Cases and authorities

SUCCESSION - FAMILY PROVISION - The Plaintiff, the stepdaughter of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant, the natural daughter is the executrix to whom Probate granted - No dispute as to eligibility - Dispute as to factors warranting the making of the application - Period of about 13 years before deceased's death when no contact - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne

PRACTICE AND PROCEDURE – application for extension of time – notice of appeal – irregularity treated as informality – finality of disposition

PRACTICE AND PROCEDURE - extension of time - no arguable error by primary judge - no question of principle - application refused

PROBATE - intermeddling in estate - primary asset of estate was single share in company - one executor appointed as director of company prior to grant of probate - evidence that other named executors approved appointment - whether conduct constitutes intermeddling PROCEDURE - appeal - leave to appeal from interlocutory decision - application for leave to appeal heard prior to substantive appeal - likely that Court would grant leave to appeal - final hearing of matter to commence in court below - desirability of disposing of appeal urgently PROCEDURE - summary dismissal - whether pleadings disclose reasonable cause of action - application for summary dismissal by one of three defendants - claim dismissed in part - whether potential for injustice if claim proceeds against other defendants - whether arguable claim - whether pleadings should be struck out - discussion of Wickstead v Browne (1962) 30 NSWLR 1 - Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28

Ex parte hearing - quantum - no question of principle.

CRIMINAL LAW - sentence - Crown appeals - sentences of imprisonment to be served by way of intensive correction order (ICO) - financial crimes - concurring in making false or misleading statement contrary to s.178BB Crimes Act 1900 (all offenders) - knowingly make false or misleading statement in document contrary to s.1308(2) Corporations Act 2001 (Cth) (Pogson only) - false statement in prospectus - deliberate creation of false information - no actual loss by investors - significant potential for loss - importance of protection of investing public - importance of general deterrence for market-related offences - all offenders assessed as suitable for ICO in District Court - whether ICO available to these offenders - statutory scheme for ICOs - statutory limits upon availability of ICOs - meaning of "rehabilitation" - no statutory exclusion of use of ICO in these cases - whether sentences by way of ICO were manifestly inadequate - manifestly inadequate sentence in cases of Pogson and Lapham but not Martin - residual discretion in Crown appeals exercised - Crown appeals dismissed

TORTS - Negligence - Breach of duty of care - School authority - Student assaulted by fellow student - Student with propensity to violence - Foreseeable risk of harm - Failure to take reasonable care of students whilst on school premises during school hours - Failure to inform teachers of details of prior violent incident involving offending student - Civil Liability Act 2002, s 5B. TORTS - Negligence - Causation - School authority - Student assaulted by fellow student - Omissions - Onus on plaintiff to establish probable course of events - Factual causation dependent on circumstances - School's assessment of prior violent conduct - Teacher's familiarity and assessment of offending student's conduct - Statutory "but for" test - Factual causation not established - Civil Liability Act, s 5D.

CONTRACTS - general contractual principles - construction and interpretation of contracts - agreement in principle to settle proceedings to be later substituted by contract containing additional terms - where parties had agreed on mutual releases - whether such releases extended to their servants and agents

CORPORATIONS - application to adjourn the hearing of an application for an order to wind up a company - where administrators appointed during pendency of winding up application - application to wind up company for failure to comply with a creditor's statutory demand - Corporations Act, s 440A(2) - whether creditors stand to get more by payment of their debts from one form of process or administration than from the other

CRIME - particular offences - insider trading - elements of offence - admissibility of expert opinion evidence to prove some elements EVIDENCE - admissibility - expert opinion evidence - where relied upon to prove general availability and materiality of alleged inside information - whether general availability of information a matter of expertise - whether report adequately articulates connection between expertise and opinions stated

COSTS - Plaintiff's application for costs following failed notices of motion for summary dismissal and strike out of proceedings

EQUITY - proprietary estoppel - resulting trust - constructive trust - no issue of principle. EVIDENCE - credibility evidence - consideration of when lies of one witness can provide evidence against that witness - held only in limited circumstances. TORTS - malicious prosecution - elements of the tort - meaning of "reasonable and probable cause" and "maliciously" - whether tort applies to the initiation of AVO proceedings. TORTS - abuse of process - difference between abuse of process and malicious prosecution - onerous burden of proof.

CRIMINAL LAW - arrest - police officers pursued person suspected of offences - whether arrest valid where officer has no intention of charging suspect - whether officers intended to charge suspect - whether suspicion reasonable - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99 CRIMINAL LAW - offensive language - "fucking" - whether circumstances and context relevant to factual question of offensiveness - Summary Offences Act 1988 (NSW), s 4A(1) TORT - negligence - duty of care - tort liability of public authorities - plaintiff fell while chased by police officers - whether police officers' power of arrest engaged by reasonable suspicion of offence - whether a putative common law duty conformable with statutory powers of police officers - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99 TORT - negligence - plaintiff fell while chased by police officers - plaintiff chose to flee police - whether duty of care identified - whether a putative common law duty conformable with statutory powers of police officers - Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21 and 99 TORT - trespass to the person - assault - plaintiff fell while chased by police officers - whether suspect feared physical violence

TORTS - false arrest and false imprisonment - arrest without warrant - s 3W Crimes Act 1914 (Cth) - whether lawful justification for arrest - where arresting officer had honest belief appellant had committed an offence - where arresting officer relied on information in affidavit of investigating officer - whether honest belief held "on reasonable grounds"

CRIMINAL LAW - sentence - manslaughter

CORPORATIONS - creditor's statutory demand - whether genuine dispute exists - where court is required to determine a question of contractual construction

PRACTICE & PROCEDURE - objection to order for production - Civil Procedure Act, s 87 - objection on ground of self-incrimination - UCPR, r 1.9 - appropriate process where an objection is taken - whether court can be satisfied that there are reasonable grounds for objection PRACTICE & PROCEDURE - objection to subpoena and order for production - where grounds could have been raised on a previous occasion - whether abuse of process CORPORATIONS - objection to subpoena and order for production - UCPR r 1.9 - where corporation has a single director - objection on grounds of self-incrimination of that director - whether one-person corporation entitled to privilege against self-incrimination on grounds that production would be incriminatory of that director

CRIMINAL LAW - procedure - whether accused fit to be tried - no dispute between expert evidence - accused fit

FAMILY LAW - Adoption - Application for orders dispensing with consent of natural parents - Ancillary orders dispensing with notice to natural parents also sought - Whether after "reasonable inquiry" the natural parents can be found - Name - Application for approval for change of name - Whether name change is in child's best interests.

APPEAL - appeal against Local Court decision - claim for long service leave payment - plaintiff summarily dismissed for serious and wilful misconduct - whether plaintiff entitled to payment of pro rata long service leave on termination of employment - proper construction of s 4(2)(iii) - appeal dismissed - costs

PROCEDURE - motion - real property - caveats against dealings - order seeking removal of caveats - two caveats lodged - s 57(2)(b) notice invalid - whether second defendant was entitled to maintain her caveat - orders refused - costs - motion dismissed

DEFAMATION - imputations - capacity of matters complained of to convey pleaded imputations - reference to plaintiff - class or group libel - assertion that one member responsible for conduct - no material identifying member responsible - whether defamatory imputations - nature of imputations and when available

PRACTICE AND PROCEDURE - application to restrain solicitor from acting in proceedings - inherent jurisdiction of Supreme Court to restrain legal practitioners from acting - whether solicitor in possession of information confidential to the applicant - whether information is or may be relevant to the matter

CRIMINAL LAW - sentence - murder - early plea of guilty following voluntary surrender and confession to police - where evidence established intention to kill the deceased - where disposal of deceased's body an aggravating factor - where absence of explanation of reasons for commission of offence - no evidence given or tendered in the offender's case on sentence - resultant difficulty in determining prospects of rehabilitation - extent to which voluntary surrender should be taken into account where it was likely that lines of enquiry would have led to the offender in any event - whether special circumstances made out

EMPLOYMENT LAW - contract - executive of public company - contract provided for bonus and other payments in event of termination - no bonuses payable in case of termination for serious misconduct - company terminated employment under contract - later discovery of misconduct - principle in Shepherd v Felt and Textiles of Australia Ltd - no bonuses payable CORPORATIONS - duties and liabilities of officers - fiduciary and related statutory duties - chief executive officer - payments out of accrued bonus pool and company treasury facility - payments repaid shortly thereafter - no tax withheld from payments - payments not declared as related party loans - short periods in which CEO was overpaid from bonus pool - no overall net loss to company - CEO and others acting honestly - company exposed to risk of regulatory or taxation irregularities - misconduct

CRIMINAL LAW - sentence appeal - causing grievous bodily harm with intent to cause grievous bodily harm - prison officer struck in eye with pool ball losing sight of that eye - failure to have adequate regard to category of victim when assessing objective seriousness of offence - error in treatment of respondent's mental illness - whether Court should continue to have regard to respondent's background of social deprivation - need to re-sentence - sentence should be increased.

CRIMINAL LAW - criminal practice - examinations pursuant to the New South Wales Crime Commission Act 1985 - application for review of decision that examinee before the NSW Crime Commission is not entitled to refuse to answer questions - whether the requirement that an examinee before the NSW Crime Commission answer questions infringed his privilege against self incrimination - meaning of "reasonable excuse" within s 18 of the Act

INSURANCE - general - other matters - subrogation and litigation clause - whether insurer is entitled to claim the benefit of the limitation on liability provided under Civil Liability Act 2002 (NSW) Part 4. INSURANCE - general - other matters - subrogation and litigation clause - doctrine of election - whether insurer involuntarily joined as co-defendant is barred from denying liability to indemnify the insured. PROCEDURE - miscellaneous procedural matters - other matters - pleading - leave to amend.

SUCCESSION - family provision and maintenance - practice - mediation - enforcement of settlement agreement - agreement executed with alleged mental reservation or subjective intention not disclosed at mediation - whether court approval should be given.

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand - Whether genuine dispute established - Whether there is some other reason to set aside statutory demand - Whether defect in statutory demand which would give rise to substantial injustice - Whether there has been proper use of statutory regime.

SENTENCE - dishonesty offences - conspire to defraud Commonwealth - s 29D and s 86 Crimes Act 1914 (Cth) - s 135.4(3) of Criminal Code Act 1995 (Cth) - tax - tax avoidance scheme - guilty plea - nature and seriousness of offences - offender's position - overall operation of the tax avoidance scheme - three conspiracies - consequences of offending - term of imprisonment warranted for these offences - personal circumstances - character evidence - deterrence - other comparable offenders - whether delay was relevant - whether discount to be given for plea and assistance - concurrency and accumulation - special circumstances - sentence imposed - recognisance release order

PROCEDURE - judgments and orders - enforcement of judgments and orders - order 5 of second further amended summons - order sought to restrain enforcement of three costs judgments pending final determination of proceedings - stay granted on certain conditions

ENVIRONMENT AND PLANNING - building control - definitions - Building Code of Australia - definition of "effective height" in the Building Code of Australia EVIDENCE - admissibility and relevancy - in general - whether the Guide to Building Code of Australia should be admitted into evidence for the purpose of construing the text of the Building Code of Australia EVIDENCE - admissibility and relevancy - opinion evidence - whether expert opinion was admissible for the purpose of construing the text of the Building Code of Australia

COSTS - Offer of Compromise - offer provides for payment of a specified amount "plus costs as agreed or assessed" - whether offer complied with r 20.26 UCPR - conflicting decisions of Court of Appeal - whether offer conflicts with costs rule - in the alternative whether offer operated as a Calderbank offer - meaning of "unless the Court orders otherwise" in r 42.15 UCPR - whether "exceptional circumstances" required for order - conflicting decisions of Court of Appeal - what constitutes "exceptional circumstances" - unusual circumstances of case under consideration amount to exceptional circumstances.

CORPORATIONS - options to subscribe for shares - action by option holder for breach of contract - alleged breach of implied term by which company promises that its decision makers will not include any person having obligations conflicting with those owed to the company - statement of claim dismissed as disclosing no reasonable cause of action - whether arguable that such term implied - held not - CONTRACTS - implied terms - terms implied by law in contracts of a particular class - contracts creating options to subscribe for shares

REAL PROPERTY - transfer of land from parents to daughter and son-in-law for no consideration - whether daughter held one-half share on trust for parents as joint tenants - parents living apart - no intention to hold jointly

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 (Cth) and Related Acts - Adoption - child born in Philippines - Philippines a signatory to the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption - application under Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), reg 15 - no evidence of Central Authority in NSW transmitting a report to Central Authority in Philippines as required by art 15 of Convention - no evidence of Central Authority in Philippines transmitting a report to Central Authority in NSW as required by art 16 of Convention

CONTRACTS - Contract for services - whether validly terminated - whether agreement varied - whether third party beneficiary to agreement - law of Florida - foreign law presumptions - quantum of damages - retention of deposit - damages for loss of bargain.

PROCEDURE - discovery - late application - width of categories - no question of principle.

WILLS PROBATE AND ADMINISTRATION - contested application for grant of letters of administration - cross-claim for grant of probate in solemn form - form and layout of will unusual - operation of "suspicious circumstances" rule in context of allegation of forgery - whether evidence sufficient to remove suspicions - whether proponent demonstrated will should be admitted to probate - whether necessary for proponent to provide executor's affidavit - turns on facts - no question of legal principle

CRIMINAL LAW - Crown appeal - sentence - whether sentence for manslaughter is manifestly inadequate - where respondent drove vehicle in circumstances where she was aware she may lose consciousness - where respondent had lost consciousness while driving on prior occasion - sentence manifestly inadequate - respondent re-sentenced - sentence increased.

CRIMINAL LAW - Director's appeal against sentence - offence committed while in custody and eligible for parole - whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole - whether court required to take into account period in custody after parole revoked for offence - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47 CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - leniency for revelation of intention by offender - whether extent of leniency depends on extent of revelation - whether numerical discount should be stated - discussion of R v Ellis (1986) 6 NSWLR 603 CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - mental illness - applicant's mental illness did not establish defence of insanity - whether principle of retribution in sentencing diminished in cases of mental illness - whether mental illness relevant to gravity of offence - whether increase in sentence for protection of society is speculation leading to arbitrary result - whether sentence incorporating protection of society can exceed otherwise appropriate sentence - whether mental illness increases the need for personal deterrence and protection of the public - discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - sentencing judge found special circumstances - significant criminal record - no remorse - unclear whether offender will accept mental health treatment - whether special circumstances - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

PROCEDURE - motion - orders seeking hearing date to be vacated and directions to be varied - adjournment opposed - new hearing date fixed

CRIMINAL LAW - murder - fitness hearing - unfit to be tried

PROCEDURE - costs - recovery of costs -no contested proceedings

SUCCESSION - family provision and maintenance - extension of time for making claim - whether claim likely to succeed - prejudice to other beneficiaries

PROCEDURE - other rulings - questions pursuant to r 28.2 UCPR - value of assets and liabilities