Cases and authorities

PRACTICE & PROCEDURE - disclosure - whether necessary for resolution of real issues in dispute

CONTRACT - duress - allegation of employee's fraud - whether employer threatened to inform police - whether express or implied contract not to prosecute - reliance on spoken words - burden of proof - whether evidence sufficient to establish duress - turns on facts - no question of principle

GIFTS - gifts inter vivos - gifts made under power of attorney - construction of s 163B of the Conveyancing Act 1919 - whether donee of power of attorney able to make gift to self - fiduciary obligations of attorney - meaning of attorney acting "on behalf of" donor of power - relationship between scope of attorney's authority and whether acts constitute a breach of attorney's obligations GIFTS - gifts inter vivos - capacity of donor to make gift - effect of lack of capacity to make gift where donee unaware of lack of capacity EQUITY - trusts and trustees - presumption of resulting trust where co-owners of property contribute to purchase price in proportions different from that in which legal title held - rebuttal of presumption BANKING AND FINANCE - instruments - cheques - conversion of cheque

EVIDENCE - circumstantial evidence - scope and application CONTRACT - incorporation of terms by reference CONTRACT - no absence of consideration where parties agree to discharge existing contract and substitute another WAIVER - stipulated method of acceptance of offer - offeror may waive requirement for strict compliance RESTRAINT OF TRADE - width

PROCEDURE - miscellaneous procedural matters - order seeking funds to be paid into Court - order granted

CIVIL PROCEDURE - application for stay of payment of costs order until completion of current proceedings - discontinuance of proceedings - cross-claim in those proceedings - order that defendant pay cross-claimant's costs - plaintiff's agreement to pay those costs - institution by plaintiff of fresh proceedings against cross-defendant - application to stay payment of cross-defendant's costs in original proceedings until completion of new proceedings

PRACTICE AND PROCEDURE - plaintiff sought the proceedings to be reinstated on the basis the plaintiff has been denied natural justice - plaintiff sought an order for pro bono assistance under the Uniform Civil Procedure Rules but the proceedings, on her own application, had been previously dismissed on the plaintiff's motion to reinstate the proceedings - observations on inappropriateness of granting pro bono assistance a second time.

PROCEDURE - notice of motion - consent orders sought - money paid into Court to be paid to plaintiff's parents - costs - consent orders made

DISCOVERY AND INTERROGATORIES - discovery - preliminary discovery - principles to be applied. PRACTICE AND PROCEDURE - jurisdiction - inherent jurisdiction - officers and processes of the court - application to restrain barrister from acting or appearing against former client - principles to be applied.

Opinion evidence - relevance - expert allegedly adopting role of "advocate" - qualifications - whether plaintiff's case confined to that suggested by his own evidence.

PROCEDURE - costs - no question of principle

CRIMINAL LAW - bail - Crown appeal - s 45(1)(b)

CRIMINAL LAW - appeal - sentencing - sexual offences - error found in sentencing - applicant re-sentenced KW v R [2013] NSWCCA 31 - error in re-sentencing - aggregate sentence failed to give effect to finding of special circumstances - Crown application for variation of orders - Criminal Appeal Rules r 50C - orders made on 19 February 2013 varied - applicant re-sentenced

CRIMINAL LAW - appeal - sentence - s 52A - Aggravated dangerous driving occasioning death - Aggravated dangerous driving occasioning grievous bodily harm -effect on offender - mental illness - moral culpability - extra-curial suffering - whether manifestly excessive - statistics - whether outside range

CRIMINAL LAW - sentence appeal - attempt to possess 60 kgs of cocaine - cocaine imported from Mexico - applicant entered Australia on instructions from cartel to take possession of cocaine - when arrested, applicant admitted offence and provided assistance to authorities - applicant received discount for early plea of guilty and assistance to authorities - whether sufficient discount given for assistance to authorities - assistance significant - life of applicant and family placed at risk by assistance - conditions of imprisonment made more difficult because in protection - discount for assistance insufficient - need for applicant to be re-sentenced.

APPEAL AND NEW TRIAL - appeal - whether competent - Administrative Decisions Tribunal decides that solicitor is guilty of professional misconduct and foreshadowed later decision as to orders that should be made - where avenue of appeal is created by the Legal Profession Act 2004 - that Act allows appeal from an "order or other decision made by the Tribunal" - decision of guilt of professional misconduct is such a "decision"

CRIMINAL LAW - evidence - admissibility - relevance - evidence of previous assault - provides necessary context for charged acts - not unfairly prejudicial

CRIMINAL LAW - evidence - admissibility - evidence of accused being subject of an ADVO - limited probative value - potential for unfair prejudice

PROCEDURE - application for dismissal of the proceedings for want of prosecution - orders made - costs - reasons for decision

PROCEDURE AND PRACTICE - Notice of motion to set aside orders made ex parte following plaintiff's non appearance. PROPERTY- Withdrawal of caveat by plaintiff in order for the bank to exercise its power of sale

PROCEDURE - compromise of proceedings - person under legal incapacity - approval of settlement by the court - whether proposed settlement is beneficial to the interests of the first defendant.

PROCEDURE - judgment - application to remove paragraph from judgment - alleged breach of s 68 of the Health Records and Information Privacy Act 2002 - no breach - application not granted PROCEDURE - courts and judges generally - bias - apprehended bias - application for her Honour to recuse herself - not granted

CONTRACT - identification of counterparty to a contract or arrangement BUILDING AND CONSTRUCTION - adjudication - work done pursuant to construction contract - whether determination void - jurisdictional error

PROCEDURE - application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act - whether proceedings are vexatious - meaning of "vexatious" - whether proceedings were conducted frequently - meaning of "frequently" SUPPRESSION ORDERS - application by defendant to suppress identity in judgment and orders made under the Vexatious Proceedings Act 2008 - issue as to impact of publicity upon defendant's mental health - powers of the Court to make a suppression order under the Court Suppression and Non-publication Orders Act 2010 not available to suppress judgment and orders under Vexatious Proceedings Act 2008, in particular having regard to the statutory scheme requiring public notification of any orders made under that Act

CRIMINAL LAW - sentence - pleas of guilty - sexual intercourse without consent - aggravated sexual intercourse without consent - intoxicated offender - offences committed against then partner following consensual sexual activity - significant injuries to victim - standard non-parole period offences - whether error in approach after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - error demonstrated - whether lesser sentences appropriate under s.6(3) Criminal Appeal Act 1912 - substantial custodial sentences appropriate - significant domestic violence offences - relevance of self-induced intoxication - claim that offences out of character - discount for assistance to authorities - penalties imposed not to be unreasonably disproportionate to nature and circumstances of offences - lesser sentences warranted under s.6(3) - Applicant resentenced

CRIMINAL LAW - sentencing - affray - offences committed during large-scale disturbance at Villawood Immigration Detention Centre - relevance of context to severity of offending - relatively isolated incident - significant separation in time from worst of violence CRIMINAL LAW - sentencing - s 10 Crimes (Sentence Procedure) Act - availability where offending not trivial - consideration of mandatory factors

SUCCESSION - family provision and maintenance - adequate provision for de facto partner - whether claimant should be given land absolutely or only life estate - relevance of age of claimant - relevance of length of relationship and whether claimant will provide for children

CORPORATIONS - applications to set aside statutory demands - whether debts genuinely disputed. PROCEDURE - costs - whether abuse of process by issuing three separate statutory demands to three separate companies for the same debt - whether there was a proper basis for treating each company as jointly and severally liable for the debt claimed - whether the statutory demands could be set aside on the basis that the debts were genuinely disputed - whether the plaintiff acted unreasonably in not disclosing its case sufficiently early.

COSTS - cost orders in favour of a litigant in person - transport and accommodation COSTS - whether costs orders should be made against a successful party for late amendment to summons - whether costs orders should be apportioned.

BUILDING AND CONSTRUCTION - construction contracts - Building and Construction Security of Payment Act 1999 (NSW)- meaning of "construction contract" - where no contract between the owner and subcontractor - whether there was an "arrangement" within the meaning of the Act.

PROCEDURE - Costs - General rule costs follow the event - Principles applicable under r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) - Whether general rule should not apply as "benefit" already obtained from judgment - Whether only one set of costs should be allowed.

PROCEDURE -notice of motion seeking to strike out paragraphs of amended statement of claim - irregularity of pleadings - whether two solicitors on record is contrary to the interests of justice. TORT -novel pleading of knowledge for wrongful arrest and false imprisonment.

EQUITY - claim for equitable compensation - whether breach of trust in failing properly to investigate claim for total and permanent disablement benefit - failure correctly to apply Rule in Trust Deed as to entitlement to benefit COSTS - offer of compromise - whether judgment or order no less favourable to the plaintiff than the terms of the offer in circumstances where decision on principal judgment was to remit determination of plaintiff's entitlement to a benefit to the trustee

PROCEDURE - summary dismissal of proceedings - no reasonable cause of action - abuse of process

LAW OF ASSOCIATIONS - operation of the Associations Incorporation Act 1984 (NSW) and Associations Incorporation Act 2009 (NSW) - incorporation of model rules and model constitution into an incorporated association's constitution - expulsion of member of association - whether member afforded natural justice

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - child victim - offender was in a position of trust and authority

PROCEDURE - amendment - Second Defendant seeks to file Amended Defence - Second Defendant seeks to file a cross-claim out of time - whether proposed pleadings futile - claim on guarantee - variations of loan agreement not consented to by the guarantor - change in co-guarantors after signing by guarantor Second Defendant - proper construction of the guarantee - whether guarantor's signature forged.

APPEAL - appeal from Consumer, Trader and Tenancy Tribunal - strata schemes adjudicator - jurisdiction

DEFAULT JUDGMENT - application to set aside judgment and order for possession - no irregularity pursuant to Uniform Civil Procedure Rule 36.15 IRREGULARITY - meaning and scope - limited to process by which judgment entered - no irregularity simply because of the existence of arguable defence that was not raised FINALITY - judgment regularly obtained and entered - application to set aside refused because of principle of finality RES JUDICATA - confirmation of judgment for possession predicated on validity of mortgage, precludes challenge to validity of mortgage in separate proceedings CAPACITY - representative capacity of executors irrelevant to liability or regularity of judgment - not necessary that they be sued and named in their capacity as executors

CRIMINAL LAW-Crown appeal against sentence-manifest inadequacy- whether grooming offences require a custodial sentence in all cases -sentence to reflect seriousness of particular conduct-remarks on sentence ought be read as a whole-meaning of 'victim' under s 16A(2)(d) Crimes Act (Cth) in the context of offence charged-does not extend to family of victim of grooming offences

CRIMINAL LAW - sentencing - procedural fairness - where primary judge indicated intention to impose a non-custodial sentence - where offender later received custodial sentence - whether counsel for offender deprived of opportunity to make submissions in favour of leniency CRIMINAL LAW - sentencing - supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) - whether sentence manifestly excessive - where offence committed on conditional bail - where offence contrary to conditions of bail - where separate offences taken into account on Form 1 CRIMINAL LAW - sentencing - whether primary judge erred in rejecting the psychiatric case concerning offender's cocaine addiction - whether culpability should be reduced - where no mental illness demonstrated - where no addiction demonstrated CRIMINAL LAW - sentencing - death of young woman to whom applicant, a medical practitioner, supplied cocaine - manslaughter conviction - whether sentence excessive

CRIMINAL LAW - appeal - indictment - "one indictment, one jury" rule. CRIMINAL LAW - appeal - jurisdiction - indictment containing multiple counts - one appeal from an indictment. CRIMINAL LAW - appeal - abandonment - whether appeal in respect of certain counts on indictment may be abandoned.

CRIMINAL LAW - sentence appeal - counts of indecent assault, sexual intercourse, attempted sexual intercourse committed by mature woman upon 15 year old boy - fixed terms imposed in respect of offences carrying standard non-parole period - objective gravity of sexual intercourse count - whether sentence on that count manifestly excessive.

PROCEDURE - civil - extension of time to appeal - whether any justification for delay - proceedings below complex - applicant's representative not legally trained - no evidence that applicant unable to obtain legal assistance - where applicant repeatedly brought unsuccessful stay proceedings in the Common Law Division - where applicant repeatedly made aware of steps required to challenge judgment below PROCEDURE - civil - extension of time to appeal - whether any real prospects of success - where applicant's estoppel claim had failed at each essential point - where no error demonstrated

TAXATION AND REVENUE - land tax - Land Tax Management Act 1956 (NSW), cl 8(1)(a) of Schedule 1A - exemption from land tax where person owns land "used and occupied by the person as his or her principal place of residence" - whether use and occupation must be lawful - where appellants resided on land in a mobile home or caravan - where council approval required - where council approval not obtained STATUTORY INTERPRETATION - principles - maxim that legislation not intended to permit a person taking advantage of own wrong - Land Tax Management Act 1956 (NSW), cl 8(1)(a) of Schedule 1A - exemption from land tax where person owns land "used and occupied by the person as his or her principal place of residence" - whether maxim requires lawful use and occupation WORDS AND PHRASES - used and occupied by the person as his or her principal place of residence - Land Tax Management Act 1956 (NSW), cl 8(1)(a) of Schedule 1A

COSTS - offer of compromise - indemnity costs - no issue of principle

PROFESSIONS - lawyers - remuneration - s 190(2) Legal Profession Act 1987 precluded charging of interest unless claim for it made in bill of costs - no interest claimed in document entitled "bill of costs" - whether form of costs agreement sent with bill formed part of bill and constituted claim for interest - reg 45(3) Legal Profession Regulation 2002

TORTS - negligence - statutes and regulations - breach - Civil Liability Act 2002, 3B(1)(f). TORTS - negligence - statutes and regulations - breach - Civil Liability Act 2002, 5B(1)(b). TORTS - negligence - duty of care - employment - derivative duty to rescuer. TORTS - negligence - causation - failure to consider relevant evidence.

CONSTITUTIONAL LAW - whether State Act inoperative because inconsistent with Commonwealth Act - application of Commonwealth Act to be determined in accordance with its terms - scope of operation of Commonwealth Act - construction of s 108A(7) - Constitution, s 109 WORKERS COMPENSATION - Workers Compensation Act 1987 (NSW), s 17(1) - meaning of "employer by whom the worker was employed in an employment to the nature of which the injury was due" - whether employer licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) was an "employer" for the purposes of the State Act WORKERS COMPENSATION - entitlement to compensation - when injury occurred - whether liability of employer which arose under State Act preserved by Commonwealth Act - where worker worked for the same company during the relevant period - where during the relevant period the employer became licensed under the Commonwealth Act WORDS AND PHRASES - "employer" - Workers Compensation Act 1987 (NSW), s 17(1)

PROFESSIONS AND TRADES - medical practitioner - scope of duty - morbidly obese patient with elevated liver function test - critical period 1998-2001 TORTS - negligence - breach - whether doctor breached duty of care by failing to re-refer morbidly obese patient to obesity clinic - where patient ignored prior referral - whether duty required exercise in futility TORTS - negligence - breach - whether doctor breached duty of care by failing to refer morbidly obese patient to bariatric surgeon - practice of general practitioners at the relevant time TORTS - negligence - causation - whether doctor's failure to advise patient of true cause of his health problems caused their further deterioration - where doctor supported patient's erroneous belief that health problems partly due to chemical exposure - where patient told that weight loss was needed to save his health TORTS - negligence - causation - whether doctor's failure to refer morbidly obese patient to obesity clinic causative of patient's liver cancer - where patient unwilling to use available services to lose weight TORTS - negligence - where duty involves two alternate courses of action - proper approach to causation