Cases and authorities

PRACTICE & PROCEDURE - Notice to produce documents - Uniform Civil Procedure Rules r 21.10(1)(a) - whether document or thing referred to

CRIMINAL LAW - appeal - conviction - miscarriage of justice - fresh evidence - statements not known to accused at time of trial - statements made after trial by Crown witness - likelihood that jury would have arrived at a different verdict.

CRIMINAL LAW - interlocutory application - Court Suppression and Non-publication Orders Act 2010 (NSW) s 7, s 8 - "reward" applications for witness testimony - whether publication of witness interview would indirectly reveal police methodology - suppression order made to prevent prejudice to proper administration of justice.

CRIMINAL LAW - Crown appeal - sentencing - robbery in company (s 97(1) Crimes Act 1900 (NSW)) - aggravated break and enter and intimidate whilst armed with an offensive weapon (s 112(2) of the Crimes Act 1900 (NSW)) - whether sentence adequately reflects objective seriousness - whether non-parole period reflects objective gravity of s 112 (2) offence - whether an excessive degree of partial concurrency was applied - whether each sentence and aggregate sentence were manifestly inadequate - the sentence for the break and enter offence fails to adequately reflect the objective gravity of offence even when taking into consideration the relevant subjective factors - the accumulation of the sentences falls considerably short of the total criminality - residual discretion exercised - appeal dismissed.

Criminal law - sentencing - provocation - finding as to seriousness Appeal - limits on usefulness of statistics and past cases

CRIMINAL LAW - Crown appeal against sentence - robbery in company - whether primary judge failed to take into account, or misapplied sentencing guideline judgment - whether primary judge underestimated objective seriousness of offences - whether sentences manifestly inadequate - application of parity principles - whether primary judge erred in finding offender genuinely remorseful.

PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory decision of the Appeal Panel of the Administrative Decisions Tribunal - no question of law shown by applicant - application dismissed ADMINISTRATIVE LAW - Administrative Decisions Tribunal - procedure - leave to appeal from interlocutory decision of Appeal Panel - meaning of "interlocutory function"

PRACTICE AND PROCEDURE - application for leave to appeal against summary judgment - applicant's defence found to be groundless by primary Judge - no error demonstrated - application dismissed CONTRACTS - construction and interpretation - whether original guarantee supplanted by later guarantee - subjective understanding of one party not relevant - post-contractual conduct not relevant - meaning to be construed objectively

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - proceedings relating to care and protection - competing applications for allocation of parental responsibility determined by Children's Court - orders varied on appeal to District Court - JUDICIAL REVIEW application for order in the nature of certiorari in respect of District Court decision - whether jurisdictional error - whether error on the face of the record - whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected - whether failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection)Act 1998 - whether s 79(3) implemented - whether failure to comply with s 13 and 78A provisions with respect to Aboriginality

COSTS - ASIC as intervener - intervention efficient and of significant assistance to the Court - intervention proper and in public interest - intervener bears own costs - intervener not ordered to pay costs for any extension of hearings

CRIMINAL - Interlocutory proceedings - admissibility of evidence - tender of document - relevance - danger of unfair prejudice does not outweigh its probative value

PROCEDURE - various motions and oral applications - application by defendants for summary dismissal of Attorney General's summons - application refused - motion seeking leave to issue subpoenas - refused - application for trial by jury - application previously heard and refused - leave sought to proceed on defendants' proposed statement of claim - leave not granted - notices to admit facts served on Attorney General - refused - summary judgment on notice to admit facts served on the Commonwealth - notice set aside - leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted - motion to set aside notices to produce documents - granted - notices to produce served on Attorney General - motion seeking production of documents by Attorney General - production of certain documents required, motion otherwise dismissed

PRACTICE AND PROCEDURE - application pursuant to s. 140 of the Civil Procedure Act 2005 for transfer of personal injury proceedings from District Court to Supreme Court - where procedural history in District Court evidenced breaches by the plaintiff of her duty to the court to comply with relevant orders - where there was delay in bringing application for transfer of proceedings in circumstances where hearing date fixed in the District Court - whether court satisfied that damages would be likely to exceed the jurisdictional limit of the District Court - nature of the task of the Court in determining whether it is so satisfied

Legal practitioner - costs - incurred without reasonable cause - affidavit unduly long -practitioner ordered to pay

BAIL - Review of Local Court grant of bail - Nature and seriousness of offence - Strength of Crown case - Probability of future appearance - Protection of the community - Bail refused

CORPORATIONS - Statutory derivative action - Application to bring proceedings on behalf of company - Corporations Act 2001 (Cth) s 237(2) - Whether the Court is satisfied that the applicant is acting in good faith and in the best interests of the company in bringing proceedings - Whether there is a serious question to be tried. CORPORATIONS - Application for inspection of company's books - Corporations Act 2001 (Cth) s 247A - When the Court should make such an order.

PRACTICE & PROCEDURE - notice to produce - application to set aside - UCPR r 21.10(1)(b) - document or thing that is clearly identified - relevant to a fact in issue PRACTICE & PROCEDURE - subpoenas - objection after documents inspected - privilege waived - discretion to restrain use of documents inspected

CRIMINAL LAW - sentence - murder - joint enterprise - specific role of offender undemonstrated - gangland-style execution

PROCEDURE - security for costs previously ordered - subsequent self-executing order of dismissal if security not provided by specified date - appellant seeks discharge of latter order and variation of security order to reduce sum - whether any change in circumstances warranting review

COSTS - where Calderbank letter - no presumption as to indemnity costs - genuineness of offer - reasonableness of rejection.

EVIDENCE - claim for damages, indemnity and contribution arising from helicopter accident - joint report of aviation experts - use by experts of ATSB report - ATSB report not admissible in proceedings - need for further report from aviation experts - need for care in communications with experts to obtain further joint report

CRIMINAL LAW - appeal - conviction - offences of aggravated dangerous navigation occasioning death - whether trial judge erred in presentation of evidence during summing up to jury - failure to summarise evidence by reference to issues - whether leave to appeal should be granted - R v Zorad (1990) 19 NSWLR 91 distinguished; El-Jalkh v R [2009] NSWCCA 139; RR v R [2011] NSWCCA 235 applied - Criminal Procedure Act 1986 (NSW), s 161 CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - whether manifestly inadequate - whether trial judge failed to assess adequately the moral culpability of the defendant - whether trial judge erred in assessing the objective seriousness of the offence - whether manifest error CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - application of guideline judgments - R v Reynolds; R v Small [2010] NSWSC 691; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 applied

CRIMINAL LAW - appeal - sentencing - inflicting grievous bodily harm with intent - affray - plea of guilty - parity principle - relevant differences - different degrees of culpability - different circumstances - youth - children - power to order young offender who has attained 18 years to serve sentence as a juvenile offender - extent of power - where offence is serious children's indictable offence - order available where special circumstances exist - vulnerability due to illness or disability - whether disability available on evidence - whether open to sentencing judge to take into account limitations on power to order sentence be served as juvenile offender - whether manifestly excessive - Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18, 19, 19(1), 19(2), 19(3), 19(4), 19(4A) - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 12, 44, 54D(3) - Crimes Act 1900 (NSW) ss 33, 35, 93C(1) - Criminal Appeal Act 1912 (NSW) s 6(3)

Criminal law - sentencing - standard non-parole period - role of judge in assessing objective seriousness - significance of standard non-parole period

Criminal law - s5F appeal by Crown against rejection of evidence substantially weakening prosecution case Criminal law - relevant evidence is necessary to reject confession on the basis of unfairness under s90 Evidence Act 1995.

PRACTICE AND PROCEDURE - Notice of motion - Order was sought to stay the enforcement of a costs judgment- Unnecessary to determine the notice of motion as the respondents do not seek to enforce the costs judgment until further proceedings in the Common Law Division of the Supreme Court have been heard and determined - Notice of motion remitted to the Common Law Division of the Supreme Court - Costs of the notice of motion

PRACTICE AND PROCEDURE - Landlord and tenant - Application for further stay order granting possession of the premises - Finding affordable alternative accommodation - Request for housing assistance

PRACTICE AND PROCEDURE - Appeal - Application for expedition unopposed - Contract - inability to raise totality of funds to complete purchase - security for costs.

PROCEDURE - Application for Leave to Appeal - Date for hearing of the summons for leave to appeal vacated - Applicant seeking to appeal against refusal of legal aid to the Legal Aid Review Committee - Application of ss 56 and 57 of the Legal Aid Commission Act 1979 - Exercise of Court's discretion to vacate hearing date pending determination of Legal Aid appeal.

LOCAL GOVERNMENT - validity of orders for removal and disposition of waste on residential premises - Local Government Act 1993 s 124 (cl 22A) - where orders required entry onto premises whether or not owner consented - orders not clear and expressed in terms of futurity PROCEDURE - whether third appellant required tutor to commence appeal - UCPR r 7.14 - where third appellant subject of financial management order - no submitting appearance entered by manager - whether Court can appoint tutor - parens patriae jurisdiction - UCPR r 7.18 COSTS - delays from non-compliance with directions and processing legal aid application - appellants initially unrepresented - effect of delays on costs orders

DEFAMATION - Whether matter complained of conveyed defamatory imputations - Application of ordinary reasonable reader test DEFAMATION - Defences - Qualified privilege - Common law - Reciprocity of interest - Employers' association - Letter sent to members of association - Communication of defamatory imputations - Whether matter complained of published pursuant to a duty to protect the financial and business interests of the association and its members - Whether matter complained of published on occasion of qualified privilege DEFAMATION - Defences - Qualified privilege - Proof of malice - Admissibility of draft letter as evidence of malice DEFAMATION - Damages - Whether award of compensatory and aggravated damages excessive APPEAL - General principles - Whether a point not taken at hearing may be raised on appeal - Court is to determine whether it is in the interests of justice and expedient to determine the new point

PRACTICE AND PROCEDURE - Supreme Court of New South Wales - Uniform Civil Procedure Rules 2005 (NSW) Pt 13 r 13.4(1)(b) and (c) - application to dismiss proceedings against second defendant and third defendant on the basis that the plaintiff has disclosed no reasonable cause of action and the proceedings are an abuse of process - plaintiff claims that the first defendant sold land to the second defendant who on-sold part of it to the third defendant in which land the plaintiff had a beneficial interest in circumstances where the sale was a breach of fiduciary duty by the first defendant - plaintiff had in earlier proceedings against the first defendant asserted the same beneficial entitlement - those proceedings culminated in orders of the Court of Appeal that plaintiff had a beneficial entitlement in the proceeds of sale - plaintiff claims against the second and third defendants that they participated in the alleged breach of fiduciary duty and now hold their interests in the land on constructive trust for him - second and third defendants' interests in the land are registered under the provisions of the Real Property Act 1900 (NSW) - HELD - plaintiff has disclosed no reasonable cause of action because he can have no interest in the land, which can be asserted against the second and third defendants - his only interest is that recognised and declared by the Court of Appeal in the proceeds of sale - HELD - further, he has disclosed no reasonable cause of action because he must plead and establish fraud on the part of the second and third defendants, and has not pleaded it - HELD - further, the proceedings are an abuse of process because they are an attempt by the plaintiff to re-litigate a central issue determined in the prior judgment of the New South Wales Court of Appeal Uniform Civil Procedure Rules 2005 (NSW) Pt 13 r 13.4(1) operates subject to Civil Procedure Act 2005 (NSW) s 56(1) and (2) - approach to exercising power under r 13.4(1) is the same as that elucidated in Spencer v Commonwealth of Australia (2010) 241 CLR 118 - reasonable cause of action is one giving rise to real issues requiring resolution by the court - proceedings need not be hopeless or bound to fail, although in the present case they are hopeless or bound to fail

CORPORATIONS - winding up - statutory demand - application for orders setting aside - validity of service of application and supporting affidavit - unsealed originating process served - sealed originating process and supporting affidavit served outside 21 day period.

COSTS - Winding up - UCPR r 42.15 - offer of compromise - application of usual rule where matter settles without hearing - claim by liquidator against Commissioner of Taxation - Commissioner joins company's sole director as third party - no contest by Commissioner - director puts liquidator to proof of insolvency - principles on which costs should be awarded where no contest by Commissioner and director declined to admit insolvency ultimately proved

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand on the basis of defect in supporting affidavit.

Cost - indemnity costs - Calderbank offer - Offer of Compromise

CRIMINAL LAW - 5F application - jury trial - trial by judge alone - application of s 132 of the Criminal Procedure Act 1986 - whether there is a presumption in favour of a jury trial - what factors are relevant to a determining the interests of justice - whether the subjective views of the accused are relevant to the interests of justice - whether there is evidence to support the subjective views of the accused - whether trial efficiency and reasons are relevant to the interests of justice

CONTRACT - sale of property - agreement to use "best reasonable endeavours" to register plan of subdivision - whether "best reasonable endeavours" obligation differs from "best endeavours" obligation - vendors alleged that compliance with a condition of development consent was impossible and pointless - whether obligation to seek amendment of development consent

COSTS - exceptions to the general rule that costs follow the event - offer of compromise - compliance with Uniform Civil Procedure Rules 2005 (NSW) - plaintiff's offer required the defendant to pay plaintiff's costs - whether offer was exclusive of costs - purpose of requiring offers under the Rules to be exclusive of costs - Uniform Civil Procedure Rules 2005 (NSW), r 20.26 COSTS - Calderbank offer made to several defendants jointly - defendants in different interests - whether unreasonable for one defendant to fail to accept offer COSTS - appeal costs - exceptions to the general rule that costs follow the event - offer of compromise - whether appellant bettered his offer in respect of appeal - whether evidence as to the costs or likely costs of the trial required - level of uncertainty necessary to give rise to non-compliance with the UCPR

MOTOR VEHICLE - vehicle substantially damaged in accident - whether vehicle had sustained "non-repairable damage" - statutory write-off - Road Transport (Vehicle Registration) Act 1997, s 16B - Road Transport (Vehicle Registration) Regulation 2007, reg 83C(1)(c) INSURANCE - motor vehicle insurance - insurer to elect between repairing, paying the costs of repair or making a cash settlement - must elect within reasonable time - in absence of such an election whether insurer liable to pay the agreed value of the vehicle

COMMERCIAL ARBITRATION - Contract - whether written contracts between the parties contains an implied term amounting to an agreement under s 34A(1) of the Commercial Arbitration Act 2010 (NSW) - implied term contended for does not meet established tests

PRACTICE AND PROCEDURE - application for summary judgment - recovery of outstanding debt - no arguable defence raised by second defendant PRACTICE AND PROCEDURE - application to strike out various parts of Amended Commercial List Response - pleading of first defendant inadequate STATUTORY INTERPRETATION - Farm Debt Mediation Act 1994, s11 - application of Act to mortgages - "satisfactory mediation" - not limited to mediation in regards to farm debts alone - validity of certificate not affected by mediation in respect of both farm debts and other debts

PROCEDURE - UCPR 13.4 and 14.28 - application for summary dismissal and strike out - amended statement of claim struck out - leave to plaintiff to file a further amended statement

PRACTICE AND PROCEDURE - motion seeking summary dismissal - plaintiff self represented - plaintiff retained legal representation and sought leave to file and serve amended statement of claim - parties agreed - leave granted.

FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - application by same sex couple

Torts - injurious falsehood - interlocutory injunction to restrain publication - application to dissolve injunction - no material change of circumstances

JUDGMENTS - foreign judgment - judgment of High Court of Solomon Islands - judgment registered after contested application under s.6 Foreign Judgments Act 1991 (Cth) - application under s.7 to set aside registration of judgment - whether judgment registered in contravention of Act - whether High Court of Solomon Islands had jurisdiction - whether judgment obtained by fraud - whether applicable test is different where fraud alleged in obtaining foreign judgment as opposed to local judgment - whether enforcement of judgment contrary to public policy - whether matter in dispute already subject of final and conclusive judgment by other court - whether leave to reopen hearing ought be granted after judgment reserved - reopening application refused - all grounds to set aside registration of judgment rejected

CRIMINAL ASSETS - application for provision for reasonable legal expenses out of restrained property - whether defending a criminal charge embraces appeal to Court of Criminal Appeal - whether property illegally acquired

COSTS - security for costs - plaintiff has no valuable assets and is a trustee - whether plaintiff has a right of indemnity - effect of potential class action - extent of trust assets - no indication that recovery of costs will be compromised - application refused.

CONTRACT - company in voluntary administration - termination of contract by voluntary administrator - whether contractual right to terminate justified - repudiation - reasonable standard in delivery of services