Cases and authorities

Proceeds of crime - restraining order - no question of principle.

COSTS - No question of principle.

CRIMINAL LAW - traffic offence - negligent driving occasioning grievous bodily harm - two persons injured in the same accident - whether charge bad for duplicity

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - role of Proper Officer - application of the Court of Appeal in Rodger v De Gelder - the determination of jurisdictional fact is fundamentally a question of construction of statute - where the statutory construction alters it is necessary to reconsider the issue of jurisdictional fact - preconditions in s 62(1)(a) and s 62(1A) of the Motor Accidents Compensation Act are not jurisdictional facts - Singh v Motor Accidents Authority of NSW (No 1) and Singh v Motor Accidents Authority of NSW (No 2) disapproved

PRACTICE AND PROCEDURE - substituted service - plaintiffs unable to locate third defendant - third defendant identified by pseudonym as informant for article published by first and second defendants - promise not to reveal third defendant's identity - whether journalists' privilege extends to informant - whether order for substituted service would result in disclosure of third defendant's identity - whether order should be made

PUBLIC INTEREST IMMUNITY - where principal proceedings challenge validity of search warrants and crime scene warrant - where notice to produce issued seeking documents relevant to the issue of warrants - where claim for public interest immunity made over part of the material - need to establish legitimate forensic purpose - whether stated purpose amounted to "fishing" - no legitimate forensic purpose established - where balancing exercise would have favoured the claim being upheld in any event - claim upheld.

APPEAL - stated case - error of law - objective seriousness should be assessed according to maximum penalty not jurisdictional limit - statutory construction of s 60, Road Transport (General) Act

PROCEDURE - application for stay of execution of judgments pending appeal - prospects of success on appeal poor - evidence of applicants' financial position inadequate - stay refused - application by applicants to amend notice of motion to seek order under UCPR r 37.2 for payment of judgment debts by instalments refused

MORTGAGE - fraud - whether mortgage entered into - whether signatures forged - whether loan existed - whether broker misled appellants - overpayment

TORTS - negligence - motor vehicle accident - whether respondent's injury caused by fault of appellant within the provisions of the Motor Accidents Compensation Act 1999 (NSW) - whether primary judge failed to categorise accident as "work accident" or "motor vehicle accident" - whether appellant at fault for failing to implement safe system of work - whether injury occurred in driving of front end loader per ss 3 and 3A of Act

WORKERS COMPENSATION - medical assessment - role of Medical Appeal Panel - where several injuries produce impairment - whether certificate of assessment may be issued before all impairments are fully ascertainable - ADMINISTRATIVE LAW - procedural fairness - whether Medical Appeal Panel denied procedural fairness by declining to grant oral hearing and not calling for further submissions - whether judge's finding of failure by Medical Appeal Panel to give adequate reasons should have resulted in quashing of assessment - whether bare declaration is of utility - COSTS - indemnity basis - whether conduct before initiation of proceedings relevant to decision to award indemnity costs

BANKING AND FINANCE - instruments - development finance agreement - construction thereof - finance for acquisition, subdivision and development of land - where "construction funding" to be provided after confirmation of completion of subdivision - where such confirmation to be given within three months after "initial funding" - meaning of "initial funding" - whether "initial funding" provided upon making of first and only advance under the agreement - APPEAL - application for order that further evidence be received on appeal - whether special grounds shown.

CORPORATIONS - winding up - liquidators - liquidators seek direction or declaration from the Court that the defendant has surrendered any security it may have held over any property of the company - whether the secured creditor, by voting in respect of their whole debt or claim, must be taken to have surrendered their security.

CRIMINAL LAW - application for discharge of jury - fingerprint expert witness gave potentially prejudicial evidence - whether high degree of necessity reached - application rejected

CRIMINAL LAW - procedure - whether evidence obtained through testing uplifted in course of trial admissible - no procedural unfairness arising - no prejudice to the accused - evidence to be admitted

Procedure - no question of principle.

CORPORATIONS - winding up - order sought for winding up of defendant under ss 461(1)(e) and 461(1)(k) Corporations Act 2001 (Cth) - just and equitable ground of winding up - whether lack of confidence in the conduct and management of the company's affairs - whether company is solvent CORPORATIONS - winding up - dispensing with procedural requirement of winding up under s 467(3) Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE - security for costs - timing of the provision of security - consequence of non-payment of security

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Ethiopia - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Ethiopia - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Ethiopian court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.

PROCEDURE - temporary stay of arrest warrant against solicitor - orders to ensure attendance at Court

PROCESS AND PROCEDURE - adjournment application - self-represented litigant - third application for vacation of hearing date - prejudice to defendant - application refused

PRACTICE AND PROCEDURE - judgments and orders - setting aside orders - alleged non-disclosure of material and misapprehension of facts relevant to the exercise of discretion under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - jurisdiction to deal with application to set aside cross-vesting order once order made

CRIMINAL LAW - appeal - sentencing - Crown appeal - respondent convicted after trial of offence contrary to s 200 of the Police Act 1990 - nine further offences contrary to s 16(1) of the Poisons and Therapeutic Substances Act 1966 taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred by suspending sentence - hardship to third parties - whether reasonably open to sentencing judge to find that co-offender did not pass on information to respondent - whether sentence manifestly inadequate - no exceptional circumstances within R v Edwards (1996) 90 A Crim R 510 principle - appeal allowed - sentence quashed - respondent re-sentenced

PROCEDURE - civil - application for stay of District Court judgment, pending hearing of summons pursuant to Supreme Court Act 1970, s 69 - no arguable case - no denial of procedural fairness

TORTS - negligence - duty of care - s 5M Civil Liability Act 2002 (NSW) - whether appellant gave "risk warning" regarding recreational activity - where warning as to general risks given - where no specific warning given as to risk which materialised - where warning as to general kind of risk adequate - impermissibility of hindsight reasoning TORTS - negligence - causation - whether failure to warn causative of harm - where trial judge failed to identify content, form or timing of required warning - where warning in fact given - where warning spoke of general risks TORTS - negligence - breach - whether appellant breached duty of care - where appellant occupied land on which it ran laser tag and paintball activities - game played in area of natural bushland - appellant failed to remove protruding tree root from ground - respondent tripped on tree root and fell - whether a reasonable person in the appellant's position would have removed all such obstacles - risk of harm through tripping and falling - social utility of recreational activity

TORTS - professional negligence - solicitors - failure to warn - whether an holistic warning by itself is sufficient or whether the particular incidents giving rise to that warning must be provided TORTS - vicarious liability - whether a solicitor with a restricted practising certificate is thereby acting outside the course of employment if breaching a restriction on their practising certificate

PROCEDURE - Court of Appeal - review of decision of single judge of appeal - where judge of appeal refused application to extend time for filing notice of appeal - whether applicants demonstrated relevant error in single judge's decision

CORPORATIONS - Corporations Act 2001 (Cth) ss 436A, 447A and 201A - where as a result of the resignation of a locally resident director, a company has two directors, both of whom are non-resident - where those two directors resolve that the company should appoint an administrator - where the administrators are concerned that their appointment is invalid because there was no locally resident director, as required by s 201A of the Act - order made validating the appointment to dispel any doubt

CRIMINAL LAW - procedure - application to uplift exhibits for further testing during trial - whether testing would be procedurally unfair - whether integrity of exhibits would be disturbed - whether any prejudice arising from exhibits being disturbed - application granted

No question of principle.

Possession - no question of principle.

Referral to Court of Appeal - no question of principle.

Approval of settlement - No question of principle.

CRIMINAL LAW - murder - judge alone trial - mental illness - whether defence of mental illness established

MORTGAGES - farm mortgage and farm debt - Farm Debt Mediation Act - whether enforcement action void - whether settlement terms created a new loan agreement and farm debt - whether enforcement conditional upon further mediation

SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left Will but no application for administration made at date of hearing - Whether grant of administration is necessary in order to deal with application - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made.

CRIMINAL LAW - case stated from District Court under Criminal Appeal Act 1912 s 5B - applicant convicted of one count of malicious damage to property under Crimes Act 1900 s 195(1)(a) - applicant spat on a stainless steel seat in police dock - whether evidence supports the element in the charge that the applicant had damaged the seat - meaning of "damages" in Crimes Act 1900 s 195(1)(a).

PROCEDURE - criminal - sentencing proceedings completed - applicant obtained discount for assistance - sentencing judge lifted earlier suppression order - judgment delivered in open court - whether suppression order required to protect applicant

TAXES AND DUTIES - land tax - whether land subject to a "fixed trust" - trust deed constituting a unit trust amended by including and giving paramountcy to provisions adopting substantially the same language as s 3A(3B) of the Land Tax Management Act 1956 which describes the criteria required by s 3A(3A) to be satisfied for the trust to be taken to be a "fixed trust" - whether criteria satisfied depends on interpretation of amended deed applying orthodox principles of construction - criteria satisfied and trust taken to be a "fixed trust"

CORPORATIONS - winding up - whether to appoint a provisional liquidator - whether a risk to company assets.

SENTENCE - guilty plea to accessory before the fact to murder (Gattellari) - guilty plea to accessory after the fact to murder (Kaminic) - top of the range of objective gravity (Gattellari) - exceptional nature of assistance provided to authorities - discount at top of the range - no finding of special circumstances - below the upper range of objective gravity (Kaminic) - exceptional nature of assistance - finding of special circumstances

EQUITY - INJUNCTIONS - usual undertaking as to damages - plaintiff failed at trial - inquiry into damages - interest payments on mortgage - causation

CRIME - sentence - murder - stabbing - early plea CRIME - sentence - breach apprehended domestic violence order

CORPORATIONS - winding up - liquidators - whether liquidator should be restrained from engaging law firm to act in relation to any summons for examination under s 596A and 596B Corporations Act 2001 (Cth) - whether a conflict of interest arose as a result of a solicitor acting for a director and shareholder of the company in liquidation in other proceedings and the liquidator of the company in examinations. CORPORATIONS - whether summons for examination and orders for production be set aside - whether issued for improper purpose - whether material non-disclosure in affidavit in support of the application for examination summons.

CONTRACT - construction - whether on the proper construction of a written agreement the defendants are (or either of them is) obliged to pay a royalty in respect of iron ore won from a defined area - whether ore is being won from a certain part of the defined area by a person deriving title through or under that of the first defendant or by the first defendant in association with another person

INJUNCTION - to restrain solicitor acting for client - rectification suit arising from solicitor's alleged drafting mistake - whether solicitor in a position of conflict - whether integrity of judicial process impaired

CRIMINAL LAW - murder - where offender pleaded guilty to manslaughter and was convicted by a jury of murder - offender's participation in joint enterprise - where offender killed the deceased by strangulation - where offender a party to disposal and interference of the deceased's body on two occasions - where defence of provocation rejected by the jury - whether evidence supported a finding of provocation as a mitigating factor

SUCCESSION - wills, probate and administration - whether revoked will can be revived by informal instrument not complying with s 6 of the Succession Act 2006 - whether informal instrument operates as will under s 8 by reason of deceased's intention that it form part of her will - whether deceased had intention to revive will when deceased unaware that will had been revoked - meaning of "execution of a will" in s 15 SUCCESSION - family provision and maintenance - factors relevant to the making of a family provision order under s 59(1)(b) - provision required for "proper" maintenance and advancement in life under s 59(1) - difficulty of assessing community expectations - importance of testator's assessment of applicant's entitlement to testamentary bounty - importance of need of applicant in determining extent of provision that ought to be made