Cases and authorities

CRIMINAL LAW - procedure - determination as to fitness to be tried CRIMINAL LAW - murder - trial by judge alone - offence committed whilst accused suffering acute symptoms of schizophrenic illness - consensus between expert psychiatrists as to mental illness defence - defence established

Detailed rulings as to specific applications to tender documents. Parties to bring in Short Minutes of Order to give effect to judgment.

EQUITY - mortgage - relief against forfeiture - unconscionability - report made to credit-reporting agency

PRACTICE AND PROCEDURE - application for summary judgment - whether a defence to the claim exists

APPEAL AND NEW TRIAL - procedural fairness - primary judge proceeded on the basis that a binding contract existed - findings made with respect to consideration for contractual promises - such matters not expressly raised by the pleadings - whether lack of procedural fairness - trial in fact conducted on a basis going beyond the pleadings - parties expressly accepted in separate arbitration proceedings that they were bound by the relevant contract - no operative procedural fairness.

CRIMINAL - Interlocutory proceedings - provenance of documents - business record - unfairly prejudicial pursuant to s 137 of the Evidence Act 1995

PROCEDURE - subpoenas - application to set aside - whether legitimate forensic purpose - whether it was "on the cards" that the documents would assist the case of the party issuing the subpoena - proceedings for malicious prosecution and false imprisonment - prior proceedings for defamation against third party - settlement of defamation proceedings - whether settlement documents should be produced - confidentiality issues attending settlement documents - subpoena not set aside

TORT - negligence - professional negligence - failure to diagnose

PRACTICE AND PROCEDURE - costs - indemnity costs or ordinary costs - challenge to retainer of solicitor for corporate plaintiff, being one of two plaintiffs - solicitor acting for a period of two months - onus of proof on party impugning retainer - exercise of Court's discretion where proceedings would have continued in the name of the non-corporate co-plaintiff in any event - HELD: corporate plaintiff's solicitor not ordered to pay the defendant's costs.

Appeal to Supreme Court from Local Court on a question of law - finding of fact made without evidence - error of law

CRIMINAL LAW - appeal - sentence - whether error emerges from sentencing judge's remarks during hearing - whether sentencing judge erred in failing to account for appellant's protective custody in sentencing.

CRIMINAL LAW - conviction appeal - unreasonable verdict ground - application of SKA v The Queen [2011] HCA 13; 243 CLR 400 where order for retrial made - whether necessary or appropriate for Court to express view on issue of appellant's guilt

CRIMINAL LAW - sentence appeal - aggravated robbery - plea of guilty - applicant attending strict residential rehabilitation course over 14 months - rehabilitation very successful - failure of sentencing judge to take into account time on rehabilitation course as quasi-custody - need to take period of quasi-custody into account - backdating of commencement date of sentence.

CRIMINAL LAW - appeal against conviction - aggravated sexual intercourse - whether trial judge erred in directions concerning use of relationship or context evidence - credibility of complainant - tendency evidence - whether trial judge failed to properly put defence case - whether trial judge erred in directions concerning assessment of evidence of child witnesses

PRACTICE AND PROCEDURE - Order for interim payment of damages - Plaintiff requires new accommodation - Motor accident in Queensland - Damages assessed by Queensland law - Chapter 5 of Motor Accidents Compensation Act 1999 does not apply - Order not limited to established need

ADMINISTRATIVE LAW - jurisdictional error - whether the states of satisfaction referred to in ss 13(3A) and 9(5) of the Independent Commission Against Corruption Act 1988 are jurisdictional facts - states of satisfaction held to be jurisdictional facts ADMINISTRATIVE LAW - jurisdictional error - judicial review on "no evidence" grounds - judicial review for illogicality or irrationality in jurisdictional fact-finding - whether the Commission's findings of "corrupt conduct" were affected by jurisdictional error - whether the Commission purported to make findings of jurisdictional fact for which there was no evidence, or no rationally probative evidence - Commission held not to have fallen into jurisdictional error - summons dismissed

TORT - negligence - claim for work injury damages under Workers Compensation Act - duty of care - employer's non-delegable duty of care to provide safe system of work - where employer claims no capacity to discharge its duty of care by reason of corporate arrangement - contributory negligence - apportionment between joint and several tortfeasors - contribution and/or indemnity between joint and several tortfeasors LIMITATION - discoverable fact - whether the plaintiff was required to take steps to confirm the true identity of his employer

COSTS - solicitor's lien - dispute over type of lien - which party terminated the retainer - whether plaintiff owes fees to defendant -security for costs

CONVEYANCING - vendor and purchaser - purported rescission of contract by purchaser - whether purchaser became mentally ill - termination of contract by vendor - application for return of deposit

CORPORATIONS - winding up - application for "pooling order" in respect of two entities in liquidation - one a company the other an Aboriginal and Torres Strait Islander corporation - whether the windings up of a "group" consisting of corporations of these different types may be pooled under either the Corporations Act 2001 (Cth) or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - held that they may not - the company later obtains re-registration under the Corporations (Aboriginal and Torres Strait Islander) Act and deregistration under the Corporations Act - application renewed under provisions of the Corporations Act applied by the Corporations (Aboriginal and Torres Strait Islander) Act to the windings up of Aboriginal and Torres Strait Islander corporations - consideration on the merits by reference to the six questions identified in Re Kirby Street (Holdings) Pty Ltd [2011] NSWSC 1536 - pooling approved

COSTS - Apportionment of costs - Uniform Civil Procedure Rules 2005 (NSW) r 42.1 - Whether costs orders should depart from the general rule that costs follow the event.

MEETINGS - public meetings and assemblies - unlawful assembly - application for order under Summary Offences Act 1988 Part 4 - principles on which order should be made or withheld

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 440A(2) - Application for the adjournment of winding up application - Relevant factors as to whether application should be adjourned.

CORPORATIONS - winding up - statutory demand - application for orders setting aside - genuine dispute

PRACTICE AND PROCEDURE - leave to appear as lay advocate for wife on substantive hearing - stay of execution of writ of possession - order sought prohibiting any lawyer retained by respondent from taking any further part in the proceedings.

PRACTICE AND PROCEDURE - interlocutory application - Uniform Civil Procedure Rules 2005 (NSW) r 7.36 - self-represented applicants - applicants of limited means - complex proceedings - application for referral to the Pro Bono Panel - order granted in the interests of the administration of justice.

APPEAL - civil - leave to appeal - second appeal in series - appeal below limited to question of law - issue of principle raised for the first time in application for leave to appeal - whether application without merit LEGAL PRACTITIONERS - existence of retainer - solicitor performed work and appeared prior to provision of written agreement and costs disclosure - whether relationship of solicitor and client existed - discussion of Pegrum v Fatharly (1996) 14 WAR 92; Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Rep ¶81-942; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

BANKRUPTCY - Summons seeking leave to appeal - Bankrupt applicant - Effect of bankruptcy on proceedings - Proceedings commenced by bankrupt before sequestration - "Action" stayed until trustee makes election - Whether summons seeking leave to appeal is "property" within meaning of s 58 - Whether summons seeking leave to appeal is an "action" within the meaning of s 60 - Whether the trustee made an election to prosecute or discontinue the "action" - Bankruptcy Act 1966 (Cth), ss 58 and 60

EQUITY - undue influence - presumption of undue influence - whether presumption arises from relationship between parties - eldery father and daughter - father suffering from mild dementia - whether presumption rebutted. EQUITY - unconscionable conduct - daughter caring for father - whether father's medical condition gave rise to a 'special disability'. FAMILY PROVISION - adult sons - one son homeless and estranged for 36 years - other son dependant on pension - whether adequate provision made - whether notional estate order should be made - intention of deceased - difference between intention and effect of transaction.

REAL PROPERTY - co-owners - statutory power of sale - application by bankruptcy trustees of one co-owner - property encumbered - whether trustees entitled to sell if no equity remaining in property - whether sale would be outside provisions of Bankruptcy Act and Regulations - whether discretion in court to refuse order for sale

Negligence - air-lock in coal mine

PROCEDURE - judgments and orders - amending, varying and setting aside -application by second defendant to have judgment and consent orders set aside pursuant to UCPR 36.15(1) and 36.16(2)(c) or pursuant to the Court's inherent jurisdiction - application dismissed with costs

CRIME - sentence - manslaughter - manslaughter by unlawful dangerous act

CRIMINAL LAW - Sentence - Manslaughter - Single stab wound during affray - Good behaviour bond at time of offence - Unreasonable self-defence - Reasonable prospects of rehabilitation - Discount for plea of guilty - Special circumstances for varying statutory ratio for non-parole period

SUCCESSION - family provision - notional estate - plaintiff, son of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under Succession Act 2006 - plaintiff received no provision out of the estate in the will - defendant is husband of the deceased to whom the deceased left entire estate - whether provision should be made for plaintiff and, if so, the nature of the provision to be made

CRIMINAL LAW - judge alone trial - charges of murder, wound with intent to murder and possess offensive weapon with intent to commit an indictable offence - defence of mental illness - acts committed whilst Accused experiencing acute psychotic episode - chronic paranoid schizophrenia - auditory hallucinations - verdicts of not guilty by reason of mental illness - detention order made

INSURANCE - catastrophic injury - structured settlement - construction of deed - entitlement to 29 hours care and case management services - entitlement to cost of entrance ticket for nurse or carer at recreational events -REMEDIES - declaration - discretionary nature of relief

CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - whether permitted under Land and Environment Court Act s 63. CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - conviction - whether miscarriage of justice. CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - sentencing - failure to inform defendant of right to raise matters of mitigation - miscarriage of justice.

PROCEDURE - oral application for variation of earlier orders - no matter of principle

TRUSTS AND TRUSTEES - express trusts constituted inter vivos - Quistclose trust - partner paid money into capital of partnership - money subsequently misappropriated - whether misappropriated fund subject to Quistclose trust - existence of Quistclose trust depend on the circumstances - moneys paid and held for purposes of partnership - no Quistclose trust TRUSTS AND TRUSTEES - constructive trusts - Muschinski v Dodds trust - capital contribution made to partnership which failed prematurely - specific terms of partnership agreement providing for division of assets on its termination - no Muschinski v Dodds trust TRUSTS AND TRUSTEES - tracing - partnership monies misappropriated and applied to discharge joint liability of a director of partner and third party - whether other partner entitled to personal remedy against third party and proprietary remedy against her property - partner's beneficial interest in partnership assets not entitle partner to claim traceable proceeds or personal rights against owner of traceable proceeds PRACTICE AND PROCEDURE - costs - Sanderson orders - principles to be applied

ENVIRONMENT AND PLANNING - acquisition of land - whether remediation direction effectively prohibiting use of land within power of Court of Minister - whether constitutes acquisition of land ENVIRONMENT AND PLANNING - development control or assessment - planning instruments - local environmental plan - interpretation - whether local environment plan provided exception to consent requirement under Native Vegetation Act 2003 s 12

EVIDENCE - claim for damages, indemnity and contribution arising from helicopter accident - tender of reports of aviation medicine expert - objection to tender of report on grounds that the author failed to adequately expose his reasoning for conclusions reached - necessary to read the report as a whole - "statement of reasoning rule" does not require lengthy statement of reasons - reports admitted

CRIMINAL LAW - fitness to plead to murder charge - cognitive impairment - verbal skills within extremely low range - inability to instruct counsel.

PRACTICE AND PROCEDURE - Amendments - Application by Plaintiff for leave to file Second Further Amended Statement of Claim -Whether specific amendments would be permitted - Second Further Amended Statement of Claim not pressed in form currently before the Court.

CORPORATIONS - Winding up - Statutory demand - application to set aside - (CTH) Corporations Act 2001 s 459G - genuine dispute - COSTS - Statutory demand

TORTS - negligence - duty of care - employer-employee relationship - employee injured whilst assisting in unloading contractor's vehicle - employer knew or should reasonably have known of risk of injury - failure to provide a safe system of work TORTS - workplace injury - apportionment between tortfeasors - employee injured whilst assisting in unloading contractor's vehicle - risk of injury in unloading operations - contractor 60% and employer 40% responsible for employee's injuries TORTS - workplace injury - action by employee against third party - s151Z Workers Compensation Act 1987 - reduction of damages by reason of contribution recoverable from employer - calculation of reduction - s 151H Workers Compensation Act 1987 - degree of permanent impairment of injured worker - whether need for medical assessment under Workplace Injury Management and Workers Compensation Act 1998 TORTS - compulsory third party motor vehicle insurance - plaintiff injured whilst assisting in unloading trailer attached to prime mover - metal frames on trailer unsecured during unloading operations - whether defect in vehicle for purposes of Motor Accidents Compensation Act 1999 - whether accident occurred in use or operation of vehicle

REAL PROPERTY - mortgages - whether monies owing on mortgage - whether side agreement that monies not owing effective - two proceedings heard together-brought by mortgagor, Ms Avery against first and second mortgagees of Torrens title land, respectively Lava and Saree - first mortgagee entered judgment for possession against plaintiff/mortgagor in March 2009 - plaintiff/mortgagor seeks to set aside in Lava proceedings - plaintiff/mortgagor seeks declaratory relief against Saree mortgagee. PROCEDURE - judgment and orders - varying, amending or setting aside - whether existing judgment for possession in Lava proceedings should be set aside under UCPR, r 36.15 as irregularly entered due to Consumer Credit Code, s 80 notice not being served before commencement of proceedings - whether "sufficient course" is shown to set aside judgment - HELD - no irregularity in the entry of judgment - in any event sufficient cause not shown to set aside judgment for possession. CONSUMER CREDIT - credit protection - general - regulated contracts and regulated mortgages - whether by the application of Consumer Credit Code, s 6(1) the Code applies to Lava's loan agreement to the plaintiff in the Lava proceedings - whether plaintiff/mortgagor "ordinarily resident" in jurisdiction under Code, s 6(1)(a) - whether charge made for providing the credit under Code, s 6(1)(b) - whether credit provided in the course of a business Code, s 6(1)(d) - HELD: Code applies - is a regulated credit contract. MORTGAGE - the mortgage - second mortgage registered with Saree as mortgage - plaintiff/mortgagor claims agreed in side agreement as part of illegal scheme that no money is owing to Saree on second mortgage - HELD: side agreement not part of illegal scheme - directions for taking of accounts.

SUCCESSION - informal will - s 8 of the Succession Act 2006 - will written out on standard will form - whether deceased intended document to operate as her will - whether deceased died intestate - whether defendant was de facto spouse - family provision and maintenance - application by child for provision from mother's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made

COSTS - Whether costs should follow the event.

[DISCLOSURE] - Practice Note SC Eq 11 -application for disclosure prior to service of evidence - where party has served numerous subpoenas - "exceptional circumstances"