Cases and authorities

CRIMINAL LAW - application for leave to appeal against sentence - plea of guilty - single charge aggravated robbery contrary to s 95(1) Crimes Act 1900 -circumstance of aggravation use of corporal violence - finding of special circumstances - whether undue weight placed on applicant's criminal record - prior conviction for manslaughter - similarity between offences - use of violence - drug and alcohol addiction - interstate criminal record - no error demonstrated - whether sentence manifestly excessive - sentence within available range - leave granted - appeal dismissed

CRIMINAL LAW - no matter of principle

PRISONERS - civil proceedings - whether statutory requirement for leave extends to judicial review proceedings PROCEDURE - civil - parties - unrepresented litigant - referral for legal aid or pro-bono legal assistance -Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1) PROCEDURE - civil - application for leave to appeal - no right of appearance under Felons (Civil Proceedings) Act 1981 (NSW), s 7 PROCEDURE - original application by prisoner for leave to commence civil proceedings - relief sought in the nature of access to legal documents - summons seeking leave to appeal filed out of time - extension of time to seek leave required - no alternative forum for relief - no abuse of process - Felons (Civil Proceedings) Act 1981 (NSW)

CONSTITUTIONAL LAW - religion - validity of Commonwealth legislation providing for funding of schools - funding provided for religious purposes - Constitution s 116 CONSTITUTIONAL LAW - validity of State legislation - non-application of Constitution s 116 to State legislative power - whether repugnancy under Australia Act 1986 (Cth), s 5 CONSTITUTIONAL LAW - validity of State legislation - State law creating local councils as bodies politic - powers of local government as consent authority - legal status of local government capable of exercising statutory functions - validity of Local Government Amendment (Legal Status) Act 2008 (NSW), s 220 PROCEDURE - summary disposal -whether reasonable cause of action - attempt to raise issues as to Constitutional validity of legislation - proposition not consistent with existing High Court authority - facts alleged different from those in underpinning existing authorities - essential propositions arguably not precluded by High Court authority PROCEDURE - pleading in nuisance - noxious activity on land affecting various neighbours in different ways - opportunity to replead WORDS & PHRASES - "body politic"

TORTS - negligence - motor vehicle accident - respondent admitted negligence -whether primary judge's finding of contributory negligence was reasonable - whether apportionment correct - marked misapplication of apportionment exercise warranting appellate intervention TORTS - negligence - challenge to quantum of damages found by primary judge -challenge to primary judge's credit findings - award of damages upheld

APPEAL - civil - costs - offer of compromise by respondent in respect of appeal - application of Uniform Civil Procedure Rules 2005 (NSW), Parts 20 and 42 to appeal proceedings - UCPR rr 51.47 and 51.48 COSTS -offer of compromise -compliance with Uniform Civil Procedure Rules 2005 (NSW) r 20.26 - claim for costs on indemnity basis - whether offered reduction in judgment constituted a "compromise" WORDS & PHRASES - "offer of compromise"

APPEAL - shopping centre accident - injured employee of cleaning contractor - liability of occupier - liability of independent contractor - contractual relationship between occupier and independent contractor - indemnity in cleaning agreement - right to indemnity for costs of defending action PRACTICE - (per Young JA)- there is no right for the one party to be represented by two sets of lawyers just because part of its interest is insured unless the leave of the Court is obtained.

LANDLORD AND TENANT - residential tenancy agreement - where occupant of residential premises evicted - application for order allowing residence at premise for period of seven days - whether residential tenancy agreement under the Residential Tenancies Act 2010 - parties cannot enter into agreement for purpose of preventing operation of Residential Tenancies Act 2010 - serious question to be tried that occupant a tenant under fixed term residential tenancy agreement that could only be terminated in accordance with s 84, Residential Tenancies Act 2010 - balance of convenience favours allowing occupant back into possession of premises for seven days - occupant allowed back into possession of premises for seven days on undertakings to vacate after seven days, pay outstanding rent and not to damage premises

EVIDENCE - s 18 of the Evidence Act 1995 - whether stepchild has a right to object to giving evidence

EQUITY - equitable remedies - injunction - application for injunction to restrain defendants from dealing with or disbursing proceeds of sale of property - where defendants agreed to apply whole of net proceeds of sale in reduction of unpaid legal fees claimed by plaintiff - where defendants allege that third parties have prior entitlement to security over property or proceeds of sale - where it appears security given to third parties in breach of agreement with plaintiff - plaintiff entitled to protect rights under agreement - proceeds of sale ordered to be paid into court to allow competing claims to be determined

PRACTICE AND PROCEDURE - defendants' application for security of costs - where there are individuals who are joined as plaintiffs - undertaking given by the individual plaintiffs that should the plaintiffs be unsuccessful in the proceedings, they will not take any point that they are not liable with the corporate plaintiffs for any costs orders made against the plaintiffs - where the corporate plaintiffs are trustees with a right of indemnity out of trust assets to meet a costs order - no order for security should be made

SUCCESSION - Family Provision Act 1982 (NSW) - single asset in estate, a debt - testator had six children, four sons and two daughters - daughters left out of will - one daughter makes a claim under Family Provision Act - whether order for provision should be made in favour of daughter.

EQUITY - trusts - trustees - removal and appointment - Trustee Act 1925, s 70(1) - administration of trust stultified - co-trustee removed as trustee and remaining co-trustee reappointed as sole trustee

WILLS PROBATE and ADMINISTRATION - Construction of will - Gift in will to Diabetes Australia - two incorporated bodies existed, one named Diabetes Australia and one named Diabetes Australia-New South Wales - review of evidence of testator's association and means of knowledge, and of usage of names by persons associated with Diabetes Australia-New South Wales - no significant evidence of testator's use of language except that he gave gifts in same terms in two wills - held that the name used was ambiguous in the circumstances but it had not been shown that he did not intend to benefit the body the name of which he literally used

[SECURITY FOR COSTS] - application against multiple plaintiffs - inherent jurisdiction - one plaintiff resident overseas - whether nature of claim "ill pleaded" - whether claims "unsatisfactory and unusual" - where six attempts to plead a claim [COSTS] - whether circumstances warrant an order that costs previously ordered be payable forthwith

CONSEQUENTIAL ORDERS - Inquiry into damages - interlocutory injunctions restrain defendants from engaging in certain building works in strata block - plaintiff provides usual undertaking as to damages - final judgment does not continue interlocutory relief - third defendant contends suffered loss consequent upon interlocutory orders as unable to live in property - onus on party seeking to enforce undertaking to establish damage sustained but for injunction - basis for sustaining injunction after certain date was removed - third defendant entitled to damages from such date. PRACTICE AND PROCEDURE - Application by defendants to vary judgment - orders made that second and third defendants pay strata corporation fixed sum to repair common property - actual costs of repairs less than amount determined on inquiry - judgment for a fixed sum rather than order for indemnification given to minimise risk of vexation and inconvenience attendant upon indemnity - no basis to recall judgment.

PRACTICE AND PROCEDURE - courts and judges - extension of pseudonym order in respect of the plaintiff - court satisfied that extension of pseudonym order necessary in the circumstances

ADOPTION - 3 applications for adoption of 5 children of one mother but with one father of 3 and another of 2 - applications opposed by mother and the father of 2 - whether orders should be made. Circumstances where the only alternatives put forward were continuing foster care until 18 or adoption.

PARTNERSHIP - dissolution and winding up - where partnership dissolved but business not yet wound up - application by three partners for appointment of receiver - opposed by remaining partner on basis that status quo should prevail pending determination of principal partnership proceedings and related company oppression proceedings - where referee already appointed by consent to determine partnership assets, liabilities, profits and losses - applicants seek expansion of referee's reference to include account and inquiry into partners' interests - whether receiver should also be referee

ADMINISTRATIVE LAW - claim for prerogative relief - procedural fairness - failure to notify party of hearing - adverse order made in absence of party - Consumer, Trader and Tenancy Tribunal Act 2001, ss 25, 35 and 78 - Consumer, Trader and Tenancy Tribunal Regulation 2009 regs 30 and 80. PROCEDURE - appeal - Uniform Civil Procedure Rules 2005, Part 50 - Consumer, Trader and Tenancy Tribunal Act 2001, ss 65 and 67 - definition of "appeal" under UCPR Part 50 -relief granted under Supreme Court Act 1970, s 69, - whether application for prerogative relief constitutes an appeal under Part 50 - Supreme Court without jurisdiction to entertain appeals from the Consumer, Trader and Tenancy Tribunal.

RESTITUTION - monies had and received - need for defendant to exercise control over payment TRUSTS - monies paid to defendants for purpose - purpose failed - Quistclose trust in favour of plaintiff TRUSTS - breach of trust - accessory liability - defendant director of company that received monies fraudulently obtained - sufficient knowledge to satisfy first limb of Barnes v Addy TORTS - deceit - false and dishonest representations intended to be relied on to the detriment of plaintiff - plaintiff entitled to damages - contributory negligence no defence

DEFAMATION - interrogatories - whether necessary that answers be ordered - general principles considered

ADMINISTRATIVE LAW - Claim for prerogative relief - motor accidents compensation scheme - medical assessment of degree of permanent impairment of person as a result of injury caused by motor accident - whether Medical Assessor's certificate under ss 58(1) and 61(2) of the Motor Accidents Compensation Act 1999 is conclusive evidence of causation of injury by accident for all purposes - Whether Assessor bound by finding of causation by Medical Assessor in assessing earning capacity or economic loss. ADMINISTRATIVE LAW - Reasons of Claims Assessor under the Motor Accidents Compensation Act 1999 - whether reasons given by Claims Assessor adequate - appropriate test for examining adequacy of Claims Assessor's reasons.

PROCEDURE - civil - subpoena - application to set aside - subpoenaed material not relevant to pleaded case

PROCEDURE - civil - privilege - common interest privilege - communication between administrators' lawyers and former lawyers of company in administration relating to litigation brought by plaintiff against company- anticipated proceedings by plaintiff if its proof of debt rejected - raise same issues - administrators and company have common interest in relation to proceedings

CONTRACT - Mortgage - liability of wife under mortgage entered into by husband and wife - wife under special disadvantage - whether unconscionable and/or unjust for mortgagee to enforce. PROCEDURE - Application for leave to amend pleadings - need amendments not previously appreciated - delay not as a result of tactical or intentional decision - directions to be made to cure any prejudice. LIMITATIONS - Whether action - whether limitation issue should be decided in interlocutory proceedings - evidence relating to loss or damage to be adduced - insufficient known to determine limitation question.

DEFAMATION - pleadings - whether Lange qualified privilege defence should be struck out - objections to contextual imputations on form and capacity

TORTS - NEGLIGENCE - Motor vehicle accident - Truck collides with bridge superstructure - Truck driver's lap-only seatbelt did not lock during collision - Serious neck injury sustained - Breach of duty for failure to replace faulty seatbelt - Defendants had knowledge of fault - Failure to provide lap-sash seatbelt not breach of duty - Operational seatbelt would have prevented injuries TORTS - CONTRIBUTORY NEGLIGENCE - Truck collides bridge superstructure - Motor Accidents Act 1988 s 74(2) does not apply - Plaintiff knew height of bridge - Plaintiff did not measure height of container on truck - Plaintiff did not know extent of truck's weight change after unloading container's contents - Plaintiff relied on signal from oncoming motorist to assess if truck would fit under bridge - Plaintiff did not take available alternative path - Thirty-five percent apportionment just and equitable DAMAGES - Motor vehicle accident - Serious cervical spinal injury requiring surgical decompression and fusion - Greater than ten per cent whole body impairment - Plaintiff overstating extent of pain and disability - Mobile with difficulty on occasions - No longer able to drive heavy motor vehicles - Twenty per cent residual earning capacity - Future economic loss reduced for vicissitudes of life - Future treatment expenses adjusted for reduced necessity of psychological care - No issue of principle

REAL PROPERTY - Torrens Assurance Fund - determining market value for purposes of Real Property Act 1900 s 129A - market value to be determined based on price that a willing buyer will pay and a not unwilling vendor will accept - sale price accepted as market value REAL PROPERTY - Torrens Assurance Fund - defences available to Registrar-General - Real Property Act 1900 s 129(2)(a) - mere causative contribution insufficient to make out defence - actual fault-based contribution required akin to contributory negligence REAL PROPERTY - Torrens Assurance Fund - defences available to Registrar-General - Real Property Act 1900 s 129(2)(b) - whether loss compensable under policy of professional indemnity - not necessary to determine whether liability ought to be accepted by insurer - onus on Registrar-General to prove that loss would be compensable REAL PROPERTY - Torrens Assurance Fund - statutory subrogation of Registrar-General to claimant's rights and remedies in relation to loss - operation of Real Property Act 1900 ss 133, 133A - Registrar-General only subrogated to extent of compensable loss within meaning of s 128 - Registrar-General may bring proceedings in own name - plaintiff not barred from bringing action in respect of heads of damage available beyond compensable loss REAL PROPERTY - Torrens Assurance Fund - claims against Registrar-General and wrongdoers - whether Real Property Act 1900 s 120(2) limits plaintiff to proceeding against Registrar-General or wrongdoer - plaintiff entitled to proceed against both REAL PROPERTY - Torrens Assurance Fund - whether claim in negligence against Registrar-General ousted by Real Property Act s 120(4) - section requires proceedings to be conducted in accordance with Real Property Act Part 14 - statutory cause of action in Part 14 overlaps so significantly with common law rights as to require that any possible common law cause of action against Registrar-General be ousted by necessary intendment NEGLIGENCE - damages - remoteness - whether claim for loss associated with losing Capital Gains Tax exempt asset too remote - actual loss sustained too speculative and subject to too many contingencies NEGLIGENCE - damages - restitutio in integrum - whether restoring plaintiff to pre-tort position requires payment for the loss of the value of their assets or sufficient compensation to enable them to purchase a new property - whether stamp duty payable to purchase new property compensable head of damage - reasonable in the circumstances to award plaintiff stamp duty payable on acquisition of new property with same market value as lost property INSURANCE - dishonest and fraudulent conduct exceptions - meaning of "dishonest" CIVIL LIABILITY - proportionate liability - operation of Civil Liability Act 2002 Part 4 - principles for the apportionment of responsibility between concurrent wrongdoers - consideration of extent of engagement in activities causing loss and consideration of who was more effectively able to prevent the loss required CIVIL PROCEDURE - amendment of pleadings - whether amendment to name additional concurrent wrongdoers should be allowed within days of hearing - relevance of prospects of success of newly pleaded claims - importance of acting with promptness in Expedition List proceedings when hearing date fixed

DEFAMATION - imputations pleaded as false innuendos - dispute at trial of defences before judge alone as to meaning of imputations found by s 7A jury - whether permissible to determine dispute by reference to extrinsic evidence or only by reference to how the s 7A jury would have inferred the ordinary reasonable reader would have read the matter complained of - DEFAMATION - Defences - Comment - restaurant review - where two restaurants trading under one name - where open to the jury to conclude that ordinary reasonable reader would have read the review to refer to each restaurant - where reviewer only ate at one - where primary judge found each imputation, in the context of the review as a whole, would have been understood by the reader to have been conveyed as a statement of opinion - whether proper material for comment when no facts expressly stated, referred to or notorious in review about one of the restaurants which could form the basis for any of the imputations in respect of it - DEFAMATION - Defences - Comment - when reviewer did not hold opinion concerning one of two restaurants referred to in review - DEFAMATION - Defences - Truth - whether defence of substantial truth established where no evidence as to facts concerning one of two restaurants referred to in review - s 15, Defamation Act 1974 - DEFAMATION - Damages - adequacy

APPEAL - civil - fact finding - competing evidence - no error in approach of primary judge. TORTS - negligence - intoxication - not proved that plaintiff intoxicated to extent that capacity to exercise reasonable care and skill impaired.

ADMINISTRATIVE LAW - judicial review - constitutional validity of legislation - whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution CONSTITUTIONAL LAW - constitutional validity of legislation - whether s 26 of the Occupational Health and Safety Act 2000 violates the principles underlying Ch III of the Constitution CRIMINAL LAW - director's liability for corporation's contravention - whether defences in Occupational Health and Safety Act 2000 s 26 and s 28 illusory EVIDENCE - admissibility - whether certificate of conviction of corporation admissible and sufficient to prove essential fact of corporation's contravention of the Occupational Health and Safety Act 2000 - Evidence Act 1995 s 178 PROCEDURE - civil - documents - amendment - refusal to allow amendment - issue not raised by notice given under Judiciary Act 1903 (Cth) s 78B STATUTORY INTERPRETATION - Occupational Health and Safety Act 2000 s 26 - whether charges bad in law for failing to particularise steps defendant should have taken to avoid contravention - whether charges bad in law for failing to particularise act or omission of defendant constituting contravention

REAL PROPERTY - appointment of trustees for sale - s 66G, Conveyancing Act 1919 - distribution of proceeds of sale - where property partnership asset - net proceeds of sale to be applied in repayment of loans made by partners with interest and thereafter any surplus to be divided in accordance with partners' legal title

CORPORATIONS- Companies in liquidation - Trustees of unit trust prior to liquidation - Office of trustee vacated on liquidation - Liquidator continuing to act in connection with trust assets - Position as bare trustee - Whether correct to carry on activities - Whether remuneration should be allowed

REAL PROPERTY - Caveats - Serious question to be tried - Balance of convenience

REAL PROPERTY - Torrens title land- Notification on computer folio referring to easement over land as shown on earlier Certificate of Title- No indication of the dominant tenement or instrument creating the easement- Easement created when land was under old system title- Whether easement recorded on Certificate of Title

FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of five years - order made for adjustment.

Costs - the indemnity principle

Criminal law aggravated dangerous driving occasioning death guideline judgments comparative cases

CRIMINAL LAW - application for leave to appeal against severity of sentence - multiple offences of dishonesty - additional offences on Form 1 - guilty plea - finding of special circumstances - ground 1 of appeal asserts failure adequately to consider duress motive and remorse - inconsistent evidence regarding motive - no error in approach to duress and remorse - ground 2 asserts individual sentences manifestly excessive - prior criminal history - individual and aggregate sentences within available range - leave to appeal granted - appeal dismissed

PROCEDURE - transfer of proceedings - application to stay or transfer and consolidate part of proceedings in Local Court with Supreme Court proceedings - power to transfer or stay proceedings includes power to transfer or stay part of proceedings - proceedings raise discrete issues - quick, cheap and just resolution of issues between parties not advanced by staying or transferring part of proceedings - application dismissed

CHILDREN - parens patriae jurisdiction - secure accommodation order

Costs in criminal cases

PRACTICE AND PROCEDURE - Leave to file Cross-Claim shortly before hearing - Consequential vacation of hearing date

COSTS - what costs orders should be made where there were multiple issues in the proceedings with mixed success for both parties - whether judgment in favour of cross-claimant should be stayed pending assessment of costs orders on primary claim in order to permit set-off - HELD - plaintiff to have its costs of the primary claim - cross-claimant to have its costs of cross-claim without apportionment of costs referable to separate issues - no stay of judgment in favour of cross-claimant

CIVIL PROCEDURE - application by the plaintiff for leave pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (NSW) to amend its summons and further to amend its amended technology and construction list statement - HELD - leave granted

PRACTICE AND PROCEDURE - application for order that solicitor cease to act - likelihood that solicitor will be called to give evidence in proceedings on contentious issues - conduct and reputation of solicitor will be in issue at trial - order made

PRACTICE AND PROCEDURE - application for leave to amend pleading - claim for professional negligence by solicitor - whether explanation for delay - whether prejudice to defendants - leave granted

ADMINISTRATIVE LAW - appeal against a decision of the Medical Tribunal with respect to a point of law - whether Tribunal denied appellant procedural fairness in making findings of professional misconduct against him - whether Notice of Complaint alleged sexual misconduct - whether Commission required to formulate complaints in a pleading - whether Tribunal required to formulate charges ADMINISTRATIVE LAW - Medical Tribunal - whether Tribunal breached its duty of procedural fairness in not conducting a separate hearing in respect of penalty