Cases and authorities

ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – existence of duty – s 45 (1) Water Management Act 2000 - ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – content of duty – s 45 (1) Water Management Act 2000 - ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – breach of duty – s 45 (1) Water Management Act 2000

ADMINISTRATIVE LAW – The Ombudsman – Discontinuance of investigation – Application for order that investigation be completed – Whether applicant has standing.

Family Provision. Application by adult son at present in prison. Son sees the deceased once in the last 14 years of deceased's life. Application out of time and after distribution of estate. Plaintiff being a felon needs leave to bring proceedings. Consideration of whether there were any special circumstances as required by s28(5)(d) of the Family Provision Act. Held there were none and proceedings dismissed.

NEGLIGENCE – Duty of care – whether an owner of rail infrastructure owed to a train operator a non-delegable duty to exercise reasonable care to ensure that the track was safe – duty to maintain. - NEGLIGENCE – Duty of care – duty to ensure proper performance of works – duty to inspect – duty not discharged by engaging independent subcontractor. - NEGLIGENCE – Breach of duty – professional duty – liability – whether defendant’s liability is a civil liability incurred in the conduct of its profession – it is not necessary for the conduct to involve any element of professional skill, but must be carried out in the performance of professional duties. - DAMAGES – Whether defendants required to pay damages to plaintiff for loss suffered as a result of plaintiff’s unreasonable settlement with third party – settlement – reasonableness – objective test – range of potentially reasonable settlement sums. - DAMAGES – Economic loss – whether subcontractor owes proprietor a duty of care to avoid pure economic loss – vulnerability – whether plaintiff in a position to protect itself from loss in the event of negligence – damages are only recoverable for economic loss arising from injury to plaintiff’s person or property. - CONTRACTS – insurance contracts – whether a non-party to an insurance policy can sue to enforce a promise of indemnity expressed to be for their benefit – privity of contract. - CONTRACTS – Insurance contracts – claim under policy – limitation of liability – where an express exclusion of liability exists in respect of one cause, an insurer is not liable to an insured even where there is no exclusion in respect of a concurrent cause. - PRACTICE – Procedure – parties to proceedings – joinder of – where the construction and effect of a contract is in issue in proceedings, parties to those contracts should be joined. - EVIDENCE – inferences of negligence open on proved circumstances – whether inference should be drawn – failure of defendant to give evidence – Jones v Dunkel.

Sentence - Manslaughter - victim provoked fight and produced knife

LANDLORD AND TENANT – retail and commercial tenancies legislation – unconscionable conduct – lessor refused to negotiate for a new lease with a prospective purchaser of the lessee’s business – lessee alleged lessor wanted building vacant to maximise sale price – lessor feared potential disputes with a new tenant and a proposed redevelopment if new lease were granted - legitimate to have regard to commercial self-interest - CONTRACT – damages – breach of term to maintain air-conditioning system – no attempt by plaintiff to quantify its loss – many other factors also eroded plaintiff’s profits – impossible precisely to ascertain loss caused by breach – damages assessed at $10,000

SERIOUS SEX OFFENDER - application for extended supervision order - defendant completed CUBIT and other programs - issue as to term of order - paedophile with high risk of re-offending - conditions of order - appropriateness of ban on alcohol consumption - notification of schedule of proposed movements - appropriateness of requiring the taking of antilibidinal medication

[COSTS] - trial on liability - first defendant found liable - trial on quantum yet to occur - whether costs order should be made prior to finalisation of all issues in proceedings - [COSTS/STAY/INTEREST] - whether successful second defendant's conduct unreasonable - whether costs orders should be made - whether interest on costs - [EVIDENCE] - voir dire - whether plaintiff entitled to call evidence of communication during mediation - whether defendant's conduct amounted to "consent" within the meaning of s 30(5)(a) of the Civil Procedure Act 2005 - whether "privilege" waived - whether without prejudice status of communication lost - [MEDIATION] - need for mediators' compliance with rule 20.7 of the Uniform Civil Procedure Rules 2005 - [REFORM] - whether rule should be amended

PRACTICE AND PROCEDURE - defamation proceedings - cross vesting - interests of justice - appropriate forum - defence not filed - transfer

Appeal from Local Court - whether owner of motor vehicle obliged under Tow Truck Industry Act 1998 to pay charges of tow truck operator - whether on appeal from the Local Court a new point of law can be raised - exercise of discretion to allow new point to be raised - whether facts gave rise to restitutionary principles.

CRIMINAL LAW - pleas of guilty to murder and arson - Court convicts accused following entry of pleas - sentencing hearing adjourned - application for leave to withdraw plea of guilty to murder - whether Court has jurisdiction to entertain application where accused has been convicted - application adjourned

VENDOR and PURCHASER – contract made settlement date depend on purchaser obtaining licence from DOCS for child care centre – purchaser’s director responsible for child care centre received psychiatric treatment but this was not disclosed with application – disclosed later when (1) referee withdrew reference (2) director’s daughter made adverse representations to DOCS (3) purchaser’s solicitor sent DOCS a report from psychiatrist. Licence refused. In purchasers’ perception, it was in their interest that licence be refused and completion not occur. Consideration of interaction of obligation in Butts v O'Dwyer (1952) 87 CLR 267 to take reasonable and proper action to obtain a licence with obligation of disclosure to licensing authority – HELD – the information was properly disclosed to DOCS and there was no breach of implied obligation. Deposit recoverable. Consideration of operation of non-standard Special Condition in purchase contract. CHILDREN and YOUNG PERSONS – application to DOCS for licence for child care centre – consideration of obligations of disclosure, relevant discretionary considerations, fit and proper person.

CRIMINAL LAW — summary jurisdiction of Supreme Court — Public Health Act Part 6 Division 4 — displaying tobacco advertisement — consent to prosecution — contravention of s 61B

CORPORATIONS - registration of charges - application for extension of time for registration - power of sale already exercised as to whole of charged property - whether any utility in order sought

Family Provision. Application by a widow left out of will and her three daughters. Provision made for widow and provision for three daughters increased. - No matter of principle.

INSURANCE - Insurance contract - construction and interpretation - objective intention of the parties - contract must be considered as a whole. - EQUITY - Equitable remedies - mistake - rectification - common contractual intention. - EQUITY - Conventional estoppel - adoption of mutual assumption - inducement of assumption - reliance - detriment - whether parol evidence rules excludes evidence of pre-contractual negotiations in proving conventional estoppel.

Appeal against Magistrate's decision - person acting as Director when not appointed - incurring debts when company insolvent - liable for debts - questions of law - whether no evidence - whether mistake of fact infected reasoning - issues of mixed fact and law - presumption of continuance when acting as Director before and after period when debts incurred.

SUCCESSION - family provision - claims by three adult children (one a disable person) - entire estate left to de facto partner of a relationship obtaining for 33 years - financial and material circumstances of each Plaintiff - competing claim of Defendant - identification of assets in estate - which, if any, assets were joint property of Deceased and Defendant and passed by survivorship to Defendant - obligation of executor to identify assets of estate - size of estate not sufficient to accommodate claims of successful applicants and competing claim - claim by former wife of the Deceased - factors warranting claim by former wife - failure of Deceased to pay child maintenance to his wife more than 30 years ago - failure by former wife to enforce an order for such payment - Court must look to present circumstances of applicant, not to what those circumstances might have been more than 30 years ago

CRIMINAL LAW - sentence - murder - plea of guilty - offence within mid-range - consideration of aggravating and mitigating factors

CRIMINAL LAW – SENTENCING – manslaughter by reason of provocation – sentencing after plea of guilty with discount of 20 per cent – domestic relationship between offender and deceased – assessment of gravity of offence – reasonably low level of provocation in the form of deceased’s drug abuse and neglect of parental duties and admissions of infidelity by deceased – extremely high level of violence inflicted – offender under the influence of excessive amount of prescribed medication on day of offence – limited evidence of prospects of rehabilitation

CRIMINAL LAW AND PROCEDURE - Sentence - Multiple sexual offences on two stepchildren and one natural child - Grave crimes - No challenge to overall sentence - Whether sentencing judge impliedly intended to set lesser non-parole period by reason of finding of special circumstances - Purpose to provide significant period of possible supervision on parole - 5 year balance term ample for such purpose

CRIMINAL LAW – Appeal against sentence – Accumulation of sentences – Discount for plea of guilty – Relevance of strength of prosecution case – Discount for remorse – Whether sentence manifestly excessive – CRIMINAL PRACTICE and PROCEDURE – Submissions after hearing – Submissions without leave – Whether exceptional circumstances

CRIMINAL LAW – Appeal against conviction- Evidence of police dog handler concerning tracking by tracker-dog – Whether admissible as expert evidence – Whether danger of unfair prejudice – Whether jury’s verdict unreasonable.

Criminal Law - Appeal and New Trial - rule 4 - objection not taken to evidence - whether judge should have rejected evidence relying upon s 137 of Evidence Act - whether evidence prejudicial - Summing Up - whether judge failed to warn jury against tendency reasoning - Evidence - scope of s 137, whether requires judge to reject evidence where objection not taken - Sentencing - Malicious wounding and child abduction - whether sentences manifestly excessive.

Criminal law - sexual offences - appeal against conviction - unrepresented appellant - numerous complaints - including that legal representation deficient - and that verdicts unreasonable and could not be supported having regard to the evidence - substance of complaints distilled from grounds, submissions and other materials - legal representatives made rational decisions - no miscarriage of justice - open to jury to be satisfied beyond reasonable doubt - audio tapes of complainant's police interview tendered - jury retired with tapes and transcript - contrary to preferred procedure - in the circumstances, no miscarriage of justice.

COSTS – indemnity basis – standing to challenge costs order – amount of payment due under contract in excess of offer – whether claims unreasonable and unsupported by evidence – whether costs proportionate to importance and complexity of case – Civil Procedure Act 2005 (NSW), s 60 - EVIDENCE – conference of experts – involvement of party in conference – supply to experts of information not agreed in advance - PROCEDURAL FAIRNESS – civil proceedings – need to demonstrate loss of opportunity – onus on complainant to establish facts - PROCEDURAL FAIRNESS – civil proceedings – trial judge’s reliance on demeanour of party in courtroom – no notice to parties – whether legal representatives in position to observe party’s behaviour – whether refusal to grant adjournment constituted procedural unfairness – whether alleged unfairness affected outcome – whether extent of impact can be assessed on appeal – comparison between failure to accord procedural fairness in administrative law, in civil proceedings and in criminal proceedings – degrees of unfairness

APPEALS – validity of administrative act required for purpose of civil proceedings – whether open to challenge in civil proceedings – collateral challenge to medical assessment certificate – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 327 - LIMITATION OF ACTIONS – extension of time – limitation period for work injury damages claim – whether prejudice to defendant precluded extension of limitation period – limits of court’s discretion – Workers Compensation Act 1987 (NSW), s 151D - PRACTICE AND PROCEDURE – pre-filing statement – contents of pre-filing statement – objective test required to answer statutory description – whether failure to respond to pre-filing statement within prescribed time – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 315(1), 316, 318 - WORKERS’ COMPENSATION – medical assessment certificate – validity – whether holding valid medical certificate precondition to commencing work injury damages proceedings – validity of certificate showing two injuries not separately assessed – whether there can be one injury, resulting from two events – need for plaintiff to establish 15% permanent impairment – Workers Compensation Act 1987 (NSW), ss 4, 151H – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 322, 323, 325, 327 – Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A - WORDS & PHRASES – “disease” – “impairment” – “injury” – “pre-filing statement”

TAXATION – SALES TAX – TAX EVASION – administration of Goods & Services Tax scheme – Business Activity Statements lodged with Australian Tax Office – input tax credits improperly claimed – serious fraud against the revenue - CRIMINAL APPEAL – CONVICITION – alleged failure to give directions – directions said to be inadequate – directions said to be misdirections. - CRIMINAL APPEAL – SENTENCE – considerations said not to be legitimate – weight given to specific deterrence – sentence said to be manifestly excessive.

CORPORATIONS - voluntary administration - statutory jurisdiction to make order to protect a creditor's interests while company is under administration - whether extends to order appointing receivers - EQUITY - equitable remedies - appointment of receivers - as adjunct to voluntary administration - whether sufficient notice of application to interested parties - whether undertaking as to damages should be required

CRIMINAL LAW – sentence – manslaughter by criminal negligence – mother failed to take child to medical practitioner – plea of guilty – lower range culpability offence – exceptional case

CRIMINAL LAW - jurisdiction, practice and procedure - adjournment, stay of proceedings or order restraining proceedings - stay of proceedings - pre-trial publicity and publicity during trial - whether proceedings should be permanently stayed - whether appellants received a fair trial - CRIMINAL LAW - evidence - evidentiary matters relating to witnesses and accused persons - identification evidence - direction to jury - adequacy of warning - whether trial judge erred in directing jury that they could use other evidence in Crown case to bolster identification evidence - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - when granted

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to adequately direct jury in relation to identification evidence - Evidence Act 1995 s 116 - CRIMINAL LAW - appeal and new trail and inquiry after conviction - appeal and new trial - miscarriage of justice - whether trial miscarried on account of prosecutor inviting jury to consider submission "why would the victim lie?" - whether allowing the jury to consider that question reversed the onus of proof

CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to give proper or adequate instruction regarding the nature and scope of elements of offence of making false instrument - Crimes Act 1900 s 300, s 305 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross examine and manner and form of cross examination in relation to certain issues - Evidence Act 1995 s 104, s 112, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint - Evidence Act 1995 s 108, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons

CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - digital penetration - plea of guilty - whether sentence manifestly excessive

Negligence - limitations - application to extend limitation period - whether just and reasonable - tests of showing viable cause of action or that evidence will be available to show a cause of action - any test subservient to statutory question - on facts, was just and reasonable.

TORTS – Malicious prosecution – separate criminal charges – allegations of fabrication of evidence in relation to each – what constitutes maintenance or continuation of proceedings - whether suppression of fabricated evidence of itself constitutes maintenance of criminal proceedings - vicarious liability of the Crown at common law and under the Vicarious Liability Act considered - STANDARD OF PROOF – principles applicable to malicious prosecution action – circumstantial evidence principles in relation to proof of criminal conduct in civil proceedings – principles guiding application of the Briginshaw standard – evidentiary analysis of facts and events of some antiquity – credibility of former police officer in relation to disclosures concerning the fabrication of evidence in relation to the first charge (1980) – disclosures in evidence to Royal Commission into the New south Wales Police Service – proof of elements in establishing absence of reasonable and probable cause – circumstantial evidence – what material available for prosecutor’s consideration – not restricted to admissible evidence – allegations of fabrication of evidence – significant circumstantial evidence – provided a reasonable basis for a conclusion of a belief in the prosecutor as to the plaintiff’s guilt – reasonableness of the belief established on the basis of investigations regardless of alleged fabricated evidence – no fabrication of evidence established – DAMAGES – principles in the assessment of damages including exemplary damages in an action for malicious prosecution

CRIMINAL LAW - sentence - murder - plea of guilty - intention to inflict grievous bodily harm - vicious assault on stranger whilst on conditional liberty - young offender

DE FACTO RELATIONSHIPS – adjustment of property under s 20 Property (Relationships) Act 1984 – whether order should be made to adjust property interests of the parties – matters to which the court is to have regard in making adjustments – assessment of financial and non-financial contributions to the acquisition, conservation and improvement of the property and various businesses – consideration of homemaking and parenting contributions – both parties liable under contract for sale of part of the property and lending agreements

Whether contractual dispute resolution clause void for uncertainty - Whether requirement to negotiate building dispute "in good faith" void for uncertainty - Whether provision(s) void for uncertainty are severable from contract

CORPORATIONS - winding up - application by the company itself - decision to apply made by directors - whether application regular

CRIMINAL LAW - sentence - murder - intention to kill - significant level of intoxication - standard non parole period not applicable.

Application by defendants to have parts of the statement of claim struck out for failure to plead material facts - application by plaintiffs for leave to file an amended statement of claim - proper parties - whether legal right of possession adequately identified for purpose of claim in trespass

EQUITY [49]- Cross-claim alleges second and third defendants procured transfers of widow's properties to themselves with little or no consideration- Second and third defendants mortgaged those properties and used the money for a series of unsuccessful property investments- Widow never received independent legal advice- No defence to cross-claim ever pleaded- Held properties were obtained by equitable fraud and undue influence. SUCCESSION [26]- Testator's will left properties to the widow, but contained precatory terms that the widow bequeath those properties to the plaintiff and the second defendant upon her death- Whether widow is bound to make such bequests- Held that there is no evidence of a contractual obligation to make a will in the plaintiff's favour- Widow's solicitor's letter insufficient to amount to a declaration of trust nor a representation.

Criminal Law - Sentence - Murder - Plea of Guilty - killing in course of armed robbery.

MORTGAGE – mortgagee sale – motion to set aside judgment – Contracts Review Act – Industrial Relations Act – equitable relief – no basis for mortgagee acting other than "innocently" – no rguable case against mortgagee to overturn possession – default judgment not set aside