Cases and authorities

CRIMINAL LAW - evidence - admissions made in course of mental health assessment at police station - protected confidence - s 90 Evidence Act - unfairness to an accused - reliability - public interest.

CONVEYANCING - caveats - application for extension - not to be made ex parte - not to be left to last moment INTERLOCUTORY INJUNCTION - no evidence of threatened breach of joint venture agreement

DEFAMATION - pleadings - defamatory publication a book - particulars sought of identity of persons to whom published - sufficiency of particulars - strike-out application - whether reasonable cause of action disclosed - whether proceedings an abuse of process

CONTRACTS - loan agreements and registered mortgages - proceedings by lender against borrower for possession and monetary order - Contracts Review Act 1980 - loan for a business purpose - not asset lending - whether conduct of "mortgage broker" amounted to agency - consideration of s 9 factual matters - not unjust - lender conduct not "unconscionable" - Trade Practices Act and Fair Trading Act not applicable

TRADE AND COMMERCE - Trade Practices Act and associated legislation - consumer protection - misleading and deceptive conduct - unconscionable conduct - introduction agency - remedies - injunctions and declarations - compensatory orders - where defendants bankrupt - whether provable in the bankruptcies

TRUSTS AND TRUSTEES - judicial advice - omission from original trust deed - deed of rectification sought to supply omission with retrospective effect

WILLS, PROBATE AND ADMINISTRATION - TRUSTS AND TRUSTEES - judicial advice - bequest to charity organisation that was subsequently deregistered - general charitable intention - gift to successor organisation

NOTICE OF MOTION - stay writ of possession - dismissed

COSTS - second defendant a forensic patient within meaning of the Mental Health Act 2007 (NSW) - NSW Trustee and Guardian consented to act as tutor - prima facie both tutor and person under capacity may be liable for costs - not fair in the circumstances for tutor to be liable for costs of second defendant - tutor seeking its costs to be paid out of estate - other parties seeking that second defendant bear his own costs - tutor's costs should be borne by the second defendant in the first instance - tutor should be indemnified out of the estate to the extent that it is unable to recover its costs from second defendant

DISCOVERY AND INTERROGATORIES - production and inspection - subpoena to produce - subpoena put on in relation to application for security for costs of appeal - documents sought relating to legal fees for hearing below - information relating to fees charged cannot establish impecuniosity without further information relating to the financial position of the appellant - further information outside scope of subpoena - fishing expedition - subpoena set aside

CORPORATIONS - contraventions of s 180(1) of the Corporations Act by seven non-executive directors of a listed corporation - contraventions relate to approval at a Board meeting of an Announcement by the corporation - declarations of contravention not in dispute following an appeal to the High Court - primary Judge disqualified each director for five years and imposed a pecuniary penalty of $30,000 - whether penalties involved error - whether primary Judge correctly applied the parity principle - assessment of penalties - factors to take into account - significance of "de facto" period of disqualification pending High Court appeal - significance of absence of finding of dishonesty - materiality of testimonial evidence. CORPORATIONS - two non-executive directors attend meeting by telephone from the United States - they neither see the Draft Announcement nor ask to see it - whether the US Directors should be relieved from liability under ss 1317S(2) or 1318(1) of the Corporations Act - whether circumstances justify different penalties being imposed on the US Directors. CORPORATIONS - agreed penalties - whether court should accept joint submissions concerning penalties to be imposed on an officer of the corporation.

PRACTICE AND PROCEDURE - Order for security for costs - Application for extension of time for compliance with order - Submissions and accompanying material by applicant irrelevant to the application - Abuse of court's processes - Application for extension of time dismissed.

APPEAL - equity - claim that shares held on constructive trust - challenge to primary judge's credit findings failed - no issue of principle

PROCEDURE - costs - unsuccessful respondent ordered to pay costs - application for variation of costs order because appeal decided on grounds not raised by appellants - that proposition not sustainable - no reason to disturb existing costs order

CORPORATIONS - Application for rectification of share register under Corporations Act 2001 (Cth) s 175(1) - Discretionary character of power to order rectification of the register - Whether position as recorded in company's register records the intentions of the parties

CRIMINAL LAW - applicant convicted at Local Court - appeal to District Court dismissed - application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - credibility of complainants' evidence - fresh evidence - unfairness from prosecution failure to provide evidence - unreasonable verdict - no doubt or question as to guilt

EVIDENCE - whether evidence relevant

PRACTICE & PROCEDURE - third party discovery

CRIMINAL LAW - particular offences - offences against the person - murder - accused unfit to be tried - special hearing by judge alone - criminal liability and capacity - consideration of Hawkins v The Queen - "three-step" approach - accused did physical act - accused not responsible on grounds of mental illness - verdict of not guilty on the ground of mental illness

TORTS - occupier's liability - council undertaking repairs to footpath owned by other defendants - no issue of principle - risk of harm obvious - no lack of care in construction or repair of footpath - no further precautions required by reasonable person for foreseeable, not insignificant risk of harm

TAXES AND DUTIES - collection and recovery - corporate employer withheld pay-as-you-go deductions - amounts required to be remitted to the Australian Taxation Office by due date - failure to remit required payments - Director Penalty Notices ("DPNs") issued and not complied with - claim that the DPNs were invalid - requirements for valid DPNs - DPNs satisfied legislative requirements - Plaintiff entitled to judgment

CRIMINAL LAW - appeal against conviction - three counts of sexual intercourse without consent s 61I Crimes Act 1900 - whether trial judge erred in admitting evidence of prior non-sexual domestic violence as relationship evidence - whether miscarriage of justice resulted - whether miscarriage of justice resulted from absence at trial of 'fresh evidence' of appellant's Asperger's Disorder CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - appellant sentenced to seven and a half years imprisonment with four and half years non-parole period - whether sentences were manifestly excessive - whether objective seriousness of offences was assessed in context of marital relationship between appellant and complainant

CRIMINAL LAW - appeal against conviction - murder - appellant kills woman in 2008 - appellant previously convicted of manslaughter of father in 2000 by reason of substantial impairment - evidence of 2000 manslaughter adduced before jury at trial for 2008 murder - whether defence counsel objected to evidence - whether Rule 4 Criminal Appeal Rules applies - nature of partial defence of substantial impairment - defence counsel did not press objection to evidence - Rule 4 applies - no error established - proviso applicable in any event - whether murder conviction unreasonable - whether appellant should have been convicted of manslaughter by reason of substantial impairment - ground rejected - appellant rightly convicted of murder - conviction appeal dismissed CRIMINAL LAW - appeal against sentence - murder - prior conviction for manslaughter - relevance of mental illness to sentence - paranoid schizophrenia - whether inappropriate weight given to general deterrence - whether sentence manifestly excessive - dangerousness and protection of the community - high risk of further violent conduct - no error demonstrated - sentence not manifestly excessive - sentence appeal dismissed

NEGLIGENCE - appellant fell through rotted floorboards of veranda - respondents breached duty of care - appeal in relation to causation and damages - whether the primary judge failed to take into account and assess the appellant's evidence that it was her right leg which fell through the rotted floorboards - whether the primary judge was required to made an assessment of the appellant's credibility in the light of her evidence as a whole NEGLIGENCE- whether the primary judge's failure to consider in any direct way the appellant's evidence on the issue of causation resulted in a miscarriage of justice - Uniform Civil Procedure Rules Part 51.53(1) - whether a substantial wrong or miscarriage had been occasioned

DAMAGES - assisted reproductive technology practice - damages for breach of various warranties contained in the Deed relating to donor sperm - proper categorisation of the contract - whether the trial judge erred in not concluding that the respondent had fully mitigated her loss - whether the respondent avoided the loss she otherwise would have sustained by having to replace the non-compliant sperm by charging her patients for the cost of replacement sperm - whether the damages suffered by the respondent included the cost of maintaining the appellant's telephone service for six years COSTS - whether the respondent would have been entitled to indemnity costs if the award of damages was upheld in her favour

CORPORATIONS - Statutory demands - Appeal from decision refusing to set aside statutory demand - Genuine dispute - Adequacy of supporting affidavits - Graywater principle - Insufficient material to show plausible case - Genuine dispute not shown - Appeal dismissed

COSTS - costs of appeal - appellant successful on one of three causes of action - inadequacies in appellant's submissions led to adjournment - whether "event" that costs follow is judgment on liability - whether significance of issues related to adjournment relevant to order for costs of adjournment - whether justice requires that costs order be reopened COSTS - costs of trial - procedural history prior to trial lengthy and complex - previous costs orders made in respect of certain interlocutory steps - multiple offers of compromise - Court of Appeal allowed appeal and remitted claim for damages to be assessed - whether Court of Appeal should make order as to costs of trial - whether costs of trial should be determined by trial court on remitter COSTS - offers of settlement - appellant sought order that respondent pay appellant's costs of trial and appeal - whether counsel should indicate at hearing that offers of settlement have been made PROCEDURE - judgments and orders - setting aside judgment or order after entry - motion to set aside order filed more than 14 days after orders entered - applicant notified court of motion in writing within time limit - whether appropriate for court to dispense with rule prescribing form of notice for motion - Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), r 36.16

TORTS - conversion and detinue - action to recover sheep - where tortfeasor bred progeny from sheep - where plaintiffs' title extinguished by operation of Limitation Act 1969, s 65 - whether plaintiffs' title to progeny also extinguished LIMITATION OF ACTIONS - conversion and detinue - whether claim statute barred - where title to sheep extinguished pursuant to Limitation Act, s 65 - whether cause of action to recover progeny a further cause of action for the conversion or detention of the original sheep and not maintainable by operation of Limitation Act, s 21 LIMITATION OF ACTIONS - conversion and detinue - burden of proof in respect of limitation defence - where defendant pleads proceedings not maintainable by operation of Limitation Act, s 14(1)(b) and plaintiffs' title to goods extinguished by operation of Limitation Act, s 65

ABORIGINAL LAND RIGHTS - claim to Crown land, including closed police station, which was awaiting sale - land visited intermittently by police officers for the purpose of defeating earlier claim - whether land claimable Crown land - whether land lawfully used or occupied - whether land must be used or occupied beyond a notional degree - Aboriginal Land Rights Act 1983 (NSW), s 36 WORDS & PHRASES - "lawfully used or occupied" - Aboriginal Land Rights Act 1983 (NSW), s 36

ABORIGINAL LAND RIGHTS - claim to Crown land reserved for public purposes - grazing licence granted in respect of land - whether land lawfully used or occupied - whether licence valid - whether Minister had power to grant licence - whether power to grant licence depends on use under the licence - whether power available where licence not inconsistent with reservation of land - Aboriginal Land Rights Act 1983 (NSW), s 36; Crown Lands Act 1989 (NSW), ss 34 and 87 CROWN LAND - reserves - land reserved for public recreation - whether Minister empowered to grant licences not inconsistent or incompatible with reservation - whether grazing licence validly granted - whether land lawfully used or occupied - Crown Lands Act 1989 (NSW), ss 6, 34 and 87

REAL PROPERTY - Torrens Title - caveats against dealings - defendant's application to remove plaintiff's caveat - whether the evidence establishes that the plaintiff's obligation under a settlement agreement to remove the caveat is enlivened - where caveator agreed to remove caveat at completion of sale being to the reasonable satisfaction of the caveator to a bona fide purchaser for value - whether caveator had to be satisfied prior to contracts being exchanged - whether plaintiff's lack of satisfaction is reasonable

RESTRAINT OF TRADE - INTERLOCUTORY INJUNCTIONS - personal trainer negotiated agreement with new gyms - prima facie case of breaches of contractual term against solicitation of former clients - interlocutory injunction to restrain solicitation granted but injunction to restrain defendant from working with rival gym or providing services to the plaintiff's former clients refused

PRACTICE AND PROCEDURE - amendments - lack of adequate explanation for delay - futility - prejudice

CRIMINAL LAW - application under s 78 Crimes (Appeal and Review) Act 2001 - application to set aside pleas of guilty entered in 1998 - no explanation for delay - no evidence in support of application - refusal to further consider application under s 79.

CRIMINAL LAW - Multiple charges arising out of single set of facts - whether permissible - whether an abuse of process

APPEAL - interlocutory decision of Associate Judge - practice and procedure - defamation - production of evidence of settlement negotiations - scope of statutory exclusion in s 131(1) of the Evidence Act - whether restricted to excluding admissions - scope of s 131(5)(b) of the Evidence Act - whether negotiations concern criminal proceedings - whether negotiations affect the right of a person - scope of s 131(2)(i) of the Evidence Act.

CRIMINAL LAW - special hearing - murder - stabbing - defence of mental illness CRIMINAL PROCEDURE - special hearing - appointment of amicus curiae

PROFESSIONAL NEGLIGENCE - solicitor obtained instructions for preparation of new will by plaintiff's father - change to testamentary intentions - no uncertainty as to testamentary intentions - testator died before execution of will - solicitor failed to respond to plaintiff's calls for urgent advice - solicitor's duty of care to disappointed beneficiary under will - plainitff's loss of chance to benefit under new will

WILLS & ESTATES - plaintiffs' application to restrain executors of a will from realising assets of the estate - where executors propose to sell real property of the estate - where plaintiffs allege that sale of real property will have adverse tax implications for some beneficiaries - evidence adduced as to possible tax implications for foreign resident beneficiary - whether seriously arguable case that executors are in breach of their duties to act in the best interests of beneficiaries or impartially as between them

DEFAMATION - application to re-plead defamation claims - whether publications additional to the Court of Appeal's grant of leave pleaded - whether new imputations pleaded - whether imputations are untenable - whether publications attracted absolute privilege - issue estoppel - Defamation Act 1974 - application for the return of a child under the Hague Convention - whether publications incidental to and necessary to judicial proceedings - whether communications between officers of State - necessary to effective performance of official functions - whether proposed proceedings futile.

DEFAMATION - jury - application for jury of 12 - test applicable - relevant considerations - where plaintiff a prominent person and issues for trial include allegations of serious criminality and dishonesty

[COSTS] - indemnity costs - offer of compromise or Calderbank letter - whether real element of compromise - no question of principle.

[COSTS] - interlocutory decisions - costs of resolution of claims for client legal privilege - whether discretion as to costs should be exercised in a way which recognises the success and failure of the interlocutory applications - no question of principle.

VALUATION OF LAND - land value - Crown lease restricted land - land value to be determined taking into account restrictions on the disposition that apply to the land by reason of its being the subject of the lease concerned - condition of lease referring to statutory power to withdraw land from the lease without compensation - trial judge found condition of lease is such a restriction on the disposition - trial judge erred on a question of law.

COSTS

PRACTICE AND PROCEDURE - application to set aside default judgment - parents entered loan agreement and became liable for default of son - clearly arguable defence based on principles in Amadio or under Contracts Review Act - satisfactory explanation for failure to defend COSTS - usual rule displaced because of successful parties' prior default - cost of application should be costs in the proceedings

PROFESSIONAL NEGLIGENCE - proceedings against two solicitors - dismissal of District Court proceedings for personal injury - one solicitor found liable - assessment of damages

REAL PROPERTY - appointment of trustees for sale in case of co-owners - competing sets of trustees proposed - matters to be considered

WILLS, PROBATE AND ADMINISTRATION - informal wills - whether suicide note was intended to operate as deceased's will

CRIMINAL LAW - trials - permanent stay - jury undecided on alternative counts of manslaughter at original trial - manslaughter charged at second trial - whether certain evidence of weapons led at first trial where accused acquitted of murder renders unfair current trials relying upon the same evidence - application for permanent stay of manslaughter charges