Cases and authorities

CRIMINAL LAW - joint trial of two co-accused - application for separate trial - admission by one co-accused - whether positive injustice arises - whether evidence against applicant weaker than evidence against other co-accused - whether evidence highly prejudicial against applicant - whether weaker case is made immeasurably stronger by prejudicial material - meaning of immeasurably - impossibility of compartmentalisation of prejudicial material - positive injustice established - separate trials ordered

CRIMINAL LAW - application for leave to appeal against interlocutory ruling - ruling refusing temporary stay of trial - applicant charged with sexual assault of a child between 10 and 14 years of age, sexual intercourse without consent and aggravated indecent assault - heavily pregnant complainant to give evidence from another State - whether judge erred in application of test under s 7(2)(c), Evidence (Audio and Audio VIsual Links) Act 1998 - whether advanced stage of complainant's pregnancy would unfairly prejudice applicant - trial judge has broad powers to manage trial process - no error in exercise of judge's discretion - no error in application of relevant test - leave refused

CRIMINAL LAW - appeal against sentence - non-parole period - relevant factors - parity between co-offenders CRIMINAL LAW - appeal against sentence - non-parole period - relevant factors - whether manifestly excessive.

ADMINISTRATIVE LAW - judicial review - review of decision of single judge of appeal: Supreme Court Act 1970, s 46 - extension of time - whether applicant established bias or error of principle APPEAL - no appeal lies from decision of Consumer, Trader and Tenancy Tribunal - no appeal lies from decision of District Court dismissing appeal from that tribunal - proceeding in the nature of judicial review - inapplicability of UCPR r 51.50 - power to order security for costs PROCEDURE - security for costs - impecuniousity - where order of security would likely stultify proceedings - circumstances where security may be ordered - abuse of process established - security ordered, with automatic dismissal if security not provided

APPEAL - nature of appeal - appeal from award of court in "point of law" - whether fact-finding involving perversity or illogicality can amount to error in point of law - whether Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 should be applied - failure to address issues in accordance with statute - constructive failure to exercise jurisdiction - District Court Act 1973 (NSW), s 142N WORKERS COMPENSATION - police officer - incapacity - hurt on duty - compensation for psychological infirmity arising out of injury suffered after commencement of statutory amendments on 1 January 2002 - reduction in compensation where respondent's psychological infirmity due to "something that occurred" before 1 January 2002 - medical evidence that events prior to 1 January 2002 diminished respondent's capacity to cope with trauma and stress -whether necessary that symptoms capable of supporting a diagnosis existed prior to 1 January 2002 - Police Regulation (Superannuation) Act 1906 (NSW) s 10; Workers Compensation Act 1987 (NSW), Sch 6, pt 18C, cl 3 WORKERS COMPENSATION - police officer - incapacity - hurt on duty - Commissioner certified that respondent hurt on duty on a "notional date" - whether events which occurred after notional date had been certified by Commissioner as resulting from respondent being "hurt on duty" - medical evidence that traumatic events after notional date added to respondent's disability - evidence not rejected by trial judge - proportionate reduction of compensation for infirmity due to events not certified as "hurt on duty" - Police Regulation (Superannuation) Act 1906 (NSW) s 10B

WORKERS COMPENSATION - appeal to Presidential member pursuant to Workplace Injury Management and Workers Compensation Act 1998, s 352 - reasonableness of action taken by employer with respect to discipline - whether decision of Arbitrator affected by an error of fact - whether decision of Presidential member exceeded authority conferred by s 352(5) - whether the Presidential member erred in point of law

PROCEDURE - civil - judgments and orders - motion to vary orders on appeal - where applicant on motion, who was fourth respondent on appeal, had filed submitting appearance on appeal - where appeal allowed with costs without excluding applicant on motion - where appellants sought to enforce costs order against applicant on motion

CHILDREN - children taken into care - mother seeks judicial review of decision of the District Court in substance affirming decision of the Children's Court - whether District Court decision disclosed error of law - whether Director-General made the relevant Care Plans as far as possible with the agreement of the mother as required by s 78(3) of the Children and Young Persons (Care and Protection) Act 1998

APPEAL - application for stay and referral for pro bono assistance - no issue of principle

PROCEDURE - appeal - application to extend time for filing notice of appeal - whether applicant's case fairly arguable -application dismissed

APPEAL AND NEW TRIAL - where the Court of Appeal determines an appeal from a decision of a judge of the Equity Division on a question ordered to be determined separately - whether the proceedings in the Equity Division may then be progressed without remitter by the Court of Appeal

INSURANCE - single buyer credit insurance - misrepresentations as to buyer's payment history - whether fraudulent because officer of insured recklessly indifferent to truth of answers in proposal - need to address whether officer consciously indifferent to truth or otherwise of answers - primary judge erred in holding misrepresentations fraudulent APPEAL AND NEW TRIAL - allegation of reckless indifference to truth not directly put in cross-examination - whether finding of fraud by reckless indifference reasonably open - whether question should be remitted to primary judge for further hearing INSURANCE - application of Insurance Contracts Act 1984 (Cth), s 28(3) - holding that insurer entitled to reduce liability to nil - for such a holding, must be satisfied on balance of probabilities that insurer would not have issued a policy which would have provided any credit insurance of buyer's defaults - primary judge did not address that question and make such a finding - question remitted to primary judge for further hearing INSURANCE - application of Insurance Contracts Act 1984 (Cth), s 27 - whether answers in proposal "obviously incomplete" so could not give rise to misrepresentations - how that question to be addressed - answers not "obviously incomplete" INSURANCE - application of Insurance Contracts Act 1984 (Cth), s 21 - insured alleged to have held certain opinions regarding buyer's creditworthiness at time insurance entered into - whether opinion a "matter" required to be disclosed - evidence did not establish opinions held when contract entered into INSURANCE - insurance contract - credit insurance - insured supplied buyer under contract containing credit terms different from those described in proposal and policy schedule - whether policy indemnified against payment defaults other than under a contract on specified credit terms INSURANCE - application of Insurance Contracts Act 1984 (Cth), s 54(1) - whether insurer entitled to refuse indemnity because insured supplied buyer other than under contract containing specified credit terms - whether, for purposes of application of s 54(1), effect of policy was that event insured against was any default by buyer or only default under specified contract - s 54(1) not apply to prevent insurer from refusing indemnity

PROCEDURE - Notice to produce

DEFAMATION - imputations - objections as to form and capacity INJURIOUS FALSEHOOD - form of pleading - necessity for plaintiff to identify alleged false statement

DEFAMATION - publication - where sixth defendant a minor contributor to matter complained of - inadequacy of pleading of publication as a publisher of the whole article - pleading of oral publication - where not purporting to be whole account of any single conversation - attempt to plead collection of statements attributed to sixth defendant from various sources. INTERROGATORIES - whether necessary or a 'fishing expedition' by plaintiff - whether plaintiff required to exhaust all opportunities to ascertain terms of oral publication before leave will be granted to interrogate as to publication.

High risk sex offender - application for extended supervision order - consideration of length of order and notice requirements - whether prohibition on alcohol consumption required - whether curfew condition required

CORPORATIONS - arrangements and reconstructions - schemes of arrangement or compromise - orders sought approving entry into company scheme and advising in respect of entry into trust schemes - orders sought under s 1322(4) of the Corporations Act 2001 (Cth) validating conduct in respect of communications with securityholders in Malaysia and Thailand - where majority of members and unitholders voted in favour of the company scheme and trust schemes, and no party appeared to oppose the scheme or the trust schemes - whether relevant procedural requirements for convening a second meeting in respect of the scheme of arrangement were satisfied.

CORPORATIONS - winding up - where judgment has been made for winding up to be stayed under ss 482 and 511(1)(b) of the Corporations Act 2001 (Cth) - where parties differ on orders to be made to give effect to the judgment - whether the originating process should be dismissed - whether the defendant should be released from undertakings given to the court in circumstances where the proceedings have been stayed - whether orders should be made for costs in circumstances where the proceedings have been stayed - whether orders should be made limiting liquidator's right to indemnification out of the company's assets.

PROBATE - Default judgment cannot be sought in a suit for grant of probate in solemn form. COSTS - Consideration of costs of a probate suit where plaintiff main cause of the problem.

PROCEDURE - application for leave to reopen - dispute as to appropriate orders giving effect to judgment - appointment of valuers - defendants argued that suggested valuers did not meet criteria in Heads of Agreement - issue not raised at hearing - adducing of further evidence may require adjournment for plaintiff to prepare evidence in reply - objectives of cheap and quick disposition of proceedings in ss 56, 57 and 58 of Civil Procedure Act 2005

DEFAMATION - publication - expert opinions attributed to defendant doctors quoted in newspaper articles - where no allegation of control over or assent to final versions of articles - test for joint liability as a publisher of the whole matter complained of - whether particulars given by plaintiff capable of sustaining plea of publication

CRIMINAL LAW - appeal - convictions for sexual offences - whether verdicts were unreasonable and unsupported by the evidence - no question of principle

REAL PROPERTY - easements - Conveyancing Act 1919, s 88K(1) - whether easement was reasonably necessary REAL PROPERTY - easements - Conveyancing Act 1919, s 88K(2)(a) - whether use of the land having benefit of easement was inconsistent with the public interest - where the servient tenement is community land - whether error in having regard to surrounding land REAL PROPERTY - easements - Conveyancing Act 1919, s 88K(1) - discretion to grant easement - relevance of applicant's knowledge that land is landlocked - whether dominant tenement purchased at discounted price.

MORTGAGES - possession - s 57 Real Property Act notice. STATUTORY INTERPRETATION - postal service of notice - where the property has two addresses service on one of them will suffice.

DEFAMATION - defences - whether contextual imputations capable of arising or bad in form - whether capable of amounting to a contextual imputation within the meaning of s 26(a) of the Defamation Act 2005

PRACTICE AND PROCEDURE - amendments to defence and cross-claim - whether application to amend made too late and would cause undue prejudice

MORTGAGES - Sale under power - Proceeds of sale - Directions for payment of surplus paid into court

TORRENS SYSTEM - Caveats - Withdrawal - Serial lodgment of unmeritorious caveats - Injunction against further caveats

CRIMINAL LAW - application by accused for trial by judge alone - charge of murder - plea of guilty to manslaughter - single issue of diminished responsibility by reason of substantial impairment caused by an abnormality of mind - whether application of objective community standards - whether in the interests of justice to make trial by judge order

CRIMINAL LAW - transporting waste to place not lawfully used as a waste facility - demolition material transported from building site to private property for use as road-base - trial judge not satisfied that material transported was "waste" - questions of law submitted - Protection of the Environment Operations Act 1997 (NSW), s 143 ENVIRONMENTAL PROTECTION - meaning of "waste" - offence relating to transportation of waste - definition of waste amended between two charge periods - waste defined in first charge period to include any "unwanted or surplus" substance - whether objective assessment required of capability of material to be reprocessed etc - whether state of mind of owner immediately prior to transport determinative - when unwanted or surplus substance changes character from waste to non-waste - where respondent had sorted material prior to transportation - relevance of intentions of transporter and recipient of material ENVIRONMENTAL PROTECTION - offence of transporting waste - meaning of "transport" - whether material must be deposited at place to complete offence - whether existence of separate offence of allowing land to be used as waste facility relevant to determining elements of offence of transporting waste - defence to charge if material not deposited STATUTORY INTERPRETATION - construction of "waste" - offence relating to transportation of waste - definition of waste amended between two charge periods - dictionary definition applicable to second charge period - definition includes multiple limbs - reliance solely on one limb - need to consider whole definition, not constituent parts in isolation WORDS AND PHRASES - "waste" - Protection of the Environment Operations Act 1997 (NSW), s 143 WORDS AND PHRASES - "unwanted or surplus" - Protection of the Environment Operations Act 1997 (NSW), s 143

CRIMINAL LAW - appeal against conviction in Land and Environment Court - whether appellant transported waste to place not lawfully used as waste facility - appellant transported liquid by-product from recycling facility to farm - liquid injected into soil as fertiliser - whether liquid was "waste" - waste defined to include "unwanted or surplus" substance - whether liquid ceased to be waste once loaded for transport to willing recipient - Act created certain exceptions -proposed construction would render exceptions futile - Protection of the Environment Operations Act 1997 (NSW), s 143 STATUTORY INTERPRETATION - construction of "waste" - offence relating to transportation of waste - consideration of text - definition of waste amended between two charge periods - special definition of waste applicable to first charge period - comparison of special and general definitions - consideration of scope of offence - preferring construction would not render statutory exceptions futile - reference to objects of Act - whether general objects assist in construing particular words - proper approach to use of extrinsic materials - Interpretation Act 1987 (NSW), s 34 WORDS AND PHRASES - "waste" - Protection of the Environment Operations Act 1997 (NSW), s 143

APPEAL - appeal initiated out of time - relatively short delay only - but questions abut capacity of appellant to proceed and whether he will have legal representation - need for appellant to address these issues - motions for dismissal of appeal and for extension of time adjourned

TORTS - vicarious liability - plaintiff injured when removed from licensed premises by security guard - removal constituted assault and battery - employer of security guard vicariously liable - whether hotel or licensee vicariously liable for security guard's tortious conduct - whether tortious conduct directly authorised - whether security guard agent of hotel or licensee - whether licensee directly liable under Liquor Act 2007, s 91 - whether Australian law admits of theory of dual vicarious liability DAMAGES - general principles - aggravated damages - exemplary damages - appeal on ground that damages inadequate - high level of appellate deference - no appellable error found

PROCEDURE - formulating orders in accordance with reasons determining appeal

FAMILY LAW - de facto relationships - adjustment of property interests - whether adjustment with respect to the property of the parties was just and equitable - proper approach to determining claims - appellant owned property in Sweden - jointly owned property in NSW - whether respondent should be credited for first home owners' grant and stamp duty exemption - appropriate credit for contribution to increase in value of properties - indirect contributions to properties in Sweden and NSW - adjustment for occupation fee - Property (Relationships) Act 1984 (NSW), s 20 PROCEDURE - resolving conflicts in evidence - parties relied exclusively on affidavit evidence - neither party called or cross-examined - difficulty for trial judge in resolving conflict in evidence - appellant appeared in person - whether trial judge inappropriately judged appellant's evidence on basis of appearance in court - appellate court similarly placed to assess factual basis of claims and determine just and equitable outcome

PRACTICE AND PROCEDURE - pleadings - application to amend - withdrawal of admission

SENTENCE - application for redetermination of life sentence - murder and sexual assault of child - top of the range of murder - low to medium risk of re-offending - sentence re-determined

DEFAMATION - imputations - objection as to capacity and form

CRIMINAL LAW - procedure - judge alone trial - application for Prasad direction - whether circumstances appropriate to give such direction

PROCEDURE - pleadings - Possession List - early judicial directions - defences which only put Plaintiff to proof of all matters - plea of general issue - defences struck out with liberty to re-plead

DEFAMATION - plaintiff claiming to have been defamed by words said in Court in Sri Lanka by lawyer appearing for some defendants - whether any reasonable cause of action disclosed PROCEDURE - application by defendants for relief under Vexatious Proceedings Act - where application brought by private parties against whom only a single set of proceedings had been brought - whether discretion to grant relief should be exercised

APPEAL - appeal from decision of Local Court - where magistrate dismissed charges pursuant to s 32 Mental Health (Forensic Provisions) Act - where parties agree that magistrate failed to provide adequate reasons or address balancing test - application to remit matter not opposed - whether matter should be heard by a different magistrate

CRIMINAL LAW - appeal - conviction - Crown concession - appellant mistakenly convicted and sentenced for offence pursuant to s 111(3) of the Crimes Act 1900 contrary to plea agreement made between appellant and Crown - appellant ought to have been convicted and sentenced under s 111(2) of the Crimes Act 1900 - plea to s 111(3) charge not a true acknowledgement of appellant's guilt - conviction set aside - convictions on remaining counts also set aside as being tainted by error - matter remitted to District Court to be dealt with according to law

CRIMINAL LAW - appeal against conviction and sentence - robbery with wounding - whether trial judge erred in admitting evidence - finding of material error in admission of evidence - finding that real probative value of evidence was outweighed by danger of unfair prejudice - appeal against conviction allowed - conviction quashed and new trial ordered

CRIMINAL LAW - sentencing - Crown appeal - aggravated dangerous driving causing death - high moral culpability - strong subjective case - self punishment - consideration of guideline judgment in Whyte - importance of general deterrence even for young offender CRIMINAL LAW - sentencing - dangerous driving causing death - aggravated offence - double counting of speed of vehicle CRIMINAL LAW - sentencing - manifest inadequacy of non-parole period - residual discretion - principles - subsequent worsening of psychiatric condition

BAIL - application for review - exceptional circumstances - presumptions - protection of alleged victim - exceptional circumstances did not justify grant of bail - bail refused

CRIMINAL LAW - appeal - sentence - whether sentencing judge mistook facts relevant to assessment of objective seriousness of the applicants offending - whether sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57; 194 CLR 610 - whether sentence manifestly excessive

CRIMINAL LAW - sentencing - whether fixed term sentence represents a notional non-parole period or full term - fixed terms imposed within range for full term set out in guideline judgment - whether error requiring intervention - sentence appeal - armed robberies - whether extension of time should be granted - whether procedural unfairness in not allowing discount for guilty pleas indicated during proceedings on sentence - whether non-parole period erroneously extended - whether sentence manifestly excessive.

APPEAL AND NEW TRIAL - adequacy of reasons NEGLIGENCE - duty of care - breach - causation - whether risk obvious - whether risk voluntarily accepted - contributory negligence PROCEDURE - whether Civil Liability Act defences can be relied on when not pleaded - whether adequate particulars of negligence

JUDGMENTS AND ORDERS - General matters - Defendant required to explain non-compliance with earlier orders - Cross-examination permitted