Cases and authorities

FAMILY PROVISION - application by adopted son of deceased for further provision - no provision made for plaintiff in will of deceased - no dispute that plaintiff is an eligible person and should receive further provision - large estate- order for further provision made

APPEAL FROM LOCAL COURT - claim by plaintiff for recovery from the defendant of moneys said by the plaintiff to be mortgage overpayments and expenses incurred by plaintiff to maintain property - plaintiff's claim summarily dismissed in Local Court - issue estoppel where Family Court proceedings had dealt with parties' property - appeal dismissed

ROAD TRANSPORT - collision between load being moved by carrier and bridge - liability of a hirer as consignor or loader

TRUSTS AND TRUSTEES - application for judicial advice - Federal Court proceedings commenced against trustees and others - whether and to what extent trustees justified in defending proceedings - what interlocutory steps should be taken - reliance on defence by other defendants

TRUSTS AND TRUSTEES - application for judicial advice - Federal Court proceedings commenced against trustees and others - whether and to what extent trustees justified in defending proceedings - what interlocutory steps should be taken - reliance on defence by other defendants

CRIMINAL LAW - application for verdict by direction - application to limit Crown case to a punch, and no other form of striking, as constituting the unlawful and dangerous act alleged.

PROCEDURE - Supreme Court Procedure - New South Wales - Procedure under Rules of Court - Funds in Court - Payment out of Funds in Court

PRACTICE AND PROCEDURE - application by fourth defendant to strike-out pleadings - Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 - substantive proceedings by plaintiff claiming judgment debt - s 37A Conveyancing Act in relation to transfer of interest in property from first defendant to fourth defendant - strike-out application dismissed

ADMINISTRATIVE LAW - Judicial review - medical assessors review panel - certificate - whether failure to consider - whether failure to provide adequate reasons - procedural fairness.

COSTS - Offer of Compromise - Offer provides for payment of a specified amount "plus costs as agreed or assessed" - whether the Offer complies with r 20.26 UCPR - conflicting decisions of Court of Appeal - whether Offer conflicts with costs rule - Offer complies with r 20.26 - adjournment - Defendant entitled to costs thrown away by reason of the adjournment - scope of "costs thrown away".

No issue of principle

CRIMINAL LAW - crown appeal - inadequacy of sentence - buggery - homosexual intercourse with male between 10 and 18 - act of indecency with a male - act of gross indecency - indecent assault - sexual intercourse without consent - assault on a male accompanied by an act of indecency - aggravated act of indecency with a person under the age of 16 years - indecent assault of a male - act of gross indecency

CRIMINAL LAW - aggravated sexual intercourse without consent - appeals against conviction - fresh evidence - whether credible - admissions by one appellant - in adequate directions about use of admissions - directions regarding consent under s 61HA and at common law - no distinction made for offences for which s 61HA not applicable - rejection of evidence held to be concerning sexual reputation - distinction with sexual disposition - whether verdicts unreasonable.

APPEAL - Appellate review - Applicable legal principles - Appeal by way of rehearing - Real review of the trial - Court of Appeal required to give effect to independent review bearing in mind advantages enjoyed by trial judge. EVIDENCE - Unchallenged evidence - No cross-examination of expert engineering witnesses - Trial judge erred in acceptance of one expert's evidence in preference to another - Absence of necessary factual underpinnings - Unchallenged status of evidence not sufficiently cogent reason for acceptance - Expert evidence could not be considered in isolation from medical and lay evidence. EVIDENCE - Expert evidence - Assessment of expert evidence - Context - Suspicion does not have evidentiary value - Trial judge must assess evidence as a whole. DAMAGES - Torts - Negligence - Workers' Compensation - Non-economic loss - Significant impairment of cardiac function - Trial judge erred in failing to award any amount for non-economic loss. DAMAGES - Torts - Negligence - Workers' compensation - Past economic loss - Prior history of imprisonment - Trial judge erred in differential treatment of plaintiff based on previous incarceration - Relevant question is whether injury caused impairment of economic capacity whereby plaintiff suffered a loss. DAMAGES - Torts - Negligence - Workers' compensation - Future economic loss - Discounts for vicissitudes - Prison record relevant vicissitude - Earning capacity - Medical expenses - Trial judge entitled to award damages by way of buffer - Civil Liability Act 2002, s 13. DAMAGES - Torts - Negligence - Workers' compensation - Reassessment of damages by appellate court - No adverse credit findings by trial judge - Court able to assess damages on evidence - Supreme Court Act 1970, s 75A.

ESTOPPEL - promissory - whether mortgagee prevented from relying on non-compliance with a default notice and prosecuting proceedings for possession REAL PROPERTY - mortgagee's claim for possession - whether mortgagor has benefit of promissory estoppel preventing reliance on default notice PROCEDURE - joinder of parties - whether a person, who claims that a registered proprietor and mortgagor holds property subject to a resulting trust, is a necessary party to proceedings brought by the mortgagee for possession of the property

CRIMINAL LAW - evidence - whether prior inconsistent statement admissible as exception to credibility rule - evidence admissible under exception in s 106 Evidence Act - CRIMINAL LAW - evidence - whether electronically recorded interview with police should go to the jury room during deliberations - rule in Gately v The Queen (2007) 232 CLR 208; R v NZ (2005) 63 NSWLR 628 - not applicable in this case - exhibit to be available to jury with direction against giving disproportionate weight to the evidence

CRIMINAL LAW - application to discharge jury - possibility the jury may not have fully perceived the evidence as it was given due to difficulty seeing video evidence in court room - whether accused could have a fair trial in the circumstances - application refused.

ASSAULT - ex parte hearing - no question of principle.

Construction of contractual documents, principles, construction of patents, patent infringement, expert evidence

CRIMINAL LAW - judge alone trial - murder - steal from a dwelling - drive a conveyance without consent - accused suffering chronic paranoid schizophrenia - consensus between experts as to mental illness defence - not guilty by reason of mental illness

Adjudication determinations, Building and Construction Industry Security of Payment Act, trade contract, time period prescribed, failure to address requirements, service of adjudication response, denial of natural justice

Contract, construction of contract clause, exclusion clause, agreed time limit for claim, whether valid, whether applicable

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand - Genuine dispute ground - Whether it is established that there is a genuine dispute as to the debt claimed in statutory demand.

PRACTICE AND PROCEDURE - Summary dismissal - Application for summary dismissal of proceedings - Whether proceedings frivolous or vexatious, or disclose no reasonable cause of action, or constitute an abuse of process - Whether issues raised in respect of proceedings better addressed by proceedings continuing on pleadings. COSTS - Security for costs - Alternative application for security for costs - Discretion of court whether to order security for costs - Strength and bona fides of company's case - Whether company's impecuniosity caused by applicant's conduct, whether security would stultify prosecution of a genuine claim, whether persons standing behind company are willing to provide security, whether public interest weighs against ordering security, whether particular discretionary matters relevant.

[INTELLECTUAL PROPERTY] - confidential information - obligation of confidentiality - whether plaintiffs have identified with adequate specificity, information claimed by it, to be confidential - whether defendant has misused confidential information in breach of employment obligations. [EQUITY] - fiduciary duty - whether fiduciary duty owed - whether breach of equitable duty of confidence - whether valid assignment of information proposal - whether defendants have accessory liability to either or both of the plaintiffs. [EVIDENCE] - approach to assessment of evidence - the jury basis - whether sufficiency of evidence is to be assessed on the jury basis.

SUCCESSION - Plaintiff makes a claim for a family provision order - Alternative grounds of eligibility relied upon - Defendant one of the children of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Dispute whether the Plaintiff is an eligible person - If so, and if relevant, no dispute that there are factors warranting making of application - Whether family provision order should be made and if so nature of the order

EVIDENCE - visual identification evidence - meaning of s 114 Evidence Act 1995 (NSW) - what was the relevant act of identification - what was the act of identification to which the question objected to was addressed - does the section refer to out of court visual identification as well as in court visual identification - whether reasonable to have held an identification parade - correct interpretation and application of s 114.

CONTRACT - oral contract - evidence of contract - subsequent conduct admissible to prove existence of contract TRUSTS AND TRUSTEES - oral declaration of trust - subsequent conduct admissible to prove existence of trust CONTRACT - intention - contracts between family members - no presumption against intention - seriousness and finality of circumstances EQUITY - part performance - answer to reliance on Sections 54A and 23C of the Conveyancing Act - conduct must be unequivocally referable to contract of general nature of that alleged - multiple acts of part performance unequivocally referable - sole possession and exclusive control for 25 years - no alternative agreement alleged

CRIMINAL LAW - murder - jury trial commences - partial defence of substantial mental impairment is sole issue in trial - Accused changes plea to guilty of murder during trial - procedure under s.157 Criminal Procedure Act 1986 - jury discharged - finding of guilty by Court - Accused convicted - proceedings adjourned for sentencing hearing - Accused informs his counsel and solicitor that he wishes to apply to withdraw plea of guilty - whether Court has jurisdiction to entertain application for leave to withdraw plea of guilty where s.157 procedure followed - no jurisdiction to entertain application - sentencing hearing adjourned

COSTS - indemnity basis - proceedings discontinued after being prematurely commenced

CRIMINAL LAW - pretrial rulings - charge of murder - killing by kicking and stomping upon fellow prisoner in courthouse cell - late notice by Accused of reliance upon partial defence of substantial mental impairment - construction and operation of ss.138(d) and 151 Criminal Procedure Act 1986 - admissibility of evidence of earlier attack by Accused on former girlfriend involving kicking and stomping - relevance to substantial mental impairment - tendency evidence - whether evidence should be excluded under ss.135, 137 or 138 Evidence Act 1995 - evidence admitted

PROBATE - executors de son tort - whether intermeddling by executors named in will - acts amounting to intermeddling - effect of intermeddling - whether devastavit committed PROCEDURE - strike-out application - whether claim untenable - proceedings alleging devastavit against executors named in will before and after probate obtained

CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - individual jurors - continuation of trial with reduced number of jurors JURY - the jury in criminal proceedings - general matters - discharge of individual juror - continuation of trial with reduced number of jurors CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - decisions of trial judge supported or not opposed by trial counsel

CRIMINAL LAW - appeal - appeal against sentence - whether he sentencing process was miscarried - Federal offences and State offences - whether sentences imposed were unusually harsh and severe - whether sentencing judge erred in commencing his sentencing exercise at an excessive level - whether sentencing judge erred in failing to make sufficient allowance for assistance - whether sentencing judge erred in failing to maintain parity - whether sentencing judge erred in failing to take delay into account - whether sentencing judge erred in failing to observe the principle of totality - whether the sentencing judge erred in failing to find special circumstances with respect to the whole sentence

CRIME - sentencing - Crown appeal - offence of recklessly causing grievous bodily harm - suspended sentence - whether sentence manifestly inadequate - strong evidence of rehabilitation following disrupted upbringing and frequent offending as a juvenile - consideration of purposes of sentencing

CRIMINAL LAW - application for leave to appeal against severity of sentence - three counts of aiding and abetting the importation of a marketable quantity of a border control drug - discount for assistance - appeal allowed - sentence reduced

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

PARTNERSHIP - rights and duties of partners inter se - fiduciary relationship - sale of partnership property - where more than one offer of purchase available - where one partner had personal interest in a proposed purchaser - onus of establishing fully informed consent lies on the fiduciary - where there is no evidence that this conflict of interest was disclosed to the other partner - where other partner later obtained independent legal representation to settle terms of dissolution of partnership - fiduciary's onus not discharged DAMAGES - general principles - assessing damages for loss caused by failure to explore and potentially finalise purchase offer - need to account for uncertainties - whether agreement could be reached - possible obstacles in path of financing - general commercial uncertainties - discount of 35 per cent

CRIMINAL LAW - sentence - murder - intention to kill - provocation rejected - plea of guilty - favourable subjective case

CRIMINAL LAW - sentence - offender convicted at trial of the murder of a married couple - offences premeditated - for financial gain

LIMITATION OF ACTIONS - cause of action founded on tort - where action brought on cause of action purportedly assigned by original assignor more than six years before commencement of proceedings - action statute-barred NEGLIGENCE - causation - whether properly pleaded PERSONAL PROPERTY - alienation of personal property - assignment of choses in action - whether bare right of action in tort capable of being assigned

COSTS - exception to the general rule that costs follow the event - application that costs order be set aside and new order made in accordance with provisions of clause of licence - whether respondent liable to pay costs notwithstanding it was successful in litigation - whether court's discretion to order costs should be exercised to give effect to parties agreement - Civil Procedure Act 2005 (NSW), s 98 - contractual provisions not plain and unambiguous PRACTICE AND PROCEDURE - conduct of litigation - where claims not pleaded - public interest in finality of litigation - held costs order should not be reopened

GUARDIANSHIP - application by daughter of protected person that the Public Guardian be removed as guardian of protected person - application that plaintiff be appointed in his place - consideration of role of Public Guardian in providing accommodation for protected person - no grounds established for removal of Public Guardian GUARDIANSHIP - application by daughter of protected person that NSW Trustee be removed as financial manager of protected person - application that plaintiff be appointed in its place - whether court has jurisdiction to remove NSW Trustee as financial manager of protected person where appointed by Guardianship tribunal - held court has jurisdiction to remove NSW Trustee as financial manager - where grounds for removal of NSW Trustee as financial manager but not appropriate to appoint plaintiff as financial manager - where no other person is proposed as financial manager - directions to be given to NSW Trustee in exercise of its functions - NSW Trustee to provide reports to enable directions to be given

CRIMINAL LAW - Sentencing - plea of guilty - objective seriousness of offence - murder of grandmother (by adoption) - offender acted with intention to kill - consideration of aggravating and mitigating factors - offence involved use of weapon - Offender had a record of a previous conviction particularly for serious personal violence - offence of murder committed in home of victim who was a vulnerable and elderly lady - the offence was committed for financial gain - Offender suffered from a number of interrelated psychiatric conditions including an alcohol abuse disorder - Offender demonstrated remorse.

COSTS - application under Rule 36.16 UCPR for reconsideration of costs order - application refused.

JUDGMENTS AND ORDERS - res judicata - consent judgment entered in relation to a series of disputed dividends - terms of consent judgment did not cover certain further dividends - statement of claim filed in relation to further dividends - defendant sought strike-out of allegations relating to dividends because they related to a res judicata - a party is prevented by a res judicata from agitating of actions merged in a consent judgment, but only where the consent judgment is actually a judgment or order of the court - longstanding practice of the court to enter into record documents described as judgments or orders that contain material that is not part of the judgment or orders - consent orders in this case took the form of the Court noting the effect of an agreement reached inter partes - Court did not make further orders dismissing the action - thus proceedings terminated otherwise than through a mandatory or prohibitive judicial decision and there was no res judicata which prevented the institution of proceedings relating to the contested dividends - strike-out refused JUDGMENTS AND ORDERS - consent orders - construction - whether surrounding circumstances can be used as an aid to the construction of consent orders - where consent judgment contained no order that proceedings "be otherwise dismissed" - whether the dismissal of all claims relating to dividends is implicit in the judgment by consent, notwithstanding lack of express order - proper question of construction must be determined at first instance WORDS AND PHRASES - "res judicata", "judgment", "consent judgment"

WILLS AND ESTATES - application to revoke grant of probate - operation of "suspicious circumstances" rule in context of an allegation of undue influence - whether false evidence given by beneficiaries as to events surrounding making of will gave rise to adverse inferences concerning their involvement - whether suspicious circumstances as to knowledge and approval established - whether, having affirmatively established knowledge and approval, proponents of will also required to disprove any remaining suspicion of undue influence. WILLS AND ESTATES - family provision claim - four adult children - whether adequate provision made for proper maintenance of two daughters - sons, who are executors and only beneficiaries, gave false and incomplete evidence as to their financial resources - whether adverse inferences should have been drawn as to extent of earning capacity or financial resources - re-exercise of discretion under s 7 of the Family Provision Act 1982 - circumstances justify provision from notional estate. EVIDENCE - presumptions and sufficiency of evidence - wills and estates - issues in probate suit as to operation of "suspicious circumstances" rule and in family provision claim as to financial situation of beneficiaries - finding that interested beneficiaries gave false and incomplete evidence - whether inference that non-production of evidence that would naturally have been produced by an honest party would not have assisted on those issues could be relied upon to resolve uncertainties on available evidence.

COSTS - application based on Calderbank letter - no genuine offer of compromise.

SENTENCE - Heavy vehicle operator - overheight load - collision with pedestrian bridge - statutory chain of liability - plea of guilty - penalty

EVIDENCE - whether affidavit filed in earlier proceedings can be can be relied on - whether affidavit incorporated by reference - whether leave to rely on the affidavit should be given under UCPR r 31.9