Cases and authorities

TRUSTS - whether executor of will distributed money to himself in breach of orders in earlier Family Provision Act proceedings between the parties - executor cross claims to construe or rectify the phrase "residue of the estate" in agreed short minutes of order in the earlier proceedings so as to include a superannuation fund death benefit which was not an asset in the estate - cross claim dismissed - whether, if executor's cross claim had succeeded, it would have affected the perfected orders made in the earlier proceedings - EVIDENCE - whether rule in Jones v Dunkel operates to require a party to give merely cumulative evidence

CRIMINAL LAW — Sentencing — Crown appeals against sentence — threatening to cause injury to witness in judicial proceedings — s 326(2) Crimes Act — offences committed in circumstances where offenders were likely to be apprehended — whether mitigating factor that offences were “stupid”

CRIMINAL LAW - appeal against sentences - whether sentencing Judge failed to assess where the offence at count 2 fell in the range in terms of objective seriousness - whether the test in relation to any departure from the standard non-parole period was wrongly articulated - whether sentencing Judge impermissibly had regard to the applicant’s prior criminal record as an aggravating factor - whether sentencing Judge erred in finding the offences to be ‘a series of criminal acts’ and so an aggravating factor for purpose of s 21A (2)(m) of the Crimes (Sentencing Procedure) Act - whether sentencing Judge failed to have proper regard to the fact that the offence at count 1 and the two offences on the form 1 could have been dealt with in the Children’s Court of New South Wales - whether other sentences were warranted in law - s 6 of the Criminal Appeal Act 1912 - lenient sentences - no error in sentences shown - leave to appeal against sentence refused

CRIMINAL LAW — Sentencing — producing child pornography — level of objective seriousness of offence — not produced for distribution — no exploitation or victimisation of any actual child

CRIMINAL LAW — Sentencing — robbery in company inflicting grievous bodily harm — children — standard non-parole period does not apply to children — Children (Criminal Proceedings) Act s 6 — offenders nearly 18 years old — assistance to authorities — s 21A(3)(n) Crimes (Sentencing Procedure) Act — medical condition of offender

DAMAGES - threshold for damages for non-economic loss under the Motor Accidents Compensation Act 1999 - referral to medical assessor for assessment of degree of permanent injury - whether referral again under s 62(1) can be confined to assessment of the degree of permanent impairment, excluding question of causation - interpretation of s 62(1) and scheme for medical assessment - on facts, Act prior to 2007 amendments applied - court not entitled to make causation finding binding on the parties in the assessment - limited referral not permitted.

CONTRACT - loan agreement - pre-contractual statement under Credit Code - part of offer - offer accepted - deed not necessary - addition of "per" to lender's signature - not material change - Real Property Act ss 36(10)(a), 36(11), 51A - Conveyancing Act ss 23C, 38 not relevant - intention to create legal relations manifested - agreement binding - no question of principle. MORTGAGE - signed by solicitor for mortgagee to certify correctness of dealing - solicitor's name substituted - not material alteration - mortgage secured an enforceable loan agreement - memorandum validly incorporated - no question of principle. PROCEDURAL FAIRNESS - application for adjournment in order to apply to consolidate with other proceedings - application for adjournment due to late production of evidence - leave to apply again if prejudice shown - no procedural unfairness - solicitor appearing for himself - not to be treated as unrepresented litigant. EVIDENCE - Evidence Act ss 135, 136 - no unfair prejudice - no error shown. AGENCY - authority to sign for lender - on facts, was authority - in any event, ratification established - not necessary for ratification to know particular act of agency.

PRACTICE AND PROCEDURE - power to dismiss proceedings for failure to comply with directions for the speedy determination of the real issues between the parties - where plaintiff refuses to amend summons - summons dismissed

APPEAL - issues of mixed law and fact - appeal from findings of Local Court pursuant to s 40(1) of Local Court Act 2007 - PLEADINGS - purpose and function of pleadings - necessity of pleading material facts - TRADE AND COMMERCE - other regulation of trade or commerce - misleading and deceptive conduct - breach of s 42 of Fair Trading Act 1987

ADOPTION – Whether adoption clearly preferable, in best interests of child, to parental responsibility order.

CONTRIBUTION - whether a dismissal of main proceedings against a joint tortfeasor on a procedural basis precludes a claim for contribution by another joint tortfeasor - STATUTORY INTERPRETATION - whether the imposition of the statutory obligation on an owners corporation under s 62 of the Strata Schemes Management Act 1996 amounts to "damage" - REFEREES - adoption of report

PRACTICE AND PROCEDURE - stay pending appeal - application for stay of decision that defendant is a vexatious litigant

TORTS - medical negligence - essentials of action for negligence - duty of care - special relationships and duties - professsional persons - standard of care expected of General Practitioner pursuant to Section 5O of Civil Liability Act - TORTS - proof of negligence - weight and credibility of evidence - TORTS - reasonable foreseeability of damage - particular cases - affecting particular professions or occupations - application of Section 32 of the Civil Liability Act - TORTS - damage - causation - generally - application of Section 5D of the Civil Liability Act - PROCEDURE - nature and extent of principles expounded in Jones v Dunkel

PROCEDURE - miscellaneous procedural matters - other matters - vexatious litigant - extensive history of failure to comply with orders for costs - assessment of proportion of costs pursuant to s 98(4) of the Civil Procedure Act - PRACTICE - stay of further proceedings in which leave sought to institute proceedings until satisfaction of prior costs order pursuant to r 12.10 Uniform Civil Procedure Rules and/or stay of proceedings pursuant to s 67 Civil Procedure Act

CRIMINAL LAW - sentence - manslaughter - plea of guilty - excessive self-defence - juvenile offender - use of knife

CONTRACTS- construction and interpretation of contracts- whether on its proper construction, a clause requiring respondent to pay consultants' costs and costs ancillary to consultants' services obliged the respondent to pay council fees that parties knew were being utilised to pay consultants' costs incurred by the council- primary judge focused on the character of fees as "lodgement fees"- in the circumstances, and according to the language of the clause and the layman's agreement as a whole construed according to its commercial purpose, the trial judge erred in finding that the respondent was not obliged to pay fees. CONTRACTS- discharge, breach and defences to action for breach- whether respondent breached and repudiated agreement and whether appellant justified in treating breach as repudiation- whether adherence to an incorrect interpretation of a contract when bona fide dispute as to true construction- arguable construction not the reason for non-payment- where respondent did not pay fees in a timely manner as part of "poker game" to obtain written agreement as to refunding and remuneration from council- viewed objectively, the "poker game" conveyed a blanket refusal of an essential term and constituted a repudiation justifying appellant's termination. DAMAGES- discount rate for vicissitudes and present value- primary judge discounted damages by 12.5% for the possibility that put and call options exercisable until November 2012 might not be exercised- further discount required to cover present value of money and general vicissitudes. TRADE PRACTICES- misleading or deceptive conduct- whether project agreement should be set aside because respondent's representation that he was an "experienced project consultant" constituted misleading or deceptive conduct- question of fact whether respondent was "experienced"- whether "professional" connoted competence- claim fails because no reliance on the representation and thus no loss "by" respondent's conduct under Fair Trading Act 1987, ss 68, 72.

TRADE PRACTICES- unconscionable conduct- whether "unconscionable conduct" under s 51AA and s 51AC Trade Practices Act 1974 for respondent to delay in taking action to recover debt and suing the appellant so that appellant's rights of subrogation for recovery of debts against customer and insurer statute barred by Limitation Act 1969- on facts claim not made out- in any event no evidence of reaction of appellant to respondent's alleged conduct.

Common law - personal injury - school camp - no breach of duty.

Criminal law - parole - s 155 Crimes (Administration of Sentences) Act 1999.

DE FACTO RELATIONSHIP - application under s 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order - relationship of 22 years duration - substantial increase in assets over period of relationship - defendant the primary actor - plaintiff's decline in health - exercise of jurisdiction under s 20 - relevance of initial contributions - evaluation of non-financial contributions - ASSAULT - alleged physical injury to a person - degree of such injury - DAMAGES - whether general damages to be awarded

DE FACTO RELATIONSHIP - application under s 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order - relationship of some six years duration - significant increase in assets over period of relationship - plaintiff's superior financial position - defendant's weaker position generally - exercise of jurisdiction under s 20 - whether imbalance of contributions between parties - evaluation of any non-financial contributions - whether adjustive orders just and equitable in all circumstances

DEEDS – non est factum – EQUITY – unconscionable and unjust transactions – statutory remedies under (NSW) Contracts Review Act 1980, s 7 – whether substantive injustice – whether procedural injustice – discretionary considerations

CRIMINAL LAW - Sentence - Conviction for murder after trial - killing by use of motor vehicle

SUCCESSION - Statutory Will - To avoid operation of intestacy rules in circumstances of domestic violence

SENTENCE – Crimes Act 1900, s 33 – malicious wounding with intent - SENTENCE – Crown appeal – departure from standard non-parole period - SENTENCE – plea of guilty – standard non-parole period – guide to sentence - SENTENCE – double counting – finding of special circumstances and order that sentence be served by way of periodic detention – error in approach of sentencing judge

CRIMINAL LAW – particular offences – property offences – conspiracy to cheat and defraud – CRIMINAL LAW – appeal against sentence – appeal by Crown – approach to Crown appeals of sentences to be served other than by full-time custody – sentence manifestly inadequate by reason of suspension – delay in sentencing – rehabilitation of respondent – application of s 68A of the Crimes (Appeal and Review) Act 2001 as explained in R v JW [2010] NSWCCA 49 – discretion not to intervene exercised – approach to reduction of sentence for utilitarian value – Crown appeal dismissed

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – claims resolution procedure – claims exempt from assessment procedure – admission of liability – admission based on mistake of fact – medical assessment – purported withdrawal of admission – no statutory provision for withdrawal of admission – amended notice issued – application for exemption – jurisdictional error – error of law on the face of the record – Supreme Court Act 1970 s 69 – no error of law established

PRACTICE - Application for summary dismissal of cross-claim - application for striking out of parts of cross-claim and of parts of defences - whether cross-claim discloses a reasonable cause of action - whether defences disclose a reasonable defence - Plaintiff has received benefit from conduct of which she now complains - allegation of accessorial liability for knowing receipt of trust property - claim for imposition of a constructive trust - indefeasibility of title.

Test cases - Undertakings given to Court at first instance by sundry defendants agreeing to be bound on common questions by findings in test case - Court notes agreement of parties to be bound on common questions subject to particular defendants seeking to rely upon different surrounding circumstances - Test case proceedings heard at first instance, by the New South Wales Court of Appeal and ultimately by the High Court of Australia - Strike out motion in respect of certain paragraphs of defences and cross claims of continuing defendants - Plaintiff contends that paragraphs of the pleadings which are challenged are inconsistent with and contrary to the findings in the test case - Plaintiff's contention that to permit the pleadings would be to permit a breach of the undertakings given to the Court - Construing consent orders by reference to surrounding circumstances - Principles - Collateral attack upon final decisions of Court may take variety of forms - Whether litigants to be permitted by changing form of the proceedings, to set up the same case again

SUCCESSION [321] – Family provision and maintenance – Principles upon which relief granted – Application of children – Adult son. - SUCCESSION [335] – Family provision – Practice – Costs – Unsuccessful plaintiff.

SERIOUS SEX OFFENDER - application for extended supervision order - pre-trial procedures and interim order - orders made

PRACTICE AND PROCEDURE – discovery – objection to categories as irrelevant – supplementary categories – consideration of relevance – no issues of principle – objection disallowed

STATUTORY INTERPRETATION – whether Guideline 45 of the Workcover Medical Assessment Guidelines which permits an Appeal Panel to conduct an "On the Papers" review is inconsistent with the provisions of s.328(1) of the Workplace Injury Management and Workers Compensation Act 1998 ("An appeal against a medical assessment is to be heard by an Appeal Panel ...") and therefore invalid – no inconsistency – issue determined by decision in Estate of Brockmann v Brockmann Metal Roofing Limited & Ors – reasons for judgment of Studdert J in that case followed and applied - ADMINISTRATIVE LAW – procedural fairness – claimed breach of the ‘hearing rule’ in circumstances where an Appeal Panel raised an issue of causation for further submissions – plaintiff employer in response sought a ‘hearing’ – request refused and final decision given by the Panel – no breach of procedural fairness requirements having regard to the statutory scheme and factual circumstances of the case

APPEAL from District Court - Damages appeal - Proper construction of s 15B(2) of Civil Liability Act 2002 - Meaning of phrase "domestic services" - Statutory interpretation - Whether phrase to be given a restricted meaning - Whether leave should be given to raise a point not relied on below - prejudice to other party - Whether factual findings on damages were "glaringly improbable".

DAMAGES – future economic loss – whether experience gained after injury impacts on claim for future economic loss – application of principles in Malec v JC Hutton Pty Ltd [1990] HCA 20 - (1990) 169 CLR 638

COSTS – multiple issues in proceedings – plaintiffs successful on some claims – principles relating to departure from general rule that costs follow the event and where apportionment of costs to reflect outcome on separate issues if appropriate – plaintiffs’ unsuccessful claims did not add substantially to length of hearing or were relevant to an understanding of other matters in issue which were argued successfully – no apportionment of costs referable to separate issues in the proceedings – DERIVATIVE PROCEEDINGS – minority shareholders’ claim for an order that company bear costs of derivative proceedings in advance of commencement of those proceedings – no order made

TAXES AND DUTIES - Stamp Duties - whether deed of consent and assignment was a novation - whether inaccurate description of the deed should be blue penciled in part - whether deed of termination had no effect or terminated deed of consent and assignment under its blue penciled description - whether plaintiff entitled to a refund of duty on the deed of consent and assignment under the Duties Act 1997, s 50 - whether the Court should re-exercise the Chief Commissioner's discretion when it was vitiated

SUCCESSION – FAMILY PROVISION – Plaintiff only surviving child of deceased – Plaintiff and deceased estranged for twenty-eight years – whether estrangement negates Plaintiff’s claim – whether Plaintiff left without adequate provision.

CORPORATIONS – Unfair preference payments – whether payment made to Commissioner is a payment to which the company is a party – whether payment to Commissioner is a transaction for the purposes of s 588FA(1), s 588FC and s 588FF(1).

CORPORATIONS - receivers controllers and managers - validity of appointment of receiver - application for declaration of invalidity - MORTGAGES - mortgages and charges generally - receivers - whether appointment of receiver by mortgagee valid - PRIMARY INDUSTRY - generally - farm debt mediation - Farm Debt Mediation Act 1994 - whether debt by borrowing to acquire land "incurred ... for the purposes of the conduct of a farming operation" - where borrower and lender enter into collateral agreement proving for resale of land with a view to profit

Costs.

CONTRACTS - building, engineering and related contracts - agreement for expert determination of claims under contract - contractual obligation on expert to give reasons - nature of reasons that expert obliged to give - inconsistency in expert's reasons - expert determination not binding on parties

CORPORATIONS - winding up - members voluntary winding up - company apparently solvent - resignation of liquidator - no arrangements for transition to new liquidator - resignation with apparent consent of members - court asked to appoint new liquidator - no resort by members to their own power to appoint

NEGLIGENCE – psychiatric injury – overwork in employment – security industry – causation – duty of care – no foreseeable risk of sustaining a recognisable psychiatric injury, which was not far-fetched or fanciful – want of care as to regular welfare checks – not causative of injury - TRADE PRACTICES – s 53B of Trade Practices Act 1974 (Cth) – no relevant conduct liable to mislead – query whether representation that forms part of contract of employment can amount to contravention of section - INSURANCE – indemnity for liability for injury to worker not cover damages for contravention of s 53B of Trade Practices Act 1974 (Cth)

CRIMINAL LAW - Practice and Procedure - Application to withdraw plea - Offences - Cause personto take poison - meaning of "cause to be taken" - whether offence made out on agreed facts

PRACTICE AND PROCEDURE - summary dismissal - whether cross-claim liable to be dismissed summarily - whether triable issue as to causation - where applicant one of several cross-defendants - PRACTICE AND PROCEDURE - interrogatories - whether answered sufficiently where answer includes irrelevant or superfluous matter - whether further answer required in light of rule permitting tender of part of an answer

SUCCESSION – WILLS – Whether testamentary gift to witness should be declared valid.

PRACTICE AND PROCEDURE - Determination of Separate Questions - Where there is an overlap of facts between issues