Cases and authorities

CORPORATIONS – application for injunctive relief – where defendant company was financier and entered into rental agreements with customers in respect of motor vehicles – plaintiff a shareholder and claimed to be a director of company - application by plaintiff for orders to restrain defendant company’s repossession of motor vehicles – serious question to be tried whether defendant entitled to repossession without plaintiff’s consent – serious question to be tried whether plaintiff has ceased to be director of defendant and entitled to participate in decision to repossess – balance of convenience favours grant of injunctive relief – no question of principle – order that defendant be restrained from repossessing vehicles without plaintiff’s written consent. - CORPORATIONS – where dispute regarding plaintiff’s oral representations to customers to purchase vehicles at end of lease and customers’ rights to purchase – application by defendant for orders for plaintiff’s delivery up of vehicles application and restraining plaintiff’s contacting customers to discuss terms of rental agreement – no orders made

ENERGY AND RESOURCES - statutory regulation - compensation for subsidence caused by coal mining - whether compensation can be claimed for works done to prevent or mitigate damage from anticipated subsidence - interpretation of ss 12, 12A, 12B and 13A of the Mine Subsidence Compensation Act 1961 - APPEAL - doctrine of precedent - standard of reconsideration - “plainly” or “clearly” wrong - circumstances in which Court of Appeal will depart from its earlier decisions - application of doctrine of precedent to five judge court - whether Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137 correctly decided - WORDS AND PHRASES - “a subsidence” - “from subsidence” - “by reason of subsidence”

PRACTICE & PROCEDURE - Court of Appeal - further evidence - motion for leave to adduce - to be heard by Court hearing appeal - not by single judge.

PRACTICE & PROCEDURE - Court of Appeal - application for leave to appeal - non-compliance with rules - irregularities - Civil Procedure Act s 63 - irregularities validated. - PRACTICE & PROCEDURE - Court of Appeal - security for costs - general rule - Court of Appeal rule - only special circumstances - only for appeals - application for security to be heard with leave application.

ADMINISTRATIVE REVIEW - Judicial Review - ERROR OF LAW - Medical assessment under Motor Accidents Compensation Act 1999 - APPEAL against decision of MAS Assessor and Proper Officer of Motor Accidents Authority - Whether error on the face of the record or jurisdictional error

CRIMINAL LAW - Crown appeal - whether sentencing judge erred in failing to make a sufficient record of reasons for finding special circumstances justifying the balance of the term of sentence exceeding one third of the non-parole period - whether sentencing judge failed to adequately determine where the offence lay in the range of objective seriousness - whether sentencing judge had adequate regard to the standard non-parole period when sentencing

CRIMINAL LAW – application for leave to appeal against sentence – extension of time for notice of application for leave to appeal – relevant factors on application for extension of time – abject delay by applicant’s legal representatives – extension granted – merits of application considered – leave to appeal granted - CRIMINAL LAW – sentence appeal – aggravated robbery in company – larceny – committed against same victim – constituted part of same incident - victim’s injuries serious – offences committed whilst on bail – whether sentences manifestly excessive –starting point of sentencing range for aggravated robbery in company not outside realm of judge’s sentencing discretion – sentence for larceny offence within proper range - whether sentences should have been accumulated to certain extent or at all – determination of accumulation discretionary circumscribed by requirements of totality principle – appeal dismissed - CRIMINAL LAW – sentence appeal – additional “errors” complained of – failure to articulate findings regarding rehabilitation prospects and level of contrition expressed – contentions unsustainable – no demonstration of additional errors

CRIMINAL LAW – particular offences – drug offences – trafficking marketable quantity of controlled drug (heroin) - CRIMINAL LAW – appeal against severity of sentence – sentence manifestly excessive – applicant high level functionary – error in approach to reduction for guilty plea - CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics and comparisons - range of sentences in R v Wong and Leung not applicable – consideration of decisions under Customs Act 1901 – sentence outside range ordinarily imposed - CRIMINAL LAW – sentence – relevant factors – nature and circumstance of offence – consideration of quantity and nature of offender’s involvement

Crown appeal against sentence - whether sentence inadequate - Application for leave to appeal against sentence - money laundering - whether sentence manifestly excessive

Application for leave to appeal against sentences - multiple offences of robbery armed with a dangerous weapon - whether sentences manifestly excessive

CHARITABLE TRUSTS - identification of charitable purposes - TRUSTS AND TRUSTEES - appointment and removal of trustee by court - inherent jurisdiction - statutory jurisdiction - where property not yet vested in trustees - WILLS - Interpretation - Charitable bequest

CRIMINAL LAW – sentence – manslaughter – substantial impairment of mind – brutal killing – sentence imposed – no issues of principle

PRACTICE AND PROCEDURE – Summary judgment – Principles for exercise of summary judgment – Refusal to reopen previous orders of court.

FAMILY LAW AND CHILD WELFARE - child welfare - children in need of protection - appeal from Children's Court - parens patriae jurisdiction - whether exceptional circumstances or unacceptable risk to children from mother

CRIMINAL LAW AND PROCEDURE - Collision between vessels on harbour - Six deaths occasioned - Manslaughter - Dangerous navigation causing death - Sentence

SUCCESSION - intestacy - administration of estate by Public Trustee - duty of Public Trustee to ascertain identity of persons entitled upon intestacy - failure of Public Trustee for more than forty years to fulfil that duty - conduct of Public Trustee in administration of intestate estate - assets of estate are no longer held by and cannot be located by Public Trustee - breach of statutory duty and breach of duty of care - entitlement of Plaintiff, a beneficiary upon intestacy, to compound interest - entitlement of Plaintiff to exemplary damages.

SENTENCE - contempt – where defendant filmed witness giving evidence at a criminal trial - defendant guilty of performing an act that had a tendency to interfere with the administration of justice – considerations relevant to punishment – Part 55 rule 13 SCR – custodial sentence not warranted – no order as to costs

SUCCESSION - family provision and maintenance - order for provision made out of notional estate - interest claimed on order for provision - interest awarded under Family Provision Act s 11(1)(d) on order for provision

PROBATE AND SUCCESSION – EXECUTOR’S COMMISSION – No point of principle.

SUCCESSION - Wills, probate and administration - the making of a will - testator executed a testamentary document with Succession Act s 6(1) - testator makes two subsequent sets of alterations to the testamentary document - the subsequent alterations displace any inference that the unaltered testamentary document was intended to form the deceased's will.

PROCEDURE – Supreme Court procedure – New South Wales – rules of court – extension of time to sue party – joinder of party to proceedings after expiration of limitation period – s 54A Limitation Act test – whether not reasonable in the circumstances to have commenced action against defendant within time – s 64(1)(b) Civil Procedure Act – s 65(2)(c) Civil Procedure Act - DEFAMATION – defence of honest opinion, s 31 Defamation Act – whether s 31(4)(b) available to a plaintiff, who has sued employer, but not employee, where employer has raised defence under s 31(2)

Negligence - duty of care - drug rehabilitation - residential facility - voluntary program - alleged breach by omission - no duty to "ensure" safety of resident - resident going on leave without medication – self-harm while on leave - no failure of reasonable care.

PRACTICE & PROCEDURE - dismissal for want of prosecution - duty of procedural fairness - compliance essential.

PROCEDURE - Costs - existing order for costs onthe ordinary basis - application for indemnity costs - conduct of unsuccessful parties does not warrant making an order for indemnity costs - application dismissed.

CORPORATIONS – Procedure – costs – whether order should be made against deed administrator

APPEAL - Mixed fact and law - Appeal against decision of New South Wales Local Court - Calculation of interest

Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto - issue as to duration of order

ADMINISTRATIVE LAW - Lump sum workers compensation - Medical assessment certificate by approved specialist - Application by employer to appeal - Whether Registrar of Workers Compensation Commission had jurisdiction to allow appeal to proceed when statutory proviso required fulfilment - Whether material capable of such fulfilment.

Appeal against sentence - aggravated unauthorised possession of firearms - sentencing judge misinformed about standard non-parole period - error in sentencing - whether less severe sentence warranted in law - Application for leave to appeal against sentence - malicious wounding - knife used - sentence not manifestly excessive - sentence already expired - leave refused

CRIMINAL LAW - conviction appeal - appellant a taxi driver charged with sexual and stealing offences against female passenger - jury acquits of aggravated detain for advantage and convicts of indecent assault and stealing - whether inconsistent verdicts - inconsistency not established - whether no case to answer on indecent assault count - held there was a case to answer - whether conviction for indecent assault unreasonable and not supported by evidence - ground not established - appeal dismissed

CRIMINAL LAW - sentence - supply large commercial quantities of MDMA and amphetamine - supply commercial quantity of MDMA - possession of pistol - standard non-parole period offences - whether error in assessment of objective seriousness of offences - whether sentences manifestly excessive - sentences entirely concurrent - no error in assessment of objective seriousness - relevance to assessment of objective seriousness of drug supply offences that supplier in possession of loaded pistol - sentences not manifestly excessive - fixed terms of imprisonment imposed for two standard non-parole offences in breach of s.45(1) Crimes (Sentencing Procedure) Act 1999 - no ground of appeal relying on this error - no power of Court of Criminal Appeal to intervene unless s.6(3) or s.7(1A) Criminal Appeal Act 1912 apply - erroneous sentences not invalid - error may be corrected under s.43 Crimes (Sentencing Procedure) Act 1999 - appeal dismissed

CRIMINAL LAW - appeal against conviction - conspiracy to import commercial quantity of cocaine - inadmissible material inadvertently provided to jury - whether trial judge erred in refusing to discharge jury - complaint about Crown Prosecutor's address - whether trial judge erred in refusing to discharge jury - CRIMINAL LAW - appeal against sentence - consideration of "fresh evidence" of significant ill-health

TORTS - negligence - duty of care - police officers - reasonable foreseeability of risk of psychiatric injury - failure to monitor psychological condition after a long career - plaintiff placed in stressful situations - assigning plaintiff a welfare role and duties at the Fraud Enforcement Agency for which he was not trained - failure to provide support in relation to welfare assistance provided to other officers during the Police Royal Commission - role and duties in a Police Service investigation of a Royal Commission witness resulted in adverse attention by Royal Commission and plaintiff's integrity being called into question - failure to support plaintiff after being adversely named in the Royal Commission - failure to ensure no exposure to harassment as a result - failure to ensure relevant and sufficient information provided to the Police Board - failure to provide debriefing or counselling after plaintiff was threatened by a gun and twice stabbed with a syringe in May 1998, or during the ensuing months of testing - failure to provide support once aware of plaintiff's psychological condition - failure to provide rehabilitation to allow plaintiff to remain employed in the Police Service - contributory negligence - whether plaintiff failed to take sufficient care for his own mental, emotional and/or behavioural welfare - whether plaintiff failed to monitor his own mental, emotional and/or behavioural status - whether plaintiff failed to seek timely and proper help from the defendant, or any other competent medical practitioner, for any mental, emotional and/or behavioural problems that he may have been experiencing - whether plaintiff failed to take proper and timely advantage of the services of the defendant's chaplaincy, peer support officers, welfare branch and/or psychology unit that were available to him - whether plaintiff failed to seek counselling in a timely matter - whether plaintiff failed to take all reasonable steps to prevent suffering psychological and/or psychiatric injury - contributory negligence not found - DAMAGES - measure and remoteness of damages in actions for tort - personal injuries - method of assessment - economic loss - loss of earnings and earning capacity - psychological injury is now entrenched - plaintiff's working life brought to an end - general damages awarded - damage awarded for past and future economic and other losses, calculated to retirement at age 65 - POLICE - internal administration - whether Police Service Rehabilitation policy applied - workers compensation - section 11A of the Workers Compensation Act 1987 - contributor to Police Service Superannuation Fund - Police Regulation (Superannuation) Act 1906 - policy applied - POLICE - tribunals and other authorities - Police Royal Commission - PROCEDURE - leave sought to further amend pleadings - no prejudice - leave granted - DEFAMATION - Intersection between the claimed duty and the law of defamation - no intersection between duty to provide accurate information about how plaintiff came to attention of Royal Commission and law of defamation

PRACTICE AND PROCEDURE – SUBSTITUTED SERVICE – JURISDICTION – FORUM NON CONVENIENS – whether personal service “practicable” – meaning of “practicable” – whether Court should decline to exercise jurisdiction to determine claims arising from transactions in Romania in alleged breach of service contract made in Australia.

CRIMINAL LAW - juvenile convicted of manslaughter - application to serve prison term in juvenile centre - whether special circumstances as defined - HSC courses not offered by adult gaols - order that juvenile remain in juvenile centre to complete education.

CRIMINAL LAW - juvenile convicted of manslaughter - application to serve prison term in juvenile centre - whether special circumstances as defined - HSC courses not offered by adult gaols - order that juvenile remain in juvenile centre to complete education.

Summons seeking relief in nature of certiorari - whether decision of the District Court dismissing an appeal from the Local Court regarding sentence imposed should be quashed - whether decison of District Court was affected by jurisdictional error - statutory meaning of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

PROCEDURE - miscellaneous procedural matters - funds paid into Court under Trustee Act Part 4 - application for payment out of court - matters to be established - Held: matters required are established - order for payment made out .

ADMINISTRATIVE LAW - claim for prerogative relief - workers compensation statutory scheme - decision by approved medical specialist - appeal to Appeal Panel - whether error of law or jurisdictional error by approved medical specialist in approach to s.323 of Act - whether failure by approved medical specialist to give reasons - whether denial of procedural fairness - whether error of law or jurisdictional error by Appeal Panel - no error established - proceedings dismissed

DEFAMATION – objections to imputations – whether imputations reasonably capable of having been conveyed – form of imputations

Corporations Law. Applicatgion to set aside statutory demand by a guarantor on various bases including an offsetting claim which relied upon an equitable set off held by the principal debtor. Held that equitable set off only needed to have the principal debtor as a party in the final determination of the claims. Demand set aside on condition as to joinder of necessary parties.

CORPORATIONS - application for winding-up of incorporated association under Associations Incorporation Act 1984, s 51(1)(c) - defendant unable to pay debts - winding-up order made

CORPORATIONS - winding up - application for appointment of provisional liquidator - company paralysed - evidence indicates likely insolvency - whether appointment will have impact on company's trusteeship - order made

PRACTICE & PROCEDURE – application by plaintiff for interim payment from second defendant pursuant to s 82(3)(c) Civil Procedure Act 2005 – plaintiff severely injured when the forks of his bike collapsed – whether if proceedings went to trial the plaintiff would obtain judgment for substantial damages against second defendant – quantum of interim payment – order made – where application by second defendant for preliminary order for contribution or indemnity against first defendant and/or first cross claimant with respect to interim payment – order refused

CONTRACTS - general contractual principles - claim for repayment of plaintiff's money under share agreements - harsh and unconscionable contracts and statutory remedies - alternative claim under Contracts Review Act 1980 (NSW) - where alleged repudiation of share agreements by plaintiff - where alleged lack of clean hands on the part of plaintiff - where guarantee by first defendant to repay money not repaid by third defendant

CRIMINAL LAW - sentence - pleas of guilty - murder - aggravated break enter and steal - father murdered by 17-year old son - shotgun blast to head while father sleeping - prior good character - offender suffering from undiagnosed juvenile bipolar disorder at time of offence - offender now a correctional patient detained at Forensic Hospital - relevance of mental disorder and youth to sentence

FAMILY PROVISION - Adult son - Extension of time - Estrangement - Expression of testamentary intentions - Other competing claims

DEEDS - requirements for valid execution - whether plaintiff can take benefit of deed despite not reading properly or signing document - HELD - plaintiff able to rely on deed - deed validly affirmed in a subsequent deed of variation - LOAN AND GUARANTEE - whether deed constitutes a binding agreement for guarantee supported by good consideration - HELD - deed constitutes valid contract of guarantee under which guarantee extends to repayment of principal, interest and additional moneys - guarantee not contingent on notice or demand - plaintiff able to enforce guarantee against second defendant despite availability of higher remedy against first defendant - plaintiff’s inability to establish exact amount remaining due under loan does not preclude recovery - matter to be referred to Associate Justice for determination of exact amount outstanding - relief not available under Contracts Review Act 1980

ADMINISTRATIVE LAW - construction of s 29(3) Security Industry Act 1997 - whether question for separate determination pursuant to Part 28 rule 28.2 Uniform Civil Procedure Rules - whether question of law - whether circumstances sufficiently unusual to warrant removal into Court of Appeal - whether special circumstances exist - removal of one set of proceedings to Court of Appeal pursuant to Part 1 rule 1.21 of the Uniform Civil Procedure Rules