Cases and authorities

PRACTICE - discharge of court order requiring counsel to complete and serve a certificate under section 347 of the Legal Profession Act 2004 (NSW) - order inappropriate - meaning of 'filing' for purposes of s347 of Legal Profession Act 2004 (NSW) - decision of fact.

CORPORATIONS - costs - who was the substantially successful party - where ASIC established breaches of Corporations Act 2001 (Cth) and as a result defendant has placed the conduct of its business on lawful footing - ASIC substantially successful party - ASIC not entitled to whole of its costs as not wholly successful - defendant ordered to pay two-thirds of ASIC's costs up to and including date of judgment and thereafter to pay ASIC's costs on the ordinary basis

Unsuccessful application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - Leave refused - Costs argument

SOLICITOR - COSTS - lien - delivery of former client's papers to new solicitor - solicitor's rules - whether solicitors undertaking satisfactorily secures payment of former solicitor's costs and disbursements - Legal Profession Act 2004, s 728 - appropriate conditions.

CRIMINAL LAW - Sentencing - Offences contrary to s 1041G(1) and s 1041E(1) of Corporations Act 2001 - Rolled up charges - Offence losses amounted to $26.6million - Offender received personal payments of over $1.3million - Offender demonstrated contrition - Discount for early plea of guilty - Discount for cooperation with law enforcement agencies - Importance of general deterrence

Private International Law - Application to strike out Cross-Claim - whether inappropriate forum

PROCEDURE - amendment - application to amend statement of claim and to call further medical evidence - application made on first day of hearing - no explanation for delay - where application futile - where medical evidence not supportive of proposed new case in any event - application refused

PROCEDURE - amendment - application to amend statement of claim to allege third defendant vicariously liable as licensee - where no further evidence to be called on the issue - where plaintiff already alleges third defendant vicariously liable as employer - whether claim obviously untenable or manifestly groundless - application granted

CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available

SUCCESSION - wills - construction - manifest intention of testator - effectiveness of gift of property not owned by testator - whether executor armed to make gift effective - duty to executor to give effect to gift where able to do so CORPORATIONS - oppressive conduct - interaction with executor's duty to give effect gift - need for real possibility of oppression before court will invalidate gift CIVIL PROCEDURE - application of Civil Procedure Act 2005 (NSW) to will construction suits - just, quick and cheap resolution of real issues - duty of litigants to assist court to facilitate overriding purpose - duty of legal practitioners to facilitate overriding purpose - whether breach of duty by executor's solicitor COSTS - Section 99 of Civil Procedure Act, 2005 (NSW) - possible disallowance of costs - liability of legal practitioners

Criminal law - appeal against sentence - offence of supplying cocaine - whether error in consideration of prior record - whether error in assessment of objective gravity of offence - whether error in use of fact that offence committed on conditional liberty - whether sentence was manifestly excessive

Criminal law - appeal against sentence -offences of aggravated sexual intercourse and using a child for pornographic purposes - related matters on a Form 1 - whether impermissible "double counting" - issues of totality

COSTS - costs on appeal - new issues raised on appeal - appellant successful on one only of the principal issues argued - first respondent to pay one third of appellant's costs of the appeal

TORTS - negligence - motor vehicle accident - brain damaged plaintiff - existence and scope of duty of care - intoxicated owner passenger in car driven by plaintiff - whether owner had duty to prevent plaintiff from driving vehicle with bald tyres - whether engaged in joint criminal enterprise - whether risk of harm was obvious - contributory negligence - whether a reasonable person would have driven the vehicle - whether plaintiff had duty to inspect vehicle prior to driving - basis of contributory negligence not pleaded. APPEAL - appellate review of findings of fact - were findings unsupported by evidence or inferences unavailable - whether primary judge's findings glaringly improbable - whether primary judge reversed the onus - need to read primary judge's decision fairly. EXPERT EVIDENCE - role of experts - difficulty in choosing between experts - danger of expert acting as advocate for a party - need for experts to heed primary facts.

COSTS - claim for indemnity costs - whether defendant maintained proceedings that it should have known had no prospects of success - whether defendant has delayed in admitting liability to gain a tactical advantage.

EXPERTS' REPORTS - whether UCPR r 31.26 requires admission of joint experts report - failure of expert report to disclose reasoning process - Exclusion of joint report under Evidence Act s 135

SERIOUS SEX OFFENDER - application for extended supervision order - issues only as to duration of order and terms of proposed conditions

CRIMINAL APPEAL - application to appeal against order under s 91 Criminal Procedure Act 1986 (NSW) - no jurisdiction in Court of Criminal Appeal to entertain application - seeks adjournment based on appeal to Legal Aid - appeal to Legal Aid not bona fide - leave to appeal denied.

CRIMINAL - sentence appeal - effect of mental illness on applicant's reasoning capacity and culpability - responding to treatment - appeal upheld - sentence adjusted.

CRIMINAL LAW - felony murder during armed robbery - offender volunteered offences to police 7 years after commission - no link between offender and offence - no prospect of authorities identifying offender. CRIMINAL LAW - sentencing - policy - leniency for offender volunteering offence - s 23 Crimes (Criminal Procedure) Act 1999 - whether special circumstances warranting variation of statutory ratio.

CRIMINAL LAW - property offences - burglary and like offences - offender with significant criminal history. CRIMINAL LAW - sentencing - relevant sentencing considerations - concurrent jurisdiction of the Local and District Courts - for convenience all matters heard in the District Court - maximum sentence which could be imposed by Local Court relevant consideration in sentencing - failure to consider not fatal.

CRIMINAL LAW - evidence - credibility - evidence of credibility of a person who has made a previous representation - prior exculpatory statement made by an accused during an intercepted telephone conversation - evidence could not substantially affect the assessment of the accused's credibility

EQUITY - parens patriae jurisdiction - matters favouring exercise of jurisdiction - whether inability to appeal the refusal of interim orders at first instance pursuant to s91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) warrants exercise of jurisdiction - whether justification exists on facts for overriding first instance decision - summons dismissed.

CONTRACTS - Compromise of proceedings -Civil Procedure Act 2005, s 73 - whether parties agreed to withdrawal of Summons and for each to bear their own costs of the proceedings HELD: No compromise agreed.

PROCEDURE - orders striking out cross-claim or experts reports - complaints as to discovery - proportional use of Court's powers under Civil Procedure Act

CRIMINAL LAW - Existing order under the Criminal Assets Recovery Act 1990 restraining property - Variation sought for reasonable legal expenses of sentence proceedings - Prior undertaking by defendants not to make further applications for reasonable legal expenses "with respect of the trial of drug charges" - Whether sentence proceedings "with respect of the trial of drug charges" on construction of the undertaking

APPEAL - Appeal from decision of Local Court - on evidence not open for magistrate to conclude amount of debt as adjudged -failure to have regard to relevant evidence an error of law - erroneous treatment of defence as cross-claim reversed onus of proof - magistrate applied incorrect approach to onus of proof constituting an error of law - judgment set aside.

GUARANTEE AND INDEMNITY - summary judgment claim under guarantee - where amount claimed less than pleaded - where no notice served on guarantor under s 57(2) Real Property Act 1900 (NSW) - where deed of loan executed prior to guarantee - summary judgment entered

TRADE PRACTICES: whether party seeking relief is a party for whom s51AC of the Trade Practices Act 1974 (Cth) is available - no question of principle - REMEDIES: whether party entitled to restitution - restitution unavailable - no existence of joint assumption that contract would come to be - no work done beneficial to contractual project - no suggestion of payment for work.

COSTS - interlocutory decisions - general rule that costs are costs in the cause - exception where losing party engages in unreasonable conduct- whether costs should be paid forthwith - not where risk of stultifying proceedings

PROCEDURE - civil - pleadings - amendment - application to amend defence

REMEDIES - repairs - pursuant to a residential tenancy agreement plaintiff as lessee sought to make defendant as lessor carry out the work on rented premises to remove and replace all the asbestos cement wall linings DAMAGES - contract - remoteness - whether plaintiff could seek damages for discomfort and loss of enjoyment of home life.

CRIMINAL LAW - application for leave to appeal against severity of sentence - verdict following jury trial - two counts doing an act with intention of dishonestly causing a loss to a Commonwealth entity - importation of tobacco - false declarations made to avoid customs duty payable - offences premeditated and committed for financial gain - family hardship - exceptional circumstances not established - no error in assessment of objective gravity - application for extension of time allowed - leave granted - appeal dismissed

EVIDENCE -privilege - client legal privilege - not all communications between a client and Legal Aid Commission privileged PROCEDURE - civil - parties - legal incapacity of one named applicant -no involvement of manager under NSW Trustee and Guardian Act 2009 (NSW) - whether party to the proceedings - application by occupiers of the premises PROCEDURE - civil - parties - request for pro-bono representation- not likely to obtain legal assistance outside the scheme - delay on part of Legal Aid Review Committee - Uniform Civil Procedure Rules 2005(NSW) Rule 7.36

PRACTICE - action for defamation - litigant in person - second statement of claim totally inadequate - struck out - action dismissed - leave to appeal refused

ADMINISTRATIVE LAW - judicial review - relief in nature of prohibition - amenability of judge of Supreme Court to such relief - reasonable apprehension of bias - relief by way of appeal - discretionary considerations JUDGES - State Supreme Court - no duty to answer questions from litigants - allegation of beliefs inconsistent with oath of office PROCEDURE - prohibition sought against trial judge in Supreme Court - stay pending hearing - dismissal of application for final relief

PROCEDURE - civil - stay pending appeal - whether grounds arguable - whether prejudice to respondent if stay granted - likelihood of recovery if judgment overturned on appeal

INCORPORATED ASSOCIATIONS - incorporated association in liquidation - where employee teachers obtained judgments in Chief Industrial Magistrate's Court against the association prior to its winding up and liquidator intends to accept proofs of debt based on those judgments and to pay them to the extent that they are priority debts and claims under s 556(1) of the Corporations Act 2001 (Cth) - applicants seek injunctions restraining the liquidator from doing so - s 53(3) of the Associations Incorporation Act 1984 (NSW) - applicants claim to be persons aggrieved and that relief sought relates to distribution of surplus property - applicants claim that judgments in Chief Industrial Magistrate's Court (including consent judgments) are void because claims not governed by industrial award - Teachers (Catholic Independent Schools) (State) Award 2006 - held proceedings are not in relation to surplus property - held claims were subject to industrial award - held not shown that judgments of Chief Industrial Magistrate's Court are void - proceedings dismissed

CRIMINAL LAW - trial of issue of fitness to be tried - accused charged with murder - found unfit

CORPORATIONS - winding up in insolvency - s 459C(2) Corporations Act 2001 (Cth) - previously issued statutory demand not set aside - presumption of insolvency - no evidence to the contrary proffered - where three days before the hearing a newly appointed director resolves that a voluntary administrator be appointed - s 440A(2) Corporations Act 2001 (Cth) - whether the winding up application should be adjourned given the voluntary administration - Court not satisfied that it is in the interests of company's creditors for company to continue under administration rather than the company be wound up - winding up order made

CORPORATIONS - winding up - application to terminate winding up - consideration of solvency and assets and liabilities of company - neither solvency of company nor its having an excess of assets to liabilities established by fullest and best evidence - application dismissed

CORPORATIONS - application to extend time to hold adjourned second meeting of creditors - ss 439A, 439B(2), 447A Corporations Act 2001 (Cth) - reg 5.6.18(2) Corporations Regulations - where little utility to hold adjourned meeting earlier - wide operation of s 447A Corporations Act 2001 (Cth) - extension of time granted

PRACTICE AND PROCEDURE- Responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during the trial -Need for clarity, precision and openness as part of this co-operation emphasised in the context of ambush or surprise - Plaintiff's contention that the defendants has failed to comply with rules 14.14 of the Uniform Civil Procedure Rules 2005

PROCEDURE - civil - interlocutory issues - injunction to restrain call on bank guarantee - whether implied term of guarantee that would only be used to meet certain liabilities - no serious question to be tried - interrelationship between "serious question to be tried" and "balance of convenience"

CRIMINAL APPEAL - s 97(1) Crimes Act 1900 (NSW) - Crown inadequacy appeal - error in assessment of objective gravity - s9 bond inadequate - exercise of Court discretion not to intervene - demonstrated rehabilitation - appeal dismissed.

CRIMINAL - conviction appeal - murder - tape recorded conversations between appellant and undercover operatives - failure of counsel to address admissibility question at trial - evidence wholly prejudicial - appeal upheld - conviction quashed and new trial ordered.

CRIMINAL - s5F Appeal - Police Integrity Commission Act 1996 (NSW) - permanent stay ordered in District Court as person granted leave to appear in relevant hearing was not a qualified Australian Legal Practitioner - purpose of Act considered - hearing not a nullity - appeal allowed - orders in court below quashed.

CRIMINAL - irregularity in transcript passed on to jury - whether circumstance of aggravation was also an essential element of the offence as pleaded - direction to jury on lies as evidence of a consciousness of guilt - the proviso in Criminal Appeal Act 2004 did not operate in this case - conviction quashed - appeal upheld - new trial ordered.

APPEAL - decision in point of law - whether relevant error established where evidence supportive of and adverse to plaintiff's claim - Dust Diseases Tribunal Act 1989 (NSW), s 32(1). TORT - negligence - causation - whether material increase in risk constitutes a causally material contribution to the harm suffered

ADMINISTRATIVE LAW - judicial review - procedural fairness - whether Consumer, Trader and Tenancy Tribunal denied applicants procedural fairness in giving no weight to expert report on basis of non-compliance with Makita v Sprowles principles - whether Tribunal denied applicants procedural fairness in excluding one applicant from hearing room while her husband was being cross-examined - whether excluded applicant was denied a reasonable opportunity to be present and participate in the proceedings on second hearing day ADMINISTRATIVE LAW - judicial review - relief sought in the nature of certiorari - whether Consumer, Trader and Tenancy Tribunal made factual findings in the absence of any evidence to support those findings EVIDENCE - principle in Jones v Dunkel - whether failure to call available party eyewitness relevant to assessment of evidence of another party eyewitness who was called