Cases and authorities

CRIMINAL LAW - application for bail - consideration of criteria within s 32 of the Bail Act 1978

PROCEDURE - application for preliminary discovery under UCPR, r 1.4 - discovery sought in the form of an affidavit setting out the details of persons from whom the defendant received particular documents - a director of the plaintiff and the defendant are former spouses - the plaintiff company runs an accounting practice - the defendant revealed that she has in her possession documents of the practice - whether the documents are prima facie confidential - whether it should be inferred that the documents were provided to the defendant by a third person - whether the preliminary discovery sought offends the "mere witness rule" - whether preliminary discovery should be granted - whether the plaintiff should pay the defendant's costs.

PRACTICE AND PROCEDURE - application for judgment at the close of the plaintiff's case - whether a judgment for the plaintiffs could not be supported - necessity to take the plaintiff's evidence at its highest - application granted - verdict and judgment entered in favour of the first and third defendants

PROCEDURE - appellants issued notices to respondents to produce documents at appeal hearing - notices set aside as abuse of process - no reasonable prospect that documents would be admitted into evidence on appeal - documents assumed by appellants to reveal respondents' intended meaning of letter to appellants containing terms of contract - subjective intentions of parties irrelevant to construction of written contract - no adequate explanation for documents not being sought at first instance

APPEAL - grounds - failure to give adequate reasons - where limited cross-examination - where primary judge failed to resolve factual issues raised by lay and expert evidence - where primary judge's reasoning is seriously deficient - new trial required DAMAGES - measure of damages - personal injuries - where liability admitted - whether pre-existing injuries were the cause of the appellants retirement

CONTRACT - alleged statement by deceased married couple that they would leave their estates to appellants in exchange for care of them and their affairs - whether deceased wife had intention to be bound given alleged promisees were family members - certainty of contract ESTOPPEL - whether alleged representation made - whether reliance - whether detriment

CORPORATIONS - examinations relating to insolvency - generally - objections

PRACTICE AND PROCEDURE - Amendment of pleadings - Multiple attempts to formulate claim - No issue of principle - Whether costs to be assessed and payable forthwith.

Evidence - admissibility - whether discretion to exclude should be exercised.

WILLS, PROBATE AND ADMINISTRATION - Testamentary instruments - Execution - Circumstantial suspicions raised as to testator's knowledge and approval - Onus of proof - Explanations insufficient to dispel suspicions

Evidence - admissibility - whether opinions expressed were admissible - whether discretion to exclude should be exercised.

Associations - unincorporated associations - winding up - whether Fund a Part 5.7 body - whether Court has power to order winding up - where fund not incorporated - where no power in Rules for voluntary winding up - whether distribution to members should be on an equal or proportionate basis - Corporations Act 2001 (Cth), Pt 5.7, ss 9, 583. Trustees - breach of trust - excusing breach - where no claim by beneficiary for breach - where trustee paid funds to himself out of Fund without Court authorisation - Trustees Act 1925, s 85.

CROSS VESTING - where first and second defendants previously married - where matrimonial home purchased with monies loaned to first defendant from a trust of which he was a beneficiary - where loan secured by mortgage and further secured by guarantee of the second defendant - where marriage broke down - where parties entered into binding financial agreement - where default under agreement - where first defendant brought proceedings in Family Court for orders setting aside agreement and consequential orders in relation to the property - where trustees brought proceedings in Supreme Court against both defendants for possession of the property - whether possession proceedings commenced in the Supreme Court should be transferred to Family Court - whether Family Court had jurisdiction to determine issues in the possession proceedings - whether it was in the interests of justice to make an order transferring the proceedings

CRIMINAL LAW - conviction appeal - recklessly dealing with money which was the proceeds of crime - s400.4(2) Criminal Code Act 1995 (Cth) - grounds of appeal that verdict unreasonable and incorrect directions as to elements of offence - offender delivering large amounts of cash to participants in a fraudulent tax avoidance scheme - whether cash delivered could ever be "proceeds of crime" as defined in the Act - what was the correct legal characterisation of the cash delivered by the offender - elements of offence made out and directions adequate - appeal dismissed.

CRIMINAL LAW- Sentence appeal- break and enter- whether mental illness reduced moral culpability- whether applicant's drug use was a mitigating factor.

CRIMINAL LAW - Appeal against sentence- supply prohibited drug- extent of supply- whether any lesser sentence warranted.

TORTS - negligence - proof of negligence - whether trial judge failed to have regard to relevant evidence - whether affected by delay TORTS - negligence - proof of negligence - Evidence Act 1995 (NSW), s 140(1) - proof on the balance of probabilities - relevance of alternative possibilities.

PROCEDURE - Application for leave to reopen case to tender documents -relevance.

CRIME - application for trial by a judge alone - whether in the interests of justice -case not involving a factual issue that requires the application of objective community standards - where accused had been refused legal aid and had limited access to private funds - where adjournment of trial could result in unavailability of important crown witness

PROCEDURE - slip rule - where order made should have specified a date for the act to be performed - order varied

DEFAMATION - identification of plaintiffs - plaintiffs operated a boarding house - boarding house featured in newspaper and internet article concerning deaths over 14 month period prior to plaintiffs commencing to operate it - whether article reasonably capable of identifying the plaintiffs to readers with knowledge of particularised extrinsic facts

TRUSTS AND TRUSTEES - Appointment of replacement trustee - second defendant proposes appointment of custodian trustee and managing trustee under (WA) Trustees Act 1962 - proposal aimed at overcoming any difficulty that might be occasioned by appointment of non-Hancock family member - consideration of proposal without injustice to plaintiffs not possible except at cost of an unacceptable adjournment - leave refused.

DEFAMATION - interrogatories - certain interrogatories unanswered as unnecessary, wasteful of resources and causing undue delay given proximity to trial - plaintiff ordered to answer balance of interrogatories

DEFAMATION - pleadings

DEFAMATION - costs - objections to pleading - whether conduct of plaintiff unreasonable or such as to prolong determination of issues - whether costs should be payable on an indemnity basis and forthwith.

BAIL - application for bail pending sentence appeal to Court of Criminal Appeal - special or exceptional circumstances required under s.30AA Bail Act 1978 - four offences of communicating inside information contrary to ss.1043A(2) and 1311(1) Corporations Act 2001 (Cth) - "tipping" offences - sentences of imprisonment involving minimum term of 14 months expiring in October 2014 - whether grounds of appeal most likely to succeed - held they were not - whether likely hearing date of appeal considered with grounds of appeal established special or exceptional circumstances - held they did not - bail refused

PRACTICE AND PROCEDURE - civil -- admissibility of evidence - expert report - proof of assumption rule

GUARDIANSHIP - protected person - financial management - change of manager - order for discharge of management of NSW Trustee and Guardian - Order for appointment of member of family as private manager - principles governing a change of manager - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation with protected person and family, and respect for protected person's autonomy. MENTAL HEALTH - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian - principles governing change of manager - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation and respect for autonomy. PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian - paramount consideration remains protection of welfare, and interests, of protected person - prudential management requires flexibility, consultation and respect for autonomy

PROCEDURE - admissions - new defence filed withdrawing and modifying admissions - no leave obtained - defence struck out

REAL PROPERTY - application for extension of caveats - in the alternative an application for injunction restraining the defendant from dealing with two parcels of land - Family Provisions Act claim by a brother in law of the defendant in relation to the estate of his late mother, including a claim for designation of two of the properties currently held by the defendant as notional estate - defendant and her husband separated and entered in to a Deed of Settlement in relation to marital assets, including the properties he inherited from his late mother - conduct allegedly designed to remove the assets from the plaintiff's reach without his knowledge - plaintiffs application for access to the terms of the Deed of Settlement refused by the Family Court of Australia - but plaintiff intends to appeal from that decision - whether plaintiff has a caveatable interest in the properties because of his Family Provisions Act claim or otherwise - whether the estate's executor has a caveatable interest - whether the circumstances warrant the grant of an injunction in the nature of a freezing order - whether balance of convenience warrants the issue of an injunction.

WORKERS COMPENSATION - medical examination - appeal to Appeal Panel from medical assessment certificate - whether Appeal Panel failed to confine itself to the ground of appeal found by the registrar - whether the Panel approached the appeal as a hearing de novo rather than a rehearing.

APPEAL - appeal from Local Court - issue of penalty notice - subsequent issue of Court Attendance Notices charging more serious offences arising out of the same facts - Fines Act s 23(2) - whether "further proceedings for the offence to which the notice relates" limited to the offence charged in the penalty notice or extended to further proceedings arising from same facts - whether Court Attendance Notices valid - whether proceedings for offences arising out of same facts barred - Fines Act Part 3 Division 2A- whether penalty notice validly withdrawn - whether reviewing agency must comply with review provisions - whether review process relevant when no review application lodged - Crimes (Appeal and Review) Act s 53(3)(b) - whether Magistrate made an "interlocutory order" - leave refused

LIMITATION OF ACTIONS - extension of time - limitation period for work injury damages claim - Workers Compensation Act 1987, s151D - delay adequately explained by plaintiff's medical condition - no evidence of prejudice - discretion to extend time should be exercised.

APPEAL- appeal from Local Court- definition of firearm - whether things possessed constituted firearm; CRIMINAL LAW- Definition of firearm- "anything that would be a firearm if it did not have something missing from it"- whether "something missing" means only a non-essential part; PROHIBITED WEAPONS- whether Collector licence issued under Firearms Act authorised possession of magazines.

APPEAL - confined to ground that involves a question of law alone - no error in law in Magistrate failing to consider defence of honest and reasonable mistake of fact which was not raised before him POLICE - powers and duties - power to seize property to prevent breach of the peace - police officer attempted to seize respondent's mobile phone - respondent convicted of resisting a police officer in the due execution of duty - police officer obliged to inform respondent as soon as reasonably practicable after exercising the power of his name, place of duty and the reason for exercising the power - elements of offence made out even though no evidence that information was given - no obligation to prove that officer formed view that it was impracticable to give information before exercising power - consideration of nature of power at common law and as preserved by statute

PROCEDURE - civil - matter arising under the Constitution - Judiciary Act 1903 (Cth), s 78 - Uniform Civil Procedure Rules 2005 (NSW), rr 1.22, 1.23 - severability of proceedings from the Constitutional matter. PROCEDURE - civil - Civil Procedure Act 2005 (NSW) - obligation of the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings - division of hearing into separate parts - all issues to be heard at the same time.

INTEREST - calculation of pre-judgment interest - no question of principle

TRUSTS AND TRUSTEES - Appointment of replacement trustee - where order made directing plaintiffs notify defendants as to identity of proposed replacement trustee by certain date - second plaintiff proposed as replacement trustee after deadline, on day before trial commenced - desirability that court have before it all reasonable available options - injustice of denying defendants opportunity to dispute fitness and appropriateness of proposed replacement trustee - not just to permit plaintiffs to belatedly propound second plaintiff.

PROCEDURE - application seeking extension of time in which to serve expert reports - whether discretion enlivened.

CONFISCATION - ex parte application for restraining order pursuant to Criminal Assets Recovery Act 1990 - whether power is mandatory - respondent convicted of obtaining electricity without authority - statutory preconditions in s 10A met -no discretion not to make order once certain matters established - orders sought made

LOCAL COURT - appeal - whether Magistrate erred in allowing proceedings to be run contrary to pleadings - whether Magistrate erred in excluding expert evidence - where expert witness failed to acknowledge Code of Conduct as required by Rule 31.23 Uniform Civil Procedure Rules 2005 - whether Magistrate erred in failing to give adequate reasons

PRACTICE AND PROCEDURE - application for interlocutory injunction - special resolution to remove director from board of student union - prima facie case established - whether balance of convenience favours granting - whether damages would be a sufficient remedy - whether other discretionary matters prevent granting - existence of other appeal mechanisms relevant but not determinative - undertaking as to damages not determinative - undertaking by applicant not to exercise powers - application granted for two weeks

CRIMINAL LAW - evidence - tendency evidence - evidence proposed to be adduced by accused concerning behaviour of deceased child's mother

PROCEDURE - requirement of pleadings - whether amended statement of claim should be struck out - whether amended statement of claim should be repleaded

CRIMINAL LAW - appeal - appeal against sentence - sexual assault - intellectual disability - whether there was failure to take into account s 23(6) of the Mental Health Forensic Provisions Act 1990 - not established - whether error in finding that offender engaged in simulated intercourse - not established - failure to make allowance for applicant's good character - not established - failure to take account that the applicant was not fully aware of his actions, because of his mental disability (s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - not established - wrongly imposing a longer sentence based on protection of the community - not established - whether limiting terms imposed were unusually harsh and severe - established - re-sentencing

CRIMINAL LAW - sentence appeal - whether sentencing judge should have applied parity principle - manslaughter - group of young men engaged in retaliatory assault - victim shot while armed with a knife - comparison of culpability and personal characteristics of two offenders - important differences in culpability and personal characteristics - no basis for any justified sense of grievance.

CRIMINAL LAW - sentence appeal - break enter and commit serious indictable offence - offender broke into brother's home and lit fire - house severely damaged and family possessions destroyed - offender suffering from depression at time - whether specific deterrence relevant - whether a finding of "a considerable element of planning" was open to sentencing judge - appeal dismissed.

CRIMINAL LAW - appeal against sentence - importation of commercial quantity of border control drug - supply of commercial quantity of border control drug - whether Form 1 offence was properly taken into account in considering questions of cumulation or concurrence - whether criminality disclosed by Form 1 offences relevant to application of the totality principle - whether retribution was exacted for the Form 1 offence whether full concurrency of the sentences for the importation and supply offences warranted.

EVIDENCE - faulty shackle responsible for failure of a gangway - plaintiff injured as a result - installer of shackle obtained it from a supplier - whether plaintiff or installer bears the burden of proving that the correct shackle was or was not ordered - whether plaintiff discharged the burden of proving that the installer had not ordered the correct shackle NEGLIGENCE - causation - whether employer's failure to institute a system of inspection was a cause of the plaintiff's injuries - apportionment between defendants - whether primary Judge erred in apportioning responsibility between the installer of the shackle and the employer WORK ACCIDENT - claim against employer - whether plaintiff precluded from claiming the cost of funds management because of a failure to include the claim in an amended pre-filing statement - s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act") - whether plaintiff precluded by s 151M(4) of the Workers Compensation Act 1987 from claiming pre-judgment interest COSTS - whether plaintiff was entitled to an order for costs against the employer - s 346(3) of the WIM Act

PROCEDURE - Legal professional privilege - dominant purpose - whether third defendant impliedly waived privilege through an affirmative pleading of its state of mind in the proceedings - whether first defendant impliedly waived privilege on behalf of third defendant through an affirmative pleading of her state of mind - whether waiver by selective deployment of legal advice. PROCEDURE - Confidentiality - when matter fixed for hearing orders made restricting access to redacted Agreement as well as related confidentiality arrangements - whether confidentiality arrangements should cease to apply - nothing identified in redacted version of document which would operate to the jeopardy of any party's interests.