Cases and authorities

DEFAMATION - pleadings - objections to imputations on grounds of capacity and form - principles considered

WILLS, PROBATE AND ADMINISTRATION - construction of will - provision to make up inequality between gifts to daughters - no fund available to make up difference - whether conditional gift

REAL PROPERTY – Co-ownership – tenancy-in-common – whether one of several tenants in common entitled to grant licence irrevocable by others – whether licence reasonably incidental to grantor’s use and does not unreasonable interfere with rights of others to possession use and enjoyment - TORT – Intentional interference with contractual relations – contractual licence to use real property

CRIMINAL LAW - trial by jury - juror excused temporarily for surgery - trial adjourned - application by juror to be excused for additional day to permit recovery - Accused seeks discharge of juror - application refused

PRACTICE AND PROCEDURE - Application for extension of time application to be heard at some time as trial - plaintiff sexually assaulted as child - whether same issues would arise - whether plaintiff would be exposed to undue hardship by being cross-examined at two hearings - whether outcome of extension of time application might shorten or obviate need for final hearing.

PRACTICE AND PROCEDURE - Defendant's application to be relieved from discovery obligation - quantity of documents - lack of indexing - substantial costs to be incurred by inspection - limited utility of inspection - if relief granted plaintiff to be allowed to inspect at his own expense.

REAL PROPERTY [418] – Easements – Easements generally – Abandonment, suspension or extinguishment – Extinguishment – Obsolescence – Procedure on application to Court.

Practice and procedure - costs incurred by a party in responding to Notice to Produce - whether costs should be separately assessed or part of costs generally - prospects of success of claim for privilege - conduct of parties.

Dust diseases claim - cross vesting application - interests of justice

ADMINISTRATIVE LAW - whether exercise of power by defendant, declining claim under statutory insurance scheme, was spent - re-consideration of claim by defendant ultra vires - whether initial decision affected by jurisdictional error.

CRIMINAL LAW - Sentence appeal - Commonwealth offences - Defraud the Commonwealth - Conspiracy to defraud the Commonwealth - Plea of guilty - Delay in prosecution - Serious offences - Exercise of discretion - No error of law - New sentence to correct administrative or clerical error.

PROCEDURE – Supreme Court procedure – New South Wales – procedure under Rules of court – pleadings – functions of pleadings – Defence – requirement to file a defence – requirement to raise statutory and/or positive defence – requirement to make positive assertions of fact and provide particulars – whether requirements can be dispensing with under the privilege against self-incrimination – privilege against self-exposure to a penalty – Uniform Civil Procedure Rules 2005, r14.14, r15.1

TORTS – negligence – contributory negligence – road accidents – Motor Accidents Compensation Act 1999 s 138 – whether plaintiff wearing a seatbelt at the time of the accident – onus on defendant to prove failure to wear seatbelt – onus not discharged. EVIDENCE – admissibility and relevance – opinion evidence – whether in the absence of expert evidence from the plaintiff the primary judge was obliged to accept defendant’s expert opinion – no such obligation – weight to be given to the evidence a matter for the primary judge. APPEAL – facts – whether expert evidence established incontrovertibly that plaintiff not wearing seatbelt.

Family Law. De facto relationship. Adjustment of interest of parties in property. Orders made by consent. Application by the Plaintiff to set aside consent orders. Whether there was a miscarriage of justice. Any such asserted miscarriage of justice must arise through some fault in the integrity of the judicial process. Asserted suppression of fact by the Defendant. Asserted mistake of fact in respect to valuation of property.

MAGISTRATES – CORONERS – Construction of Statutes – Power to hold further inquest – Jurisdiction of Coroner – Jurisdiction of State Coroner – Coroner’s Act 1980 (NSW) sections 19, 20 and 23A.

CRIMINAL LAW - sentence - manslaughter - death of baby - attempt to pervert the course of justice

BUILDING AND CONSTRUCTION - progress payments - Building & Construction Industry Security of Payment Act - service of payment schedule - service under Corporations Act - relevance of evidence of non-receipt by director of claimant - adjudicator disregards adjudication response on ground that payment schedule was not provided because not received by claimant's director - errors of law - denial of natural justice - whether relief should be by declarations and injunctions or orders in nature of certiorari

CRIMINAL LAW – appeal against conviction and sentence – murder – whether error in directions to jury on circumstantial evidence – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt the appellant was guilty – whether insufficient weight given to the appellant’s depression and delay between the offence and trial – whether sentence manifestly excessive

ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Act, s69 – regard must be given to legislative regime under which proceeding brought – Protection of the Environment Operations Act - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Discretionary nature of award of costs – Role of principles or guidelines in exercise of a judicial discretion - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Discretionary nature of award of costs – “no discouragement” principle impermissible constraint on exercise of discretion - ENVIRONMENT AND PLANNING – Courts and tribunals with environment jurisdiction – New South Wales – Land and Environment Court and its predecessors – Costs – Land and Environment Court Rules Pt 16, r 4 – Appropriate weight to be accorded to nature of proceedings – Characterisation of proceedings as “Class 1 proceedings” or “merits review proceedings” too broad – relevance of citizen resisting imposition of a liability - APPEAL – Practice and Procedure – New South Wales – Powers of court – Costs – Land and Environment Court Act, s57 – Supreme Court Act, s75A – Power of court to exercise costs discretion where no new findings of fact are required - STATUTES – Bylaws and regulations – Construction – Retrospective operation – Land and Environment Court Rules, Pt 16 r4 – Relevant issue is intended effect by enacting body – Whether the amendment is “procedural” or “substantive” not decisive - STATUTES – Bylaws and regulations – Construction – Retrospective operation – Land and Environment Court Rules, Pt 16 r4 – A power to award costs should be interpreted to ensure no injustice is done – Degree of injustice relevant – Where appeal on costs commenced the rules as they existed at the time apply

COSTS – Appeal from decision ordering claimants to give security for costs – whether an order for security will stultify proceedings – likelihood of claimant’s success in proceedings – undertaking by individual shareholder to meet opponent’s costs of proceedings – impecuniosity of plaintiffs – whether impecuniosity was caused by the opponents

ENVIRONMENT AND PLANNING - Courts and tribunals with environment jurisdiction - New South Wales - Land and Environment Court and its predecessors - Costs - Land and Environment Court Rules Pt 16, r 4 - Status of case law dealing with former test - ENVIRONMENT AND PLANNING - Courts and tribunals with environment jurisdiction - New South Wales - Land and Environment Court and its predecessors - Costs - Land and Environment Court Rules Pt 16, r 4 - Discretionary nature of award of costs - Approach to interpreting “fair and reasonable” - ENVIRONMENT AND PLANNING - Courts and tribunals with environment jurisdiction - New South Wales - Land and Environment Court and its predecessors - Costs - Land and Environment Court Rules Pt 16, r 4 - Discretionary nature of award of costs - Role of principles or guidelines in exercise of a judicial discretion - ENVIRONMENT AND PLANNING - Courts and tribunals with environment jurisdiction - New South Wales - Land and Environment Court and its predecessors - Costs - Land and Environment Court Rules Pt 16, r 4 - Discretionary nature of award of costs - “no discouragement” principle impermissible constraint on exercise of discretion - ENVIRONMENT AND PLANNING - Courts and tribunals with environment jurisdiction - New South Wales - Land and Environment Court and its predecessors - Costs - Land and Environment Court Rules Pt 16, r 4 - Appropriate weight to be accorded to nature of proceedings - Relevance of analogies with merits review or adversarial litigation - WORDS AND PHRASES: "fair and reasonable".

DEFAMATION – pleadings – objections to imputations on grounds of capacity and form – principles considered

WILLS, PROBATE AND ADMINISTRATION – Costs – Plaintiff sought revocation of grant of probate – Exceptions to general rule that costs follow the event – Whether testator has been cause of litigation.

WILLS, PROBATE AND ADMINISTRATION – Plaintiff seeks revocation of grant of probate – Whether execution of proved will procured by undue influence or fraud – Whether first defendant’s interest under proved will subject to secret trust – Whether inference of fraud available to explain change in testamentary intentions – Whether plaintiff has claim under Family Provision Act 1982 – “eligible person” – Emotional dependency – Question of amount of provision if it is to be made.

Appeal against refusal to set aside default judgment - many opportunities to file a defence - no denial of natural justice - interlocutory decision and leave

EQUITY [385] – Equitable remedies – Specific performance – Particular contracts – Agreements to give security – Agreement by guarantors to give legal mortgages of real property in registrable form.

CORPORATIONS - winding up - application for winding up in insolvency - presumption of insolvency arising from failure to comply with statutory demand - unsuccessful application to have statutory demand set aside - holding summons for leave to appeal - grounds of appeal not reduced to writing - defendant in any event contends that it is solvent and leads evidence of solvency - solvency not proved

CORPORATIONS - winding up - application for winding up in insolvency - presumption of insolvency arising from failure to comply with statutory demand - unsuccessful application to have statutory demand set aside - holding summons for leave to appeal - grounds of appeal not reduced to writing - defendant in any event contends that it is solvent and leads evidence of solvency - solvency not proved

Practice and Procedure - Costs following successful appeal against strike application.

Proceeds of Crime - Proceeds of Crime Act 2002 (Cth) - proceeds of an offence - instrument of an offence

Criminal law - sentencing - finding of facts on sentence after jury verdict.

Interest - pre-judgment interest - whether calculated at Schedule 5 rates for whole of pre-judgment period - whether delay in bringing and prosecuting proceedings - whether other commercial rates of interest established - relevance of failure to claim recovery from other persons - compensatory purpose of award of interst - broad discretion - Schedule 5 rates ordinarily used - overcompensation not established.

BAILMENT – bailment created by contract – whether common law principles continue to apply depends upon construction of contract – common law rights excluded only where clearest terms used – bailment contract provided remedies were not exclusive but cumulative to remedies existing at law – not necessary for bailor to accept repudiation for the right of possession to revert to bailor - BAILMENT – goods of bailor interchangeable with goods of third party so as to be indistinguishable – where goods mixed by accident owners become owners in common of the mixed property – whether goods were mixed - BAILMENT – purpose of bailment was for on-hire of goods – bailor entitled to immediate possession where bailee performs act repugnant to or inconsistent with terms of bailment – whether action of bailee providing goods to third party for on-hire was repugnant to bailment - PRACTICE AND PROCEDURE – cause of action accrued after proceedings commenced – Civil Procedure Act 2005 (NSW) s 64 allows document to be amended to substitute cause of action that accrues after proceedings commenced - TORTS – conversion – damages of loss for conversion ordinarily full value of thing converted - TORTS – conversion – goods converted where they are dealt with inconsistently with owner’s rights with intention of denying owner’s rights or asserting right inconsistent with them – no requirement that goods must be destroyed or sold in a market overt – whether licence agreement vesting exclusive control over goods with third party was inconsistent with bailor’s right to immediate possession

CONTRACTS – Offer and acceptance – Where first offer of finance accepted – Where second offer made changing loan amount and minimum term – Held second offer was a withdrawal of first offer

Review - discovery - relevance to a fact in issue - threshold requirements and discretionary considerations - width of classes - oppressiveness

Appeal from local court – further evidence – consumer credit code section 125 – Contracts Review Act – no question of principle

Appeal - judgment after hearing at which defendants failed to appear - no evidence of bona fide defence on the merits

CORPORATIONS - winding up - special purpose liquidator appointed by court in voluntary winding up - application by special purpose liquidator for order compelling third party to produce documents - whether any such order would be properly regarded as made in proceedings in which liquidator was appointed - or as adjunct to Part 5.9 examinations liquidator has undertaken

WORKERS’ COMPENSATION – workplace injury – shoulder injury – manufacture of laminate glass – whether overuse of shoulder in course of employment materially contributed to injury – occupational overuse syndrome – where safety problem foreseen by employer - APPEAL AND NEW TRIAL – appeal from District Court to Court of Appeal – appeal by way of rehearing – where no evidence to justify finding of fact made by trial judge – where erroneous finding of fact critical to determination of matter – miscarriage of justice – requirement for new trial - EVIDENCE – witnesses – expert evidence – District Court – expert’s report – where Respondent served expert’s report on Appellant – where Respondent did not tender expert’s report in proceedings – where Appellant sought to tender expert’s report – where expert witness not available for cross-examination – where tender of expert’s report by Appellant rejected by trial judge – whether failure to accept tender of report involved an error that caused miscarriage of justice – modification of general law of evidence relating to expert’s reports by rules of court – preconditions for admissibility of expert’s report – “back-serving” of expert’s reports – Uniform Civil Procedure Rules 2005, Pt 31 Div 2, rr 31.17, 31.18, 31.19 – District Court Practice Note (Civil) number 1 - PRACTICE AND PROCEDURE – expert’s reports – rules of court relating to use of expert’s reports - WORDS AND PHRASES – “exceptional circumstances”

COSTS – appeal – costs of appeal of appellants – whether the unsuccessful trustee (the Association) is entitled to be indemnified out of trust assets or must pay the successful appellants’ costs of the appeal personally – costs of appeal of Association – whether the Association is entitled to be indemnified out of trust assets in respect of its own costs of the appeal – question as to whether ss 93(2) and (3) of the Trustee Act 1925 (NSW) apply to the question of a trustee’s indemnification for costs out of trust assets or whether that issue is governed by s 59(4) of the Trustee Act and Pt 42 r 25 of the Uniform Civil Procedure Rules 2005 (NSW) – s 59(4) is a provision of general application, does not concern the costs to be awarded in litigation involving trustees and is usually relied upon in declaratory proceedings – ss 93(2) and (3) of the Trustee Act concern costs to be awarded in litigation involving trustees and govern the Court’s power to order costs of the kind now in issue – whether ss 93(2) and (3) are limited by Pt 42 r 25 of the Uniform Civil Procedure Rules – whether, assuming Pt 42 r 25 applies, the Association acted unreasonably in seeking judicial advice, or acted for its own benefit rather than for the benefit of the trust - COSTS – costs of trial – issues remitted to the trial judge for determination. D

Leave to appeal - taxes and duties - claim to recover from director of corporate taxpayer - agreement to pay by instalments - defence under s222AQD - whether director had reasonable grounds to expect company would comply with agreement - judge so found - if arguable case for error, not a strong case - no question of principle - amount involved $66K - leave to appeal refused.

Procedure. Adoption of Referee's report. Matter referred back to Referee for further report.

CORPORATIONS - winding up - where creditor given leave to be heard on winding up application without becoming party - winding up order made by registrar - appeal to court constituted by judge - whether the creditor is party to or may be heard on the appeal

CORPORATIONS - voluntary administration - deed of company arrangement - where deed refers to obviously incorrect date - whether correct date may be substituted as a matter of constructiion - statutory force and effect of deed indicate rectification by order under s.447A - CORPORATIONS - deed of company arrangement - substantive application for order terminating or avoiding deed - application for interlocutory injunction restraining enforcement of judgment against subject company - where company had judgment created by Building and Construction Industry Security of Payment Act - where judgment debtor asserted greater claim provable under deed of company arrangement - operation of s.553C

CRIMINAL LAW - fitness hearing - psychiatiric illness - whether able to make a proper defence and give instructions - whether fit to be tried under medication

Criminal Law - Sentencing - Crown appeal against sentence - maliciously inflict grievous bodily harm with intent - objective seriousness described as "at least mid-range" - error in assessing objective seriousness - offence above mid-range seriousness - discount for plea of guilty and remorse - sentences manifestly inadequate - respondents resentenced.

CRIMINAL LAW - Case stated from District Court - Double jeopardy - Whether Court of Criminal Appeal can quash an acquittal - Whether it should do so - TAXATION - Failure to furnish an approved form when and as required - Written notice requiring taxation returns by a specified date - Extension of time requested and not responded to - Question of fact as to what was required by the Commissioner - Whether offence proved

CIVIL PRACTICE AND PROCEDURE – Notice of motion for adoption of referees’ report pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) – Adoption opposed on ground that referees erred in findings – Referees not shown to have acted incorrectly in principle or in any other respect – Report adopted CONTRACT – Whether conversation amounted to oral agreement - whether parties intended to be immediately bound - whether exchange of correspondence in any event amounted to binding agreement

REAL PROPERTY - restriction on user of land under s 88B Conveyancing Act - whether restriction rendered inapplicable by s 28 Environmental Planning and Assessment Act and local environmental plan that declared that an instrument that prohibits a land use allowed by the plan would not apply to that land use - meaning of "prohibits" - meaning of "land use" - distinction between "development" and "land use"