Cases and authorities

CRIMINAL LAW - exclusion of evidence - preliminary ruling - exercise of discretion - child witnesses - probative value outweighs unfair prejudice

CORPORATIONS - Application to set aside examination summons or otherwise limit scope of examination - liquidators sought examination of applicant director - where preference proceedings already on foot and highly likely applicant will become a party to them and may well be cross examined in them - whether proposed examination abuse of process - no abuse of process - application refused.

PROCEDURE - judgments and orders - freezing order - appropriateness of making freezing order pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 - whether remedies of judgment creditor sufficient to protect plaintiffs' interests - whether defence of "unclean hands" available to resist freezing order PROCEDURE - costs - variation of costs orders - reduction of costs awarded to successful second defendant by amount of costs incurred by plaintiff due to defendants' default in complying with court orders - default allegedly result of defendants' previous legal representatives

SENTENCE - special hearing - found unfit to be tried - determined that accused will not become fit during twelve months after finding of unfitness - murder - alternative offence of robbery in company with the infliction of grievous bodily harm - Crown case depends upon accused's admissions - reliability of accused's admissions - reliability affected by accused's mental illness, drug abuse and delay between commission of offence and date of admissions - direction according to terms of s 165, Evidence Act - not satisfied beyond reasonable doubt as to reliability of accused's admissions

PROCEDURE - stay of execution of judgment and orders pending appeal - general principles - where notice of intention of appeal has been filed but not notice of appeal - whether evidence establishes a risk that the judgment will not be repaid if not stayed - terms on which stay should be granted.

PROCEDURE - costs - settlement of sale of property - costs payable out of sale pursuant to mortgage - application by mortgagor for costs assessment - whether stay under s 355 Legal Profession Act 2004 - whether order can be made to pay funds into court - whether application for costs assessment made in accordance with the Act

CRIMINAL LAW – application for change of venue – whether fair or unprejudiced trial cannot otherwise be had – where crime has generated significant local publicity – where deceased well-known in local legal community – whether prospective jurors will know the deceased or potential witnesses

PRACTICE AND PROCEDURE -costs -effect of mortgage obligations with respect to enforcement costs.

EQUITY -Yerkey v Jones equity - whether wife a volunteer although a co-debtor-requirement of direct and immediate benefit - no evidence of bank's knowledge of use of funds - whether causation relevant to availability of equitable relief when wife still would have signed documents had she known true import

PRACTICE AND PROCEDURE - application for appointment of a tutor under r 7.14 Uniform Civil Procedure Rules 2005 (NSW) - no question of principle

PRACTICE AND PROCEDURE - notice of motion - application to recall previous interlocutory order striking out part of first defendant's further amended defence - whether relevant order proceeded on the basis of a misapprehension of the facts or law PRACTICE AND PROCEDURE - notice of motion - application to re-plead defence under s18A Limitation Act 1969 (NSW)

APPEAL - appeal from Local Court - Strata Schemes Management Act 1996 - whether Magistrate erred in finding that the special levy notices were served - whether the Magistrate erred in consideration of evidence

CRIMINAL LAW - conviction appeal - two counts of insider trading - whether verdicts unreasonable having regard to the evidence - whether the Crown proved applicant possessed each item of information alleged - whether Crown proved that the information possessed by the applicant was material - limitations in Crown's expert evidence - failure by Crown to establish beyond reasonable doubt that important information possessed by applicant on relevant date - whether information not proved by Crown "made no real difference" - factual basis for Crown case not made out - conviction quashed and verdict of acquittal entered.

STATUTES - acts of parliament - interpretation - Anti-Discrimination Act 1977 s 20C - person who engaged in the 'public act' in context of a radio broadcast - whether error of law in failing to consider applicability of s 20C(2) separately in case of the radio station and radio presenter - whether error in consideration of capacity to 'incite' - whether race must be the sole or dominant ground for the incitement of the requisite emotion ADMINISTRATIVE LAW - whether the Tribunal had power to order a change in policies that related to employees of the radio station that were not directly or indirectly involved in the conduct the subject of the dispute APPEAL AND NEW TRIAL - where leave required for Appeal Panel to consider the merits - where Appeal Panel did not explicitly give leave to hear the matter on the merits on a critical issue - whether matter should be remitted to the Tribunal to be decided in accordance with law

PERSONAL INJURY - statutory liability for bodily injury caused by dog - plaintiff bitten by neighbour's dog when attempting to rescue her own dog on neighbour's property - whether plaintiff lawfully on property - whether defence of necessity available - plaintiff's presence on property brought about by her own negligence - plaintiff in breach of obligation to take all reasonable precautions to prevent her own dog escaping STATUTORY INTERPRETATION - provision imposing criminal offence read with provision imposing civil liability - amendment read with statute as combined statement of will of legislature - provision authorising seizure of dog a defence to trespass to goods, not trespass to land - Companion Animals Act 1998, ss 12A, 22 and 25 TRESPASS - trespass to land - defence of necessity - exception for negligence WORDS AND PHRASES - "lawfully" - Companion Animals Act 1998, s 25

WORKERS COMPENSATION - worker in receipt of weekly compensation obtains extension of limitation period to sue alleged third part tortfeasors - proposed action in negligence against employer also - such action time barred - effect of order removing time bar - WORKERS COMPENSATION - right of employer to indemnity or contribution from third party - time for instituting action for indemnity or contribution - LIMITATION OF ACTIONS - whether dispensation from time bar will be productive of prejudice - whether potential defendant's ability to claim indemnity or contribution will be adversely affected - LIMITATION OF ACTIONS - where statute provides that action may not be maintained after certain period "except with the leave of the court" - effect of the grant of such leave - whether there is then any "limitation period fixed by or under this Act or by or under any other enactment . . . for the cause of action".

EVIDENCE - Expert- Opinion of handwriting expert - Whether such evidence should be allowed - No necessity for, or utility in, such evidence where, in substance, directed to credit of witnesses

PROCEDURE - possession - application to strike out defence - granted

APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - offence of breaking into premises in company and stealing - sentencing judge engaged in two step sentencing process - Muldrock error - application granted

CORPORATIONS - application for leave pursuant to (Cth) Corporations Act 2001 s 444E(3) to commence or continue proceedings against first and second defendants, being companies each the subject of a deed of company arrangement - proposed proceedings are a claim for damages for personal injuries suffered by the plaintiff, said to have been attributable to the negligence of twelve defendants including the two defendants in these proceedings - whether the plaintiff's claim has a solid foundation and gives rise to a seriously arguable case - whether the defendants are insured against the liability the subject of the proceedings - appropriate course at present stage to preserve plaintiff's rights by granting leave to commence the proceedings but limiting that leave to commencing and serving the proceedings and taking no further steps without the further leave of the court.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - where order made approving name of child in circumstances where child's current wishes were inadvertently not before the court - whether "exceptional" circumstances justifying discharge of adoption order - no basis for discharging order so as to correct error FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - where no order sought or made approving name change of child over the age of eighteen years upon making adoption order - whether order should now be made - proper mechanism for a name change in the circumstances is deed poll

CORPORATIONS - scheme of arrangement - where court has ordered the convening of a meeting and approved the explanatory statement to be sent to members in connection with that meeting - order sought approving for distribution to creditors the supplementary target's statement and form of cover.

CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 - s 5(2)(b)(iii) and s 8(1)(a) - application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Queensland - whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state - whether Queensland is the forum with the most real and substantial connection to the proceedings - whether transfer would cause delay - whether transfer will create additional costs - whether the Dust Diseases Tribunal provides experiential and procedural advantages

APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - offence of four counts of aggravated sexual intercourse without consent involving person under age of 16 years - centrality of standard non-parole period to sentencing exercise - Muldrock error - application granted

EVIDENCE - client legal privilege - waiver - loss of privilege in legal advice due to voluntary disclosure of substance of advice - whether party acted inconsistently with objecting to evidence of instructions and other documents relating to advice - Evidence Act 1995, s 122(2)

EVIDENCE - client legal privilege - waiver - whether party acted inconsistently with objecting to evidence of instructions given to lawyers - Evidence Act 1995, s 122(2)

COSTS - costs of appeal from Local Court - gross fixed sum costs order - whether self-represented litigant may claim compensation for loss of income

ADMINISTRATIVE LAW - judicial review - application to quash decision of Consumer, Trader and Tenancy Tribunal - residential building work - where applicant unlicensed and uninsured - claim based upon a quantum meruit - claim dismissed - whether applicant entitled to recover payment for reasonable cost of work - whether "just and equitable" - whether applicant afforded procedural fairness - whether Tribunal's findings based on material to which the applicant was not given an opportunity to respond

APPLICATION - application for inquiry into sentence pursuant to s 78, Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of solicit to murder - guilty plea - sentencing judge did not engage in two stage approach to sentence - application refused

CRIMINAL LAW - sentencing - Crown appeal against sentence - whether sentence is manifestly inadequate - whether accumulation inadequate - whether non-parole period inadequate - effect of imminent release - effect of mental health issues - Crown appeal dismissed

CRIMINAL LAW - interlocutory appeal - Criminal Procedure Act 1986 Chapter 6, Division 5, Part 2 - sexual assault communications privilege - issue of subpoena of documents subject to leave - where confidential affidavits provided - whether the trial judge erred in his approach to the assessment of substantial probative value - whether trial judge erred because he failed to undertake the balancing exercise in s 299D(1)(c) - whether trial judge erred in allowing access to material without considering whether it was inadmissible under s 293 as disclosing a prior sexual history

CRIMINAL LAW - sentence appeal -two counts of aggravated sexual intercourse in company - applicant sentenced in September 2007 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - whether substantial injustice would result if an extension of time were refused - whether "Muldrock error" had occurred - whether sentence manifestly excessive - application of s6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted in law - application for extension of time dismissed.

CRIMINAL LAW - appeal - application for extension of time on the basis of asserted Muldrock error - error established CRIMINAL LAW - appeal - offence of aggravated breaking and entering in the nature of a home invasion - where applicant found to have been the orchestrator of offence - where offence committed in company - where violence perpetrated on victim resulting in significant injuries requiring hospitalisation - no lesser sentence warranted in law - application for extension of time dismissed

CRIMINAL LAW - sentence appeal - robbery in company causing grievous bodily harm - applicant sentenced in March 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - "Muldrock error" established - whether substantial injustice would result if an extension of time were refused - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal - whether miscarriage of discretion in commencement date of sentence - whether parity principle applied - no lesser sentence warranted in law - application for extension of time dismissed.

CRIMINAL LAW - appeal against sentence - appeal against s 33 offence - error in sentencing - whether an error in the directions given in relation to the alternative charge of reckless wounding in company - whether the verdict in relation to the affray charge was unreasonable and incapable of being supported by the evidence - whether the sentence imposed was manifestly excessive and/or it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds - special circumstances - conviction appeal dismissed - leave to appeal on sentence granted - sentences quashed - re-sentenced

PRACTICE - parties - joinder - where appellant sought to enforce promise by deceased to create trusts to benefit her children - children not parties at trial - where primary judge found appellant settled that claim among others during deceased's lifetime - where appellant sought to challenge that finding - whether children should be joined on appeal - whether children directly affected by relief sought - whether appellant could properly represent children as potential beneficiaries of trust - where children sought to argue that appellant to deceased's knowledge may have breached fiduciary duties as trustee of chose in action held in trust for children if settlement effective by releasing children's claims - Uniform Civil Procedure Rules 6.24, 51.4

COSTS - appeals and cross-appeals against a number of Equity Division judgments concerning a church trust - orders made in relation to costs incurred at first instance and on appeal

COSTS - appeal - respondent to appeal who was a defendant below cross-appealed against another defendant who was not a respondent to the appeal - that defendant then cross-appealed against the respondent - merits of cross-appeals not determined due to failure of plaintiff's appeal - respondent ordered to pay costs of cross-appeals

ADMINISTRATIVE LAW - judicial review - legislative power to limit review - whether state Supreme Court's power to review judge's administrative function constitutionally protected ADMINISTRATIVE LAW - refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 - decision by judge of a superior court - whether order quashing refusal available - whether order requiring judge to determine application according to law available - whether declaratory relief available - Supreme Court Act 1970 (NSW), ss 69, 75 CRIMINAL LAW - appeal and review - right of appeal against sentence exhausted - history of provisions allowing appeal for executive clemency - application to Supreme Court - whether power limited to factual matters - application of error in sentence - discussion of discretionary factors STATUTORY INTERPRETATION - expansive operation of definition - whether to be read with operative provision which did not include the defined term WORDS AND PHRASES - "inquiry" - "doubt or question" - "mitigating circumstances in the case" - Crimes (Appeal Review) Act 2001 (NSW), Part 7

NUISANCE - stormwater runoff onto appellant's land - whether unreasonable interference with appellant's use and enjoyment of its land - whether appellant tolerated alleged nuisance - relevance and effect of that toleration to whether nuisance committed NUISANCE - whether damages in nuisance limited to consequences of the alleged nuisance that were reasonably foreseeable - whether advent of a protected species of frog was a reasonably foreseeable consequence of the alleged nuisance STATUTORY DEFENCES - whether alleged nuisance by respondent council fell within an immunity under s 45 Civil Liability Act 2002 - whether council entitled to rely on good faith defences under s 733 Local Government Act 1993 and s 43A Civil Liability Act 2002

PROCEDURE - judgments and orders - amending, varying and setting aside - UCPR r 36.16 - Court under misapprehension as to aspect of evidence relevant to judgment amount - misapprehension not the fault of the parties - judgment amount varied - applications to vary Court of Appeal orders concerning costs at first instance and on appeal - no submissions on costs put at appeal hearing - principle of finality - applications dismissed

COSTS - security for costs - where no contest between parties in respect of making of an order for security of costs - quantum of security for costs - whether proposed sums are reasonable estimates of costs of remainder of proceedings - no question of principle.

JUDICIAL REVIEW - appeal from judgments of Local Court - leave to appeal from an interlocutory order of the Local Court - whether plaintiff was denied procedural fairness - plaintiff was unrepresented and had language difficulties - whether Magistrate erred in finding no triable issue - costs.

EVIDENCE - whether probative value of photos outweighed by their prejudicial effect - no question of principle.

CONTRACTS - decision on facts as to whether payments were a loan to defendant - when contract contains term requiring interest to be paid but no rate of interest specified - reasonable rate of interest - when parties in arrangement analogous to partnership - interest rate specified by s 24(1)(3) of the Partnership Act 1892 EQUITY - loan of money to purchase vehicle to be resold with proceeds to be used to repay loan with interest and any balance to be split between lender and borrower - whether arrangement impresses a trust on proceeds from dealing with vehicle - principles of remedial constructive trusts - unconscionability - tracing

PRACTICE & PROCEDURE - PLEADINGS - defective pleadings - where pleadings mischaracterised the effect of a contractual provision - where actual terms of provision proved without objection - claim to be decided on the basis of the term as proved, not as pleaded - where claim for damages neither pleaded nor particularised - where respondent denied sufficient opportunity to adduce evidence relevant to the question of damages - whether appellant should be permitted to raise damages claim on appeal CONTRACTS - restraint of trade - breach of contract - where respondent was required not to work on Indian film projects in Australia for 2 years without engaging, or procuring the engagement of, the appellant - where respondent subsequently worked on projects without the appellant - whether in fact any loss proved DAMAGES - calculation of damages - loss of opportunity - where respondent was required not to work on Indian film projects in Australia for 2 years unless he engaged, or procured the engagement of, the appellant - whether primary judge erred in failing to assess the probability that the appellant would have been engaged for the relevant projects - where respondent denied sufficient opportunity to adduce evidence relevant to the question of damages CONTRACTS - contractual guarantees - where respondent agreed to pay the appellant any 'proven' outstanding amounts that a named third party was 'unable' to pay - whether relevant debts 'proven' under the contract - where third party 'unable' to pay - meaning of 'unable' WORDS & PHRASES - meaning of 'unable' - definition informed by context

EVIDENCE LAW - hearsay statements by deceased to various witnesses - maker unavailable - consideration of ss 65(2)(b) and 65(2)(c) of Evidence Act - whether representation made "shortly after" the event - whether circumstances surrounding representation make it unlikely that it was fabricated - whether the contents of representation relevant to determination of circumstances - hearsay evidence to police officer not admissible - interaction between s 65 and s 137 of Evidence Act - all other evidence of previous representations admissible

PROCEDURE - civil - pleadings - defective pleadings - application to strike out - tendency to cause prejudice, embarrassment or delay COSTS - security for costs - foreign plaintiff PROCEDURE - civil - default judgment - defective statement of claim

PROCEDURE - civil - service - international PROCEDURE - civil - service - service to an acknowledged address

COURTS AND JUDGES - bias - apprehended bias - litigant intends to appeal against an earlier decision of judge - whether a fair-minded lay observer might apprehend bias