Cases and authorities

CONTEMPT- deliberate obstruction of course of justice - conduct inconsistent with court order - knowingly false evidence concerning that conduct - intention to prevent plaintiff having benefit of judgment CONTEMPT- distinction between civil and criminal contempt CONTEMPT - distinction between perjury and contempt CONTEMPT - avoidance of personal service - personal service not indispensable - substituted service available in contempt proceedings CONTEMPT - absence of contemnor - discretion whether to proceed with hearing and sentence in his absence CONTEMPT- sentencing considerations - fixed or indefinite term of imprisonment CONTEMPT - warrant for committal to a correctional centre COSTS - power to award indemnity costs in contempt proceedings

CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial was held according to law - Whether trial a nullity - Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) - Appellant not arraigned again after empanelment of jury - No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2). CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Motive to lie an issue for the jury's determination - Crown Prosecutor's address to the jury drew attention to complainant's response - Whether the Crown Prosecutor's address resulted in a miscarriage of justice - Crown Prosecutor permitted to refer to complainant's evidence - Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying. CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Whether trial judge's direction that there may be a number of reasons why a person has a motive to lie was inadequate - Trial judge directed jury to the complainant's response and reminded jury that Crown bore onus of proof beyond reasonable doubt - Trial judge's direction concluded that it was a matter for the jury to assess complainant's evidence - Trial judge's direction was adequate. CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995, s 165 - Appellant's defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave - Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2). CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice - Court not satisfied that there were defects in the conduct of the case - Appeal dismissed. CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed - Trial judge assessed the offending conduct below the mid-range of objective seriousness - Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence - Appeal allowed - Appellant re-sentenced. CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature - Despite error no other sentence warranted in law in respect of counts 1 and 2. CRIMINAL LAW - Application for leave to appeal on sentence - Length of total sentence imposed - Whether trial judge erred in not finding special circumstances - Trial judge had regard to the question of accumulation of sentences - Trial judge was not in error.

CRIME - appeal - severity of sentence- cultivation and supply commercial quantity cannabis - enhanced indoor means - s 166 offences - whether double punishment - concurrency - whether deemed supply constitutes extra criminality beyond cultivation - whether manifestly excessive - whether special circumstances.

APPEAL - application for leave to appeal dismissed - no issue of principle

TRADE AND COMMERCE - misleading or deceptive conduct - unconscionable conduct - prospective lessee withdraws from negotiations for agreement for lease - whether misconduct of either type committed - ESTOPPEL - equitable estoppel - estoppel by convention - prospective lessee withdraws from negotiations for agreement for lease - whether estoppel of either type arises

PRACTICE AND PROCEDURE - motion to adduce further evidence on appeal - whether primary judgment given after a "trial or hearing on the merits" within s 75A(8) of the Supreme Court Act 1970 - whether an interlocutory judgment is necessarily given without a trial or hearing on the merits - whether special grounds shown to receive further evidence - whether discretion to receive further evidence under s 75A(7) of the Supreme Court Act 1970 should be exercised in favour of the appellant. AGENCY - solicitor and client - moneys borrowed by husband and wife - both sued by lenders - wife gives instructions to solicitor on her own behalf and on behalf of her husband - whether primary Judge correctly found that the solicitor was authorised to execute terms of settlement on behalf of the husband.

PRACTICE AND PROCEDURE - whether Court has jurisdiction to entertain an application for leave to appeal from a wasted costs order made on an application under the Jurisdiction of Courts (Cross-Vesting) Act 1987 - availability of judicial review of costs order under s 69 of the Supreme Court Act 1970.

PRACTICE AND PROCEDURE - judgments and orders - power to set aside or vary orders entered -- whether power should be exercised when application is not filed within 14 days of order being entered - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (3A) - whether Court can dispense with the rule in this case - Civil Procedure Act 2005 (NSW), s 14 - consideration of public policy in all persons being entitled to rely upon orders of court - application to set aside previous orders so much as they affect the plaintiff - whether orders were made irregularly - asserted irregularity as to validity of consent orders - application not properly brought by notice of motion - Uniform Civil Procedure Rules (NSW), r 36.15(1) not engaged STRATA TITLES - strata management statements - purpose of strata management statement as providing for efficient administration and operation - strata management statement has no effect to the extent it is inconsistent with any other law, including a by-law - whether amendments to strata management statement are invalid because inconsistent with statutory provisions - consideration of Strata Schemes Management Act 1996 (NSW), ss 43 and 47 and Strata Schemes (Freehold Development) Act 1973 (NSW), ss 28U and 28W

[CORPORATIONS] - statutory demand - application to set aside - whether Graywinter principles apply to preclude reliance on grounds not expressly or by inference identified in supporting affidavit - whether genuine dispute as to existence of debt.

SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE - Two Plaintiffs, a son and a daughter of the deceased, seek a family provision order out of the estate and/or notional estate of the deceased under the Succession Act 2006 - Each Plaintiff received a general legacy out of the estate in the deceased's Will - Actual estate insufficient to satisfy all general legacies - The Defendants are the executors to whom Probate granted, the widow of the deceased and the Trustee of the Superannuation Fund of which the deceased was a member - Following the deceased's death, property in the Fund became held by the widow as a result of the resolution of the Trustee - Whether to make a family provision order and an order designating property as notional estate - If orders for provision made, how the burden of that provision and for the costs of the proceedings should be borne EVIDENCE - Production of prior wills and testamentary instruments and notes of instructions - Whether client legal privilege may be claimed - Whether would result in disclosure of a confidential communication or the confidential contents of a document

CONTRACT LAW - Joint venture - validity of deed - whether party to deed entitled to recover sum for services rendered - recovery of expenses - proof of expenditure - GST liability.

ADMINISTRATIVE LAW - review of Council decision - whether Council had power to install parking restriction signs - no stopping sign - permissive parking sign - procedural fairness - regulate traffic - prescribed traffic control device

INSURANCE - motor vehicle accident - application for sharing - construction of Sharing Agreement - jurisdiction of Sharing Disputes Panel - whether claim finally determined in curial proceedings

ADMINISTRATIVE LAW - judicial review - jurisdictional error - plaintiff challenges the certificate issued by a medical assessor pursuant to Part 3.4 of the Motor Accidents Compensation Act 1999 - plaintiff also challenges the dismissals of her application for review pursuant to s 63 and her application for further medical assessment pursuant to s 62 of the Act - test for causation - declaration that first decision void ab initio

APPEAL - leave to appeal - appeal from interlocutory decision - primary judge dismissed application for medical examination of plaintiff - whether primary judge erred in identifying relevant factual considerations - whether Court of Appeal should interfere with orders regulating procedure in a trial division - discussion of In The Will of Gilbert (1946) 46 SR(NSW) 318 PROCEDURE - medical examination - defendants applied for medical examination of plaintiff by medical expert - plaintiff previously medically examined at defendants' request - whether prior examination a consideration relevant to subsequent application

RESTITUTION - unjust enrichment - claim that money paid by respondent at request of appellant - respondent paid cost of construction of road roundabout giving access to properties of both parties - whether the appellant impliedly requested the respondent to construct the roundabout for their joint benefit - whether the respondent relied upon any such request - whether respondent entitled to recover half of the construction cost from the appellant

DAMAGES - torts - exemplary damages - medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect - relevance of planning and duration of course of conduct MEDICAL PRACTITIONERS - liability in tort - defence of consent - medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect - whether defence of consent available - burden of proof of demonstrating consent of patient - whether medical practitioner was reckless as to whether treatment was either appropriate or necessary - whether exemplary damages should be awarded STATUTORY INTERPRETATION - Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury - purpose of leaving those who commit intentional torts to the operation of the general law - whether provision engaged by treatment known not to be reasonably necessary TORTS - trespass to the person - consent to medical treatment - requirement that basic information be given to patient - distinction between nature of procedure and peripheral characteristics - whether misrepresentation of the nature of the procedure vitiates consent - relevance of motive of practitioner in misrepresenting the proposed treatment - burden of proof of establishing that procedure undertaken with consent - whether honest and reasonable belief that patient consented a defence

LAWYERS - tort - advocates' immunity - basis for immunity in finality of judicial determination - allegations against Legal Aid Commission in relation to provision of funding - allegations against plaintiff's legal representatives in relation to conduct of trial - whether open to plaintiff to show that impugned conduct had adverse effect on outcome of proceedings - discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 LAWYERS - tort - role of prosecutor - alleged breach of duty to disclose relevant material to defence and to do nothing that would obstruct the administration of justice - whether breaches of duty give rise to liability in negligence PRISONERS - civil proceedings - leave to commence proceedings - whether court required to form broad impression as to prospects of success - whether different expressions of standard of prospects of success significant - Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5 PROCEDURE - application for leave to commence civil proceedings - "prima facie ground" - Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5 WORDS & PHRASES - "prima facie ground"

TRADE PRACTICES - misleading or deceptive conduct - proposed redevelopment of Darling Walk site - negotiations between appellant tenant and respondent landlord over possible surrender of lease - discussions about types of redevelopment to be allowed and possibility of rezoning - landlord's negotiator tasked with lowering expectations - representation by landlord that it did not foresee office development being permitted and that best possible future development would be a low-rise hotel - effect of representation on decision to surrender lease and price of surrender - lowering of expectations and loss of chance to negotiate higher price for surrender of lease

CORPORATIONS - external administration - insolvency - distribution of surplus in liquidators' hands - Whether special leave should be granted to liquidators - Direction dispensing with schedule of entitlements - Where case simple and straightforward - Assignment of debt - Where company in liquidation owed debt by another company in liquidation in same corporate group - Where sole contributory another company in same corporate group - Whether company in liquidation can transfer debt owed by other company in liquidation in same corporate group to contributory - Distribution in specie - Company's constitution

WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - informal testamentary instruments in existence prior to execution of will - intention to constitute will - duly executed will disposing of estate in accordance with handwritten instructions - whether deceased intended that handwritten instructions to form will, together with will of 15 August 2006 - informal instruments clearly embody deceased's testamentary intentions - applied intentionalist approach to construction

CORPORATIONS - Winding up - Application for directions by liquidator pursuant to Corporations Act 2001 (Cth) s 479(3) - Whether matter relates to implementation of a business or commercial decision - Whether a legal question is raised which is properly the subject of a direction - Whether a direction should be made to pay liquidator's remuneration, expenses and costs of proceedings.

ADMINISTRATIVE LAW - declaratory relief - applicability to Local Court summary proceedings - discretionary nature of relief CRIMINAL LAW - honest and reasonable mistake of fact - applicability to offences under Fisheries Management Act 1994 - mistaken belief in native title not mistake of fact

TORT - negligence - scope of duty - duty in connection with diagnosis - whether duty to avoid harm occasioned by treatment of the diagnosed injury TORT - scope of liability - (NSW) Civil Liability Act 2002, s 5D(1)(b) - relevant rule of responsibility - rule of responsibility in connection with diagnosis is to protect patient from illness or injury that can be alleviated by treatment - harm occasioned by materialisation of risks inherent in treatment of diagnosed injury is not harm the kind from which the relevant rule of responsibility is intended to protect the patient - Chappel v Hart considered TORT - causation - (NSW) Civil Liability Act 2002 - whether the negligent conduct played a part in bringing about the relevant harm - failure to warn cases considered and distinguished - risk that materialised was not the risk that founded the duty, but a risk associated with fulfilment of the duty TORT - (NSW) Civil Liability Act - inherent risk - does not apply where risk would not have materialised if defendant had used reasonable care and skill

PRACTICE & PROCEDURE - Notice to produce documents - Uniform Civil Procedure Rules r 21.10(1)(a) - whether document or thing referred to PRACTICE & PROCEDURE - Notice to produce documents - application to set aside - defect in form - whether substantial compliance with rule is sufficient - UCPR r 21.10 PRACTICE & PROCEDURE - Notice to produce documents - application to set aside - whether time for compliance is reasonable - UCPR r 21.11

DAMAGES - assessment of damages - medical negligence - plaintiff with pre-existing psychiatric problems - factual issue only - no matters of principle.

COSTS - general rule that costs follow the event - trial costs - appeal costs COSTS - indemnity costs - where Calderbank letter - reasonableness of rejection

CORPORATIONS - creditor's statutory demand - application to set aside - Corporations Act s 459G COSTS - indemnity costs - whether indemnity costs should be ordered where creditor's statutory demand was entirely misconceived - where no reasonable basis for claimed debt has been articulated by defendant - where defendant failed to withdraw it after dispute was raised by plaintiff - act of relevant delinquency

CRIMINAL LAW - sentence - conceal serious indictable offence (MURDER)

ADOPTION - access to information - right of adoptive parents to return of adopted child's original birth certificate

[CORPORATIONS] - Whether assessment of "damage" under s 1317H of the Corporations Act 2001 to take into account matters and/or events occurring subsequent to date of relevant contravention

[CONTRACT] - Whether solicitor authorised by registered proprietors of property to conduct sale process on their behalf - whether emails between solicitor and plaintiffs evidence an intention to enter into binding contract - where one co-owner acted as agent for the purchasers - whether other co-owner entitled to reject offer made by plaintiffs for purchase of the Property

[COSTS] - indemnity costs - offer of compromise - plaintiff does worse than offer - whether court should "otherwise order" - Calderbank letter - whether unreasonable for plaintiff to reject Calderbank offers.

APPEAL - procedure - written submissions - party's written submission exceed the length prescribed by the Uniform Civil Procedure Rules 2005 (NSW) - whether there is a public interest in compliance with time and page limits - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1) APPEAL - procedure - statement of challenges to findings of fact - whether Uniform Civil Procedure Rules 2005 (NSW) require that statements be clearly identified and separate to written submissions - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)

PROCEDURE - stay - application for stay of order of District Court pending appeal - whether appeal has arguable prospects of success - whether balance of prejudice favours stay - Civil Procedure Act 2005 (NSW), s 67; Uniform Civil Procedure Rules 2005 (NSW), r 51.44

PROCEDURE - stay - plaintiff's claim dismissed summarily by District Court - whether open to Court of Appeal to stay order for summary dismissal TORTS - negligence - public authority refused to issue certificate of roadworthiness - plaintiff alleges breach of duty of care - whether proceedings constitute an attempt to review a decision of a public authority through a claim for damages - Civil Liability Act 2002 (NSW), ss 43 to 44

DAMAGES - personal injury - economic loss - theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it - estimation of lost earnings by reference to those of comparable employee

CORPORATIONS - Deregistration - Reinstatement - Corporations Act 2001 (Cth) s 601AH(2) - Reinstatement by court - Satisfaction of the court as to whether it is just that company be reinstated - Circumstances in which company deregistered, purpose of reinstatement, company's solvency and public interest generally relevant to whether company should be reinstated.

Possession - registered second mortgage - cross claim - unjust contracts - equitable relief - action in debt.

APPEAL - criminal - appeal against interlocutory judgment or order - ruling with respect to admissibility of evidence not a judgment or order - whether ruling on objection to production of documents in answer to subpoena is amenable to appeal - Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A EVIDENCE - public interest immunity - whether party called to produce material not the party asserting public interest immunity - discussion of State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; Derbas v R [2012] NSWCCA 14 - Evidence Act 1995 (NSW), ss 130 and 131A EVIDENCE - public interest immunity - offender sought material relating to conduct of suspected informer for use at sentencing hearing - whether public interest immunity capable of being overcome for the purposes of sentencing - whether appellate court is in a position to perform requisite balancing exercise - whether offender demonstrated a real and not hypothetical issue with respect to sentence - Evidence Act 1995 (NSW), s 130

TORTS - Malicious prosecution - Whether primary judge erred in finding that the plaintiff was the subject of malicious prosecution - Onus of proof on plaintiff to demonstrate absence of reasonable and probable cause in the prosecution of the relevant charges - Onus of proof not discharged - Primary judge erred in finding that the elements of the cause of action had been established - Appeal allowed. DAMAGES - Intentional torts - Assault - Whether the primary judge erred in his assessment of compensatory, aggravated and exemplary damages. DAMAGES - Intentional torts - False imprisonment - Primary judge erred in description of purpose of exemplary damages - Court to exercise its own discretion in the assessment of damages. COSTS - Whether proceedings ought to have been commenced and continued in the District Court instead of Supreme Court - Supreme Court was appropriate forum in light of complexity of factual issues - Uniform Civil Procedure Rules 2005, r 42.34. COSTS - General rule that costs follow event - Plaintiff awarded costs against defendant - Mixed outcome where plaintiff lost on a number of issues - House v R error - Miscarriage of primary judge's discretion - Reassessment of proportion of costs - Uniform Civil Procedure Rules 2005, r 42.1.

WILLS, PROBATE AND ADMINISTRATION - wills - testamentary capacity - whether deceased lacked testamentary capacity at time of making will - consideration of deceased's history of mental illness - where deceased suffered schizophrenia - whether deceased understood nature of act of making a will and its effect - deceased's failure to comprehend and appreciate claims to which she ought to give effect - onus remains with person propounding will to establish deceased had testamentary capacity - held onus not discharged WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - duties of solicitor - unsatisfactory way in which instructions for will were obtained - will prepared prior to having obtained instructions from deceased - will instructions provided by beneficiary of will - solicitor asked leading question of the deceased, translated to Macedonian by family members - no knowledge whether questions were accurately translated to deceased and deceased's answers accurately conveyed - undesirable that confirmation of will instructions obtained in presence of family members WILLS, PROBATE AND ADMINISTRATION - letters of administration - appointment of administrator - whether plaintiff would be fit and proper person to be appointed as administrator - majority of those entitled on intestacy seek appointment of defendant as executor

PROCEDURE - costs - whether costs should follow the event - unsuccessful plaintiff seeks indemnity costs against successful defendant - plaintiff alleges defendant admitted the existence of a de facto relationship only just before trial - whether non admission occasioned increase in plaintiff's legal costs. HELD: defendant's late admission of de facto relationship did not significantly increase the plaintiff's costs - costs should follow the event - plaintiff ordered to pay the defendant's costs on the ordinary basis

[PROCEDURE] - civil - application for stay of judgment - where proceedings cross-vested from Supreme Court of Queensland -Building and Construction Industry Payments Act 2004 (QLD) - whether court should exercise its discretion to grant a stay - whether the plaintiff's rights will be rendered nugatory - whether refusal of stay will cause substantial prejudice.

APPEAL - leave sought to appeal interlocutory decision - response to letter of demand enclosed cheque for part of sum demanded and stated that the banking of the cheque constituted acceptance of that sum as full settlement of debt - whether lower court erred in failing to find that the banking of the cheque constituted accord and satisfaction of debt such that defendant's pleadings for remainder of debt disclosed no reasonable cause of action - whether lower court erred in refusing to summarily dismiss or strike out - whether leave should be granted to appeal - whether legal novelty of claim warrants transfer of proceedings.

CRIMINAL LAW - sentencing - murder - guilty plea - limited provocation - seriousness of offence of a high order - offender on parole - convictions for personal violence offences - intoxication and illicit drug use - utilitarian discount for plea - parole revoked - when sentence to be commenced.

PRACTICE AND PROCEDURE - Subpoena served in New Zealand - Basis for calculating recoverable loss and expense in complying

CONTRACT - termination - contractual licence to occupy Commonwealth land - doctrine of executive necessity - whether the Commonwealth can terminate licence contrary to express contractual terms because of a change of policy concerning use of the land - contract entered into as present exercise of power as owner of land - not a fetter on future exercise of duty or discretion under statute or prerogative - held termination not justified on ground of executive necessity CONTRACT - implied terms - whether the Commonwealth required to act reasonably and in good faith in exercising contractual power to require licensee to remedy default and to fix time for default to be remedied CONTRACT - performance - obligation to keep buildings in good and safe repair - obligation to keep in good and safe repair includes requirement to first put into good and safe repair - whether obligation displaced by expectation of parties when entering into licence for anticipated short duration REAL PROPERTY - whether agreement for use and occupation of land was lease or licence CONTRACT - whether jurisdiction to grant relief against forfeiture of contractual licence to occupy land - if Commonwealth entitled to terminate licence for licensee's failure to remedy defaults within specified time limited, whether licensee entitled to relief against forfeiture

ESTOPPEL - equitable estoppel - creation or encouragement of assumption - respondent left school at age of 15 to work in father's orchard business - business conducted partly on land owned by respondent's grandfather - representation made by grandfather that his land would pass to respondent, but would first pass to the respondent's father so property could be worked as a whole - respondent continued to work in business after grandfather's death - representation that will had been made leaving land to respondent, or that respondent would inherit the land confirmed by father over a course of years to numerous persons in family and community who interacted regularly with respondent - respondent continued to work on farm - evidence given that this deliberate choice of a hard career was at least in part motivated by his assumption of the specific devise - the father's will was at a much later date changed so as to no longer specifically devise portion of property to respondent - action in estoppel brought against estate after death of father to enforce reliance on representations made during lifetime - representations and reliance established and estate estopped - appeal against decision below dismissed ESTOPPEL - equitable estoppel - detriment - establishing detriment does not require the person relying on the representation to establish that he or she is "worse off" as a result of that reliance - the relevant detriment is that which is brought about by the failure to fulfil a representation where the person has made a choice that would not have been made had it not been for the representation ESTOPPEL - equitable estoppel - representations - no error in finding representation was conditional on continuance of circumstances that representor and representee both knew of ESTOPPEL - equitable estoppel - representations - evidence that testamentary intention was not seen as a proper subject of discussion between father and respondent - deceased made much more direct representations to third parties and other members of family over a number of years that property would be left to respondent - no error by trial judge in finding that deceased was aware respondent knew of those representations and did nothing to dissuade the respondent from believing them to be the truth - evidence of oblique assurance of intention to leave specific portion of property to respondent