Cases and authorities

PROCEEDINGS FOR DAMAGES - personal injury - accident at retreat conducted by first defendant in course of plaintiff's employment by second defendant - claims under Trade Practices Act, alternatively Civil Liability Act - claim under Trade Practices Act successful.

MENTAL HEALTH - management and administration of property - protection orders - court-authorised will - whether enduring power of attorney made by a person suffered from mental incapacity is valid - whether an order for management of the estate of an incapable person should be made, and if so, who should be appointed manager and upon what terms - prospect of further family provision applications in relation to the estate of an incapable person - whether a court-authorised will in the name of an incapable person should be made.

SUCCESSION - FAMILY PROVISION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant the husband of the deceased - Long marriage - Intestacy - No actual estate - Jointly held property passing to Defendant by survivorship sought to be designated as notional estate - Whether family provision order should be made for Plaintiff and if so nature of the order - Whether property should be designated as notional estate

WILLS, PROBATE AND ADMINISTRATION - entitlement of executor to remuneration - construction of clause in will providing for entitlement to charge - executor an accountant - executor only entitled to charge professional rates for work that a non-accountant executor would have been justified in retaining an accountant to perform - beneficiaries not estopped from denying executor's entitlement to charge fees otherwise than in accordance with will

TORTS – unlawful detention – defence of lawful justification for detention – whether detaining officer held a reasonable suspicion that plaintiff was an unlawful non-citizen at the relevant time – consideration of circumstances as a whole – consideration of facts available to detaining officer – defence of lawful justification made out

CRIMINAL LAW - appeal - procedure - leave to add a ground of appeal at hearing - impugned conviction carrying significant gaol sentence - whether unfairness to prosecution can be cured CRIMINAL LAW - appeal against conviction - direction as to potential unreliability of witness - key prosecution witness was applicant's co-offender - witness received discount for assisting authorities and money - whether jury could have misunderstood basis of potential unreliability - whether direction impermissibly repeated counsel's addresses or failed to carry the authority of the law - Evidence Act 1995 (NSW), s 165 CRIMINAL LAW - appeal against conviction - inconsistency of verdicts - common purpose armed robbery, shoot with intent to murder and wound with intent to murder - jury did not convict two co-offenders - whether verdicts indicated that jury did not accept evidence of key prosecution witness - whether co-offenders involved in same acts as applicant - whether witness's evidence had same significance in case against co-offenders CRIMINAL LAW - appeal against conviction - unreasonable verdict - common purpose to shoot with intent to murder - applicant had prior knowledge of planning of armed robbery at which he was not present - whether applicant contemplated substantial risk of co-offender shooting with intent to murder - whether danger that jury would draw necessary inference from events that actually occurred - whether direction to jury dealt sufficiently with that danger

APPEAL - application for leave to appeal refused - no issue of principle

PROPERTY - application for stay of execution of Writs of Possession - injunction sought to prevent sale of properties in bank's possession

CONTRACT - unsuccessful claim for personal injury damages arising from breach of settlement deed - award of nominal damages instead - whether Part 2 of Civil Liability Act 2002 precludes award of nominal damages - whether primary Judge erred in determining quantum of nominal damages. PROCEDURE - whether leave to appeal should be granted where amount in dispute is very small.

LEAVE TO APPEAL - corporations - setting aside statutory demand - no sufficient ground of error identified - no question of principle

APPEAL - credibility finding by trial judge - whether glaringly improbable or inconsistent with incontrovertible evidence - whether trial judge failed to use or misused advantage in assessing witness' testimony EQUITY - purchase by one co-owner of shares in company holding other half-interest in trust - whether purchaser obtained beneficial interest in trust property - whether bona fide purchaser for value REAL PROPERTY - indefeasibility of title - transfer by company of interest in land held on trust to sole shareholder of company - whether interest held as constructive trustee - Real Property Act 1900 (NSW), s 42(1) TRUSTS - resulting trust - de facto relationship - contributions to purchase of property - whether loan moneys constituted contribution of one party or loan to purchaser facilitated by that party

RATING - whether the subject land is exempt from the payment of rates pursuant to s 556 (1) (h) Local Government Act - whether it was proper to categorise the appellant as a "public charity" within the meaning of s 556 (1) (h) Local Government Act- whether the non charitable objects of the memorandum of association were ancillary, incidental, dependant or concomitant to the four charitable objects STATUTORY INTERPRETATION - whether s 23 Charitable Trusts Act excised the non charitable and invalid purposes of the memorandum of association and had application to the issue calling for determination under s 556 (1) (h) Local Government Act - whether regard can be had to the activities of the appellant where the memorandum sets out details of its purposes and objects

APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge to give proper consideration to the evidence at trial or a substantial miscarriage of justice

PRACTICE AND PROCEDURE - judgments and orders - application by appellants to reopen appeal pursuant to UCPR r 36.16 - appeal from orders refusing relief under Family Provision Act - miscalculation by Court of legal costs incurred by respondents/executors - not material to disposition of appeal - appellants seeking to introduce issues not raised and arguments not made on hearing of appeal - application to reopen refused

PROCEDURE - costs - where appellant debtor challenges on appeal an order in fact not made at first instance - and respondent engages without realising that order not made - ultimate realisation by both parties that subject matter lacking - where appellant guarantor challenges interlocutory order below granting summary judgment against him - but guarantor permitted to defend like claims based on allied finance facilities - ultimate acknowledgement by both parties that summary judgment should be set aside - each party seeks its costs - how discretion as to costs should be exercised

CONTRACT - breach of deed - damages - mitigation of damages - whether plaintiff took reasonable measures to prevent further loss - expenditure of professional fees on solicitors to mitigate loss - costs

PROCEDURE - Summary Termination - appeal from Associate Justice - cross-claim against former director by sole director of company that owned intellectual property in a breast cancer test - misrepresentation that a doctor - cross-claimant paid costs of investigation into former director's qualifications, US attorney fees to advise cross-claimant and company to correct misrepresentation that a doctor in presentations to US Food and Drug Administration and a potential collaborator, to draft a shareholder agreement and to negotiate a purchase of shares in the company - advices on behalf of company - leave required under the Corporations Act 2001 (Cth), s 236 - no reasonable cause of action - no leave to replead - company could sue - s 237(2)(a) could not be established - no principle that loss sustained after discovery of falsity of conduct irrecoverable under Australian Consumer Law, s 18

WINDING UP - Power of directors to instruct legal representatives to opposed winding up application when receiver and manager appointed over assets of company - whether winding up application should be adjourned - whether company should be wound up in insolvency

PRACTICE AND PROCEDURE - Costs - Offer of Compromise - Application for indemnity costs where offer more favourable than final judgment - General requirement of exceptional circumstances to displace the prima facie presumption of entitlement to costs is not prescriptive - Indemnity costs orders.

ADMINISTRATIVE LAW - judicial review - error of law on the face of the record - whether certificate under Motor Accident Compensation Act 1999 - whether certificate of a Medical Assessor affected by error of law on the face of the record - finding that shoulder injuries caused by the relevant motor vehicle accident and gave rise to permanent impairment - application to a Review Panel for a review of the assessment rejected - whether adequate reasons for the Medical Assessor's decision that should injuries and impairment caused by the motor vehicle accident - absence of history of shoulder symptoms following the accident - basis for concluding that should symptoms were caused by the motor accident not identified by the Medical Assessor - error on face of the record established

CRIMINAL LAW - procedure - fitness to plead - conspiracy to import large commercial quantity of prohibited drugs - cognitive impairment - unfit to be tried.

CRIMINAL LAW - sentence - insider trading - trading for benefit of self and relatives - relevance of serious financial stress affecting Offender's family at time of offending - intensive correction order

PROCEDURE - judgments and orders - stay of judgment - application for leave to appeal - novel point decided - set-off of cost order and substantive judgment

APPEAL - prosecution appeal from Local Court - offence of taking part in race between vehicles on a road - no prima facie case - appeal pursuant to Crimes (Appeal and Review) Act 2001 - question of law - meaning of "race" - erroneous test applied - error of law established - appeal allowed - matter remitted to Local Court

SUCCESSION - Intestacy - Wills, probate and administration - Next of kin inquiry - Deceased domiciled in New South Wales - Distribution - Benjamin Order

WILLS AND ESTATES - application for family provision order by daughter of deceased - two children of deceased both beneficiaries - bulk of estate left to son - small estate - significant care provided to deceased by son - application dismissed

DEFAMATION - identification - plaintiffs not named in matter complained of - whether defamatory imputations were about the plaintiffs - whether particulars pleaded capable of sustaining the claim - turns on facts - no question of general principle

PROCEDURE - costs - costs thrown away - wasted costs - costs against solicitor - whether plaintiff's solicitors to pay defendant's costs - whether costs incurred through "serious neglect" - failure to file notice of change address not "serious neglect"

CRIMINAL LAW - sentence - appeal against severity of sentence - whether sentence manifestly excessive

CRIMINAL LAW - sentence - conspiracy to commit aggravated armed robbery - appeal against sentence - whether sentencing judge erred in holding that the offence was a mid range offence - whether sentencing judge double counted as an aggravating factor fact that offence committed for financial gain - whether sentence manifestly excessive

CRIMINAL LAW - sentencing - offence carrying standard non-parole period - whether sentencing judge engaged in two-step reasoning entailing error of the kind subsequently explained in Muldrock v R [2011] HCA 39 - whether any lesser sentence warranted in law

CRIMINAL LAW - sentence - 37 counts of dealing with the proceeds of crime -other offences involving identity theft - multiple Form 1 offences - whether overall sentence manifestly excessive - foreign national - relevance of deportation at conclusion of non-parole period - sentencing for multiple offences - approach to sentencing for identity theft offences

APPEAL - leave to extend time for filing summons for leave to appeal - leave to appeal not granted - no issue of principle

APPEAL - summons for leave to appeal - no issue of principle - small amount in dispute - findings of trial judge not glaringly improbable

TRADE AND COMMERCE - misleading or deceptive conduct - s 42 Fair Trading Act 1987 (NSW) - first respondent financial adviser made representations as to present and future matters regarding managed agricultural investment schemes - whether adviser adequately apprised appellants of investment risks - whether provision of prospectus and product disclosure statements was sufficient to convey risk - whether appellants proved content of conversations with adviser - obligation of a claimant to prove the whole of a defendant's relevant conduct - whether primary judge paid adequate regard to concessions made in cross-examination - reliability of concessions against interest - whether respondent had reasonable grounds for making representations as to future matters - causation - whether appellants would have proceeded with investments despite knowledge of risks - whether causation issue should be remitted to primary judge for determination TORTS - negligence - breach of duty - financial advice concerning investments in managed agricultural investment schemes - clients' instructions to avoid 'speculative' investments - whether respondent failed to apprise appellants of investment risks - whether respondent negligently recommended investments as suitable for second appellant's personal circumstances - causation - whether appellants would have proceeded with investments despite knowledge of risks - whether causation issue should be remitted to primary judge for determination TORTS - defences - proportionate liability - first respondent's acts were corporate acts of fourth respondent - whether first and fourth respondents were 'concurrent wrongdoers' within Part 4 Civil Liability Act 2002 - whether liability of either party is limited by s 35(1) APPEAL - issues other than causation determined by primary judge after lengthy hearing - credit findings made - whether determination of causation issue should be remitted to primary judge LIMITATIONS - whether first and third appellants' claims were statute-barred - whether causes of action arose upon entry into investments or when the fact that the investments were loss-making became ascertainable PARTNERSHIP - interpretation of partnership agreement - whether agreement manifested intention that first and second respondents be partners in accountancy firm - whether first respondent's conduct occurred in ordinary course of business of partnership - s 10(1) Partnership Act 1892 DAMAGES - whether damages awarded to appellants were taxable in their hands - whether damages should be 'grossed-up' to compensate appellants for income tax payable - s 20-20 Income Tax Assessment Act 1997 (Cth) INCOME TAX - whether damages award assessable as a recoupment of losses or outgoings - s 20-20 Income Tax Assessment Act 1997 (Cth)

BAILMENT - whether possession taken on behalf of second respondent - agreement that first and second respondents take possession of motorboat and quote for work - first respondent took possession on behalf of second respondent pursuant to agreement - second respondent liable as joint bailee EVIDENCE - expert evidence - admissibility - whether primary judge erred in admitting opinion as to value of motorboat - opinion not shown to be based on specialised knowledge in turn based on training or experience - assumptions on which opinion based not stated - no explanation for reasons for conclusion as to value - evidence should have been rejected

COMPULSORY ACQUISITION OF LAND - compensation - valuation of land - acquisition of part of appellant's land for construction of road - whether primary judge erred in application of "before and after" method to value acquired land - impact of acquisition on value of residual land - claims for losses attributable to disturbance - need to avoid double counting - no errors of law except in relation to stock watering claim. COSTS - valuation proceedings following compulsory acquisition of land - no presumption that costs should follow the event - appellant acted reasonably in pursuing claim - error of primary judge in failing to take these matters into account.

COSTS - two hearings of appeal following successful appeal to the High Court from decision in first - no question of principle

PROCEDURE - judgments and orders - amending varying and setting aside - order for payment of interest - express reservation of further consideration - whether subsequent order may vary existing regime by removing entitlement to interest already accrued - INTEREST - order for payment of interest - rights thereunder - common law rule as to accrual of interest - APPEAL - review of factual findings - whether evaluation attended by error

NEGLIGENCE - duty of care - breach of duty - workplace accident - whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence - NEGLIGENCE - damages - future economic loss - whether findings on likely time of return to work and quantification of lost earnings supportable - whether award for non-economic loss should be increased to reflect current prescribed damages - EVIDENCE - workplace accident report - no evidence of authorship - whether report admissible - whether admitted "only against" one defendant

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - application for further medical assessment - whether application contained "additional relevant information" - where application supported by new medical report on a topic addressed in a previous report provided to MAS - where new report reaches a different conclusion based upon change in symptoms of the claimant - new report constitutes "additional relevant information" as it is based on different factual material PROCEDURE - costs recoverable under the Suitors Fund Act 1951 - whether a proper officer of the Motor Accidents Authority's Medical Assessment Service constitutes a "court"

COSTS - WILLS, PROBATE AND ADMINISTRATION - plaintiff unsuccessfully applied for revocation of grant of probate to defendant - exceptions in probate litigation to ordinary rule that costs follow the event - defendant's conduct caused plaintiff to commence and continue proceedings - plaintiff's costs to be paid out of deceased's estate

COSTS - WILLS, PROBATE AND ADMINISTRATION - exceptions in probate litigation to ordinary rule that costs follow the event - competing reasons of policy which affect how discretion to award costs should be exercised in probate litigation - deceased was the cause of litigation and so prima facie costs of unsuccessful defendants should come out of estate - adjustment necessary in relation to first and second defendants because they raised issues that do not fall within rationale for ordering unsuccessful parties' costs to be paid out of estate in probate litigation and because those issues were raised unreasonably - half of first and second defendants' costs to be paid out of estate

COSTS - Costs orders after winding up order - Whether any order should be made modifying the effect of s 466(2) of Corporations Act 2001 (Cth) so far as it provides for the payment of the Plaintiff's costs of the winding up out of the company's assets.

CRIMINAL LAW - sentence - murder - specially aggravated break, enter and steal - armed robbery - home invasions committed over three-day period - young offenders armed with meat cleavers - occupant at one home seriously injured - occupant of another house killed while resisting offenders - relevance of youth - importance of general deterrence and need for punishment

COSTS - Security for costs - Whether jurisdiction to make an order for security for costs is established - Discretionary considerations - Quantum of security.

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 479(3) and 511 - Application for directions in relation to matters arising under winding up - Whether jurisdiction to provide judicial advice established - Whether liquidators are justified in compromising claims made in a cross-claim brought in certain proceedings and making certain balancing payments to give effect to a settlement in those proceedings.

CORPORATIONS - Winding up - Insolvency - Proceeds of contract of reinsurance - Application for orders under Corporations Act 2001 (Cth) s 562A(4) - Whether "just and equitable" to make orders sought by the Plaintiffs.

PROCEDURE - judgments and orders - amending, varying and setting aside - application to set aside writ of possession - whether defendant in default of Deed of Settlement

CRIMINAL LAW - procedure - sexual assault communications privilege - issue of subpoena and production of documents subject to leave - provision of reasons for granting or refusing leave - danger that reasons may disclose contents of compelled documents - Criminal Procedure Act 1986 (NSW), ss 295-306 CONSTITUTIONAL LAW - limits on legislative power of States - fair trial - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - whether law arbitrary or manifestly disproportionate response to traditional procedure - Criminal Procedure Act 1986 (NSW), ss 295-306 CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - potential for unfair trial in State jurisdiction to taint court for the purpose of exercising federal jurisdiction - whether law can apply in federal jurisdiction - Criminal Procedure Act 1986 (NSW), ss 295-306 CRIMINAL LAW - procedure - power of court to stay unfair trial - sexual assault communications privilege - statute limits disclosure of counselling communications - issue of subpoena and production of documents subject to leave - whether unfairness of trial a factor weighing in favour of disclosure - whether statute limits power of court to stay unfair trial - Criminal Procedure Act 1986 (NSW), ss 295-306