Cases and authorities

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the son of the deceased, to whom Probate of the deceased's Will was granted, and the sole beneficiary named in the Will of the deceased - No dispute that adequate and proper provision was not made in the Will of the deceased for the Plaintiff - Sole issue is the nature and quantum of the provision to be made for the Plaintiff out of the deceased's estate.

COSTS - indemnity costs - uncontroverted evidence that affidavit in support of summons was false in material respects - abuse of process.

PRACTICE AND PROCEDURE - application for summary dismissal pursuant to Rule 13.4 Uniform Civil Procedure Rules (NSW) 2005 NEGLIGENCE - duty of care owed by a registrar in the exercise of their powers - principle of judicial immunity

APPEAL - judgment and orders - orders sought made COSTS - Suitors' Fund Act 1951 - certificate granted

PROCEDURE - Costs

Evidence of intent - presumption of continuance - Criminal Appeal Act 1912, s5F

CRIMINAL LAW - appeal - applicants questioned at a hearing before the New South Wales Crime Commission - non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) - transcripts of interview and compelled documents provided to Director of Public Prosecutions in breach of non-publication direction - concession that provision of material unlawful - whether provision of materials to the Director denied the applicants' right to a fair trial or otherwise created a miscarriage of justice ADMINISTRATIVE LAW - functions of the New South Wales Crime Commission - obligation to furnish admissible evidence on the Director - whether obligation limits the power of the Commission to furnish other material to the Director CRIMINAL LAW - appeal - failure to warn the jury about particular matters relevant to the reliability of a witness - whether the trial judge misdirected the jury CRIMINAL LAW - appeal - whether verdicts were unreasonable and unsupported by the evidence - approach of appellate court in determining this ground - evidence in support of the case circumstantial - evidence of key witness consistent with this evidence - reliability and adequacy of witness's evidence in question - where the jury had the advantage of assessing the witness CRIMINAL LAW - appeal - where applicant alone charged with possession - where trial judge gave directions allowing the applicant to be convicted on the basis of joint possession - whether the trial judge misdirected the jury CRIMINAL LAW - appeal - applicants charged with supply of prohibited drugs - one applicant charged in the alternative with knowingly taking part in supply - trial judge gave directions allowing conviction on the basis of joint possession with others, or individually - whether trial judge misdirected the jury CRIMINAL LAW - appeal - evidence - nature of "consciousness of guilt" reasoning

CRIMINAL LAW - Criminal procedure - Appeal - Appeal out of time - Applicant with major depressive illness - Extension of time granted CRIMINAL LAW - Sentence appeal - Wounding with intent to murder - No error demonstrated or grounds upon which less sever sentence warranted

PROCEDURE - summary judgment -defence struck out - whether pleaded defences could arguably be made out.

CORPORATIONS - statutory derivative action - claim of breach of director's fiduciary and statutory obligations - application to bring proceedings on behalf of two companies - where indemnity offered by the plaintiff - criteria for granting of leave under s 237(2) Corporations Act 2001 (Cth) - whether probable that the companies will not bring proceedings - whether the plaintiff is acting in good faith - whether serious question to be tried - whether appropriate notice was given.

CONTRACTS - third party mortgage and guarantee - elderly father provides assistance to son - no unconscionability - contract not 'unjust' for purposes of Contracts Review Act, 1980

APPEALS-interference with findings of fact-Fox v Percy ADMINISTRATIVE LAW-apprehended bias-display of irritation does not generate apprehension MAGISTRATES-appeals under s 39 and s 40 Local Courts Act 2007 PROCEDURE-imposition of time limitations-not procedurally unfair considering overriding purpose of Civil Procedure Act 2005 PROCEDURE-litigants in person-no obligation upon judicial officer to advise of forensic errors PROCEDURE-judicial preparation in advance of hearing-no error

PRACTICE AND PROCEDURE - inherent jurisdiction of the Court - application for stay of disciplinary proceedings pending possible criminal proceedings - whether jurisdiction ousted by s 9 of Administrative Decisions (Judicial Review) Act 1977 (Cth) - public interest in disciplinary proceedings - any unfair prejudice capable of being protected otherwise - summons dismissed

INSURANCE - Accident and sickness insurance - The contract - construction of policy terms - plaintiff had a pre-existing condition - whether plaintiff was "Totally Disabled" due to "Accidental Injury" as defined by the policy - whether plaintiff was entitled to waiver of premium benefit under the policy.

PROCEDURE - order sought for proceedings to be dismissed where no evidence led by plaintiffs to support their case.

PROCEDURE - judgments and orders - costs - costs of proceedings below to reflect outcome of appeal - no order as to costs of appeal

CONTRACT - whether statements to government authority were made in breach of confidentiality agreement - construction of confidentiality agreement - whether statements required by law EQUITY - whether equitable duty of confidence exists when there is a contractual obligation of confidentiality - whether account of profits available TRADE PRACTICES - misleading or deceptive conduct - whether statement made to government authority "in trade or commerce" DAMAGES - whether alleged breach of confidentiality caused loss

CORPORATIONS - insolvency - appeal by liquidator against decision of Local Court dismissing claim for orders under s 588FF of the Corporations Act - whether Court erred in holding second defendant was not a party to the impugned transaction - where participation in transaction admitted on the pleadings - whether open to find that defence under s 588FG(2) established by second defendant - failure to call second defendant to give evidence - requirements of defence not capable of being met

APPEAL - application for leave to appeal from decision of Appeal Panel of Administrative Decisions Tribunal re-exercising discretion as to costs under s 88(1A) of Administrative Decisions Tribunal Act 1997 - no identifiable error of law in Appeal Panel's decision - leave refused

APPEAL - summons for leave to appeal - striking out cause of action for false imprisonment - refusal of leave to replead - whether pleadable cause of action - applicant unable to walk to town from property due to previous injury - failure to mention previous injury to court APPEAL - summons for leave to appeal - costs - order that costs be paid forthwith - presumption that interlocutory costs be paid at end of proceeding - discretion where costs relate to a discrete matter

APPEAL - application for leave to appeal - dismissal of two proceedings - dismissal of four motions in third proceeding - whether attempt to re-litigate

PROPERTY ― orders adjusting property interests of de facto partners under s 20 of the Property (Relationships) Act 1984 ― just and equitable adjustment ― whether primary judge erred in not treating amounts spent by respondent on legal costs as funds received from joint property ― where costs followed event and appellant ordered to pay respondent's costs ― where appellant adduced no evidence as to amount paid and liability incurred in relation to legal costs ― where appellant did not ask primary judge to take appellant's legal fees into account prior to argument about costs

WILLS AND ESTATES - family provision claim - competing claims or interests - financial needs and resources of claimants - contribution to deceased's welfare - whether primary judge erred in dividing estate equally between claimants

GUARDIANSHIP - application for appointment of financial manager - incapacity to manage own affairs by reason of youth pursuant to s 41(1) of the NSW Trustee and Guardian Act 2009 - whether to make order under s 41 until person subject of the order reaches majority - ability of court to make order pursuant to s 64(1) that person subject to s 41 order be advised of right to apply to court to revoke order prior to reaching majority - appointment of trustee of settlement for benefit of minor under s 16 of the Infants' Custody and Settlements Act 1899 - whether to restrict trustee's powers of investment

CRIMINAL LAW - sentencing - unlawful and dangerous act - two prior acquittals - conviction at third trial - finding of special circumstances.

CORPORATIONS - management and administration - meetings - orders sought for extension of convening period for the convening of the second meeting of creditors - whether extension of convening period in the best interests of creditors.

CIVIL PROCEDURE - separate trial of issue - whether order for separate trial should be set aside because of further evidence

CRIMINAL LAW - practice and procedure - judgment by direction - no case submission - whether evidence taken at its highest could satisfy a jury beyond reasonable doubt - evidence sufficient to satisfy elements - application dismissed

COSTS - Where plaintiff successful on the whole but unsuccessful on two significant issues - where unsuccessful claims bear on issues of credit in successful claims - whether plaintiff should be deprived of costs for the unsuccessful claims - whether plaintiff should be liable to defendant for costs for unsuccessful claims - whether claims were clearly definable and severable issues COSTS - whether apportioning costs should be left to costs assessor PROCEDURE - application for inquiry as to damages - where plaintiff has given undertaking as to damages in connection with appointment of provisional liquidator - where plaintiff sought winding up order in the alternative - where winding up order not ultimately made but plaintiff placed in control of company PROCEDURE - Application for extension of time to apply to examine defendants' accounts - where new issues have been raised after time expired - where no prejudice to defendant in granting the extension

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Parens Patriae Jurisdiction - Order sought by hospital to administer blood transfusions to a Jehovah's Witness child - whether order should be made in opposition to parents - whether child should be made a ward of court - whether Family Law Act jurisdiction applies

Sex offender - extended supervision orders - whether defendant is a "high risk sex offender" - whether offender poses unacceptable risk of committing serious sex offence if not supervised - grooming offences - conditions attaching to extended supervision order - whether offender should be excluded from associating with young males aged 17 and 18 - whether offender should be prevented from photographing males aged 17 and 18.

PROCEDURE - application for judgment - no question of principle.

GUARDIANSHIP - application for appointment of financial manager - application for declaration that person incapable of managing own affairs pursuant to s 41 of the NSW Trustee and Guardian Act 2009 - whether to make order under s 41 until person subject of the order reaches majority - appointment of trustee of settlement for benefit of minor under s 16 of the Infants' Custody and Settlements Act 1899 - whether to restrict trustee's powers of investment

PROCEDURE - principles regarding the adoption of a referee's report - whether referee's report should be adopted or rejected in part - whether the plaintiff should be permitted to withdraw an admission in relation to the referee's report. CONTRACTS - construction and interpretation of contracts - whether contract void for uncertainty - courts should be astute to adopt a construction which will preserve the validity of a contract. EVIDENCE - findings of fact - whether findings in referee's report are unreasonable or perverse.

TORTS - negligence - professional negligence - legal - what advice was given about the Education Act 1990 - whether the advice given was not to pursue proceedings in Court - were the plaintiff's misled as to the defendants' expertise - two retainers - defendants' duty to the plaintiffs - was the advice given under the first retainer negligent or clearly wrong - the second retainer - immunity from suit - were the proceedings brought entirely misconceived, having no prospects of success - causation - damages - non-economic loss - economic loss - legal expenses - medical treatment expenses - proportionate liability - orders EVIDENCE - witnesses - reliability of evidence - first defendant's evidence preferred over first plaintiff's evidence PROCEDURE - evidence - application for leave to rely upon late served affidavit - application granted

APPEAL FROM LOCAL COURT - adverse findings as to credit of plaintiff and witnesses - whether Magistrate erred in law by failing to consider a relevant piece of evidence - whether evidence not taken into account and therefore plaintiff not subject to credit findings - appeal dismissed

APPEAL FROM LOCAL COURT - dismissal of prosecution for breach of truck overload offence - whether magistrate erred in finding statutory defence made out - appeal dismissed COSTS - judicial review of magistrate's refusal to award costs to defendant - whether magistrate erred in law - application for judicial review dismissed

PRACTICE AND PROCEDURE - Summarily dismissal of a charge of contempt. CONTEMPT - Deliberate failure to comply with a court order requiring the payment of moneys - Disregard of orders for costs under the Civil Procedure Act 2005 and alleged deliberate conduct to prevent the enforcement of costs orders - A charge of contempt for alleged words spoken, or otherwise written and filed, in Court.

CRIMINAL LAW - sentencing - murder - domestic homicide - intoxication - conviction following trial - self defence rejected by jury - whether intent to kill - mitigating factors - whether remorseful - general deterrence, retribution and denunciation.

PROCEDURE - case management - preliminary rulings on expert evidence - whether expert reports admissible. EVIDENCE - expert evidence - whether reports comply with r 31.27 UCPR - use of photographs - whether expertise needed to interpret.

ADMINISTRATIVE LAW - mandamus - public works - whether accommodation works required - whether a difference to be determined by the Governor

CRIMINAL LAW - appeal - sentencing - assault occasioning actual bodily harm in circumstances of aggravation - robbery of victim of assault - whether sentencing judge failed to take into account a mitigating factor that offences not planned or organised - Sentencing Procedure Act 1999 (NSW), s 21A(3)(b) - where not established whether or not the offence was part of a planned or organised criminal activity - where mitigating factor not relied upon by offender's representative in court below CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - where offences of a like kind attracted lesser sentences - where offender had unfavourable personal circumstances

CRIMINAL LAW - conviction appeal - murder - circumstantial Crown case - body found in pool of blood - evidence of earlier altercation - whether actions of appellant caused deceased's death - scenario consistent with innocence not excluded by Crown case - jury verdict unreasonable and not able to be supported having regard to the evidence.

APPEAL - application for leave to appeal - CONTRACTS - public policy - contract between cohabiting unmarried parties that one will make a payment to the other in defined event of separation - held that no defence based on public policy arguable

PROCEDURE - notice of motion - leave sought to re-open case - leave refused - reasons for decision - Consequences of the refusal of the re-opening application declaratory relief - pre-judgment interest - costs - interest on costs - stay - orders

CORPORATIONS - winding up - liquidators - liquidators seek orders under s 447A of the Corporations Act 2001 (Cth) so as to alter the manner in which certain notices may be given to creditors - whether the costs of adhering to usual notification requirements for meetings are proportionate to the benefit that would be obtained.

DEFAMATION - imputations - whether defamatory

PROCEDURE - application to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 - no affidavit complying with s 14(3) filed - application for leave refused

PRACTICE AND PROCEDURE - application for interlocutory injunction - previous default resolved by mediation -mortgagee auction - whether need for new mediation pursuant to Farm Debt Mediation Act 1994 - a real question to be determined - interlocutory injunction granted

COSTS - declaratory relief sought - whether proceedings related to claim for personal injury damages - proceedings not a claim for damages