Cases and authorities

COSTS - UCPR 42.1 - whether plaintiff is entitled to costs on an indemnity basis having regard to the overall requirements of justice - whether second defendant's rejection of plaintiff's offers to compromise the proceedings were unreasonable - costs awarded to plaintiff on an indemnity basis from 1 July 2011

CORPORATIONS - consent Short Minutes of Order made 14 March 2011 - order for acquisition of shares - valuation of shares required - valuation evidence

CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - further enquiry after determination of Mental Health Review Tribunal that Accused was fit to plead - Accused suffering from schizophrenia including Formal Thought Disorder - Accused has no insight into his mental illness - whether Accused satisfies the requirements that he be able to make his defence and version of the facts known to counsel and the Court - Accused unfit to be tried.

Corporations Law. Application to set aside statutory demands under s 459G of the Corporations Act 2001. Held no genuine dispute or other reasons to set aside demands. Proceedings dismissed.

CRIMINAL LAW - appeal - conviction - evidence - sexual intercourse with person aged under 10 years - complainant gave unsworn evidence - Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether non-compliance necessitates upholding appeal - whether miscarriage of justice EVIDENCE - witnesses - competence - unsworn evidence - requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether witness competent to give unsworn evidence if not given required direction

CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - extra-curial punishment, public humiliation and vilification - effect on the offender - whether community response should be understood in context - whether error of the sentencing judge shown CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - remorse and self punishment - weight to be given to remorse and self punishment in a case of gross moral culpability - discussion of Neal v The Queen [1982] HCA 55; 149 CLR 305 CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - whether manifestly excessive - whether sentences were outside the relevant range - discussion of R v Borkowski [2009] NSWCCA 102; 52 MVR 528 and R v Cameron [2005] NSWCCA 359; 157 A Crim R 70

CRIMINAL LAW - Appeal - Application for reconsideration - Criminal Appeal Rules 50C - New trial order revoked and acquittal ordered EVIDENCE - Evidence Act 1995, s 98 - coincidence - insufficient similarities

JOINT VENTURE - appeal - joint venture to obtain development consent for residential units prior to sale - whether evidence supported apportionment of profit under joint venture - whether expenses to be deducted from account of net profit extended beyond time at which development consent was obtained to include expenses relating to subsequent sale or disposition - whether expenses relating to development consent included those that had accrued but not been paid - whether primary judge erred in calculation of 'sale price' for the purpose of accounting for net profit - whether orders made were justified.

COSTS - indemnity costs - offer of compromise

CORPORATIONS - Payment of Special Purpose Liquidator's legal costs by General Purpose Liquidator is justified - undertaking to repay legal costs if those costs were not properly incurred

CORPORATIONS - Australian Securities and Investments Commission Act 2001(Cth) ss 502 and 503 - Where liquidator is to be removed or has resigned his appointment in a number of external administrations after disciplinary proceedings - appointment of new liquidator being a principal of the firm where the first liquidator works - comprehensive undertakings having been given by the first liquidator to ASIC under s 93AA of the Australian Securities and Investments Commission Act 2001(Cth) - appointments made

TRAFFIC LAW – Section 136 Road Transport (General) Act 2005 - Traffic sign – Whether sign to enter heavy vehicle weighing station constituted direction to stop - Similar to “divert to” in regulation – Regulation valid – Allow appeal from magistrate’s decision to dismiss charge

COSTS - security for costs - application to vary freezing order

JUDICIAL REVIEW - local court - certiorari - costs in criminal case - whether magistrate applied proper test to determine whether investigation unreasonable or whether proceedings initiated without reasonable cause

[PROCEDURE] - plaintiff's application to reopen case - whether interests of justice favour reopening for purpose of admitting new material - whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness's credibility - whether plaintiff made a tactical decision not to tender an expert's report - whether expert's report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff's alleged depression. [EVIDENCE] - proof - standard of proof - civil - approach to assessment of credibility - burden of proof to the Briginshaw v Briginshaw standard - whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct - whether evidence of each witness should be assessed, on its own merits, for credibility - whether court can defer resolution of the question of credibility until all the facts have been found. [TORTS] - intentional - conspiracy - harm by lawful means - harm by unlawful means - whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry - whether defendants' intent and purpose of agreement was to injure the plaintiff - whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser - whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff - whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance - whether any such conspiracy agreement was carried into execution. [TORTS] - intentional - tort of intimidation - whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract - whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action - whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant's demands - whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants' will, being to deprive the plaintiff of the opportunity to provide demolition services. [TORTS] - intentional - wrongful interference - whether tort of unlawful interference exists - whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs - whether a contractual relationship existed between the first and second defendants - whether the third and fourth defendants knew of that relationship - whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs - whether that interference caused termination of the contract. [LIMITATION OF ACTIONS] - limitation defence - fraudulent concealment - whether plaintiff's cause of action is statue barred - whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) - whether defendants fraudulently concealed causes of action from the plaintiff. [BUILDING AND CONSTRUCTION] - contract - building - performance - whether subcontract was terminated lawfully - whether first and second defendants paid all that was contractually due - whether notice of default and notice of termination was ineffective - whether first and second defendants unlawfully locked out plaintiff from the work site - whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff's plant and equipment. [DAMAGES] - torts - negligence - financial loss - pure economic loss - recoverability - damages for psychological and psychiatric impairment - aggravated and exemplary damages - whether experts report in relation to damages were based on assumptions made good in evidence - whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy - whether plaintiff can claim damages for the loss of opportunity - whether calculation of damages by expert was calculated with flawed assumptions.

TORTS - Malicious prosecution - Whether onus on appellant to prove innocence - Whether the indictment was spent or extant - Whether exercise of DPP's statutory power under s7(2)(b) Director of Public Prosecutions Act 1986 (NSW) was the entry of a nolle prosequi - whether the Court of Appeal was bound by the decision of Davis v Gell (1924) 35 CLR 275

REAL PROPERTY - contract for the sale of land - whether interest payable on vendor's default - specific performance PRACTICE AND PROCEDURE - Document served in accordance with contract - Vendor unable to be contacted - Contract for sale of land provides that service on party's solicitor is sufficient service - Service sufficient under UCPR r 10.6.

Wills, Probate and Administration - Forfeiture under public policy rule - Application - Person killing beneficiary under will - Rule applicable

PROCEDURE - Practice Note SC Eq 11 - disclosure - where parties seek an order for disclosure before service of evidence - existing proceedings - whether Practice Note SC Eq 11 discharges, abrogates or varies existing discovery orders - whether exceptional circumstances - whether disclosure necessary - meaning of "exceptional circumstances" and "necessary" - whether making of disclosure orders consistent with s 56 of the Civil Procedure Act 2005 (NSW)

GUARANTEE AND INDEMNITY - enforcement of guarantees - whether bank entitled to judgment in accordance with guarantees - whether suspension of rights clauses effective - whether defendants can seek relief under s 12GM of the Australian Securities and Investments Commission Act 2001 (Cth) - whether, as a matter of construction, suspension clauses preclude the bringing of the cross-claims relying on federal law.

INCORPORATED ASSOCIATION - strict adherence to rules for expulsion - nature of rights of membership - policy and principle demand strict adherence

CRIMINAL LAW - sentence - accessory before the fact to robbery - robbery of drug dealer - purchase and provision of materials to bind and gag victim - victim robbed of substantial quantity of drugs - offender and robber fled the State and lived off the proceeds

Costs - Indemnity costs - Where plaintiff foreshadowed the commencement of proceedings and an intention to seek indemnity costs - Where defence to proceedings abandoned following the conclusion of the evidence

BAIL PENDING APPEAL TO COURT OF CRIMINAL APPEAL - bail - bail review - unrepresented litigant - whether special or exceptional circumstances existed

Criminal law - appeal on ground sentence excessive - appeal dismissed

CONTEMPT OF COURT - Plaintiff fails to comply with orders of court to take all necessary steps to enable Registrar General to record the defendant as the registered proprietor of real property - Defendant brings motion for contempt - Warrant issued for plaintiff's arrest to face charge of contempt - Contemnor appears, purges his contempt and apologises - Defendant seeks no relief except costs - order for indemnity costs made

PRACTICE AND PROCEDURE - application for leave to appeal against a discretionary interlocutory decision- primary Judge dismisses motion to strike out the statement of claim as pleading statute barred causes of action - whether factual issues better left to trial - whether any error warranting appellate intervention against the decision - application dismissed

JUDICIAL REVIEW - Decision of Industrial Relations Commission of NSW - 2.5 per cent salary increase in public health sector employee award - application of Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 - whether decision of Commission reserved right to seek future variation of award - whether jurisdictional error.

CONSTITUTIONAL LAW - powers to allocate parental responsibility - whether referral of matters to Commonwealth limits power of Children's Court to make orders - no effect of referral on operation of State laws - creation of additional power in Commonwealth Parliament - inconsistencies subject to s 109 of the Constitution CONSTITUTIONAL LAW - statutory framework - interaction between State and Commonwealth laws - whether inconsistencies between State and Commonwealth powers to allocate parental responsibility - no effect on the operation of State child welfare laws - statutory mechanism for dealing with inconsistencies - Family Law Act 1975 (Cth) s 69ZK

PROCEDURE - civil - interlocutory issues - Practice note SC Eq 11 - disclosure - where verified further and better discovery of documents sought - Whether Practice note SC Eq 11 applies in circumstances that existing order for discovery have been performed - whether obligation to give discovery applies to documents discoverable as a result of amendments to "pleadings".

CRIMINAL LAW - sentence - manslaughter - secondary participant in killing in the course of drug "rip off" - aggravating feature of participating in disposal of body - favourable subjective case

PRACTICE AND PROCEDURE - Discovery - Confidentiality - Whether parties are trade rivals - Inspection of documents by trade rivals - Whether inspection should be restricted.

ASSOCIATIONS - Associations Incorporation Act 2009 (the Act) - Director-General of Department of Finance and Services appointed administrator - s 55 of the Act - review sought - nature of review - full merits review - effect of non-compliance with antecedent 1984 Act - "persistently" - power of Director-General discussed - "interest of creditors" - evidence before Court different from and more complete than material before Director-General.

COSTS - security for costs - practice matters - proportionality - form of security - matter of impression - no questions of principle

PROCEDURE - civil - parties - representation - application for referral to legal practitioner on Pro Bono Panel - appeal raises issues concerning the propriety of the manner of conduct of the trial - whether in the interests of administration of justice that applicant be referred for legal assistance - whether applicant's previous legal representative ceased to act because applicant would not accept his advice - whether applicant would accept advice of legal practitioner to whom he is referred - whether applicant has capacity to obtain other legal assistance - interest in open justice - Uniform Civil Procedure Rules 2005 (NSW), r 7.36

CORPORATIONS - General meetings - Poll - Chairman appointed proxy - Whether chairman obliged to call a poll - Whether failure to call a poll invalidates resolutions passed on show of hands.

PROCEDURE - civil - interlocutory issues - stay of proceedings - whether defendant entitled to stay of proceedings pursuant to UCPR r 12.10; s 67 Civil Procedure Act 2005 (NSW); or the Court's inherent power pending costs orders paid in other proceedings on basis of unpaid costs in other proceedings.

CONTRACT - whether concluded agreement reached - principles applicable - sale of business - significance of background context - family acrimony - intention that there be exchange of signed contracts - matters outstanding

CRIMINAL LAW - appeal - conviction - detention with the intention of holding to ransom in the company of others with occasioning of actual bodily harm - s 86(3) Crimes Act 1900 - whether verdict unsafe and unsatisfactory - s 6 Criminal Appeal Act 1912 - whether evidence to support Crown case

CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Criminal Procedure Act, s 293 - presence of disease - evidence of sexual experience of complainant - psychological condition - s 293(4)(2)(ii) - probative value of evidence - evidence admissible. CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Crimes Act s 73 - meaning of "step-father" - does not include de facto partner of parent of child - R v Miller [2001] NSWCCA 209 - history of sexual offences legislation - meaning of "foster parent" - whether includes de facto partner of parent of child. STATUTORY INTERPRETATION - literal approach - purposive approach preferred.

CRIMINAL LAW AND PROCEDURE - Conviction for armed robbery - evidence - clothing - DNA - time disconnect - incapacity to inculpate - similarly cartridge not in possession of appellant - failure to answer jury question - available admissible evidence - conviction quashed and new trial ordered

DEFAMATION - appeal against jury verdict - s 7A Defamation Act 1974 - publication - whether defamatory matter published if made available for third party to read or comprehend whether or not third party does so. DEFAMATION - publication - petition handed around at general meeting - whether jury finding petition not published by defendants one no reasonable jury could reach. DEFAMATION - jury findings imputations not conveyed - whether jury misled on test of ordinary reasonable reader or listener - whether jury findings ones no reasonable jury could reach. DEFAMATION - jury finding imputations not conveyed - where jury incorrectly directed to answer additional questions - effect of additional answers - whether answers influenced by publication findings - whether jury properly discharged function. DEFAMATION - imputations - whether jury findings none of pleaded imputations conveyed ones no reasonable jury properly instructed could reach. DEFAMATION - publication - whether publication established if defamatory matter read and comprehended by joint tortfeasor. APPEAL AND NEW TRIAL - directed verdicts - whether court should direct verdict if jury verdict set aside - s 108(3) Supreme Court Act.

PROCEDURE - refusal of adjournment applications - no adequate explanation for late applications to vacate hearing dates - whether necessary in such circumstances to consider likelihood of prejudice to applicant or precise impact on the Court's efficient operation - appellate reluctance to interfere with judicial discretion in matters of practice and procedure

CORPORATIONS - Winding up - Application by special purpose liquidator for claim to remuneration to be referred to registrar for assessment and quantification - Application for interim payment pending determination.

ASSOCIATIONS AND CLUBS - Incorporated Associations - parties seek the exercise of the Court's jurisdiction under Associations Incorporation Act 2009, s 96 and Corporations Act 2001, s 1322(4) to make orders validating the holding of a general meeting to elect a new Executive Council of an incorporated association - but the parties have now failed to maintain their agreed basis for the Court to exercise Corporations Act, s 1322(4) jurisdiction without a full trial - HELD: proceedings must now be referred to the Registrar for directions for the filing of evidence for a final hearing.

FAMILY PROVISION. Claims by two children of deceased. Orders for provision made. No matter of principle.

MORTGAGES - mortgage securing obligations under a credit contract - where defendant dissuaded by credit provider from making hardship application in accordance with the National Credit Code - default judgment entered without notice to defendant - whether default judgment should be set aside to allow defendant to avail herself of remedies under the Code

MORTGAGES - mortgage securing obligations under a credit contract - where defendant sought to invoke hardship provisions of the National Credit Code - dispute lodged with Financial Ombudsman Service resolved on terms - disagreement as to compliance with terms - default judgment entered without formal notice to defendant - whether default judgment should be set aside to allow defendant to revive dispute

SUCCESSION - Plaintiff, who is a child of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants are the deceased's solicitor and the deceased's niece, to whom Probate of the deceased's Will was granted - No dispute about eligibility or that inadequate provision made for Plaintiff - Only issue nature and quantum of the provision that ought to be made and the burden of costs of the proceedings

CORPORATIONS - Winding up - Application by special purpose liquidator for claim to remuneration to be referred to registrar for assessment and quantification - Application for interim payment pending determination.