Cases and authorities

CRIMINAL LAW AND PROCEDURE - Trial by judge alone - Indictment charging murder - Whether accused substantially impaired - Psychiatric opinion - Other facts - Verdict in accordance with accepted psychiatric evidence

Criminal Law - Practice and Procedure - Investigatory powers - Forensic sample - whether magistrate ought to have granted order for taking of buccal swab - Appeal - appeal from magistrate - whether error of law.

PRACTICE AND PROCEDURE - challenge to fees of referee - whether tasks improperly delegated - referee required to express opinion on question of law - parties ultimately agreed that question should be answered differently - whether referee's fees should be moderated to reflect additional costs occasioned by earlier opinion

CORPORATIONS – application to set aside statutory demand dismissed – plaintiff’s purpose in bringing application was to delay the payment of the debt and not for the proper purpose of seeking to have it determined that there was a genuine dispute in relation to the debt – indemnity costs awarded

SUCCESSION - family provision - claim by former wife - financial and material circumstances of Plaintiff - obligation upon an applicant for provision to place before Court as fully and as frankly as possible all information concerning her financial and material circumstances - whether Plaintiff has been left without adequate provision for her proper maintenance - nature and size of estate - actual estate not sufficient to accomodate Plaintiff's claim - possible notional estate - factors warranting making of application - competing claim of widow, to whom Deceased left entire estate.

DEFAMATION – publication – republication – nature of liability for republication – whether plaintiff’s claim against newspaper publisher in respect of radio broadcasts characterised as direct publication or republication as damages claim - ESTOPPEL – abuse of process – unsuccessful s 7A Supreme Court trial in respect of newspaper article – pleadings alleged defendant “caused to be published” three radio broadcasts referring to article – whether an abuse of process for plaintiff to commence separate defamation proceedings in the District Court in respect of radio broadcasts – whether plaintiff seeking in District Court proceedings to re-litigate issue lost in unsuccessful s 7A proceedings – whether plaintiff should have sued owners of radio stations in Supreme Court proceedings – whether success in District Court proceedings would lead to conflicting judgments - PROCEDURE – judgments and orders – effect of judgments – consent judgment entered in favour of defendant in earlier proceedings – defendants in later proceedings not parties to or privies in respect of earlier proceedings – whether consent judgment operates as Anshun estoppel to bar later proceedings - PROCEDURE – abuse of process – whether proceedings abuse of process by application of principles for efficient disposition of litigation in Civil Procedure Act 2005 (NSW), ss 56 – 59 and Defamation Act 1974 (NSW), s 3(d) - PROCEDURE – abuse of process – whether proceedings oppressive where statutory right to seek contribution potentially prejudiced

Criminal law - murder - conviction appeal - whether verdict unreasonable or could not be supported having regard to the evidence - circumstantial case - necessity to consider combination and totality of circumstances - significance of jury bringing to bear their common experience of human affairs and common sense - open to jury to be satisfied of guilt beyond reasonable doubt - whether trial miscarried because of pre-trial publicity bringing adverse notoriety - note from jury enquiring about evidence of motivation and character - did not indicate jury was influenced by the publicity - nor was the publicity such that there was a miscarriage of justice - appeal dismissed.

ENVIRONMENT AND PLANNING – Environmental Planning – Planning Offences – Appellant placed sheds on property – Land and Environment Court made declaration that development carried out without consent in contravention of s 76A(1) of Environmental Planning and Assessment Act 1979 – Consent for development subsequently granted – Whether utility in appeal against declaration – Whether sheds fell within definition of “building” or of “manufactured home”, “moveable dwelling” or “associated structure” – Costs

COSTS – departing from the general rule – proceedings in negligence by lessee against owners of premises – owners cross-claimed against managing agent – Calderbank offer by owners for managing agent to take over defence –Plaintiff’s claim failed and cross-claim dismissed – managing agent ordered to pay costs of cross-claim – primary judge held only basis for owner’s liability could have been default by managing agent – whether real fight was between the plaintiff and managing agent (cross-defendant) – whether leave to appeal should be granted

PROCEDURE - judgments and orders – orders striking out defence – defendants seeking to vacate hearing date – delay in obtaining evidence and particulars from the plaintiff - no notice of motion filed by defendant to vacate hearing date – review of decision of magistrate striking out defence – relevant considerations – Civil Procedure Act 2005 (NSW) s 58 – failure to take into account statutorily required considerations of Civil Procedure Act 2005 (NSW) s 56 and s57 – just determination of the proceedings – matter not given weight as a fundamental element in the decision making process - proportional use of power to strike out defence - Civil Procedure Act 2005 (NSW) – s 56 – s 57 – s 58 – s 61

COSTS – application by successful appellant for indemnity costs – Calderbank letter sent by appellant before hearing of appeal – whether genuine offer to compromise proceedings – whether reasonable for respondent to refuse offer – whether conduct of appeal by appellant required adjustment to costs order – costs of cross-appeals where no decision on merits.

TORTS – negligence – causation – injury during the course of a police pursuit – whether the initiation and continuation of the pursuit broke the chain of causation - TORTS – negligence – police pursuit – contributory negligence – whether the police officer’s decision to initiate and continue the pursuit was reasonable – whether the police officer exercised reasonable care for his own safety - TORTS – negligence – damages – future economic loss – Motor Accidents Compensation Act 1999, s 126 – parties agreed on approach to Motor Accidents Compensation Act 1999, s 126 – assumptions made by trial judge in determining future economic loss – whether assumptions supported by the evidence

Police officer - widow's superannuation entitlement - Commissioner determined officer's death caused by being hurt on duty - hurt on duty meant injury in course of and substantially contributed to by employment - parties conducted case on basis hurt on duty by reason of archiving acitivities - application to District Court requiring determination concerning nature of risks to which officer exposed - judge not satisfied death suffered by reason of or in course of archiving duties or employment at all - not consistent with Commissioner's determination - also departed from common position in proceedings - gave grievances in point of law - appeal upheld and remission for new determination.

APPEAL – approach taken by trial judge resulted in inadequate award of damages – trial judge failed adequately to assess appellant’s psychological/psychiatric condition – reliance placed upon psychiatrist’s report in assessing psychological/psychiatric condition misplaced – no proper basis for findings adverse to appellant – correct approach outlined – comparison of appellant’s pre-injury and post-injury functioning – credibility findings adverse to plaintiff not warranted on proper examination of evidence – evidence by witness unfairly discounted – failure by psychiatrist to diagnose post-injury psychological condition – failure to identify pre-injury psychological condition – reasoning unsustainable – matter remitted to District Court for re-trial limited to question of damages - DAMAGES – assessment of damages by trial judge for personal Injury sustained as a result of a dog attack – psychological injury

DEFAMATION - justification - truth - contextual truth - DEFAMATION - proper material for comment - opinion - DEFAMATION - privilege - qualified privilege - response to attack

PROCEDURE – interest – inherent jurisdiction to award interest on claim for equitable contribution – interest as compensation for loss of value of money - costs – determination of the “event” – factors relevant to costs discretion

PROCEDURE - costs - departing from the general rule - whether substantive success in hearing - consideration of reasonableness of settlement offers

PRIVATE INTERNATIONAL LAW– Inappropriate forum – Application for anti-suit injunction – where insurance policy contains express choice of law clause providing that disputes be determined in accordance with the laws of Australia – where policy contains submission to jurisdiction of Australian courts - where both parties resident in Australia – where insurance contract formed in Australia – where defendant commences action in California in order to gain forensic advantage not available in Australia – Whether jurisdiction clause exclusive or non-exclusive – relevant considerations - where Australian courts are natural forum– where Australian courts would have jurisdiction in any event – held: jurisdiction clause was exclusive – where Australian courts not an inappropriate forum – held: anti-suit injunction should be granted – Whether express choice of Australian law founds implied negative stipulation not to sue in a jurisdiction that would not apply Australian law – nature of choice of law clause – whether promissory or declaratory – held to be declaratory – institution of proceedings in California would be breach of implied negative stipulation arising from choice of Australian law – Whether institution of proceedings in California vexatious or oppressive – whether Californian action gives defendant forensic advantage not available under Australian law – whether Californian courts would have given effect to choice of law provision – whether Californian court would have regarded Australian law as being contrary to fundamental policy of California – held: Californian court would give effect to choice of law clause - moreover even under Californian law defendant would not gain advantage not available in Australia – where California clearly inappropriate forum – held: Californian proceedings unconscionable, vexatious and oppressive

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - claims resolution procedure - application for exemption - admission or denial of liability - withdrawal of an admission - amended notice - insurer’s statutory duties - effect of s 81 notice - damages

COSTS - First defendant entitled to order for costs of a failed application for discontinuance of proceedings during hearing - whether the issue of costs should be reserved until the end of the proceedings - there is nothing in the position as between the first defendant and second defendant which requires costs to be reserved

APPEAL - appeal from Local Court to Supreme Court - whether finding open on the evidence - failure to provide proper reasons - failure to address correct question - failure to resolve essential factual issue.

PRACTICE AND PROCEDURE - civil proceedings - psychiatric patient released from hospital into care of friend for road journey from Taree to Victoria - patient kills friend during journey - claim by relatives of deceased for damages against Area Health Service - application by plaintiffs under s.85 Supreme Court Act for trial by jury - applicable legal principles - whether interests of justice require jury trial - application for jury trial refused

PROCEDURE – Application for leave to appeal – Need to show reasonably arguable case of error, and that there is a reasonable prospect of substantive relief being obtained.

PROCEDURE - miscellaneous procedural matters - application for summary dismissal under UCPR r 13.4(b) - whether pleadings disclose a reasonable cause of action - where defects curable by amendment of pleadings. - TORTS - negligence - duty of care - whether police officers and the police service as a whole owe a duty of care to an individual members of the public - inappropriate to decide at the dismissal stage of proceedings.

CONTRACT - Whether oral agreement reached between the parties to the effect that one party agreed not to sever joint tenancy - whether repudiations by one party - REAL PROPERTY - defences to applications for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) - whether there can be agreement not to sever.

CONTRACTS – general contractual principles - whether parties made binding agreement – whether intention to be immediately bound – construction of terms of written document – consideration of surrounding circumstances - intention of parties was not to make a concluded bargain unless and until execution of formal documents prepared by solicitor

CIVIL LAW - Practice and Procedure - indemnity costs

CORPORATIONS - statutory demand - application to set aside statutory demand - genuine dispute as to existence of debt claimed

CONSUMER CREDIT - credit protection - regulated contracts - tribunals - appeal from Consumer, Trader and Tenancy Tribunal - prerogative relief - whether Tribunal had jurisdiction to hear application - Tribunal determines that it has no jurisdiction because credit contract not subject to Credit Code - whether jurisdictional error - whether provision of credit for personal, domestic or household purposes - test for determining purpose pursuant to s 6(1)(b) Consumer Credit Code. ADMINISTRATIVE LAW - judicial review - grounds of review. ADMINISTRATIVE LAW - prerogative writs and orders - certiorari - Consumer, Trader and Tenancy Tribunal Act 2001 - s 65.

CRIMINAL LAW: - manslaughter - plea of guilty - killing by stabbing of de facto partner - substantial impairment - drug abuse

EQUITY - Application for leave for discontinuance of proceedings during hearing - No appearance by second defendant despite prior notice of appointed hearing - Injustice to one party if discontinuance granted weighed against the need to not waste resources expended by the other parties - Public inconvenience of plaintiff recommencing proceedings at future time - Co-ordinate liability on joint judgment - Discontinuance would lead to loss of evidence of key international witness

INSURANCE – claim by plaintiff against her former solicitor alleging negligent conduct of a conveyancing transaction - application to join insurer pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - circumstances in which plaintiff can proceed directly against insurer of solicitor alleged to be liable to pay her damages - claims-made policy - whether event giving rise to the liability to the plaintiff occurred before entry into the contract of insurance

CRIMINAL LAW - appeal and new trial - identification evidence - in-court identification - failure by trial judge to discharge jury - failure to direct jury that evidence of no value on identification issue - failure to specify weaknesses in identification evidence - the displacement effect - application of the PROVISO - conviction not inevitable.

CRIMINAL LAW - sentence - standard non parole period - impairment of mental capacity through deprived upbringing and intoxication - whether offence fell within the mid range - late plea but mental health issues - suggested case exceptional - whether sufficient discount for guilty plea - utilitarian value of plea - whether sentence manifestly excessive.

COSTS - discontinuance - plaintiff unable to meet damages threshold - defendant prima facie entitled to costs of action.

TORTS – negligence – duty of care – solicitor retained to advise on mortgage and loan documents – loaned moneys to be applied to investment – solicitor not retained to advise on the underlying investment transaction – solicitor knew clients were aware of high risk of investment – solicitor advised clients to seek independent legal and financial advice – whether advice of solicitor that the clients should seek independent advice was adequate – whether solicitor could reasonably conclude that clients understood the advice – no breach of duty - TORTS – negligence – causation – no causation on the facts - LEGAL PRACTITIONERS – solicitors – conflict of duty and duty – no conflict in context where not advising on the underlying investment transaction

CONTRACTS – Deed in which mortgagee agrees to accept certain payments in full satisfaction of mortgage debt – Whether time stipulated for such payments of the essence – Whether stipulation for such payments promissory – Whether such stipulations conditions precedent.

EQUITY – assignments – parties held charge over assets of a jointly owned company which owned land – transfer of interests in the charge from the respondents to the appellant - whether appellant took absolute title or held the interests on trust for the respondents – no trust document executed – no express trust on face of transfer - equitable estoppel – appellant estopped from asserting that took the interests other than as trustee – failure of underlying business agreement does not stop the operation of the deed of assignment - products of the assignment were royalties from use of land and settlement proceeds from sale of land - appellant held product of assignment on trust proportionately as per the parties’ original intention - EQUITY – assignments – assignment of interest under a mortgage – acquisition of mortgage facilitated potential acquisition of the land by removing mortgager as potential obstacle to sale - equitable estoppel – appellant estopped from asserting that took the interests other than as trustee – product of the assignment held on trust proportionately as per the parties’ original intention - EQUITY – remedies – equitable remedy appropriate in the circumstances - APPEAL – case on appeal not run below

EQUITY - general principles - fiduciary obligations – defendant retained as plaintiffs’ adviser to find purchasers for plaintiffs’ shares or to raise capital for company to repay plaintiffs’ loan – defendant obtained control of company and procured the issue of a substantial shareholding to himself for no consideration - dependence and vulnerability to exercise of influence – relationship of confidence - conflict between interest and duty – appropriateness of enquiry into fairness of transaction – undue influence - no presumption of undue influence – actual influence - EQUITY – equitable remedies – constructive trusts - EQUITY – equitable defences – acquiescence and laches - EQUITY – equitable relief – whether equitable relief should be conditional on making of just allowance for time spent on company’s affairs or donations to company

No question of principle

Construction of s 28(3) of Environmental Planning and Assessment Act 1979 - necessity for Governor's approval - consent granted by Ku-ring-gai Council - whether it overrides private restrictive covenant - combination of Ku-ring-gai Council Planning Scheme Ordinance (KPSO) and amending Local Environment Plan 194 altering zoning and thereby allowing cl 68(2) of KPSO to operate

Sentence for offences in breach of regulatory provisions concerned with finance broking - plea of guilty - sentences imposed.

PROCEDURE - cross-vesting - "special federal matter" - cross-claim makes claims based on s 45 and s 46 of Trade Practices Act 1974 - plaintiff seeks order striking out relevant parts of cross-claim - strike out motion is before the court - whether the proceeding is at this point one in which a "special federal matter" is for determination - held that that question falls to be determined after close of pleadings only

CORPORATIONS - statutory demand for payment of debt - application to set aside - whether genuine dispute as to existence of debt - dispute as to identity of contracting parties – CONTRACT – whether a contract comes into being between two parties – effect of subsequent conduct – when did the contract come into existence

EQUITY - Undue influence - Proposed amendment to statement of claim would cause unfair delay to hearing

Suit to set aside settlement agreements and consent order of dismissal of 2001 proceedings - effect and operation of estoppel - claim of "deceptive conduct" leading to settlement and consent order - assessment of damages flowing from "deceptive conduct" - prior determination of what claims are presently sustainable and can be heard with application to set aside consent order and what claims must await setting aside of order - extent and assessment of damages payable arising from "deceptive conduct" - desirability of factual findings

REAL PROPERTY – Torrens Title – what is meant by adverse possession – whether use of land by person making primary application for adverse possession was incompatible with the rights of use of documentary owner – what was the use of the land in question - what is the effect of fencing off - REAL PROPERTY – Torrens Title - adverse possession and possessory title – primary application for possessory title for land in a qualified portfolio - whether Part 6A of the Real Property Act 1900 (NSW) applies exclusively - REAL PROPERTY – Torrens Title - caution affecting a qualified portfolio – whether caution had lapsed upon expiration of 12 years freeing the land from any interests affecting the land on the date of creation of the qualified portfolio – meaning of estate and interest – whether these expressions include an action or a claim for an estate or interest

COSTS – appeal from Magistrate – matter remitted for determination – costs in this Court payable by defendant

CORPORATIONS – statutory demand – application to set aside a statutory demand – demand for unliquidated damages not yet suffered for no articulated cause of action – no debt nor any other amount due and payable – statutory demand set aside – indemnity costs awarded