Cases and authorities

PROPERTY - urgent relief sought - application for stay of execution of writs of possession and stay of consent judgment - whether plaintiff in breach of deed of settlement and release - whether plaintiff responsible for community awareness which caused adverse effect on sale of land - whether plaintiff's tardy provision of information and disadvantageous wording in letter adversely impacted refinancing - consideration of what is fair, reasonable and in interests of justice - defendants have previously been given various periods of time to arrange their affairs - plaintiff has not been in breach of obligations -consideration of whether defendants should be given further time to explore opportunity which may raise capital necessary to repay the plaintiff - not in interests of justice to permit further time to the defendants to arrange their affairs - notice of motion dismissed.

TRUSTS AND TRUSTEES - Charitable trusts - accessorial liability - where Association was an integral element of Macedonian Orthodox Church under Church law - where office-bearers knew this but did not know that Association held its property on charitable trust and instigated actions in accordance with Association's constitution but in breach of terms of charitable trust - whether given knowledge of relationship of Association with Church, including that office-holders customarily swore oaths to uphold church law, it transgressed ordinary standards of honest behaviour for them to procure the appointment of and remunerate a priest without the Bishop's authority - held, it did. COSTS - where dispute concerned genuinely held views of opposing factions in relation to the conduct of a religious association - where proceedings highly contentious - whether proceedings analogous to public interest proceedings - held, they were not - relevance of effect on trust property of making or not making a costs order - whether just that a party who successfully brings proceedings to enforce a charitable trust should be left unindemnified by unsuccessful defendants - costs of unprosecuted cross-claim - whether rendered inutile by subsequent events - costs of interlocutory proceedings brought in aid of rights under interlocutory regime, which rights were ultimately vindicated.

REAL PROPERTY - Torrens title - Caveat against dealings - application for removal of valid Caveat to permit sale of subject land - significant agreement between parties - indisputable Caveatable interest - balance of convenience - replacement security - very limited undertaking as to damages

PROCEEDINGS FOR DAMAGES FOR PERSONAL INJURY - costs - costs incurred by party without written consent of insurer - whether s 54 Insurance Contracts Act applicable - insurer liable to indemnify party - whether insurer should pay party's costs of proceedings - whether costs should be on indemnity basis

TORTS - negligence - medical negligence LIMITATION OF ACTION - application to extend - Limitation Act 1969 (NSW) s60G

LIMITATION OF ACTIONS - application to extend - Limitation of Actions Act 1936 (SA) - whether material facts ascertained within 12 months prior to commencement of proceedings - claim by refugee for post-traumatic stress disorder as a result of conditions in detention centres - whether just to extend time - whether sufficient explanation for delay - prejudice to the defendants. PROCEDURE - costs - appropriate costs order where applicant for extension successful - unreasonable behaviour by applicant in the way the application was run.

CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - Rule 4 of Criminal Appeal Rules - whether rule applies when trial continued after accused absconded but counsel remained - consideration as to role of counsel after accused absconded CRIMINAL LAW - particular offences - offences against the person - dangerous driving occasioning death or grievous bodily harm - whether accused remained the driver at the time of impact after passenger grabbed the steering wheel CRIMINAL LAW - procedure - hearing in open court and in presence of accused - accused absconding during trial - waiver of right to be present - discretion to continue trial in accused's absence CRIMINAL LAW - sentence - nature and circumstances of offence - dangerous driving occasioning death and grievous bodily harm - whether passenger grabbing steering wheel reduced objective seriousness of offence - whether error in accumulating sentences

CRIMINAL LAW - appeal against sentences - pleas of guilty - robbery whilst armed with offensive weapon, inflicting grievous bodily harm - robbery whilst armed with offensive weapon, causing wounding - aggravated detain person for advantage (in company) - robbery whilst armed with offensive weapon - Form 1 offences - dishonestly obtaining money - carried in a conveyance taken without the consent of the owner - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - whether undue emphasis on standard non-parole period - no error in approach to use of standard non-parole period - appeal dismissed

PRACTICE AND PROCEDURE - appeal against refusal of application for leave to amend pleadings - proposed amendment previously pleaded, abandoned and sought to be revived in context of application for summary dismissal - no explanation as to why sought to be revived - primary judge entitled to infer proposed amendments made to stave off summary dismissal

REAL PROPERTY - summons for production of certificates of title to trustee in bankruptcy - where bankrupt and certificates cannot be found - whether new certificates of title should be issued

ADMINISTRATIVE LAW - statutory construction - meaning of approval under Clause 52 of Schedule 1 of the Gaming Machines Act 2001 - whether approval to keep hardship gaming machines only takes effect once it is lawful to keep machines by reason of satisfaction of conditions of approval

CRIMINAL LAW - sentence - manslaughter - plea of guilty - unlawful and dangerous act - single punch causing death occurred during robbery - cold case - confession made to undercover police officer

ESTOPPEL - estoppel in pais - equitable estoppel - proprietary estoppel -- plaintiff encouraged to devote his life to work on family farm upon an expectation that he would acquire legal title on his parents death and that he would enjoy its fruits with secure accommodation in the meantime - plaintiff encouraged to leave the property for the common good of the family upon the assurance that he would be paid compensation - equitable compensation granted secured by a charge. TRUSTS - constructive trust - plaintiff's contribution to family's joint enterprise was removed without attributable blame - defendants will continue to enjoy, to plaintiff's exclusion, the benefit of his contribution to the common weal - equitable compensation granted secured by a charge.

CRIMINAL LAW - sentencing - applicant sentenced under the law as it stood before the decision of the High Court in Muldrock - no lesser sentence warranted on evidence before sentencing judge - new evidence of severely impaired mental state at time of offending - evidence admitted to avoid miscarriage of justice

ADMINISTRATIVE LAW - Judicial Review - Jurisdiction - Whether Industrial Relations Commission had jurisdiction under the Industrial Relations Act 1996, s 89(1) to order reinstatement of a worker who is permanently unfit for work in NSW Police Force - Whether order made for collateral purpose. STATUTORY CONSTRUCTION - Principle that words bear the same meaning throughout statute - Police Act 1990. WORDS & PHRASES - "position", "reinstatement".

TORTS - negligence - duty of care - economic loss - local government - processing and assessment of development application - no relevant reliance or assumption of responsibility - no vulnerability - posited duty not conformable with statutory scheme - lack of coherence with administrative law - no duty to avoid foreseeable economic loss TORTS - misfeasance in public office - local government officer - processing and assessment of development application - credit findings by primary judge - no failure by primary judge adequately to explain credit findings

TORTS - negligence - contributory negligence - hotel and patron - slip and fall - - whether the floor was wet and recently mopped - CCTV footage - whether floor was wet as the result of plaintiff's actions - not established - whether plaintiff fell as the result of wearing thongs, or because of an old knee injury - not established - negligence established - causation - contributory negligence - damages - non-economic loss - past and future economic loss - future domestic assistance - calculations to be undertaken and short minutes provided

CRIME - sentencing - insider trading - seriousness of offending

[PROCEDURE] - civil - application for leave further to amend List Response - application requires leave to withdraw admission - whether interests of justice permit withdrawal of admission - application for leave to rely on further evidence - whether further evidence permitted will have an adverse impact on the hearing date -whether further evidence relates to issues raised by the pleadings.

COSTS - Orders - Whether costs should follow the event.

PRACTICE AND PROCEDURE – application to administer interrogatories in relation to resolution under s 409 of Legal Profession Act 2004 – exclusively within knowledge of decision maker(s) – whether necessary – whether reasonably required – whether validity of resolution in issue on pleadings – interrogatories not necessary for the resolution of the issues raised in the pleadings.

EVIDENCE - LEGAL PROFESSIONAL PRIVILEGE - electronic and computer data records seized by police in course of executing lawfully issued search warrants - plaintiff requested forensic examiner to extract data from his Blackberry mobile phone - electronic records containing digital data stored on the mobile phone were extracted and transmitted by the expert examiner to his computer - plaintiff provided with customised reports containing limited data derived from the first generation of material transmitted to the examiner's computer - plaintiff subsequently had electronic memory on the mobile phone wiped. As to computer and other electronic records and customised reports seized in execution of search warrants - plaintiff claimed all such records were protected by legal professional privilege upon the basis of advice from the lawyer retained by him to obtain electronic phone data from the mobile phone - digital data initially extracted from the mobile phone was not privileged because: (i) the whole of the stored data was not sought or required by the plaintiff's lawyer; (ii) the digital form of such data was in the nature of original material and was not a copy of other material; (iii) the entirety of the stored mobile telephone data was not brought into existence for the dominant purpose of obtaining legal advice or for future use in legal proceedings. Claim for privilege in respect of all data downloaded and transmitted in any event also failed for public policy reasons because the plaintiff deliberately wiped the phone's memory. The customised reports specifically sought by the plaintiff and which came into existence following instructions given by the plaintiff to the forensic expert were privileged because they were brought into existence for the dominant purpose of communicating or submitting them to plaintiff's lawyer for use in anticipated litigation or to obtain legal advice.

EQUITY - legal title of real property - whether title was held on trust for plaintiff - entitlement of defendant to equitable compensation

CORPORATIONS - application for leave to proceed against company in liquidation pursuant to s 417B - reasonably arguable grounds to support grant of leave - whether leave should be granted on terms - liquidator sought security for the judgment debt PRACTICE AND PROCEDURE - application for stay - basis of stay being that execution of the judgment debt would render the appeal nugatory - whether stay should be granted on terms - liquidator's concerns that applicant will dissipate assets

PRACTICE AND PROCEDURE - application for security of costs - whether special circumstances exist for grant of security - where hearing below was substantial in length - where appellant seeks to agitate almost all legal and factual issues raised at first instance - where estimated costs of the appeal will be significant - where appellant impecunious and there is a risk that the applicants may have difficulty enforcing a costs judgment in their favour against appellant - whether security for costs should be granted on a staged basis

TORTS - Negligence - Legal practitioner's duty of care - Legal practitioner retained to advise in respect of the Conveyancing Act 1919, s 88K - Application not granted - Whether legal practitioner's advice negligent - Whether advice protected by advocates' immunity - Principle of finality of litigation. LEGAL PRACTITIONERS - Advocates' immunity - Application of principle in D'Orta-Ekenaike v Victoria Legal Aid - Scope of advocates' immunity - Whether alleged negligent conduct led to a decision affecting the conduct of the case in court.

SUCCESSION - where person entitled to assert equitable defence in protection of disputed property has died intestate while under the protection of the NSW Trustee and Guardian - estate bona vacantia - administrator of deceased estate able to assert defence available to deceased in his lifetime - whether Crown entitled to bona vacantia property can enforce a defence belonging to intestate deceased - whether Crown takes title as successor or by statute - question not necessary to resolve where disputed property held at all relevant times by administrator of deceased estate EVIDENCE - onus of proof - balance of probabilities - party bearing the onus must present enough evidence to enable the court to feel actual persuasion that a particular fact is so - where asserted fact is supported by only one piece of evidence - evidence sufficient on its own to support finding of relevant intention - whether a sufficient basis in surrounding circumstances to overcome evidence WORDS AND PHRASES - "bona vacantia"

DISCOVERY AND INTERROGATORIES - discovery and inspection of documents - legal professional privilege - where verified list of documents produced in required form and inspection granted - producing party asserted before trial that its solicitors had mistakenly failed to claim privilege over certain documents over which no privilege was claimed in the list of documents - motion to restrain Appellant from making use of any of the allegedly privileged documents and to return the documents - legal professional privilege is a means of resisting compulsory disclosure of confidential information by process of law but not a basis on which to seek injunctive relief - once disclosure has been made the party seeking recovery of the documents must rely on the equity protecting confidential information - equity will intervene where it would be unconscientious in the circumstances for the recipient to make use of the confidential information - application of principle to disclosure of privileged documents in accordance with the courts' discovery processes means disclosure will not be reversed except in the case of fraud or mistake that is or ought to be obvious to the recipient - whether it was apparent to the solicitors for the Appellant that the producing party had made an obvious mistake in producing the documents in question - objective evidence of care and deliberation taken in selection of documents and claims of privilege - would not have been obvious to a reasonably competent solicitor that a mistake had been made - motion dismissed DISCOVERY AND INTERROGATORIES - discovery and inspection of documents - legal professional privilege - waiver of privilege - whether disclosing parties have acted in a way inconsistent with the maintenance of their privilege - privilege belongs to client and can thus only be waived by client - engaged solicitors nonetheless hold ostensible authority to act as agent for client all matters that might reasonably be thought to arise in the conduct of a litigation including waiver of privilege - where certificate of advice provided by solicitor and verifying affidavit provided by client with list of documents - assertion of privilege inconsistent with earlier disclosure - privilege waived WORDS AND PHRASES - "client legal privilege", "legal professional privilege", "confidential information", "obvious mistake"

NEGLIGENCE - road accident cases - causation - where plaintiff disabled by psychological condition after accident - whether trial judge mistaken in finding condition pre-existed accident - whether trial judge mistaken in finding exacerbation of condition was not due to accident - no error demonstrated - no question of principle COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - indemnity costs - offer of compromise not accepted by tutor of incapable person - offers of compromise made to incapable person require the approval of the court in accordance with s 76 Civil Procedure Act 2005 - whether Uniform Civil Procedure Rules concerning offers of compromise and consequential costs orders apply to offers made to persons under legal incapacity - whether settlement subject to approval of the court creates binding agreement - approval provisions have the effect that an otherwise valid agreement does not create an actual compromise of proceedings instanter but does create a binding contract conditional on court approval - where agreement to compromise does not contain express requirement to apply for approval a term to that effect will be implied - UCPR applies with that proviso - normal costs consequences of unsuccessful party rejecting an offer apply COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - whether tutor brought into unacceptable conflict by personal liability for costs if legislation allows indemnity costs order to be made in respect of refusal of reasonable offer to compromise - tutors always at risk of personal liability for costs - risk of indemnity costs changes scope but not character of risk - not sufficient reason to reject correct interpretation of legislation COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - reasonable time - offer of compromise made within two months of hearing date - offer expressed to be open for 21 days - whether reasonable in the circumstances - onus on party rejecting offer to show why time not reasonable - no evidence advanced COSTS - party under disability appealing by tutor - tutor's liability for costs

MORTGAGES - discharge - determination of value of payment into court by mortgagor to secure discharge of mortgage securing contingent liability

REAL PROPERTY - summons for Registrar-General to issue new certificate of title to trustee in bankruptcy - Real Property Act s 138

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 479(3) and 511 - Application for directions in relation to matters arising under winding up - Whether an appropriate case for the court to give directions.

COSTS- Calderbank offers

CRIMINAL LAW - application for leave to appeal against sentence - offences of recklessly causing grievous bodily harm in company and affray - whether sentence manifestly excessive - principles of consistency and parity

HUMAN RIGHTS - discrimination - racial discrimination - victimisation - student at TAFE alleges that he was refused enrolment in certain course modules because of a complaint made by him about alleged conduct of certain TAFE staff - whether alleged conduct complained of "would amount to" contravention of prohibition on racial discrimination - only potentially relevant alleged conduct consisted of statement by a teacher to appellant "You could not read English" - need to compare that alleged conduct towards appellant with conduct that would have been engaged in towards a member of the relevant comparator group - such group consists of students perceived by teacher to be unable to read English where the inability does not result from race, ethnicity or national origin - PROCEDURE - appeal - appeal confined to appeal on question of law - whether question whether conduct is contravention of statutory prohibition is a question of law.

ADOPTION - access arrangements - relevant considerations - where there is a dispute between adopting parents and birth father as to frequency and duration of contact - interests of child are paramount but interests of birth father are relevant ADOPTION - whether court has jurisdiction to make a contact order following making an adoption order - Family Law Act s 69ZK - whether a child in respect of whom an adoption order has been made is a child under the care of a person under a child welfare law

PRACTICE AND PROCEDURE - application to strike out part of Statement of Claim - whether successor practice is responsible for the liabilities of the predecessor

COSTS - application for indemnity costs - Calderbank letters - whether unreasonable for offerees to refuse - whether second plaintiff's claim untenable - reserved costs of motion for summary judgment.

INSURANCE - whether there was mutual assent to variation of premium rates - no question of principle

DAMAGES - general principles - damages after action brought - difficulty in assessing damages - mitigation of damages - Court found that purchase of shredding machine was induced by misleading and deceptive conduct - whether on the evidence the plaintiffs are entitled to recover for the difference between the price paid for the machine and its market value at the time of acquisition - whether plaintiffs entitled to recover for loss of profits.

APPEALS - appeal against summary judgment - whether Associate Judge erred in finding proposed defence was hopeless - where defendants claimed promissory estoppel precluded enforcement of facilities but only until a date already passed - whether summary judgment ought to have included default interest from earlier date - whether suspension clause precluded point being raised

CRIMINAL LAW - appeal - sentence - discount for plea - whether 10% discount for late pleas sufficient - where complainant spared trauma of giving evidence - manifest excess - where applicant taxi driver convicted of attempted sexual assault of passenger - need for general deterrence

CRIMINAL LAW - appeal against sentence - sexual assaults upon child - assistance to authorities - Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 - assistance by reporting historical child sexual assault offences of which offender was the victim - subsequent assistance in investigation and implicit undertaking to give evidence - assistance provided after commission of offender's own offences but before being charged - public policy rationale for reducing sentences on account of assistance - whether reduction of sentence available when offender assists as a victim of crime

CRIMINAL LAW - appeal against sentence - past criminal history not in itself relevant to finding of remorse or contrition - sentencing judge entitled to reject evidence of remorse CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in not finding special circumstances - discretionary decision - judge adverted to the issue but declined to make the finding - no error

CRIMINAL LAW - corporations - financial services and markets - market misconduct and other prohibited conduct - insider trading provisions of Corporations Act 2001 (Cth) - definition of "financial product" - definition of "credit facility" - definition of "derivative" - spot trading - contracts for difference

CRIMINAL LAW - non-parole period - offender serving prior sentence of imprisonment when second sentence of imprisonment imposed - second sentence fully accumulated on first sentence - special circumstances found and statutory ratio of balance of term to non-parole period departed from - ratio of balance of term to overall non-parole period reduced by accumulation of sentences - whether error in not adjusting effective non-parole period - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 CRIMINAL LAW - appeal against sentence - sentencing young persons - armed robbery - offender under 18 years of age when offences committed - offender dealt with according to law - whether sentencing judge failed to consider dealing with offender under Children (Criminal Proceedings) Act 1987 (NSW), Part 3, Division 4 - whether sentencing judge thought issue open CRIMINAL LAW - appeal against sentence - procedural fairness - armed robbery - whether sentencing judge imposed a greater sentence than indicated during hearing - whether judge's statements could be understood as an indication of intention so as to deprive offender of opportunity to make submissions

CRIMINAL LAW - appeal - conviction - admission of evidence - whether trial judge erred in refusing to admit documents contemporaneously prepared by the applicant - where trial judge made admission of documents conditional on removal of prejudicial portions - whether document admissible under s 66A of the Evidence Act 1995 - whether document admissible under s 108 of Evidence Act 1995 - fresh evidence - new evidence - where document referred to in written and oral submissions at trial.