Cases and authorities

Negligence - motor vehicle accident on farm causing paraplegia -Nominal Defendant - whether defect in vehicle - whether injury caused by fault of the owner - whether breach of duty - whether vehicle deliberately destroyed to prevent inspection - whether accident occurred on a "road" in the Motor Accidents Compensation Act 1999 - whether "open to or used by the public."

PRACTICE AND PROCEDURE - pleadings - application of r 14.28 of Uniform Civil Procedure Rules 2005 - whether statement of claim discloses no reasonable cause of action against second defendant - whether statement of claim alleges essential ingredients of a claim under Contracts Review Act 1980 - consideration of effect of s 17 of Act - pleadings disclosed no reasonable cause of action against second defendant - statement of claim against second defendant struck out

CRIMINAL LAW - Murder - Constructive murder - Foundational offence of specially aggravated kidnapping - Where Crown case put on the basis of an intentional killing and alternatively constructive murder - Factual findings to be made consistent with the jury's verdict

CRIMINAL LAW - Murder - Crown case one of constructive murder based on foundational offence of specially aggravated kidnapping - Sentence following verdict of guilty by jury

CRIME - particular offences - insider trading - no case submission - whether Crown had adduced evidence upon which a jury could convict - materiality of alleged inside information - whether evidence so lacking as to require jury to speculate

CRIMINAL LAW - appeal against sentence - evidence of offender's experience of sentence prior to appeal - whether open to offender to rely on such evidence to demonstrate that sentence unduly severe or not unduly lenient - such whether evidence may be taken into account upon re-sentencing CRIMINAL LAW - Crown appeal against sentence - discretion to decline to intervene - whether delay between arrest and sentence, anxiety caused by Crown appeal, and parity with sentence imposed on co-offender relevant to discretion - Criminal Appeal Act 1912 (NSW), s 5D CRIMINAL LAW - sentencing - intensive correction order - whether suitability assessment a pre-condition of making intensive correction order - requirement that sentencing court impose conditions - whether offenders re-sentenced to full-time imprisonment should have benefit of time served under intensive correction order - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 69; Crimes (Administration of Sentences) Act 1999 (NSW), s 81 CRIMINAL LAW - sentencing - facilitate organised car rebirthing activities - significant activities on more than one occasion - whether full-time custodial sentence warranted - considerations relevant to sentencing - Crimes Act 1900 (NSW), s 154G STATUTORY INTERPRETATION - construction of statute by reference to regulations - whether structure of statutory scheme incomplete without regulations - Crimes (Sentencing Procedure) Act 1999 (NSW), s 7; Crimes (Administration of Sentences) Act 1999 (NSW), s 81; Crimes (Administration of Sentences) Regulation 2008 (NSW) WORDS & PHRASES - "facilitate a car rebirthing activity" - "organised basis"

CRIMINAL LAW - appeal - sentence - requirement to fix appropriate sentence for each offence and then consider questions of accumulation or concurrence - accumulation and concurrence - relevance of capacity to deal with charge summarily - manifest excess and totality - appeal dismissed

CRIMINAL LAW - sentence - Crown appeal - aggravated sexual assault - offender 27-year old uncle of 11-year old victim - penile/vaginal intercourse - intoxicated offender - whether error in assessment of objective gravity - whether error in approach to voluntary or self-induced intoxication on sentence - whether error in determination of non-parole period - whether sentence manifestly inadequate - relevance of voluntary or self-induced intoxication to sentence for sexual assault and other crimes of violence - approach to submission that conduct was out of character - "special circumstances" - combination of factors - need for reduction of non-parole period to be purposeful - patent and latent errors established - Respondent resentenced

CRIMINAL LAW - appeal - robbery inflicting grievous bodily harm - significant injuries occasioned to elderly victim - whether description of sentencing judge that the offending was "vicious and cowardly" was open - lack of intent on the part of the applicant to inflict injury - previously lengthy criminal history - maximum penalty of 25 years imprisonment - sentence of 7 years imprisonment with a non-parole period of 5 years imposed -- whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - forced entry into residential premises followed by multiple offences of robbery and aggravated sexual assault - one episode of offending - offences committed whilst applicant on parole for previous offence of sexual assault - whether overall sentence of imprisonment for 25 years with a non-parole period of 18 years was unreasonable or plainly unjust - whether sentence accumulated to an excessive degree - whether period of imprisonment amounted to a crushing sentence - need for protection of the community

CRIMINAL LAW -sentencing - parole orders - whether to be made for each of a number of partly cumulative sentences

PROCEDURE - application for leave to appeal against interlocutory decisions of District Court - application dismissed.

EQUITY - promissory estoppel - detrimental reliance by promisee (a granddaughter) on promise by the promisor (her grandmother) to provide accommodation and leave half of her estate to the promisee - no dispute that compensation to the promisee should be assessed on an expectations basis - whether primary Judge failed to take into account that the compensation would be payable before the promisor's death and thus would be "accelerated" - no error demonstrated.

EVIDENCE - admissibility of witness opinion or state of mind - where opinion relates to attempts to negotiate settlement EVIDENCE - whether information learnt in conduct of negotiations is admissible - where source of information based on privileged communications

CRIMINAL LAW - Evidence - tendency - domestic homicide - murder - application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship - alleged attempt to strangle previous partner's male colleague - alleged attempt to strangle previous partner - accused caused self harm following dispute with previous partner - similarity of acts - distance in time - whether significant probative value to facts in issue.

CRIMINAL LAW - Evidence - application on voir dire to exclude improperly obtained evidence - domestic homicide - electronically recorded interview with accused - whether improperly obtained - whether police reckless as to accused's physical state at time of interview - intoxication - fatigue - failure of interviewing officers to inspect custody management records noting accused's intoxication - whether evidence obtained in consequence of impropriety.

PROCEDURE - transfer proceedings from District Court - whether it was likely if successful the Plaintiff would receive damages in excess of District Court's jurisdiction - absence of evidence for particular heads of damage - relevance of procedural history to ultimate discretion - transfer refused

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict

CONTRACTS - contracts for the benefit of a third party - whether specific performance can be ordered - whether damages can be ordered - GUARANTEE AND INDEMNITY - whether payment must be made before claiming under indemnity

CORPORATIONS - Creditors meeting - Appeal from decision of administrator - Whether administrator was entitled to admit proof of debt at a value of $1 - Winding up - Application for winding up in insolvency - Winding up application - Application for adjournment of hearing application.

TORT - negligence - workplace injury - where a duty to maintain equipment

PROCEDURE - Interrogatories - proceedings for damages for personal injury and death - review of Registrar's order - whether "special reasons" shown - whether interrogatories "necessary" - whether justified by pleading of Statement of Claim.

PRACTICE AND PROCEDURE - abuse of process - where proceedings claim relief applicant lacks standing to seek, and lack of standing has been held in earlier proceedings to exist - proceedings dismissed as abuse of process PRACTICE AND PROCEDURE - restraint of Supreme Court proceedings - where proceedings claim relief applicant lacks standing to seek and lack of standing has been held in earlier proceedings to exist - court has inherent power to prevent abuse of its jurisdiction - where appropriate to make an order in the fashion of Teoh v Hunters Hill Council (No 4) INTERNATIONAL LAW - treaties and conventions - international treaties to which Australia is a signatory do not form part of Australian domestic law

CRIMINAL LAW - application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - applicant convicted in 1999 for murder - prior petition to Governor rejected - asserted fresh and new evidence - re-agitation of matters raised at trial - no doubt or question as to guilt

PRACTICE AND PROCEDURE - pleadings - amendment BUILDING AND CONSTRUCTION - construction contract - determination by adjudicator - natural justice

APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - applicant seeking stay of possession and sale by trustees for sale of property part-owned beneficially by applicant - whether reasonable prospects of success - not satisfied of prospects - stay pending appeal refused PRACTICE - power of court - self-represented litigant - referral to pro bono panel - applicant vision impaired, supported by pension, and residing in regional area - serious obstacles to appellant exercising legal rights in person - referral to pro bono panel under UCPR 7.36 appropriate to consider rights to seek review of decision - stay granted for sufficient time to seek that advice

APPEAL - appeal from decision of Administrative Decisions Tribunal - application of provisions Commission for Children and Young People Act 1998 Pt 7 - order of ADT subject to condition - condition not authorised by Act - no power to impose condition - Commission for Children and Young People Act 1998, Pt 7, s 33, s 33B, s 33C, s 33H, s 33I, s 33J - Supreme Court Act 1970, s 75A

APPEAL - appeal against Local Court decision against dismissal of five court attendance notices - appeal upheld - failure to give adequate reasons - whether his Honour erred in excluding disputed evidence - whether his Honour erred in dismissing 5 court attendance notices - residential centres - power of entry - construction of s 25 of the Youth and Community Services Act 1973 - exclusion of the disputed evidence - orders - costs EVIDENCE - admissibility - discretionary exclusion of evidence

APPEAL - leave sought to appeal against Local Court decision - failure to give reasons - conduct of a rehearing under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 - section 44 of Civil Procedure Act - Rule 20.12 of the Uniform Civil Procedure Rules - relevant material not received in evidence - costs and orders

DEFAMATION - claim by plaintiff for damages in defamation - default judgment entered - assessment of damages - Defamation Act 1995

CRIMINAL LAW - appeal - sentence - offences committed by sentenced prisoner following escape from correctional centre - offences of specially aggravated kidnapping, robbery, aggravated carjacking and escape lawful custody - sentences partially accumulated on existing sentences - whether error in application of totality principle - whether error in failing to find special circumstances - whether error in structure of sentences - applicant's dysfunctional upbringing and history of abuse - objective gravity of offences - relevance of institutionalisation - no error demonstrated by applicant - attention of sentencing judge not drawn to ss.56 and 57 Crimes (Sentencing Procedure) Act 1999 - failure to apply s.57(2)(b) - error favoured the applicant - appeal dismissed

[ADMINISTRATIVE LAW] - whether by operation of s 69(5) of the Supreme Court Act 1970 and s 65(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) the jurisdiction of the Supreme Court to grant an order in the nature of certiorari is limited to decisions affected by jurisdictional error - whether primary judge exceeded appellate jurisdiction conferred by s 67 of the CTTT Act - whether primary judge erred in construction of s 18G of the Home Building Act 1989.

PRACTICE AND PROCEDURE - preliminary discovery

PROCEDURE - expert evidence - UCPR 31.28 - applications by plaintiff and fourth defendant seeking leave to serve and rely on further medical reports - whether prejudicial to interests of other parties - whether exceptional circumstances - leave granted

PROCEDURE - interstate extradition - Service and Execution of Process Act 1992 (Cth) - review of order made by Magistrate - abuse of process in requesting State not relevant - warrant valid - order confirmed

SUCCESSION - family provision and maintenance - circumstances precluding relief - extension of time - plaintiff operating under a personal disability or financial constraints - defendant initiated separate proceeding against plaintiff - extension of time granted. SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant - single parent plaintiff in fear of financial insecurity - plaintiff worked hard to build up wealth with testator - defendant obliged to care for a disabled step-child - relief granted.

Criminal assets confiscation - restraining order - effect of caveat - forfeiture order - effect on equitable interests - effect on innocent creditors - effect of writ of execution issued before forfeiture.

CONTRACT - distinction between contingency and promissory condition CONTRACT - contingency - effect of expressions - "subject to and conditional upon" - and "void and of no effect" - meaning and effect when both expressions read together - "void" means "void" - contract not merely voidable at party's election CONTRACT - contingency - essentiality inherent - no issue of extension of time

CRIMINAL LAW - appeal against conviction - whether jury's verdict unreasonable or cannot be supported by the evidence - identification evidence

CRIMINAL LAW - appeal - applicant sentenced for offences of child sexual assault - whether sentencing judge properly applied principles of totality - whether sentencing judge erred in failing to regard earlier offences for which the applicant had served a sentence of imprisonment as forming part of the same course of conduct - whether sentencing judge erred in refusing to find special circumstances - whether sentence manifestly excessive having regard to sentencing practice at the time of the offending - whether court should intervene in circumstances where error established CRIMINAL LAW - appeal - applicant sentenced for offence of possessing child pornography - error of sentencing judge arising from mistake as to maximum penalty - error of sentencing judge in not fixing a non-parole period - whether court should intervene in circumstances where error established - whether sentence manifestly excessive CRIMINAL LAW - appeal - application for extension of time in which to file notice of intention to seek leave to appeal - where notice filed substantially out of time - where limited evidence explaining the reasons for delay in filing the notice - principles to be applied in determining whether an extension of time should be granted

CRIMINAL LAW - break and enter and commit serious indictable offence in circumstances of special aggravation - appeal against sentence - whether sentencing judge erred in consideration of the standard non-parole period applicable to such offence - whether sentencing judge gave insufficient weight to aspects of the circumstances of offending

PRACTICE AND PROCEDURE - repetitious applications - vexatious proceedings orders

EVIDENCE - admissibility and relevancy - pleadings and particulars in actions for defamation - purpose of tender to support an allegation of fraud rebutting evidence introduced by the plaintiff - defendant entitled to seek to undermine plaintiff's evidence without providing particulars in advance

WILLS, PROBATE AND ADMINISTRATION - TRUSTS AND TRUSTEES - judicial advice - surrender of life estate to enable sale of land forming part of deceased's estate - advantageous dealing - how proceeds of sale to be dealt with

CONTRACT - formation - intention to create legal relations - loosely formed and incomplete shared idea based partly on common expectations and mutual optimism - not sufficient to amount to contract

PRACTICE AND PROCEDURE - Extension of time - Application for extension of time for compliance with previous orders made in proceedings - Application for leave to file Further Amended Summons and Further Amended Statement of Claim - Application for stay of previous costs orders until determination of proceedings - Whether applications should be granted in circumstances where proceedings have been dismissed.

ADMINISTRATIVE LAW - judicial review - jurisdictional error - certiorari - whether erroneous exclusion of a third member of the plaintiffs legal team during in camera testimony constituted a denial of procedural fairness - whether s25 Bail Act breached - whether breach jurisdictional error

COURTS AND JUDGES - recusal of judge for ostensible bias - where necessary - requirement of demonstrating logical connection between facts giving rise to application and the possibility of bias - no such connection demonstrated - application refused