Cases and authorities

Costs – Bullock or Sanderson order – liability of unsuccessful defendant for costs of successful defendant – whether fair to impose costs - failure to admit responsibility where responsibility should have been known - Costs – costs on appeal – no fresh offer of compromise between trial and appeal – no unreasonable or delinquent conduct - whether court should exercise discretion to make indemnity costs order on appeal – indemnity costs order not made - Costs – offer of compromise – offer limited to liability – whether offer capable of acceptance – verdict no less favourable to plaintiff than offer of compromise - Costs - procedure – offer made pursuant to District Court Rules 1973 (NSW) – trial decision delivered before commencement of Uniform Civil Procedure Rules 2005 (NSW) – whether savings provisions of Uniform Civil Procedure Act 2005 (NSW) apply - whether Court should make order otherwise than in accordance with Uniform Civil Procedure Rules

Application to set aside statutory demands under s459G of the Corporations Act. Demands relate to adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW). Consideration of offsetting claims based upon Superintendent's certificate issued under contract. - Demand set aside.

Double murder - life sentence - worst type category

Judicial review - Registrar's decision to refer medical assessment to Appeal Panel - ground of "demonstrable error" - procedural fairness - Appeal Panel conducts appeal on the papers

The ambit of s67 - denial of procedural fairness - amendment without notice - order for compensation for stress and anxiety - application of s16 of Civil Liability Act.

SUCCESSION [320] - Family provision - Principles upon which relief granted - Applications of children - Adult children generally - Further provision made for adult son.

Conviction and sentence appeal - bribery and false evidence offences - apprehended bias of juror - Ebner test inapplicable in absence of disclosure by juror - no disparity.

CRIMINAL LAW - sentencing - Crown appeal - whether sentences inadequate

NEGLIGENCE - duty of care - landlord’s liability - personal injury - rented premises - injury to visitor - fall off porch no more than one metre high down stairs - no hand-rails present - landlord’s duty of care to visitor - breach of duty of care - whether landlord breached duty of care - whether landlord should have installed hand-rails where no statutory obligation to do so.

STATUTORY INTERPRETATION – legislative purpose – whether a linguistic or purposive / contextual approach should be taken in interpreting s 3B(1)(f) of the Civil Liability Act 2002 (NSW) - TORTS – NEGLIGENCE – particulars of negligence in statement of claim concerning the allocation of resources by a public authority – whether these particulars should be struck out by reason of s 42 of the Civil Liability Act 2002 (NSW) – whether the particulars allege a general or specific allocation of resources

EQUITY [47] – General principles – Undue influence and duress – Presumption from relationship of parties – In general – Duty arising from relationship of trust.

Practice – Court files – Application by non-party (media) for access – Access not to be granted in respect of documents which a judge or registrar considers should be kept confidential, in accordance with Practice Note SC Gen 2 – Principles of “open justice” –Access refused where material is confidential and an order would likely have been made that that information be kept confidential if an application for such order had been made during hearing.

REAL PROPERTY – Torrens title system – Caveats against dealings – Whether mere claim of “equitable interest” in caveat is adequate to specify interest claimed –Loan agreement provided lender could caveat without specifying particular interest and gave right to sell the property on default of loan – Caveatable interest established on basis that grant of authority to lodge caveat and to sell the property carried with it by implication such interest in the land as necessary to enable the authority to be exercised

causation

Appeal – jurisdiction on appeal – Land and Environment Court -whether error of trial judge involved point or question of law – failure to accord procedural fairness - Real property – acquisition of land – compensation – valuation of land – before and after approach – whether trial judge erred in valuating after scenario - Real property – acquisition of land – whether residence uninhabitable – hypothetical purchaser and seller - whether trial judge erred in admitting prospective acoustic evidence - Real property – acquisition of land – compensation – valuation of land – loss attributable to disturbance – financial costs incurred relating to actual use of the land - residue land intimately connected with actual use of acquired land - Real property – acquisition of land – compensation – valuation of land – loss attributable to disturbance – financial costs incurred in connection with relocation - whether trial judge erred finding relocation costs payable only for acquired land

ENVIRONMENT AND PLANNING - Planning schemes and instruments - Construction and interpretation - State Environmental Planning Policy 5 - Housing for Older People or People with a Disability cl 18

CORPORATIONS - winding up - examination of officers and others by special purpose liquidator - application for discharge of examination summonses - whether examinations of two persons summoned would be oppressive and an abuse of process because they had already been examined by general liquidators and by ASIC - where evidence shows that each such person had answered that his prior examination had not covered all relevant knowledge - where general liquidator had stated in evidence that no attempt had been made to canvass relevant subject fully in earlier examinations - where applicants advance various grounds for conclusion that all possible causes of action that special purpose liquidator may investigate are hopeless - consideration of various matters relevant to statutory causes of action - extent to which conclusions on availability and viability of causes of action to liquidator should be reached upon an application of this kind - whether order extending time under s.588FF(3)(b) and made within the specified three year period may be varied by an order made after the end of the three year period which extends time further so that the further extension is the product of an application made within the three year period - application for access to s.596C affidavit by applicants' legal advisers on confidential basis - application for direction that examinations be restricted to specified matters

COURTS AND JUDGES - apprehended bias - disqualification of judge - whether grounds for apprehension of bias established - failure to object promptly to judge's participation in the proceedings - waiver of right to object - - COSTS - order for security for costs - dismissal for failure to comply - UCPR Pt 42, r 42.21(3)

Appeal pursuant to s67 - narrow ambit of appeal - not synonymous with error in point of law or question of law - allegation of no evidence to support findings - time limitations - discretion to extend time - threshold requirement.

CORPORATIONS - general meeting of shareholders - directors recommend that shareholders approve sale of main undertaking - directors' fiduciary duty of disclosure to shareholders - whether directors have a duty to take steps to obtain information - whether disclosure in explanatory materials for meeting was adequate - shareholder's claim to inspect books of company - whether court should make order limiting use so as to exclude use for takeover purpose TRADE AND COMMERCE - misleading and deceptive conduct - explanatory materials for meeting of shareholders to approve sale of main undertaking of company under ASX Listing Rules - appropriate form of remedy

Appeal against decision on penalty - evidence of subsequent conduct - was it taken into account - alleged denial of procedural fairness.

CRIMINAL LAW – appeal – sentencing – requirement for custodial sentence – accumulation of sentences – totality – impact of theoretical possibility that offence could be dealt with at Local Court – effect of intoxication – quantification of discount for plea of guilty – parity principle not require comparison with sentence for child co-offender.

COSTS - security for costs - whether security given earlier without prejudice to defendant's entitlement to seek further security - whether delay a bar to further security

PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether draft expert report, letters of instruction from clients’ solicitors to expert witness, and notes prepared for preparation of final report are privileged – Waiver of privilege – Whether privilege waived by service of final expert report – Whether draft reports, letters of instruction and notes influenced content of final report so that use or service of final report inconsistent with maintaining privilege in those materials – Waiver of privilege by voluntary disclosure – Held: draft expert report and preliminary letters of instruction from clients’ solicitors to expert witness, privileged because created for dominant purpose of plaintiff being provided with legal services – Privilege not waived. - PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Exclusion of evidence of settlement negotiations – Communication of extract of document made in the course of settlement negotiations – Held that defendant not entitled to inspect balance of document. - Considered: Evidence Act 1995 (Cth), ss 117, 119, 122, 126, 131(1) - PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Relevance – Documents created during later period reflecting historical financial position of company – Oppression – Where process of giving discovery of certain class of documents would be onerous – Discovery not necessary – Utility of discovery outweighed by burden – Discovery not ordered.

PRACTICE & PROCEDURE - appeal from Local Court to Associate Justice - no appeal to single judge

CRIMINAL LAW - application to reopen criminal appeal - consideration of irrelevant evidence by Court of Criminal Appeal - misunderstanding of facts not in evidence - whether application should be heard by a reconstituted bench to avoid any apprehension of bias - whether jurisdiction exists to reopen a matter after judgment has been delivered - power of courts to review perfected orders - functions of judges - implied power of courts to do justice to parties

CRIMINAL LAW - Appeal against sentence - sexual assault of child - digital penetration - assault occasioning actual bodily harm - young offender - whether intoxication and prior good character were mitigating factors - whether offender was contrite - whether offence was close to being the worse case of its kind - whether offence was mid-range - whether there was error in determining non-parole period

CONVEYANCING - Relationship between vendor and purchaser - Creation of contract by exchange of counterparts - Counterpart signed by purchaser altered by purchaser's solicitor without authority - Whether alterations material - Provision as to payment of part of deposit in the event of default - Whether a penalty.

TORTS – NEGLIGENCE – Road Accident cases – admission of liability made by insurer out of court pursuant to section 81 Motor Accidents Compensation Act 1999 – exemption granted enabling claim to be pursued in court – insurer files defence denying liability – whether that defence liable to be struck out by reason of the earlier section 81 admission - PROCEDURE – striking out defence – motor accident claim – admission of liability under section 81 Motor Accidents Compensation Act 1999 – defence in court proceedings denies liability – whether defence liable to be struck out - EVIDENCE – confessions and admissions – whether admission able to be “withdrawn” - TRAFFIC LAW – Transport accident legislation – liability – admission by insurer – withdrawal – Motor Accidents Compensation Act 1999, section 81

Sentence - parity - Form 1 offences

Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists

Corporations – stay of enforcement of costs order – whether stay of enforcement affects status of debt as due and payable - Corporations – winding up – application for winding up by court – application for stay of enforcement of costs - abuse of process - Corporations – winding up – application for winding up by court – discretion of court to order dismissal, stay or other restraint of proceedings – inherent jurisdiction to prevent abuse of process - principles governing abuse of process - Corporations - winding up – whether trial judge erred in findings of subjective intent in filing winding up application – legal proceedings to place party in advantageous position not of itself abuse of process - Corporations – winding up – application for winding up by court – litigation where cross claim exceeds debt – unreasonable and inappropriate proceedings may constitute abuse of process - Corporations – winding up – application for winding up – procedure – publication of winding up – interpretation of publication rule – history of provision - Corporations - winding up – application for winding up – section 467A - Corporations Act 2001 (Cth) – whether substantial injustice – dismiss proceedings as abuse of process - Corporations – winding up - abuse of process – orders – court may order stay, dismissal or injunction - Costs – orders – power to stay costs order exists under section 135 Civil Procedure Act 2005 (NSW) or inherent jurisdiction of court – whether trial judge’s discretion in staying costs orders miscarried

Procedure – stated case – whether trial judge erred in failing to respite execution of judgment under section 72 Judiciary Act 1903 (Cth) – whether accused waived right to operation of Act

Application to restrain plaintiff from filing motions without leave - number of interlocutory applications claiming relief without grounds in aid of an appeal against an order for summary dismissal

JUDICIAL ADVICE – final form of orders foreshadowed in previous judgment settled.

EASEMENTS – Right of way – Right of carriageway in favour of whole or any part of dominant tenement for “any purpose” – Subdivision of dominant land – Large residential development proposed on one lot of subdivided dominant tenement – Consent of owner of servient tenement required for lodgement of application in Land and Environment Court for use of right of carriageway for proposed development – Consent refused – Whether mandatory order for consent should be made – Construction of terms of grant of easement – Evidence admissible on construction – Whether question of excessive use special consideration or one going to construction

SUCCESSION – Intestate estate – Claim by alleged de facto wife – Whether plaintiff a de facto wife under s 32G of the Wills, Probate and Administration Act 1898 and s 4 of the Property (Relationships) Act 1984 – Question of fact – Evaluation of degree of mutual commitment to a shared life – De facto relationship not established

Administrative law - declaratory relief - power of Commissioner of Inquiry to make findings of criminal or professional misconduct - procedural fairness - findings made and recommendation made in excess of power - declarations of denial of procedural fairness and nullity.

Evidence Act 1995 (NSW), s.87(1)(c) - statement allegedly made by one police officer to another as to what allegedly said to the latter by a third officer - hearsay statement - whether admissible under s.87(1)(c) - when open to court to make finding as to the existence of a common puropse within that sub-section and as to whether first officer a party to such a common purpose - not open to find first officer a party to a common purpose - the statement made by first officer was not a representation in furtherance of a common purpose within s.87(1)(c) of the Act.

CRIMINAL LAW – Appeal – New South Wales - Powers of the appellate court to hear a matter – Whether a null trial means the trial has no legal effect and is not subject to an appeal – whether “convicted on indictment” in s5(1) Criminal Appeal Act 1912 refers only to a valid conviction on a valid indictment - - CRIMINAL LAW – Appeal – New South Wales – Miscarriage of justice – power to dismiss an appeal where no substantial miscarriage of justice has occurred – proviso – Criminal Appeal Act 1912, s6(1) - CRIMINAL LAW - Jurisdiction, practice and procedure - Prosecution - Filing of information, presentment or indictment - one indictment, one jury – where two co-accused tried on two indictments – where one accused tried on two indictments - WORDS & PHRASES – “nullity”

APPEAL AND NEW TRIAL – interference with judge’s findings of fact – findings based on impressions of credibility of witness – alleged unreliable, dishonest witness – where judge prefers evidence of witness over prison officers - APPEAL AND NEW TRIAL – points and objections not taken below – point not taken at trial or in submissions – not allowed to be raised on appeal – contrary to assumption on which trial was held - APPEAL AND NEW TRIAL – damages – assessment – amount manifestly excessive – average weekly earnings – vicissitudes – where other unrelated factors present to diminish earning capacity not taken into account by judge - NEGLIGENCE – duty of care – special relationship – state and prisoner – prisoner operating crane – fall when alighting from crane – crane wheels normally used for alighting not fixed to the ground - WORKERS COMPENSATION – assessment – percentage whole person impairment – whether claimant meets threshold – where expert evidence does not directly deal – where court determines percentage impairment – Workers Compensation Act 1987, s 151H – Workplace Injury Management and Workers Compensation Act 1998, s 322 – Workcover Guidelines – Crimes (Administration of Sentences) Act 1999, s 122 – Interpretation Act 1987, s 30(1)(c)

APPEAL – factual errors in reasoning – whether trial judge erred in not accepting the plaintiff’s evidence based on adverse credibility findings and lack of corroboration where there had been factual errors in reaching that conclusion - PROCEDURAL FAIRNESS – 18 months delay in delivering judgment – whether finding of judicial error more readily supportable - MISCARRIAGE OF JUSTICE – Supreme Court Rules Part 51 Rule 23 – Supreme Court Act 1970 (NSW) s 75A – whether substantial wrong or miscarriage of justice thereby occasioned from the errors and delay in judgment

CONTRACT – CONSTRUCTION – Supply Agreement between wholesale and retailer – meaning of definitions – whether certain words had special meaning in industry – whether ejusdem generis rule applicable – meaning of “such as”. - RECTIFICATION – Whether parties had common intention not correctly expressed in contract.

Criminal Law - Practice and Procedure - Ex officio indictment for two counts of murder - stay of proceedings as abuse of process - delay and loss of evidence - oppression from multiple proceedings - double jeopardy following plea of guilty to manslaughter - Sentencing - effect of sentencing remarks on agreed facts - inconsistent conduct by Crown - Double jeopardy - effect of plea of guilty to manslaughter on indictment for murder - subsequent proceedings for murder of different victims.

Commission disputes - short reasons of Tribunal - denial of procedural fairness - statutory requirements - sufficiency of reasons - error as to jurisdiction.