Cases and authorities

CRIMINAL LAW - sentence - murder - after trial - only issue provocation - killing spontaneous - loss of self-control

CRIMINAL LAW - whether verdict of not guilty should be directed - circumstantial case

WILLS AND ESTATES - family provision claim - disability of claimant

ADMINISTRATIVE LAW - judicial review - jurisdictional error - natural justice or procedural fairness - relief - declaration - application for review of validity of an adjudication application pursuant to the Building and Construction Industry Security of Payment Act 1999 ('the Act') - declaration sought that the adjudicator's determination was void - application to have the adjudicator's decision quashed - adjudicator failed to consider adjudication respondent's submissions referred to in the reasons of the payment schedule - adjudicator misconstrued the Act and failed to accord procedural fairness to the plaintiff.

COSTS - application pursuant to Rule 42.12 of the Uniform Civil Procedure Rules 2005 for security for costs - HELD - security for costs granted - CIVIL PROCEDURE - application pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 to strike out parts of Statement of Claim - HELD - Statement of Claim struck out as embarrassing (and in parts not disclosing an arguable cause of action) - leave granted to the plaintiff to replead particular causes of action subject to specific conditions being met by the plaintiff

ASSOCIATIONS AND CLUBS - incorporated associations - members - dispute about the validity of persons elected to the Executive Council of an incorporated association - parties agree that new elections for the Executive Council should be held at an Annual General Meeting - parties cannot agree on (1) who are the Association's members; (2) who should call the Annual General Meeting; (3) who should be a referee to decide on a referred question as to the membership of the Association.

[CONTRACT] - whether the parties reached a binding agreement in relation to the proportionate shares of a reward payment at the conclusion of a joint venture project - where project loan funds used to pay out personal liabilities of one of the joint venturers - where project terminated and guarantees for loans for the project called upon. [EQUITY] - [CONTRIBUTION] - whether the plaintiffs entitled to contribution from other guarantors - whether equity requires amount advanced to the benefit of one of the joint venturers to be taken into account.

PROCEDURE - judgment and orders - suppression orders - reasons for decision - Court Suppression and Non-publication Orders Act 2010 - Local Council - whether complaint against a councillor is a protected disclosure under the Public Interest Disclosures Act 1994 - whether complaint falls under s 130(4)(e) of the Evidence Act 1995 - whether complaint is protected by public interest immunity - whether privilege was waived - complainant's name inadvertently disclosed - competing public interests - complainant's name suppressed - orders made

APPEAL - civil - of the Crimes (Appeal and Review) Act 2001, s 53(3) application for leave to appeal decision - Any person against whom an interlocutory order has been made by the Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

CONTRACT - termination of Master Franchise Agreement by franchisor - whether termination valid - breach by franchisee of obligations under franchise agreement - franchisor entitled to terminate franchise agreement - termination not invalidated by want of good faith. EQUITY - relief against forfeiture - whether conduct of defendant contributed to the events that gave rise to the forfeiture - no entitlement to relief against forfeiture.

DEFAMATION - election for trial by jury - whether trial judge had power under s 21, Defamation Act 2005 to dispense with jury of own motion DEFAMATION - election for trial by jury - history of jury trials in defamation proceedings - whether s 21 entitlement to jury trial creates vested or accrued substantive right DEFAMATION - election for trial by jury - whether party which has properly requisitioned trial by jury can retain that mode of trial - onus of proof - whether party required to justify retention of jury DEFAMATION - Defences - honest opinion - function of judge and jury - whether primary judge erred in concluding public interest component of defence a matter for jury - s 22 (5)(b), Defamation Act 2005 JURY - Defamation proceedings - power to order trial without jury - whether case involved "prolonged examination of records" - s 21(3), Defamation Act 2005 PRACTICE AND PROCEDURE - whether s 56 - s 61 and/or s 86(3), Civil Procedure Act 2005 empowered judge to dispense with jury of own motion PRACTICE AND PROCEDURE - Uniform Civil Procedure Rule 29.2A - whether inconsistent with Defamation Act 2005 and ultra vires

Evidence - admissibility and relevancy - opinion evidence - expert opinion - whether expert evidence relating to identification based on specialised knowledge - whether evidence relevant - evidence not relevant

TRUSTS - whether deceased held property on a resulting or constructive trust for plaintiff - HELD - property not held by deceased on a resulting or constructive trust for plaintiff - SUCCESSION - family provision and maintenance - application by one of two children for provision from father's estate pursuant to s 59 of the Succession Act 2006 (NSW) - whether inadequate provision made for plaintiff and, if so, what provision ought to be made - HELD - provision inadequate - provision ordered for plaintiff

FAMILY LAW AND CHILD WELFARE - Child born in Philippines - Philippines party to Intercountry Adoption Convention - application proceeds under (CTH) Family Law (Hague Convention on Intercountry Adoption) Regulations - arrangements for adoption required to be made in accordance with Convention - Convention requires, report to Central Authority in Philippines and from Central Authority in Philippines to Central Authority in Australia - no evidence of such reports - Central Authority in Philippines also required to agree to adoption - no evidence of agreement - adoption order declined.

FAMILY LAW AND CHILD WELFARE - Adoption - child from country not party to Hague Convention - consent dispense order sought - Taipei court records birth mother's consent -evidence does not meet requirements of (NSW) Adoption Act 2000 - consent not in accordance with Act - evidence of address of birth mother - adoption order declined.

CORPORATIONS - whether transfer of land and/or creation of charge over land is/are insolvent transaction(s) pursuant to s 588FC of the Corporations Act 2001 (Cth) or unreasonable director-related transaction(s) pursuant to s 588FDA (and, in either case, voidable pursuant to s 588FE) - in the alternative, whether transfer and/or creation of charge is/are alienation(s) of land with intent to defraud a creditor pursuant to s 37A of the Conveyancing Act 1919 (NSW) - CONTRACTS - whether rights and equitable interest arising under transfer have been abandoned - TRUSTS - whether transferee (Minsden) holds land and/or charge on constructive trust for transferor (Lawrence Waterhouse) - whether Lawrence Waterhouse held land as trustee for its director (Wayne Lawrence) and, if so, whether Lawrence Waterhouse is entitled to indemnification - whether, if transfer void or set aside, land is held on constructive trust for Wayne Lawrence and subject to an equitable charge in his favour - HELD - abandonment not established - Lawrence Waterhouse held land as trustee for Wayne Lawrence at time of transfer - Lawrence Waterhouse entitled to indemnification and to trace land into hands of Minsden for that purpose - charge set aside as unreasonable director-related transaction and alienation of property with intent to defraud creditor - CORPORATIONS - whether Lawrence Waterhouse has kept proper books and records for purposes of s 286 of the Corporations Act - if not, whether presumption of insolvency has been rebutted - whether Wayne Lawrence has breached any civil penalty provisions and exculpatory relief should be granted - HELD - failure to keep proper books and records - presumption of insolvency rebutted up to date of withdrawal of support by Wayne Lawrence - breach of statutory duty established - exculpatory relief not granted so as to absolve director from obligation to account for any loss sustained through breach of that duty

CROSS-EXAMINATION - section 44 Evidence Act 1995 - Admissibility of a document - Cross-examination on an issue outside the pleadings - Voir dire

CRIMINAL LAW - appeal - sentencing -importation of child pornography: s 233BAB Customs Act 1901 (Cth) - commit act of indecency on person under 16 years: s 50BC Crimes Act 1914 (Cth) - whether sentences manifestly excessive - proper assessment of criminality - comparable sentences.

COSTS - of appeal - exception to the general rule that costs follow the event - omission to address the orders adequately COSTS - of trial - orders to provide separately for costs of claim and cross-claims PROCEDURE - civil - judgments and orders - appeal from orders entered on Court's computerized record system - how orders to be entered - orders on system to be self-contained

TORTS - negligence - motor vehicle accident - learner driver - content of duty of care owed by voluntary supervisor to learner driver - vehicle travelling well under speed limit - whether supervisor's failure to warn driver to reduce speed constituted breach of the duty of care. APPEAL - whether primary judge made a finding as to speed of motor vehicle on entering the bend - whether primary judge erred in the finding on location of initial slip of vehicle - whether scope of duty correctly stated - whether primary judge's finding of breach of supervisor's duty was correct - whether primary judge erred in not finding that vehicle was travelling at speed significantly greater than 70 kph on entering the bend.

INDUSTRIAL LAW - company enters contracts to provide caretaking and related services in respect of a strata complex - application under s 106 of the Industrial Relations Act 1996 to declare the contracts void or to vary their terms - applicant a director and shareholder of company but not a signatory to the contracts - whether applicant a party to the contracts or to an arrangement for the purposes of s 108 of the Industrial Relations Act 1996. ADMINISTRATIVE LAW - application for prerogative relief by respondents to Industrial Court application - whether the Industrial Court had jurisdiction to grant relief in an application by a person not a party to the contracts - whether the Industrial Court committed a jurisdictional error - form of relief.

CONTRACT - election -- termination for breach -- unequivocal act -- service of legal process CONTRACT - breach -- damages for loss of bargain -- assessment as at date of breach -- later facts relevant CONTRACT - damages -- mitigation -- landlord accepts tenant's repudiation and terminates -- later sells freehold -- sale mitigated loss

CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - for particular purpose - other cases - to assert a tendency to engage in and persist with violent conduct with the use of a weapon - evidence of a prior attack with a weapon - evidence has significant probative value - evidence of prior convictions has no significant probative value

CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudice to accused

FAMILY LAW AND CHILD WELFARE - Adoption - name of child - inter-country adoption - child given forename by natural mother - principle that Court must preserve the name and cultural ties of child as much as possible - undertaking given by adoptive parents to maintain child's birth name accorded weight - child to retain original first name with anglicised middle-name.

SUCCESSION LAW - Family provision - Plaintiff de facto spouse of deceased - will leaves plaintiff equitable life interest and half remainder in home - obligations of testator to surviving spouse - moral obligation of testator to provide for security in home for remainder of spouse's life, capacity for spouse to change home, income sufficient for reasonable degree of comfort and fund for modest luxuries and contingencies - deceased had competing moral obligations to children from prior relationship - testator failed to permit spouse to change accommodation and fund necessary contingencies - further provision in nature of Crisp order as to half estate granted.

PRACTICE AND PROCEDURE - Defendant's witness becomes unavailable for cross-examination after affidavit read - plaintiff applies for witness' affidavits to be rejected - matters on which plaintiff proposes to cross-examine witness of marginal significance in context of case - affidavits not rejected.

CORPORATIONS - winding up - winding up in insolvency -non-compliance with statutory demand - no application to set aside statutory demand - company cannot dispute the applicants standing as a creditor - presumption of insolvency arising under s 459C, Corporations Act 2001 (Cth) - no evidence rebutting presumption of insolvency - winding up order made

PROCEDURE - Cross-examination in interlocutory application

PROCEDURE - application to have proceedings transferred to Supreme Court of Queensland - whether more appropriate that present proceedings be determined in the Supreme Court of Queensland - where interests of justice lie.

EVIDENCE - expert evidence - admissibility - whether evidence given by expert represents the application of the expert's training, study or experience: s 79(1) - evidence admitted subject to limitation.

PROCEDURE - s 69 Supreme Court Act - mandamus - transfer of committal proceedings between local courts

TORTS - negligence - causation - expert evidence of cause of fire and explosion - whether defendants proved alternative theory refuting that advanced by plaintiffs - duty of care - whether defendants owed duty of care at common law and under statute - whether statutes imposed a duty to take specific precautions or measures for the safety of others - scope and content of duty - whether breach of duty established - TORTS - contributory negligence - whether plaintiffs failed to take precaution against risk of harm - whether claim for apportionment established - Civil Liability Act 2002 ss 5R-S - CONTRACT - construction and interpretation of contract - whether terms implied in the contract requiring the provision, inspection and maintenance of a gas installation to ensure its safe operation - whether exclusion clauses apply - whether breaches of contract established

NEGLIGENCE - medical negligence - diagnosis - obstetric practice - diagnosis of "unstable lie" - whether such a diagnosis made - failure to manage properly - baby with developed hydrocephalus when diagnosis ought to have been made of unstable lie - reduction in disabilities if treated earlier - causation - Civil Liability Act - whether s 5E is confined to legal onus - whether principle in Watts v Rake operative to claims under Civil Liability Act.

CRIMINAL LAW - application for leave to appeal against severity of sentence -robbery whilst armed with offensive weapon - offence committed in hospital emergency department - applicant armed with a syringe - quantity of narcotics taken - Form 1 offence of stealing - plea of guilty - opioid dependence following serious physical injury - pain disorder - depression and suicidal ideation - voluntary admissions to psychiatric facility - attempts to undertake rehabilitation - relevance of general and specific deterrence - error in failing to take applicant's mental state into account in assessment of objective gravity - error in characterising applicant's addiction as a matter of 'personal choice' - sentence manifestly excessive - leave granted - appeal allowed - applicant re-sentenced

CRIMINAL LAW - appeal against sentence - break and enter and commit serious indictable offence - whether sentencing judge erred in assessment of objective seriousness of offence - whether sentencing judge erred in failure to provide reasons for departure from standard non-parole period - whether sentencing judge erred in finding offence was aggravated

Criminal Law - sentence - NSW and Commonwealth offences - fraudulent identity documents - totality

JUDGES - disqualification - apprehended bias - allegation based on supposed religious beliefs of judge - need for strong case where interlocutory intervention sought - whether proper for judge to rule on own recusal PROCEDURE - civil - motion to stay trial proceedings pending appeal - apprehended bias - alleged conduct of judge during hearing - prospects of success on leave application - disadvantages of granting and refusing stay

CRIMINAL LAW - procedure - verdict - Prasad direction - whether circumstances appropriate to give such direction

CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - affray - sufficiency of evidence - whether case to answer - CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - defence of persons or property - defence of another

CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - affray - sufficiency of evidence - whether case to answer

CORPORATIONS - winding up - application for winding up and appointment of provisional liquidator - where admitted that defendant is insolvent - final orders for winding up made

STATUTORY INTERPRETATION - (NSW) Retirement Villages Act 1999 - residents of retirement village enter into deeds empowering manager to sell strata lots - deeds do not allow residents to sell lot at price determined by them - s 168 and s 169 of Retirement Villages Act confer on residents right to control process of sale - s 168 and s 169 render such clauses unenforceable - deed requires resident to give manager an exclusive sole agency to carry out sale - Retirement Villages Act s 168(4) renders such clauses void - alternatively s 168(1)(a) and s 199 render such clauses void. STATUTORY INTERPRETATION - Deeds of charge registered as (NSW) Conveyancing Act s 88B instruments to secure management profit and other service fees - whether any invalidity cured by registration - registration does not validate terms and conditions of instrument - provisions of deeds not 'estates or interests' - Conveyancing Act s 88(3) provides that registration of restrictions does not give restrictions greater effect than they otherwise have - Retirement Villages Act later in time than Conveyancing Act - Retirement Villages Act s 199 prevails over provisions of Conveyancing Act. CONTRACTUAL INTERPRETATION - Provision of deed confers on manager entitlement to management profit if sales undertaken "pursuant to this deed" - construction of "pursuant to" - means "consequent to", "conformable with" or "in accordance with" - phrase connotes interconnection between an act and source of power for the act - phrase deals with sales that occur by reference to the deed - sales not occurring by reference to deed do not entitle manager to management profit.

SUCCESSION - family provision - claim by daughter of deceased - estate fully distributed to defendant - application under Family Provision Act, s 16 for extension of time to apply for provision out of estate - ascertaining whether there is sufficient cause for application being made out of time - sufficient cause not established

CORPORATIONS - costs - interlocutory application for access to documents the subject of notice to produce - where dispute in relation to privilege - initial claim for privilege in respect of three documents not pressed and subsequently claim for access not pressed in respect of balance of documents - producing party the substantially successful party - costs should follow the event after producing party abandoned its claim for privilege in respect of the three documents and provided detailed explanation of basis of claim for balance of documents

PROCEDURE - civil - reopening of judgment refused - application for leave to appeal - no draft defence supplied to support summary of argument - lapse of 2 years from original judgment PROCEDURE - civil - judgments and orders - orders to be entered into court's computerised record system - orders not properly entered - direction that orders taken to have been entered when made - Uniform Civil Procedure Rules 2005 (NSW), r 36.11 PROCEDURE - civil - parties - representation - no intention of appearing to present argument - whether appropriate to adjourn matter

COSTS - appeal - leave required - no order as to trial costs - limited success - main head of damage not awarded - Uniform Civil Procedure Rules 2005 (NSW) Rule 42.1 PROCEDURE - civil - leave to appeal -error of fact finding by primary judge - amount in issue small - costs disproportionate to the amount in dispute - prospect of success not strong

CRIMINAL LAW - procedure - information, indictment or presentment - amendment - immateriality or absence of prejudice - leave granted to amend indictment CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - generally - elements of the offence - actus reus of the offence requires actual use of unlawful violence - "threatening" unlawful violence insufficient

PRACTICE AND PROCEDURE - succession - wills, probate and administration - filing, verification and passing of accounts - power of Registrar to modify accounts - whether power to moderate costs is limited to costs actually charged in the accounts - in passing the accounts filed for the executors the Registrar may moderate bills for costs for which executor seeks reimbursement out of the estate notwithstanding that the bills have not yet been paid