Cases and authorities

CRIMINAL LAW - sentencing - murder - victim's pre-existing medical condition mitigating feature - offence in lower range of objective seriousness - post traumatic stress disorder of offender relevant matter on sentence

CONVEYANCING - options - construction and operation of put option - dispute concerning whether letter purporting to exercise put option was received together with contracts of sale - whether put option was duly exercised. EQUITY - equitable remedies - specific performance - jurisdiction and availability - whether (and if so, in what circumstances) innocent party is entitled to orders for specific performance upon election to treat repudiation of wrongdoer as discharging contract - whether plaintiff is entitled to order for specific performance in aid of damages claim for breach of contract.

ARBITRATION - award - enforcement of an arbitral award - arbitral award made by Beth Din in Zablo - summons seeking leave to enforce award - cross-summons seeking to set aside the award - failure to give reasons - credibility and reliability of witnesses - Beth Din of Zablo - whether Beth Din decision complied with the requirements of s 29(1)(c) - allegation of fraud - allegation of misconduct - whether plaintiff established that he was a party to Beth Din proceedings - problems with record keeping at Beth Din proceedings - notice and opportunity to be heard - Beth Din not conducted in accordance with written arbitration agreement - requirement of impartiality not met - bias established - use of Yiddish - proper attention not paid to defendant's case - orders sought under s 43 of Commercial Arbitration Act 1984 cannot be made - orders - costs EVIDENCE - leave sought by Mr Thaler to give evidence in reply - leave refused - ruling under s 136 of the Evidence Act in relation to Mr Koncepolski's evidence sought - ruling refused PROCEDURE - notice of motion - order seeking to set aside subpoena - motion dismissed PROCEDURE - pleadings - leave to amend further amended cross-summons - leave granted

CRIMINAL LAW - conviction appeal - Appellant a former Catholic priest - 11 counts of indecently assaulting four different victims over a five year period - whether all counts should have been tried together - whether trial judge erred in permitting Crown to rely upon tendency evidence - whether evidence of hypnosis should have been allowed in relation to one of the complainants and a witness - whether cross-examination should have been permitted under the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) - whether evidence of psychiatrist retained by Appellant was properly rejected - whether jury should have been discharged after wrongful admission of evidence - whether trial judge incorrectly directed jury as to unanimous verdict - conviction appeal dismissed - SENTENCE APPEAL - whether Appellant subjected to extra curial punishment and its relevance - threats made against Appellant's wife and children - whether proper regard taken of Appellant's state of health - relevance of conditions under which sentence being served - relevance of Appellant's age - relevance of Appellant's previous good character - whether proper regard had to sentencing practices at time of the offending - sentence not manifestly excessive - appeal dismissed.

CRIMINAL LAW - appeal - armed robbery - trial directions - alibi - voice recognition -unreasonableness of verdict

CRIMINAL LAW - sentence appeal by Crown - aggravated kidnapping and drive manner dangerous - four offences contrary to ss 59(1), 33B(1)(a), s 195(1)(a) and 154A(1)(a)/117 of the Crimes Act 1900 on Form 1 - sentence of 2 years to be served by way of Intensive Correction Order imposed by District Court in respect of aggravated kidnapping - conviction with no other penalty and minimum automatic disqualification period imposed by District Court in respect of drive manner dangerous - whether sentences manifestly inadequate - whether subjective case impermissibly ameliorated appropriate sentence - consideration of Form 1 offences - offender's mental health did not substantially reduce culpability - failure to impose sentence that reflected objective seriousness of offence - drive manner dangerous warranted more than recording of conviction without penalty - imposition of Intensive Correction Order did not give sufficient effect to general or specific deterrence - evidence of offender's rehabilitation prior to appeal - significant delay in sentencing process in District Court - whether to exercise residual discretion - full-time custodial sentence appropriate - offender to have full benefit of time served under Intensive Correction Order

CRIMINAL LAW - appeal - incompetence of counsel - whether reasonable explanation for conduct of counsel - whether miscarriage of justice - whether fair chance of acquittal lost

CRIMINAL LAW - sentence appeal - six offences of aggravated sexual intercourse and aggravated indecent assault on 14 year old girl by offender and his partner - offences occurred on one night - whether the extent of accumulation of sentences was excessive - whether principle of totality observed - whether total effective sentence was manifestly excessive - no general rule of law that sentences be concurrent or consecutive - decision a discretionary one - fundamental question whether criminality of one offence can be encompassed in the criminality of another - sentence not excessive - appeal dismissed.

PROCEDURE - civil - judgments and orders - whether stay should be granted pending determination of leave application and any subsequent appeal - where respondents have commenced bankruptcy proceedings to execute judgment -risk that applicants will lose power to proceed with proposed appeal - where amount in issue significant - where challenged judgment included findings regarding breach of discovery obligations and dissipation of assets PROCEDURE - civil - judgments and orders - stay pending determination of leave application and any subsequent appeal - appropriate form of orders - whether applicants should be required to pay into court full amount of judgments - where applicants would be unable to comply - whether applicants should be required to affirm affidavits regarding assets and liabilities - delay involved - whether order should require parties to take certain steps in federal court proceedings - power of State court to make orders regarding federal court proceedings

CORPORATIONS - application to set aside a creditor's statutory demand - whether service of the application to set aside a creditor's statutory demand complied with s 459G Corporations Act 2001 (Cth) - whether service of an application to set aside a creditor's statutory demand interstate must comply with the requirements of the Service and Execution of Process Act 1992 (Cth) within the 21 day period specified in s 459G(3) of the Corporations Act 2001 (Cth) - whether compliance with the Service and Execution of Process Act is necessary to achieve effective service of an application to set aside the creditor's statutory demand interstate where service of that application outside the jurisdiction would not be recognised at common law. PROCEDURE - costs - order for costs on indemnity basis - whether there was unreasonableness in the plaintiff's position.

PROCEDURE - summary judgment - where no traverse of pleading concerning liability - judgment with damages to be assessed - substituted service - where solicitor ceases to act and has only an email address of party - service may be effected by email

DAMAGES - Compensation to Relatives proceedings - dependent child -discontinuance of proceedings as a result of settlement - no question of principle

CORPORATIONS - Corporations Act 2001 (Cth) ss 477(2B), 477(6), 511, 564 -where creditor agrees with liquidator to fund proceedings being brought by a company in liquidation which is unable to fund them itself - where the agreement will be in force for more than three months - agreement requires approval of the Court - Court has power to authorise the creditor to use the name of the company to commence and prosecute proceedings - agreement approved and orders authorising the creditor to carry on the proceedings made

PROCEDURE - civil - application for summary dismissal of proceedings pursuant to UCPR r 13.4 - application for pleadings to be struck out pursuant to UCPR r 14.28.

PROCEDURE - civil - whether leave should be granted to file cross-claim - whether there is an overlap between the issues in the proposed cross-claim and the issues in the proceedings - Civil Procedure Act 2005 (NSW) s 22

[CONTRACT] - Whether person, other than named party, is party to building contract - where builder entitled to call for evidence of title over which charge is to be granted - where multiple blocks in Site over which charge is to be granted, some owned by named contracting party and others owned by third parties and/or director of named party - whether debt owed by director, not named as party to the contract - whether monies paid into Court should be paid out to plaintiff as Official Trustee of the bankrupt estate of the director

PROCEDURE - discontinuance on terms - Plaintiffs seek to discontinue the proceedings - Defendant opposes the discontinuance and seeks for the proceedings to be dismissed - whether the Court should order discontinuance on terms. COSTS - Defendant seeks cost orders against the Plaintiffs - Defendant seeks an order under Civil Procedure Act 2005 s 98(4)(c) any costs payable to be in a specified gross sum instead of assessed costs.

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act causing death - verdict explicable on two bases - matter for sentencing judge to determine.

COSTS - indemnity costs - whether appeal hopeless - whether offer of compromise valid

COURTS – cross-vesting – motor vehicle accident on Gold Coast highway in Queensland – proceedings commenced in District Court in New South Wales – application by defendant to cross-vest proceedings to Queensland – doctors located in both Queensland and New South Wales – whether difference in approach to calculation of damages in the two states - delay if proceedings transferred – cross-vesting refused

CORPORATIONS - application to set aside a statutory demand under Corporations Act 2001 (Cth) s 459G - whether a genuine dispute as to the existence of the debt.

CORPORATIONS - order sought for leave under s 500(2) Corporations Act 2001 (Cth) to proceed with a claim against the defendant - whether leave was required to bring proceedings against a registrable foreign company which was in liquidation in its country of incorporation - whether the phrase "a company registered under this Act" in s 9 Corporations Act includes a foreign company registered as such under Part 5.2 Div 2 of the Act. PROCEDURE - service of interlocutory process - effectiveness of service.

EVIDENCE - production of documents - application to be excused from producing documents - client legal privilege - police seeking advice from internal Operational Legal Advice Unit - whether advice provided by lawyer - whether pending or anticipated proceeding - Commissioner excused from production

COSTS - applications to strike out imputations

REAL PROPERTY - CONTRACTS - mortgages - loan agreements - default and proceedings against borrower for possession and monetary order - defence and cross-claim under Contracts Review Act 1980 - evaluation of whether contract or circumstances of the making of the contract were unjust - no unjustness as against lender - borrower misled by her agent in whom she wrongly placed trust

CRIMINAL LAW- reckless damage to property- mens rea- level of foresight- whether determined by elements of offence or particulars of charge CRIMINAL LAW-no case to answer submission- sufficiently addressed in substance PROCEDURE- magistrates- adequacy of reasons PROCEDURE- function of particulars-relationship with elements of charge

DEFAMATION-application to strike out imputation-whether imputation has capacity to lower plaintiff in estimation of others DEFAMATION-application to strike out imputation-whether imputation capable of arising-importance of context

Application to set aside or vary costs order

PROCEDURE - amendment - claim on guarantee - late application by one guarantor to amend cross-claim - no explanation for delay - new claim raised by co-guarantor two years earlier - delay by defendants throughout proceedings - amendment refused.

APPEAL - criminal - Director's right of appeal against ruling on admissibility of evidence - whether exclusion of evidence substantially weakened prosecution case - how appellate court to determine whether ruling substantially weakens prosecution case - whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) - Criminal Appeal Act 1912 (NSW) EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether permissible for court to consider credibility and reliability of evidence in determining probative value - where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 - restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 - whether material difference between approaches EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether failure to identify particular unfair prejudice - failure to consider how proper direction could overcome risk of unfair prejudice - whether trial judge erred in excluding evidence EVIDENCE - criminal proceedings - respondent charged with sexual offences - evidence of telephone conversations between complainant and respondent nine years after alleged incident - transcripts included responses to allegations - whether vagueness of allegations created risk of unfair prejudice - whether danger that jury would use evidence for impermissible tendency inference - whether risk could be overcome by proper direction - s 137 Evidence Act 1995 (NSW) EVIDENCE - criminal proceedings - discretion to exclude evidence that would be unfair to defendant - transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant - whether unfair to admit evidence requiring accused to explain to jury - whether infringement of right to silence - s 90 Evidence Act 1995 (NSW) STATUTORY INTERPRETATION - construction of statute - precedent - resolving conflicting authorities - whether Court of Criminal Appeal entitled to follow its own earlier authority - where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong - whether Court of Criminal Appeal required to find later authority plainly wrong - course conducive to orderly administration of justice - where courts interpreting uniform state legislation not national in operation - uniform Evidence Acts

CRIMINAL LAW - Indonesian crewman on fishing vessel carrying 97 asylum seekers to Christmas Island convicted of people smuggling offence under s 233C(1) Migration Act 1958 (Cth) - whether Crown proved beyond reasonable doubt that applicant knew vessel or its passengers were destined for Australia - Crown bound by limited case run at trial - applicant gave evidence that told by those who engaged him not to ask where the vessel was going - relevance of lies by applicant - guilt not proved beyond reasonable doubt - conviction quashed

CRIMINAL LAW - sentence appeal - knowingly take part in supply of a large commercial quantity of heroin (28.75 kgs) - appeal based on principles of parity - co-offender charged with same offence in relation to the same quantity of heroin - co-offender also charged with further offence of supply larger than commercial quantity of heroin - co-offender provided "truly exceptional" assistance to authorities - finding that co-offender committed offences under duress - submission that structure of sentences breached parity principle - submission that structure of sentences gave rise to justifiable sense of grievance - appeal dismissed.

CRIMINAL LAW - application to reopen Crown appeal to Court of Criminal Appeal against sentence - applicant convicted and sentenced for three offences - supply MDMA - supplying a commercial quantity of MDMA - supplying a large commercial quantity of methylamphetamine SENTENCING - Crown appeal upheld prior to High Court of Australia decision in Muldrock v The Queen [2011] HCA 39 - whether s 43 of Crimes (Sentencing Procedure) Act 1999 is available to correct error of law in application of the sentencing principles in R v Way [2004] NSWCCA 131 - whether, applying the correct principles, the sentences for the offences were contrary to law

CRIMINAL LAW - application for leave to appeal against sentence - whether finding that the offence was deliberate was in error - whether approach to recklessness in Blackwell v R applied to reckless wounding offences - whether sentence was manifestly excessive - no patent or latent error established - appeal dismissed

CRIMINAL LAW - applications to appeal against sentence - four applicants - all applicants convicted of offences relating to six transactions of supply of a commercial quantity of a prohibited drug(s) and knowingly dealing with the proceeds of the supply of prohibited drug(s) - applicants plead guilty SENTENCING - whether Form 1 offences were properly taken into account at sentencing - purpose of Form 1 procedure - whether in taking into account Form 1 offences the applicants were effectively sentenced for offences that were not charged on the indictment - whether sentences lacked parity - whether sentence was manifestly excessive - whether sentence reflected appropriate discount for provision of assistance to authorities.

ADMINISTRATIVE LAW - Motor Accidents Authority - referral to review panel - applicant seeks judicial review of referral - whether Review Panel should be enjoined from meeting to consider referral - injunction granted.

Criminal law - applications for separate trials - real risk of positive injustice in joint trial.

CRIMINAL LAW - application for trial by judge alone - accused charged with multiple counts of murder and recklessly inflict grievous bodily harm - interests of justice - whether evidence so technical that jury would fail to comprehend - whether trial issue requires application of objective community standards - factual dispute concerning frequency and dosage of drug ingestion by accused to be resolved by assessment of accused's credibility and reliability - jury participation generally in the interests of justice - natural prejudice arising from nature of case

STAY - pending appeal COSTS - where judgment is in accordance with proposal made in correspondence

PROCEDURE - suppression orders sought - administrative law proceedings - certiorari sought against magistrate's judgment on costs of Apprehended Domestic Violence proceedings - whether identity of Plaintiff and his family should be suppressed - distinction between children and adults in the litigation

HIGH RISK SEX OFFENDER - application for extended supervision order - preliminary hearing

CRIMINAL LAW - murder - defence of another - judge alone trial - no matters of principle.

EQUITY - equitable remedies - application for freezing order under s 1324 Corporations Act 2001 (Cth) and r 25.11 Uniform Civil Procedure Rules 2005 (NSW) - plaintiffs seek order preventing defendants expending funds on living and legal expenses and ordinary course business expenses - whether risk of dissipation of assets - retrospective effect of removal of exception for legal expenses. PROCEDURE - payment into Court - order sought for payment out of funds paid into Court - whether the Court in ancillary jurisdiction may make orders for payment of monies into Court - whether circumstances justify depriving defendants of their property. PROCEDURE - judgments and orders - amending, varying and setting aside - defendants seek order granting leave to vary undertakings to the Court - whether purposes to which assets applied are legitimate - whether no other assets by which legitimate expenditures can be met. PROCEDURE - costs - security for costs - whether order should be made that the plaintiffs give security for their undertaking as to damages given to the Court. PROCEDURE - defendant applies for orders for security for costs - quantum and form of security - whether delay in application for security for costs tends against order in respect of past costs. PROCEDURE - discovery and interrogatories - discovery and inspection of documents - review sought of Registrar's decision on categories of discovery - whether categories relevant - whether categories unduly broad - whether categories unduly onerous.

INSURANCE - contract - interpretation - Total and Permanent Disablement - whether plaintiff reasonably fitted by education, training or experience to carry out work TRUSTS - discretionary trusts - duties of trustees - principles to be applied

PROCEDURE - stay of money judgment pending appeal - stay refused - application to re-open granted - evidence not previously taken into account considered - stay granted

PROCEDURE - costs - indemnity costs - whether conduct of respondent in maintaining cross-claim and rejecting an offer of compromise "plainly unreasonable" or involved "delinquency" - respondent did not maintain proceedings which had no real prospects of success - respondent not unreasonable in rejecting offer of compromise - indemnity costs not awarded

APPEAL - civil - discretionary judgment - whether appellate Court should interfere with assessment of contributory negligence - whether manifest error in approach of trial judge - failure to take into account relevant evidence DAMAGES - torts - negligence - damages reduced by 20% for contributory negligence - whether damages should be further reduced for contributory negligence - respondent crossing street when struck by appellant's motorcycle - whether respondent demonstrated lack of care for own safety - where respondent left footpath when pedestrian lights flashing red - where respondent continued across the road after losing shoe DAMAGES - torts - negligence - whether damages should have been reduced for contributory negligence - whether respondent's actions mere inadvertence - where respondent failed to take refuge on median strip - where respondent left footpath when pedestrian lights flashing red - where respondent continued across road after losing shoe PROCEDURE - civil - appeal by way of rehearing - where appropriate finding must depend on objectively verifiable facts - whether to grant leave to rely on amended notice of appeal - whether leave would advance the just resolution of the proceedings - Civil Procedure Act 2005 (NSW), s 56(1) - where challenge to assessment of contributory negligence impliedly challenged finding of fact - where no express challenge to finding of fact

REAL PROPERTY - torrens title - easements - whether right over land is capable of being the subject matter of a grant - whether right to jointly use car park deprives servient owner of proprietorship REAL PROPERTY - torrens title - easements - construction of s 42(1)(a1) of the Real Property Act 1900 - meaning of "omission" and "validly created" - whether easement falls within s 42(1)(a1) exception when recorded on dominant tenement but not servient tenement

CORPORATIONS - winding up - orders sought for removal of provisional liquidators - whether error in the information provided to the Court in the application to appoint provisional liquidators remains in order to preserve the company's assets.

SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision-widow's claim for relief - related claim by children of the marriage - whether any (and, if so, what) relief should be granted