Cases and authorities

CRIMINAL LAW - appeal - conviction - expert evidence - whether refusal to exclude expert evidence gave rise to miscarriage of justice - whether refusal to exclude lay evidence gave rise to a miscarriage of justice - inconsistent verdicts - whether verdict unreasonable or unsupported by the evidence. CRIMINAL LAW - appeal - sentence - application of standard non-parole period - whether sentencing judge committed error in Muldrock v The Queen [2011] HCA 39 - aggravating factors - whether age of victim, injury and emotional harm properly were aggravating factors - whether sentence was manifestly excessive.

CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - where evidence of complainant about witnessing sexual assault of another child demonstrated to be false - directions - whether trial judge properly directed jury regarding "lies" of complainant - whether trial judge's directions regarding absence of complainant at trial were in error - where trial judge did not warn jury about dangers of convicting on evidence of absent complainant - where trial judge referred to forensic disadvantage suffered by Crown due to absent complainant - where trial judge suggested absence of complainant solely due to procedural legislation.

CRIMINAL LAW - appeal against conviction - whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty - whether miscarriage of justice occasioned by the trial judge directing the jury that they were prohibited from returning different verdicts in respect of two counts on the indictment - whether the trial judge misdirected the jury as to facts which gave rise to being an accessory after the fact

PRACTICE AND PROCEDURE - application for security for costs - special circumstances to be shown - appellant failed to attend trial in order to resist proceedings below - quantum of security sought not broken down into components PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - where security of costs order already made in favour of respondents - order sought under s 135 Civil Procedure Act to stay execution of the writ for levy of property

PRACTICE AND PROCEDURE - application to set aside Notices to Produce - adjectival relevance - legitimate forensic purpose

PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - insured appellants - reasonably arguable grounds of appeal - respondent not impecunious - sufficient risk of difficulty in recovering judgment debt if appeal successful - stay ordered on certain conditions so as to be fair to all parties

PRACTICE AND PROCEDURE -challenge to competency of appeal - whether Notice of Appeal filed out of time pursuant to Uniform Civil Procedure Rules r 51.61(1)(c) - consideration of material date - reliance by appellant on doctrine of functus officio - effect of liberty to apply - objection to competency raised later than 28 days after Notice of Appeal filed - r 51.41 considered PRACTICE AND PROCEDURE - application for summary dismissal on the basis that the appeal is frivolous or vexatious pursuant to Uniform Civil Procedure Rules r 13.4 - whether grounds disclose any error of law, fact or discretion that affected the result - application of principles in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62 - whether grounds disclose a reasonably arguable basis for the appeal - whether appeal manifestly groundless PRACTICE AND PROCEDURE - whether leave to appeal from costs order required if challenge to substantive orders had been able to be maintained

CORPORATIONS - creditors statutory demand - application to set aside creditor's statutory demand - Corporations Act s 459G - application to vary creditor's statutory demand - Corporations Act s 459H

PROPERTY - urgent relief sought - application for stay of execution of writs of possession - parties seeking to file new defence - court previously refused leave to file amended defence - seventh attempt to formulate a defence - no arguable defence - not in the interests of justice to make orders sought

SUCCESSION - Application for probate in circumstances where plaintiff is former spouse of deceased - whether termination of marriage revoked testamentary appointments and gifts - operation of s 15A Wills Probate and Administration Act 1898 (NSW) in the context of mutual wills - dispensation from requirements of Part 78 Rule 34C Supreme Court Rules 1970 (NSW) - HELD - Probate granted - Dispensation granted.

COSTS - Costs of joinder motion - Whether there is any reason that costs should not follow the event.

DEFAMATION - defences - contextual truth - particulars - discovery - no issue of principle

CRIMINAL LAW - procedure - costs - interpretation of Criminal Code Act 1995 (Cth) - whether Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205 applies to s 400.9 offences - arguable point of law - proceedings not initiated without reasonable cause

[CONTRACT] - construction of Joint Venture Agreement to hold an Event - whether party who offers an unaccepted first right of refusal has an exclusive right to hold the Event in the future - where acceptance of "option" a mechanism to revive the joint venture relationship - whether party who did not take up option is restrained from holding the Event. [WORDS AND PHRASES] - "at liberty" - "consecutive" - "exclusive first right of refusal".

CONTRACT - construction - agreement between publisher and service provider for sale and distribution of its publications - service provider required to invoice and deliver the publications to customers - service providers required to assume risk of bad debt for all sales of publications - whether risk extended to bad debts for sales for which the publisher was responsible - no question of general principle

Malicious prosecution - informant lied about relevant facts - charge withdrawn - police officer disciplinary proceedings - relationship between prosecution and disciplinary proceedings - causation - damages - exemplary damages. Prerogative relief - deferral of promotion - reduction of increment - Wednesbury unreasonableness - failure to investigate.

PROCEDURE - appeal - application for extension of time to appeal - no matter of principle

PRACTICE AND PROCEDURE - motion for review - adjournment application - no question of principle.

Companies - Directors - Misappropriation - Breach of Duty - Restitution and Compensation

PRACTICE AND PROCEDURE - search orders - secret documents - redacted list - undertaking

CRIMINAL LAW - sentence - affray - used or threatened violence towards staff of immigration detention facility and others - plea negotiated after committal and prior to arraignment - deportation not relevant in determining sentence

CRIMINAL LAW - procedure - identification and examination of persons - forensic procedure order made under Crimes (Forensic Procedures) Act - conduct of hearing - concise reasons - no failure to consider relevant matters CRIMINAL LAW - procedure - forensic procedure order - definition of "measurement" - whether photographs of measurements are non-intimate forensic procedures under Crimes (Forensic Procedures) Act COSTS - whether court has power to order costs in appeals under Part 5 of the Crimes (Appeal and Review) Act 2001

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 477(2B) - Application for approval for entry into deed of assignment - Whether entry into deed of assignment is a proper exercise of power and not ill advised or improper on the part of the liquidator - Whether error of law or lack of good faith in liquidator's exercise of power - Application for release from undertakings given in support of an interlocutory order - Material change in circumstance since undertakings were given.

SUCCESSION - family provision and maintenance - failure by testator to make adequate provision for applicant - no distribution made - expenditure by trustees after notice of claim imprudent - inadequate provision made for plaintiff

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - court approval for redacting document - masking document - redacting document

TRUSTS - charitable trust - previous declaration that purposes of trust failed - application of trust property cy-pres - consideration of two proposals for cy-pres scheme

CRIMINAL LAW - sentencing - manslaughter by unlawful and dangerous act - Crown concessions - attempted robbery

CRIMINAL LAW - murder - sentence - where offender part of joint enterprise CRIMINAL LAW - offences of dealing in proceeds of crime

CORPORATIONS - Winding up - Statutory demand - Affidavit in support of application - Whether grounds relied upon in application to set aside statutory demand were properly raised in affidavit in support of application - Genuine dispute ground - Whether genuine dispute established.

CRIMINAL LAW - sentence - providing false information with intent to hinder the apprehension of an accused person wanted by the police for murder - objective seriousness of offence - where offending on the spur of the moment and over a short period of time - whether offender's mental state rendered her an inappropriate vehicle for general deterrence - need to maintain integrity of the administration of justice - custodial sentence appropriate - whether sentence should be suspended

CRIMINAL LAW - murder - where offender convicted by jury - offender's participation in joint enterprise - where defence of provocation rejected - provocation relevant as a mitigating factor - mental illness of offender - effect on general deterrence

EVIDENCE - advance rulings - lay evidence - whether appropriate - whether should be limited to expert evidence

CRIMINAL LAW - murder - sentence - guilty verdict by jury - joint criminal enterprise with son to kill wife's lover - provocation defence rejected by jury - pre-planning - no provocation - older offender.

ADMINISTRATIVE LAW - judicial review - application for review of decision of the District Court in its criminal jurisdiction on appeal from the Local Court - review limited to jurisdictional error - complaint that evidence wrongly rejected does not entail jurisdictional error - complaint that original decision not supported by the evidence does not entail jurisdictional error - complaint of apprehended bias may entail jurisdictional error - where judge commented on the fact that litigant employed different lawyers for two related matters - where judge gave "Parker warnings" following which appeals were withdrawn - neither action of judge provided any ground for reasonable apprehension of bias - application for order that District Court release exhibit ordered not to be returned - no basis shown for Court of Appeal to make such order - CRIMINAL LAW - procedure - sentencing - where offender has not commenced to serve custodial sentence imposed by Local Court - statutory power for Court of Appeal to order recommencement of sentence upon determination of application for judicial review of District Court appeal decision.

LEGAL PROFESSION - Appointment of Receiver - No point of principle

Quantum of judgment - costs - Bullock or Sanderson order - no question of principle.

CRIMINAL LAW - judge alone trial - murder - mental illness - no issue of principle - consensus between experts - not guilty by reason of mental illness

CONTRACT - retainer - scope of retainer TORT - professional negligence - claim by the director against company's accountants - whether the defendant failed to adequately advise the plaintiff of the nature of certain documents which he subsequently signed - whether the defendants failed to advise the plaintiff that the plaintiff's company was nearing insolvency DAMAGES - evidence of damage - claim that the plaintiff was unable to procure further consultancy work as a result of the harm done to his reputation consequent on the defendant's negligence - the Court's duty to calculate damages where little or no evidence

MORTGAGES - claim for possession of land and monetary judgment - mortgage default - application by Plaintiff for summary judgment - Cross-Claim against Plaintiff and Registrar General - application by Plaintiff and Registrar General for summary dismissal of Cross-Claim - Plaintiff granted summary judgment - summary dismissal of Cross-Claim granted

WILLS, PROBATE AND ADMINISTRATION - deceased made handwritten alterations to copy of will - whether deceased intended alterations to form her will FAMILY PROVISION - application for further provision by daughter of deceased - competing claims of grandchildren - COSTS - usual rule not applied in circumstances - no order as to costs of unsuccessful applicant

WILLS, PROBATE AND ADMINISTRATION - testamentary capacity - whether deceased had testamentary capacity to make will that left entire estate to his sister and excluded his brother - deceased had good relationship with both siblings but closer to sister WILLS, PROBATE AND ADMINISTRATION - suspicious circumstances - whether deceased knew of and approved contents of will - interrelationship between requirements of testamentary capacity and requirement to establish knowledge and approval of will in suspicious circumstances

SUCCESSION - The Plaintiff makes a claim for a family provision order as a child of the deceased - Defendant also one of the children of the deceased and the executor appointed in the Will of the deceased, to whom Probate was granted - Other residuary beneficiary also a child of the deceased - Conduct of the Plaintiff towards the deceased in issue - Whether family provision order should be made for the Plaintiff and if so nature of the order

COSTS - security for costs - whether costs of motion should follow the event - necessary for defendant to bring motion - defendant successful - entitled to costs

CRIMINAL LAW - appeal against sentence - accumulation - special circumstances - whether the trial judge's accumulation of sentences gave practical effect to a finding of special circumstances - whether the sentencing judge failed to consider the principle of totality in considering the degree of accumulation

CRIMINAL LAW - appeal against conviction following plea of guilty - whether circumstances in which applicant came to enter plea caused a miscarriage of justice - whether plea based on erroneous set of agreed facts or misunderstanding as to agreed sentence - whether applicant understood true nature of charges - no miscarriage of justice - appeal dismissed CRIMINAL LAW - sentence appeal - no suggestion of error or manifest excess - leave to appeal against sentence refused

APPEAL - application for leave to extend time for filing of summons seeking leave to appeal APPEAL - summons seeking leave to appeal - trial judge found no misrepresentation established as there was no reliance - contended by appellant that that finding was glaringly improbable - no substantial issue of principle - small amount in dispute

APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - whether appeal brought as of right - whether matter at issue amounting to a value of $100,000 or more - affidavit filed in connection with Notice of Appeal insufficient to establish monetary threshold - reliance on evidence not before trial judge and not meeting tests for admission as fresh or further evidence on appeal cannot establish material facts - appeal dismissed as incompetent APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - motion to dismiss appeal as frivolous and vexatious - proper course to hear dismissal application at time of hearing of appeal - motion not granted on that ground

[PRACTICE] - application to restrain solicitor from acting in proceedings - whether solicitor/client relationship - obligations of confidence - whether solicitor in possession of information confidential to the application - whether a real and sensible possibility that any such confidential information is or may be relevant to the matter.

PRACTICE AND PROCEDURE - summary judgment - application to dismiss proceedings against third defendant - application to strike out pleadings