Cases and authorities

CRIMINAL LAW - sentencing - whether sufficient weight given to applicant's state of health - whether too much weight given to specific deterrence - whether sentence manifestly excessive

CRIMINAL LAW - appeal and new trial - particular grounds of appeal - misdirection and non-direction - whether direction was required to warn against substitution of evidence of uncharged acts for charged acts - whether error in judge's comment that certain prosecution evidence had not been challenged or contradicted - CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - whether sentence manifestly excessive - whether error in not finding special circumstances

EVIDENCE – medical evidence – medical evidence obtained during course of trial – whether party under a duty to disclose relevant medical evidence obtained during course of trial - EVIDENCE – credit – adverse credit finding contended for by counsel – proposition not put to witness – whether trial judge erred in relying on proposition not put to witness to make adverse credit finding - PROCEDURAL FAIRNESS – right to a fair trial – right of a party to be appraised of the case which he or she must meet – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 - PROCEDURAL FAIRNESS – right to a fair trial – material to which trial judge relied not put to appellant in cross-examination – whether adverse credit findings contended for by counsel should have been put to appellant in cross-examination – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141

ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - proceedings before the Local Court for Apprehended Violence Order - application withdrawn by police officer making application - whether Magistrate had the power to order costs - procedural misconduct by police officer.

TRAFFIC LAW - regulation of traffic - traffic signs and notices - offences - Road Rules - whether signs made in accordance with Road Rule 105 - whether traffic signs amounted to instruments - whether traffic signs should be read down to be within the power of the Rules - appeal from Magistrate's decision dismissing charges - necessity for strict or substantial compliance of signs to Road Rules.

APPEAL - appeal from Associate Justice to a single judge - Associate Justice refuses stay of execution of a judgment - appeal against refusal - admission of fresh evidence - whether hearing of stay application was a hearing on the merits - whether special grounds needed to receive further evidence - s 75A(7), (8) Supreme Court Act 1970 - discretion to receive further evidence - principle of the finality of litigation - no explanation for absence of further evidence at the first hearing - failures of Appellant to comply with Court orders for the filing of evidence sought to be tendered on the appeal - failure to comply with Part 49.12 UCPR - application to receive further evidence refused

CORPORATIONS - winding up - creditors voluntary winding up - application by contributory for order terminating winding up - where liquidator has convened final meeting required by s 509 - liquidator has thus concluded that "the affairs of the company are fully wound up" - whether there is then any winding up capable of being terminated - held that there is - but no basis for exercise of discretion to terminate where process has reached a point where all claims have been satisfied to the full extent the winding up allows - analogy with claim for reinstatement of registration - plaintiff shows no basis to be aggrieved

CRIMINAL LAW - Local Court - conviction in defendant's absence - appeal to District Court - appeal struck out but not finally disposed of - application for annulment of conviction - jurisdictional error by magistrate in finding that he was functus officio because of order made in relation to appeal

Costs- unsuccessful claims by three adult children for provision under Family Provision Act 1982- whether order for costs should be made against the respondent children for their unsuccessful claims- trial judge found improper motive of appellant executrix in instigating daughter's proceedings- allegation never put to executrix- finding, which was not merely dicta, unsupportable- Court of Appeal needs to exercise discretion afresh- whether overall justice of the case warrants order other than costs follow the event- strong guidelines that court should exercise discretion that successful party should have costs- no sufficient displacement in this case.

PRACTICE AND PROCEDURE – application for proceedings to be transferred to Supreme Court of Tasmania – where plaintiff brought proceedings for payment of claim under policy for total and permanent disability benefits and damages for defendant’s breach of statutory duties as trustee – whether Tasmania is more appropriate forum – where plaintiff resident in Tasmania – where plaintiff instructed Sydney solicitor – location of witnesses – consideration of nature of evidence to be called – whether additional costs of transferring proceedings disproportionate to size of claim – no question of principle

PROCEDURE – Courts and Judges generally – Courts – Concurrent jurisdiction of different courts – Transfer of proceedings under cross-vesting legislation – whether appropriate and in the interests of justice – relevant considerations – natural forum – where alternative court has already made transfer order – COURTS & JUDGES – Family Court – accrued jurisdiction – whether accrued jurisdiction in respect of application by mortgagee to enforce mortgage where concurrent proceeding in Family Court to set aside mortgage – FAMILY LAW – property – third parties – setting aside dispositions – whether triable case for setting aside mortgage by one spouse to third party – basis of jurisdiction to restrain enforcement of mortgage in interim

PROCEDURE - application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act - whether proceedings are vexatious - whether vexatious proceedings were instituted or conducted frequently - meaning of "frequently". WORDS AND PHRASES - frequently

COSTS - costs in criminal cases - general considerations - jury directed to enter verdicts of not guilty - evidence adduced at trial not capable of achieving conviction - discretion to be exercised in favour of applicant - certificate to issue - Application under Suitors Fund Act - first jury discharged - discharge not due to disagreement of jury or conduct of accused or accused's legal advisers - certificate to issue.

EQUITY – Trusts and trustees – Implied trusts – Resulting trusts – When arising – Joint purchase of land – where one party supplies entire purchase price – EQUITY – Trusts and trustees – Implied trusts – Constructive trusts – Common intention – where common intention arises after acquisition of property – EQUITY – Estoppel – General principles – proprietary estoppel – EVIDENCE – documentary evidence – unstamped documents – admissability where usual undertaking given

APPEAL AND NEW TRIAL - appeal - appeal on inadequacy of sentences imposed - sections 23 and 56 of the Crimes (Appeal and Review Act) 2001 - whether appeal raises a question of law alone - application of principle of totality - no question of law alone raised on this ground - application of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 - no question of law alone raised on this ground - appeal as to manifest inadequacy of sentence may raise a question of law alone - whether error made in the interpretation of the Crimes (Sentencing Procedure) Act 1999 - construction of and interaction between s 10 and s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - no error of law established - operation of s 21A(3)(i) - no error of law established - other arguments raised mixed questions of law and fact not available to be appealed under s 56 of the Crimes (Appeal and Review) Act 2001 - no manifest inadequacy of sentence shown - appeal dismissed

TORTS - assessment of damages - psychiatric injuries following years of sexual abuse by a "special friend" while the plaintiff was a ward of the State

PROCEDURE – submitting appearance – whether discretion to grant leave to withdraw submitting appearance should be exercised – failure to obtain legal advice as to availability or strength of possible defences – appearance filed in circumstances of lack of funds and wish to avoid costs – whether defendant has an arguable defence – Uniform Civil Procedure Rules 2005 (NSW) rr 6.11(2), 12.5

ADMINISTRATIVE LAW - application for leave to appeal to Supreme Court - applicant a forensic patient - found not guilty on ground of mental illness of manslaughter and maliciously damaging property by fire - order for detention until released by due process of law - applicant subject to periodic review by Mental Health Review Tribunal - Tribunal empowered to make order as to forensic patient’s continued detention, care or treatment - forensic patient seeks leave to appeal concerning practical aspects of clinical treatment and place of detention - nature of appeal under s.77A(1) Mental Health (Forensic Provisions) Act 1990 - factors relevant to grant of leave to appeal - leave refused - whether costs should follow event - whether tutor ought be liable to pay costs

Sentence for offence under s.23(2) of the Drug Misuse and Trafficking Act – applicant had a significant role in a cannabis cultivation plantation – estimated wholesale value of crop approximately $18.74 million – applicant arrested five years after police executed search warrant – applicant “disappeared” for about two years – order made against applicant under Criminal Assets Recovery Act for forfeiture of $407,084 – no financial benefit received by applicant from cannabis plantation, the crop not having reached harvesting stage – forfeiture order under s.27 made in respect of illegal activities of applicant in relevant six year period which were unrelated to the establishment and maintenance of the cannabis plantation – sentencing judge not required to reduce sentence having regard to the detriment to the applicant by reason of the forfeiture order – there were no exceptional circumstances requiring the s.27 order to be taken into account and no evidence of “a disproportionate or exceptional effect” on the applicant – not issue of parity established with respect to sentences imposed on co-offenders – the issue under Criminal Assets Recovery Act was of no relevance to the question of parity – sentencing judge took into account the issue of delay – no error demonstrated

CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (cocaine) – other offences – CRIMINAL LAW – Crown appeal – suspended sentence – whether sentence manifestly inadequate – CRIMINAL LAW – sentence – sentencing procedure – failure to properly assess objective seriousness – whether subjective features given too much weight – consideration of exceptional circumstances – no error established – voluntary cessation of criminal activity prior to arrest – Crown appeal dismissed

APPEAL – leave to appeal – second application after refusal of first - only granted in exceptional circumstances. - JUDGMENTS and ORDERS – amendment after entry.

NEGLIGENCE - surgeon carrying out varicose vein procedure - development of rare complication of lymphodoema - medical causation - failure by trial judge to analyse expert evidence - adequacy of reasons - failure to properly analyse factual evidence - breach of duty - failure to properly analyse competing medical evidence - causation - failure to provide adequate reasons for causation finding - EVIDENCE - treatment of expert witnesses - importance of expert evidence in court processes - PRACTICE AND PROCEDURE - responsibility of parties to conduct litigation efficiently - parties to co-operate in minimising expense of litigation.

LANDLORD AND TENANT – Whether rent recoverable under tenancy agreement – no question of principle.

COSTS – exceptions to the general rule that costs follow the event – multiple issues – partial success – first defendant not regarded as having achieved partial success – second defendant successful in relation to an important issue. COSTS – exceptions to the general rule that costs follow the event – offer of compromise – successful party did substantially better than offer of compromise – not necessary to consider whether it was reasonable for ultimately successful party to reject offer of compromise at the time it was made.

Family Provision. Application by a widow in respect of a $15 million estate. Provision limited to an annuity decreasing with age. Orders for provision of a legacy sufficient to provide an income stream and a property to enable the former lifestyle to continue.

DAMAGES – motor vehicle accident – medical assessment – initial assessment below non-economic loss threshold – two decisions refusing to refer again under section 62 of Motor Accidents Compensation Act – whether jurisdictional error in refusals – first refusal – claims assessor said he had no power to set aside certificate on grounds of procedural unfairness – whether assessor addressed wrong question – incorrect reading of assessor’s reasons – not part of decision – no error – claimant asserted initial assessment procedurally unfair – claims assessor not satisfied further assessment would change result – whether assessor entitled to consider whether fresh assessment would result in assessment over threshold – denial of procedural fairness not determinative in deciding whether to refer again – assessor entitled to make own decision – discussion of Stead threshold – no error shown – claimant asserted initial assessor biased – whether claims assessor considered allegation of bias – bias was considered – no error – second refusal – whether error through adopting reasons for first refusal – no error – whether failure to consider risk of injustice from procedural unfairness – risk considered – no error – claims assessor found nothing since first refusal justified fresh referral – whether fresh error in saying further assessment should “only” be made where there is risk of injustice and injustice “only” arises where there is a reasonable prospect of a different outcome as to entitlement to damages for non-economic loss – by majority, if error, not material since no change since first refusal – in any event, no error because Stead test satisfied.

Contract- Condition precedent to performance on innocent party- principle that other party may dispense innocent party from performing condition precedent by other party intimating that performance useless- intimation by conduct- significance of normal conveyancing practice- how reliance on intimation established. Contract- Vendor and purchaser dispute- failure to complete by purchasers- validity of vendor's service of notice of termination of contract- whether vendor performed obligation to serve occupation certificate "within meaning of Environmental Planning and Assessment Act 1979"- Environmental Planning and Assessment Regulation 2000, reg 155(2)- fire certificate and schedule required to "accompany" occupation certificate- whether requirement continues after certificate issued- requirement refers to time of issue of certificate.

PROCEDURE - apportionment between concurrent wrongdoers - misleading conduct before the commencement of Civil Liability Act 2003 proportionate liabilty provisions - Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187 applied - proportionate liability assessed - defendants' liability limited to 80% of the loss and damage claimed - DAMAGES - general principles - assessment - whether issue estoppel arises out of earlier judgment - COSTS - plaintiff successful in claim but unsuccessful on some issues - issues on which plaintiff was unsuccessful are separable - proceedings lengthened by issues on which plainitff was unsuccessful - defendants ordered to pay 75% of plaintiffs' total costs of the proceedings to date.

CORPORATIONS - winding up - insolvent trading - creditor sues directors with consent of liquidator to recover loss or damage occasioned by insolvent trading - company subject to creditors voluntary winding up - proceedings commenced after s 509(4) lodgment by liquidator and before deregistration of company by ASIC - deregistration occurred before proceedings came to trial - whether plaintiff's right of recovery precluded because s 588M applies only where company "is being wound up"

CONTRACT - whether Deed of compromise valid and enforceable - BANKRUPTCY - whether failure to comply with s 58(3) Bankruptcy Act vitiated Deed - whether obligations under Deed a provable debt - whether annulment of bankruptcy removed any impediment to enforceability of Deed - UNJUST CONTRACT - Contracts Review Act - whether Deed unjust - estoppel - mutual mistake - whether proceedings abuse of process.

PROBATE – where deceased died intestate leaving only child and no spouse – where mother of deceased granted letters of administration – administrator aware of claim that plaintiff was deceased’s child prior to death – administrator advertised intended distribution of estate under s 92, Probate and Administration Act 1898 – whether administrator liable to restore moneys paid out as debts owed by deceased and distribution to deceased’s parents – whether intention to create legal relations in family context – whether breach of duty to pay statute-barred debts – whether administrator can rely on s 92 as answer to claim for having distributed estate – where claims not barred under s 93 – whether administrator received notice of plaintiff’s “claim” on estate under s 92 – whether administrator should be relieved from personal liability for breaches of duty under s 85, Trustee Act 1925 – whether court should accept administrator’s undertaking to give security in lieu of restitution – whether administrator to be removed – alternative application for provision under Family Provision Act 1982

EQUITY – trusts – application for advice under s 63 of the Trustee Act

COSTS – assessment – solicitor-client – whether primary judge should have referred quantum of costs claimed to referee pursuant to UCPR 20.14 - EVIDENCE – admissibility – statements as to what a person would have done – whether 5D(3) CLA required Court to ignore statement in affidavit notwithstanding no objection taken to its admission - LAWYERS – negligence – advocates’ immunity – attaches to acts and omissions and extends to conduct of instructing solicitor – whether failure to advise that stay applied unless and until Court granted leave to proceed led to decision affecting conduct of defence to cross-claim – offence to finality principle not necessary - LAWYERS – negligence – breach of duty – whether respondents properly retained by appellants – whether respondents breached duty of care or terms of retainer - LAWYERS – negligence – causation – whether, had appellants been advised that cross-claim was stayed, they would have instructed respondent to oppose grant of leave to proceed pursuant to s 444E(3) Corporations Act – whether primary judge erred in refusing to assess probabilities of hypothetical leave application – whether application for leave would have been denied

APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales - stay of proceedings - application for stay of judgment and orders - conditions of stay

PRACTICE & PROCEDURE – application pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 – where orders previously made by consent of all parties that a verdict and judgment be given in favour of a cross-defendant – where plaintiff had not sued the cross-defendant directly – where plaintiff thereafter sought to join the cross-defendant as a defendant – whether following entry of judgment by consent cross-defendant remained a tortfeasor "who is, or would if sued have been, liable in respect of the same damage" within s 5(1)(c) of the Act – application to join cross-defendant dismissed

CONTRACT – termination – breach – where plaintiff entered into dealer agreements with defendant – where plaintiff terminated agreements for breach of essential terms – whether defendant failed to meet target quotas – whether plaintiff estopped from relying on failure to meet target quotas – whether misuse of confidential information – whether conflict of interest arising from negotiation and making of Canon agreements – whether uncertainty in terms – construction of conflicts of interests provisions – whether defendant’s marketing of Canon products constituted breach – where defendant alleges wrongful repudiation – whether breach by plaintiff – whether plaintiff’s termination in breach of any implied obligation of good faith or motivated by improper purpose – construction – parties’ post termination obligations under dealer agreements. - EQUITY – “unclean hands” – whether plaintiff disentitled to relief on discretionary grounds. - PROCEDURE – notice to produce – privileged documents – legal advice – reasons for ruling – Evidence Act 1995 (NSW) ss 118, 122.

PROCEDURE - form of orders to give effect to decision partially relaxing earlier confidentiality orders - no matter of principle

Partnership- accounts- partner ordered to pay equitable compensation to three member firm- whether entitled to a one-third discount. Costs- how costs in long drawn out partnership case must be borne.

CONSENT ORDERS - finality of litigation - policy and principles - FRAUD - proof - requisite degree of satisfaction - CORPORATIONS - financial reporting - writing off debts - no effect on underlying contractual liability - PRIVATE RULING - Tax Office - not binding

REAL PROPERTY - Torrens title - easement - application to extinguish - Conveyancing Act 1919, s89 - right of way created over private land in 1929 to give coastal community an access to an old public road - new public road completed in 1975 providing direct access between neighbourhood and the highway system - new formed public roadway covers a section of the right of way - no user of right of way since before 1975 - current user impossible - no appearance to oppose application - circumstances warranting extinguishment under Conveyancing Act, s89(1)(a),(b) and (c) discussed and found established - suitable case for exercise of discretion to extinguish - HELD - easement extinguished.

Family provision. Application by son who was left inadequate legacy. Consideration of specail circumstances under s 28 (1) (b) to designate notional estate. Increased legacy ordered and orders for designation of notional estate.

SUCCESSION – LETTERS OF ADMINISTRATION – Plaintiffs claim assets of deceased’s estate held on trust for them – executor named in will renounces probate – no one taking under will willing to apply for grant – whether necessary or convenient to appoint Plaintiffs as administrators.

WILLS PROBATE AND ADMINISTRATION – application for grant of probate – whether deceased had testamentary capacity – where deceased made multiple wills – where deceased suffered from dementia and revoked testamentary gift to carer and close companion – where revocation due to deceased’s belief that carer stole from deceased – testamentary capacity required for revocation of gift – whether deceased able to appreciate and weigh claim of carer on estate

CRIMINAL LAW - conviction appeal - supply of prohibited drug - issue at trial whether appellant in possession of drugs - whether evidence of bullets found in car of appellant should have been admitted - whether such evidence relevant - whether such evidence went only to tendency towards criminality - whether trial judge should have given a tendency direction - evidence properly admitted and no tendency direction required.

TORT – Negligence – Plaintiff slips on stairs – Whether error by primary judge in not finding occupier negligent.

CHILD WELFARE – application to strike out proceedings brought by father of child – – whether court’s parens patriae jurisdiction invoked – where final care orders made in respect of allocation of parental responsibility for child – where father seeks sole parental responsibility or contact orders – where significant change in relevant circumstances since final care orders made – where remedies available in Children’s Court for father to rescind or vary care orders