Cases and authorities

PRACTICE & PROCEDURE - documents regarding the wrong person produced in response to subpoenas

EVIDENCE - particulars - admission - solicitor's ostensible authority to make admissions

LIMITATION OF ACTIONS - claim in defamation - whether it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication - where plaintiff facing criminal charges raising the same issues of fact during that year

SUCCESSION - FAMILY PROVISION - The Plaintiff, a grandchild of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are son and daughter-in-law of the deceased, to whom Probate of the deceased's Will was granted and to whom the whole estate was left in equal shares - Whether Plaintiff is an eligible person - Whether there are factors which warrant the making of his application - and, if so, whether adequate and proper provision not made in Will of the deceased for the Plaintiff.

CRIMINAL LAW - appeal - conviction - fresh evidence - whether evidence could have reasonably discovered evidence - where evidence was located on applicant's mobile telephone - evidence not "fresh" - no miscarriage of justice. CRIMINAL LAW - appeal - conviction - disclosure of evidence by prosecution - where police unaware of existence of evidence - no failure to disclose evidence.

CRIMINAL LAW - appeal against sentence - importing marketable quantity of heroin - whether sentence manifestly excessive - prior criminal record involving trafficking in heroin - admissions of uncharged acts of the same type as the offence charged - admissions made as part of assistance to authorities - relevance to personal deterrence

CRIMINAL LAW – sentence – Crown appeal – supply commercial quantity of methylamphetamine – whether sentence manifestly inadequate – credit given for onerous bail conditions – offender not in rehabilitation custody – sentence ordered to avoid returning offender to custody - drug syndicate – relative role of offender – parity whether disparity bespeaks error – sentence lenient but not manifestly inadequate – residual discretion not to uphold appeal.

ADMINISTRATIVE LAW - claim for victims compensation - tribunal denied compensation on basis victim engaged in behaviour that contributed to injury sustained - appeal to District Court limited to questions of law - District Court set aside orders of tribunal - none of matters relied on involved error of law - Victims Support and Rehabilitation Act 1996, s 30. ADMINISTRATIVE LAW - relief in the nature of certiorari - whether Supreme Court has power when exercising supervisory jurisdiction under s 69 of the Supreme Court Act 1970 to make costs order in place of any costs order that has been quashed - decision in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110] applied.

CRIMINAL LAW - evidence - Evidence Act - application to cross examine - s38 - application to exclude evidence - s138 - application for direction under s 165 - leave to cross examine granted - s 138 application refused - warning not necessary - matters within jurors ordinary experience.

FINANCIAL ADVISOR - investments by clients - alleged negligence and breach of statutory duty

LEAVE TO APPEAL - workers compensation - interaction of ss 79 and 289A of Workplace Injury Management and Workers Compensation Act 1998 (NSW) - operation of transitional provisions of Workers Compensation Act 1987 (NSW) - no procedural unfairness at Workers Compensation Commission - poor prospects of success in appeal - leave refused

APPEAL - application for stay of judgment pending appeal - risk that respondent will be unable to repay judgment sum without difficulty or delay if appeal succeeds - need for money pending appeal not identified by respondent - difficulty of enforcement of judgment for restitution of judgment sum

APPEAL - leave to appeal - application for extension of time - substantial delay - inadequate explanation - no sufficiently arguable case - leave refused. COSTS - denial of application for security for costs - whether primary judge erred.

PRACTICE AND PROCEDURE - Application to strike out notice of motion - Insufficient material to determine whether reasonable case made out - No tendency to cause prejudice, embarrassment or delay in appeal proceedings - Insufficient material to determine whether abuse of process - Uniform Civil Procedure Rules 2005, r 14.28.

STATUTORY INTERPRETATION - Crimes Act 1900, s 556(2) - whether defendant a person against whom civil proceedings had been taken - whether criminal proceedings "for the same cause" as civil proceedings - discretionary disposition of appeal under Crimes (Appeal and Review) Act 2001, s 59(2)

CORPORATIONS - external administration - special leave to distribute surplus - Corporations Act s 488(2) - where application for leave has not been advertised in accordance with the Rules

CORPORATIONS - external administration - judicial advice to liquidator - whether liquidator ought to resign - where liquidator offered to resign during an application to remove the liquidator - where no undertaking to resign was given to court - where unrelated creditor does not seek removal of liquidator

PRACTICE AND PROCEDURE - Notice to produce - Application to set aside specified paragraphs of notice to produce - Whether documents sought pursuant to notice to produce specify documents to be produced which are relevant to a fact in issue in proceedings - Practice Note SC Eq 11 - Whether notice to produce seeks orders for disclosure of documents which would not have been made under Practice Note SC Eq 11.

FAMILY PROVISION - application for further provision by seven children of the deceased - Family Provision Act 1982 - application out of time - factors to consider in determining whether to extend time - whether further provision should be made if time extended - notional estate

PRACTICE AND PROCEDURE - summary judgment application - r. 13.1 Uniform Civil Procedure Rules 2005 - no triable issue in case against first three Defendants - orders for summary judgment made

Criminal Law - appeal against sentence - kidnapping - standover merchant - whether judge took irrelevant matters into account - whether judge sentenced for aggravated offence - whether error in assessment of prospects of rehabilitation - whether sentence manifestly excessive.

JUDGMENTS AND ORDERS - self executing orders - where court had made orders dismissing appeal unless procedural steps taken within particular time - where required steps not taken within specified time - appeal therefore determined by self executing orders and no longer pending - no power available to Court of Appeal to make orders in litigation that has been brought to a regular end WORDS AND PHRASES - "self executing orders"

JUDGES - apprehended bias - judge disclosed friendship with partner of defendant solicitor's firm - plaintiff did not object - whether a litigant in person should be taken to have waived right to object - whether plaintiff expressly declined to object - whether facts reveal reasonable apprehension of bias PROCEDURE - pleadings - application to strike out - allegation that solicitor had misused confidential information - whether confidential information should be pleaded with particularity PROCEDURE - pleadings - application to strike out - amended pleading filed between hearings - whether judge appreciated significant change in particulars of amended pleading

MOTOR VEHICLE ACCIDENT - unregistered vehicle (motorbike) - claim against Nominal Defendant - whether, for vehicle to be "capable of registration" within s 33(5)(b)(i) of Motor Accidents Compensation Act 1999 (by issue of an unregistered vehicle permit) it is necessary that was at time of manufacture or subsequently an actual use proposed which would have justified issue of permit.

APPEAL AND NEW TRIAL - time for initiation of appeal - application for extension of time - extent of delay considered - potential strength of appeal considered - prejudice to respondent considered - no sufficient case for extension shown

CONTRACT - plaintiff suing as assignee of loan debt - whether debt purportedly assigned - whether assignments valid - whether debtors could assert that assignment was in fraud of creditors - original creditor estopped from denying validity of first assignment - plaintiff entitled to benefit of estoppel - limitation periods if initial assignments invalid - whether amendments relying on later assignments pleaded new causes of action - when amendments took effect TRADE PRACTICES - misleading and deceptive conduct - whether defendants induced to invest on understanding that liability was limited to initial investment - defendants' conduct inconsistent with belief that loan was without recourse TRADE PRACTICES - misleading and deceptive conduct - whether defendants induced to make investment by representations regarding funds available to promoter to carry out scheme - promoter's failure to provide information - where obligation of promoter to disclose all matters that might materially affect investor's decision - failure to disclose funding arrangements for the making of loans to investors - misrepresentation of moneys available to promoter to carry out scheme - whether non-disclosure and misrepresentation by original creditor a defence to action by assignee of debt - where time limit for claim under s 87(1A) of the Trade Practices Act 1974 has expired - whether debtor can seek avoidance of contract of loan as defence to action for debt - Trade Practices Act 1974 (Cth), s 52

PRACTICE AND PROCEDURE - leave sought to amend statement of claim - whether prejudice to defendants - whether risk to hearing date - leave granted in manner proposed

PRACTICE AND PROCEDURE - motion to strike out plaintiff's claim - motion challenging plaintiff's retainer of solicitors to conduct proceedings - defendant appoints receivers and managers to plaintiff's shareholding interest in mining company - proceedings brought in the name of the plaintiff by its directors to (1) enforce a sale agreement said to arise out of the exercise of rights under a buy out provision in a shareholders agreement, and alternatively (2) for damages for the breach of the alleged sale agreement - no challenge to validity of appointment of receivers - whether activating the buyout provisions of the shareholders agreement and whether commencing the proceedings arguably impairs or has an effect upon the receivers' functions - whether, after the appointment of receivers, the plaintiff's directors arguably have capacity to act in name of plaintiff to activate the shareholders agreement and to instruct solicitors to commence proceedings - whether the defendant has demonstrated the absence of a right to bring these proceedings warranting the entry of summary judgment against the plaintiff.

WILLS, PROBATE AND ADMINISTRATION - application for declaration that informal document constitutes will of deceased, Wills, Probate and Administration Act 1898 (NSW), s18A - where handwritten document clearly purports to embody the testamentary intentions of deceased - clear from face of document that deceased intended document to constitute will PRACTICE AND PROCEDURE - requirement for notice of an application for a grant in relation to an estate be given to affected persons - Supreme Court Rules 1970, Part 78, r 34E - application for order dispensing with requirement for service of the application on any son of the deceased - where identity of son referred to in handwritten will unknown - where no evidence as to where the person might be living if he was born and still alive - order dispensing with requirement for notice to affected persons would not preclude any such person seeking to require sole beneficiary to account for estate distributed to her

PRACTICE AND PROCEDURE - Practice Note SC Eq 11 - Disclosure before evidence - Whether exceptional circumstances exist to warrant disclosure before evidence is served in proceedings.

ADMINISTRATIVE LAW - Liquor Act 2007 - proposed variations to precinct liquor accord - whether variations likely to affect conditions of liquor license - licensee invited to make submissions - whether procedural fairness to enable licensee to contest approval of variations required provision of data upon summaries of which the Director-General intended to rely - legislation considered - Liquor Act 2007 ss 136A(1), 136B(1), 136D(1), (3), 136E(1)

PRACTICE AND PROCEDURE - application for determination of liability issues before quantum - relevant considerations

PRACTICE AND PROCEDURE - application for leave to amend Summons and Points of Claim - where certain particulars are confusing - where pleading complaints have substance - where amendments are unlikely to add significantly to expense of litigation - HELD - leave to amend granted subject to provision of further particulars and further amendments to pleadings PRACTICE AND PROCEDURE - security for costs - application by second and third defendants - where delay in bring application - where plaintiff has already taken a number of steps in proceedings, including in relation to interlocutory applications brought by the defendants - HELD - application for security for costs dismissed

APPEAL - appeal from Consumer Trader and Tenancy Tribunal - residential tenancies - refusal of application for adjournment - denial of procedural unfairness - orders sought made - costs

CRIMINAL LAW - Sentencing - offender found guilty of murder after trial - whether offence part of planned or organised criminal activity within s 21A(2) Crimes (Sentencing Procedure) Act 1999 - No evidence of a premeditated intention to kill as part of a joint criminal enterprise - offence committed for financial gain within s 21A(2)(o) - offence committed in home of victim within s 21A(2)(eb).

CRIMINAL LAW - trial by jury - convicted of five offences - sentence - aggregate sentences - robbery - murder - armed with firearm - discharge firearm - aggravated take motor vehicle - no remorse - aggregate sentences

PROCEDURE - costs - costs of motion

PROCEDURE - costs - costs of motion - orders

PROCEDURE - costs - Suitors' Fund Act 1951 - certificate granted

PROPERTY - possession - mortgagees in default - whether mortgagee estopped from seeking possession and recovering debt - alleged representations made by Bank staff - reliance.

CRIME - Sentencing for offence or murder - plea of guilty - young offender principles - objective seriousness of offence - victim befriended on-line pursuant to a ruse - issue of whether offence pre-planned - vulnerable victim murdered in remote area - aggravating and mitigating factors - offender had mild intellectual disability - offender demonstrated somewhat sophisticated capacity to employ strategy to groom victim - prior conviction for violent offence, on conditional liberty at time of offence - longer non-parole period than standard non-parole period imposed.

PRACTICE & PROCEDURE - subpoena - application to set aside - whether documents sought potentially likely to assist materially on an identified issue - whether legitimate forensic purpose identified PRACTICE & PROCEDURE - notice to produce - application to set aside - whether documents sought potentially likely to assist materially on an identified issue - whether legitimate forensic purpose identified

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased of the deceased, to whom Probate of the deceased's Will was granted and the sole beneficiary - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made. Allegation of estrangement and its effect on the provision to be made for the Plaintiff

APPEAL - appeal from Local Court decision - defendant charged with possession of restricted substance contrary to Poisons and Therapeutic Goods Act 1966 - defendant acquitted by Local Court - police attended premises in response to complaint of domestic violence - seized goods from defendant's bedroom - whether Magistrate applied incorrect principles and failed to exercise discretion under Evidence Act 1995, s 138 - relevant statutory provisions under Law Enforcement (Powers and Responsibilities) Act 2002 - relevant common law principles - statutory interpretation - statute excludes common law and provides own regime - application to facts - all grounds fail - summons dismissed

GUARDIANSHIP - protected person - financial management - application for revocation of management order - whether plaintiff capable of managing affairs - consideration of meaning of "capable of managing his or her affairs" - whether plaintiff able to make judgments concerning ordinary routine affairs of living - whether plaintiff has rational view of assets under management - where plaintiff does not appreciate existing liabilities - where unacceptable risk that plaintiff would incur expenses that could not be met - held plaintiff could not deal with ordinary routine affairs of her life COSTS - exception to the general rule that costs follow the event - where plaintiff had no capacity to enter into contract of retainer with solicitor - where proceedings initiated and costs incurred for benefit of plaintiff - unjust for plaintiff's solicitors to be out of pocket - costs ordered on indemnity basis out of plaintiff's estate to plaintiff's solicitor

PLEADINGS - application for leave to amend - whether proposed pleading based on a cause of action known to the law - whether delay - whether prejudice to the defendant - application to amend refused

[TRADE PRACTICES] - misleading or deceptive conduct - whether defendants represented that playground equipment manufactured and sold by them complied with relevant safety standards - whether products manufactured in a way that ensured that they would comply with the requirements of the safety standard - whether defendants represented that increase in sales of their business was due to the purchase of products that complied with the safety standard - whether representations false, misleading or deceptive - whether plaintiffs relied upon the conduct or representations in deciding to enter into the contract for the purchase of the defendants business. [DAMAGES] - misleading or deceptive conduct - calculation of damages - where plaintiffs assert they would not have entered into transaction but for misleading or deceptive conduct - whether value of the business was affected, positively or negatively, by the misleading or deceptive conduct alleged - whether plaintiffs suffered damage "by" the conduct or representations - whether any business expenses incurred by the plaintiffs are recoverable.

REAL PROPERTY - resulting trust - misuse of Plaintiff's funds to purchase property in Defendant's name - misappropriation of Plaintiff's funds generally by estranged wife - forged loan variations.

PRACTICE AND PROCEDURE - Summary disposal - Pleadings - Strike out - Whether defence should be struck out because no real prospect to defend proceedings is disclosed.