Cases and authorities

CRIMINAL LAW - criminal jury trial - member of jury a friend of solicitor for accused - solicitor absent from courtroom when jury empanelled - Court informed of association soon after empanelment - whether juror should be discharged - whether balance of jury should be discharged - s.53B(b) Jury Act 1977 - discretionary considerations - juror and balance of jury discharged

PROCEDURE - notice of discontinuance - whether the parties should bear their own costs

APPEAL - appeal against conviction - unreasonable verdict - Criminal Appeal Act 1912 (NSW), s 6(1) - failure to give direction to jury - no inconsistency between "guilty" and "not guilty" verdicts in relation to multiple counts - jury's verdict not unreasonable - appellant denied a the chance of an acquittal on all counts by absence of a Markuleski direction - appellant denied right to a fair trial - leave to appeal granted on second ground of appeal - convictions quashed.

EVIDENCE - indecent assault of person under the age of 16 - context evidence to assist in evaluation of complainant's evidence of alleged offences - previous conduct of the appellant of a sexual nature involving the complainant - requirements for use as propensity evidence not satisfied - appropriate directions to the jury EVIDENCE - indecent assault of person under the age of 16 - tender by accused of alleged prior inconsistent statement of complainant erroneously rejected under s 135 Evidence Act as unfair to Crown - whether substantial miscarriage of justice - proviso to s 6 Criminal Appeal Act 1912

EVIDENCE - indecent assault of person under the age of 16 - context evidence to assist in evaluation of complainant's evidence of alleged offences - previous conduct of the appellant of a sexual nature involving the complainant - requirements for use as propensity evidence not satisfied - appropriate directions to the jury

CRIMINAL LAW - sentence - appeal against severity of sentence - dishonestly obtaining a financial benefit by deception contrary to s 134.2 Criminal Code Act 1995 - where incompetence of legal representatives alleged - where reliance on negligent accounting advice alleged -

CRIMINAL PROCEDURE - fitness to stand trial - capacity of accused to understand evidence at trial and nature and course of criminal proceedings - accused suffers depression and insomnia - falling asleep during trial - preventative steps available - lawyer and counsel able to explain proceedings and important evidence - fit to stand trial

EVIDENCE - witness - use of document to revive memory or witness - document contemporaneous to relevant events - revival in conference

PRACTICE AND PROCEDURE - service - service outside jurisdiction - UCPR Schedule 6 - whether service ex juris authorised - whether cause of action arose in substance in New South Wales - whether cause of action founded on damage suffered in New South Wales caused by a tortious act or omission - whether defendant was to be or was served in New South Wales PRACTICE AND PROCEDURE - request for further and better particulars - whether applicant had legitimate interest in particulars sought

PRACTICE AND PROCEDURE - Urgent application for stay of Sheriff's eviction notice pursuant to a writ of possession - Significant hardship in circumstances where occupier is unaware of eviction notice - Balancing the rights attached to a writ of possession against the reasonableness of a Court order.

CRIMINAL LAW - Inquiry subsequent to conviction - applicant convicted of sexual assault offences - whether doubt or question as to guilt - reliability of evidence - where evidence based on dreams or flash backs - whether direction about unreliability of evidence required - whether breach of Prosecution's duty of disclosure - Crimes (Appeal and Review) Act 2001, s 78.

CRIMINAL LAW - Inquiry subsequent to conviction - applicant convicted of sexual assault offences - whether doubt or question as to guilt - reliability of evidence - where evidence based on dreams and flashbacks - whether breach of Prosecution's duty of disclosure - Crimes (Appeal and Review) Act 2001, s 78.

INDUSTRIAL LAW - New South Wales - payment and recovery of remuneration and other amounts - payment under awards, agreements and permits - calculations of leave entitlements, salary and tax. INSURANCE - Accident and sickness insurance - The contract - construction of policy terms.

COSTS - claim between client and legal practice - UCPR r42.1 - whether the general rule that costs follow the event should apply - UCPR r42.34 - whether commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted - whether UCPR rr42.14-15A apply to consent orders - Calderbank offers - no question of principle.

CONTRACT - construction - where agreement provided for the payment to a corporate advisor of a success fee in the event that a bidder acquired 50% or more of the shares in the defendant under an offer which had been recommended by a majority of the defendant's board of directors - where a bidder made an offer which the board did not recommend but opposed - notwithstanding opposition the bidder succeeded in obtaining more than 50% of the shares in the defendant, thereafter the board changed its recommended - whether success fee payable - RECTIFICATION - the plaintiff claimed that if the construction of the agreement was not as it contended, the agreement should be rectified as not reflecting the continuing common intention of the parties - requirements for the establishment of such intention - whether such requirements were met

EQUITY - residential tenancies - applicability of the Boarding Houses Act 2012 - applicability of the Residential Tenancies Act 2010 - meaning of "hotel" - balance of convenience for injunctive relief

CONTRACT - building and construction - compromise - whether claims of alleged overcharging by appellant builder had been compromised and released under a settlement agreement between the parties - whether primary judge addressed correct questions given interpretation of settlement agreement adopted by this Court in Marinchek v Cabport Pty Ltd [2010] NSWCA 334 - whether primary judge erred in findings as to respondent's state of knowledge regarding circumstances giving rise to claims of overcharging - claims for recovery of alleged overpayments compromised and released

PROCEDURE - legal professional privilege - application for notice to produce to be set aside on the basis that production would disclose privileged information - whether litigation funding agreement is properly the subject of a claim for legal professional privilege under s 199 Evidence Act 1995 (NSW) - whether funding agreement was prepared for the dominant purpose of the client being provided with professional legal services - whether funding agreement was intended to be confidential - whether funding agreement was necessary for the continuing conduct of proceedings - whether funding agreement discloses anything as to the strategy of the litigation or the legal advice likely to be offered. EVIDENCE - admissibility and relevancy - whether funding agreement called for under notice to produce will inform the Court's discretion whether to stay winding up.

CORPORATIONS - EXAMINATION - ABUSE OF PROCESS - whether conduct of examination had become an abuse of process.

CRIMINAL LAW- Crown appeal against sentence- whether sentence manifestly inadequate- discount for plea- how assessed for Commonwealth offences- drug importation offence

PRACTICE AND PROCEDURE - whether application to extend time to file cross-appeal should be heard concurrently with existing appeal - need to consider efficient use of judicial resources - concurrent hearing ordered

WORKERS COMPENSATION - disease of gradual onset - claim to indemnity under s 151Z(1)(d) of Workers Compensation Act 1987 by employer liable to pay compensation from earlier employer in employment to nature of which disease was due - whether earlier employer a "person other than the worker's employer" within s 151Z(1) - reference to "worker's employer" in s 151Z(1) is to employer liable to pay compensation under s 9(1) - in relation to disease of gradual onset that employer is "last" employer under s 15(1)(b) ESTOPPEL - issue estoppel - worker takes proceedings for compensation in relation to disease of gradual onset against two employers - Workers Compensation Commission holds that worker entitled to compensation from "last" employer in employment to nature of which disease due - whether that employer prevented by issue estoppel from claiming indemnity from earlier employer under s 151Z(1)(d) of Workers Compensation Act 1987 - no issue estoppel - not necessary for Commission to decide whether disease not contracted during period of employment by earlier employer

PROCEDURE - Notice to produce and subpoena of documents - Whether legitimate forensic purpose - Whether relevant to primary issue in dispute.

PRACTICE & PROCEDURE - application to stay liquidators examinations as abuse of process - objection to notice to produce - client legal privilege - whether there are reasonable grounds for thinking that the document in question might evidence an abuse of process - whether claim for privilege maintainable

CORPORATIONS - External administration - application to wind up in insolvency - failure to comply with a statutory demand - whether order should be stayed in order to allow completion of sale of property

CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - Court to hold fitness inquiry as soon as practicable under s.29 Mental Health (Forensic Provisions) Act 1990 - trial of co-accused imminent - whether trial of co-accused should be delayed until fitness of accused determined so that (if fit to be tried) accused can be joined to trial of co-accused - approach not practicable - trial of co-accused to proceed - fitness inquiry to proceed as soon as practicable

TAXES AND DUTIES - Running Balance Accounts - limited partnership - Taxation Administration Act 1953 (Cth), Sch 1, s 444-30 - RBA deficit debt including GIC of partnership imposed on partners - whether liability to contribute to the liabilities of the limited partnership under the Partnership Act 1892, s 60(1)

DAMAGES - professional negligence - insurance broker - quantum

REFUSAL OF LEAVE TO APPEAL - failure to bring appeal in appropriate court - Supreme Court Act, s 51 - self-represented litigant - Court's obligation to provide a fair hearing - provision of sufficient information as to the practice and procedure of the Court as is reasonably practicable to ensure a fair trial. REFUSAL OF LEAVE TO APPEAL - Administrative Decisions Tribunal Appeal Panel refusal to extend time to appeal from Administrative Decisions Tribunal - no sufficiently arguable case that discretion exercised incorrectly.

ADMINISTRATIVE LAW - powers of the New South Wales Crime Commission - obligation of person giving evidence to answer questions - whether direction as to non-publication adequate - whether "reasonable excuse" for not answering questions CRIMINAL LAW - appeal - applicant questioned at a hearing before the New South Wales Crime Commission - whether applicant had a "reasonable excuse" not to answer questions - non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) - direction precluded publication to the police or the Director of Public Prosecutions - power to vary direction - whether direction required to prevent prejudice to fair trial WORDS AND PHRASES - "reasonable excuse" - New South Wales Crime Commission Act 1985 (NSW), s 18(2)

BANKING AND FINANCE - instruments - convertible notes issued by HIH NZ to be converted into ordinary shares in HIH unless HIH NZ elected to redeem them in cash - no such election or conversion - whether noteholders entitled to prove in HIH NZ liquidation for face value of notes

COSTS - Calderbank offer - offeree settled for similar amount many months later - state of expert evidence changed - whether any justification to depart from usual costs orders - whether rejection of Calderbank offer unreasonable in the circumstances - usual costs order made PRACTICE AND PROCEDURE - application for approval of settlement of proceedings - reasonableness of settlement dependent on outcome of costs order - settlement reasonable in light of proposed costs order

EQUITY - Equitable lien - Solicitor - Fruit of Litigation - Deed of Settlement including term for transfer of books debts EQUITY - Equitable lien - Causal link between the solicitor's exertions and the recovery of the funds

BUILDING AND CONSTRUCTION - adjudication - requirement for a payment schedule - whether determination void - jurisdictional error - procedural fairness - natural justice

'Unjust contract' - elderly borrowers - necessity for exit strategy given age and term of loan - failure by bank to make reasonable enquiry of value of collateral property on which exit strategy depended

PROCEDURE - notice of motion - orders seeking to set aside the default judgment; leave to file a defence; dismissing the statement of claim; and in the alternative, staying the execution of the writ - whether default judgment made irregularly, illegally or against good faith - whether default judgment should be set aside - explanation for delay in filing a defence - whether default judgment was obtained without notice - whether the proposed defence asserted bona fide - whether defence raises triable issue - whether it be futile to set aside the default judgment - whether statement of claim should be dismissed under Rule 13.4 or struck out under Rule 14.28 - whether there should be a stay - orders - motion dismissed - costs

EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Jurisdiction - Trustee Act 1925 s 63 - Discretion to refuse advice - Categories of trustee - Where proceedings against trustees EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Whether appropriate to defend proceedings for removal of trustees - Whether appropriate to defend proceedings using trust funds EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Whether trustees should seek to recover amounts paid to third party beneficiaries allegedly in breach of trust - Basis for recovery - Money had and received - Moneys not paid by mistake - Change of position - Action under doctrine in Re Diplock available only to beneficiaries - Trustees Act 1962 (WA) s 65 inapplicable EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Whether appropriate to settle proceedings with potential beneficiaries within a given range - Whether appropriate to defend proceedings where settlement within a given range unobtainable EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Whether duty to identify other potential beneficiaries - Nature of Creditors' Trust - Position of claimants under Creditors' Trust analogous to that of potential beneficiaries of a discretionary trust - Position of trustees of Creditors' Trust analogous to position of liquidators generally - Duty of liquidator to act honestly and impartially between creditors - Duty of liquidator to inquire into potential claims of which he or she is aware EQUITY - Trusts and trustees - Applications to court for advice and authority - Petition or summons for advice - Proper construction of Creditors' Trust - In the event of insufficient funds for distribution to beneficiaries - Whether to proceed pari passu or on some other basis

PRACTICE AND PROCEDURE - Exchange of witness statements prior to the commencement of the trail - Parties to exercise a degree of co-operation to ensure that only real issues in dispute are brought forward for the trial - Efficient and proper conduct of litigation - Balancing the overriding purpose to facilitate a just resolution with a cheap and quick resolution - Case management order or direction pursuant to section 61 of the Civil Procedure Act 2004 -- use of Uniform Civil Procedure Rules 2005 Part 31 r 4.

CRIMINAL LAW - application for leave to appeal against conviction - drug offences - whether verdict is unreasonable - credibility of witnesses in question - otherwise strong circumstantial Crown case - appeal dismissed CRIMINAL LAW - application for leave to appeal against sentence - error in back dating - Crown does not resist adjustment - sentence adjusted

CRIMINAL LAW - appeal against sentence - supply prohibited drugs - quasi-custody - whether sentencing judge erred by failing to allow discount for time served in rehabiltation

CRIMINAL LAW - appeal against severity of sentence - break and enter and commit serious indictable offence - assault occasioning actual bodily harm - guilty plea - first time offender - prior good character - unlikely to reoffend - youth - whether trial judge erred in assessment of facts - whether trial judge erred in assessment of level of criminality and objective seriousness - whether sentence of imprisonment manifestly excessive.

PRACTICE AND PROCEDURE - application for security for costs - no issue of principle - balance between protecting applicant by appropriate security and framing security in a way that did not obstruct the litigation

PRACTICE AND PROCEDURE - Application for adjournment of proceedings against a charge of contempt of Court. CONTEMPT - A charge of contempt of Court ought be dealt with promptly - A reasonable delay in proceedings does not undermine a charge of contempt of Court.

PRACTICE AND PROCEDURE - judgments and orders - application for writ of restitution - application for order pursuant to r 40.7 Uniform Civil Procedure Rules 2005 (NSW) enabling enforcement of judgment by committal or sequestration - requirement of personal service - no question of principle.

SUCCESSION - construction of will - use of extrinsic evidence

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - application for an extended supervision order - order not opposed except for duration - independent assessment of criteria contained in s 9(3) - defendant unwilling to undergo rehabilitation - defendant high-risk of re-offending - order imposed for 3 years

PRACTICE AND PROCEDURE - security for costs - plaintiff resident outside of the State - turns on facts - no question of principle

APPEAL - failure by trial judge to give reasons in support of conclusions - factfinding miscarried - new trial EVIDENCE - where no objection to medical and other reports containing history given by plaintiff - admissibility of histories in reports - s 60 Evidence Act 1995 (NSW) - no limitation sought under s 136 of the Evidence Act on use of histories in reports

JUDICIAL REVIEW - modification of approval of a project - statutory requirement to make publicly available request for modification of approval - parts of documents accompanying request for modification not able to be viewed on department website - whether accompanying documents comprise request for modification - whether making only parts of documents publicly available sufficient compliance - whether giving message that further information may be requested makes missing documents publicly available - whether purpose of legislation that non-compliance with statutory requirement invalidates modification of approval - appeal dismissed

JUDICIAL REVIEW - approval of concept plan for project - compliance of environmental assessment with administrative time requirement - whether time requirement a statutory requirement - whether environmental assessment submitted complied with time requirement - whether power to accept any non-compliance - whether any non-compliance results in invalidity of approval - inconsistency in terms of approval - whether so uncertain and unintelligible to be outside power - approval misdescribed proponent of project - whether statutory requirement that approval identify correctly a legal entity as proponent - appeal dismissed