounts for housing modifications - whether trial judge erred in allowing amounts for past domestic care - whether primary judge failed to discount amount awarded for future domestic care when the appellant was a smoker

SUMMARY DISPOSAL - applicants in default of discovery obligations - orders made striking out their defence and entering judgment against them - whether primary Judge erred in factual findings - re-exercise of discretion - SUMMARY DISPOSAL - Judgment entered in default of filing a defence - whether primary Judge erred in refusing to set aside judgment - re-exercise of discretion - significance of failure to put on evidence of a bona fide defence

PROCEDURE - judgments and orders - application for correction pursuant to slip rule - no "clerical mistake, or an error arising from an accidental step or omission" - application to reopen judgment because of misapprehension - no relevant misapprehension - applications dismissed - no matter of principle

APPEAL - determination on a separate question by primary judge - whether primary judge erred in construction of statutory provision - whether primary judge erred in law in application of the provision ENVIRONMENT and PLANNING - whether development classified as designated development - exception where development ancillary to and not proposed to be carried out independently of other development WORDS and PHRASES - "ancillary to" - "not proposed to be carried out independently of" - Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3 cl 37A

PRACTICE AND PROCEDURE - orders made in defendant's absence - primary Judge refuses to set aside orders - application for an extension of time to file an application for leave to appeal - sufficiency of explanation for defendant's absence - no arguable defence shown - no question of principle

WILLS AND ESTATES - Probate - Caveat against grant - Motion that caveat cease to be in force - Withdrawal of caveat - Cost of motion

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child - where no realistic prospect of restoration of child to care of birth parents - where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) - where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department - where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them - held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents ought to be dispensed with - as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made

PROCEDURE - judgments and orders - clarification of costs orders.

PROCEDURE - application to strike out defence - whether there is an arguable defence - PRIVATE INTERNATIONAL LAW - enforcement of foreign judgment - whether allegation fraud is a defence to enforcement of foreign judgment