Cases and authorities

appeal against conviction - malicious wounding with intent to do grievous bodily harm - self-defence - whether reasonable possibility that accused believed conduct necessary to defend himself - whether reasonable possibility that accused's conduct a reasonable response to circumstances as he perceived them - subjective tests - accused's state of mind - rejection of evidence said to be relevant to self-defence - evidence of possession by victim of firearms - no evidence accused knew of victim's possession of firearms - relevance of evidence - not relevant to subjective tests - tendency evidence

CRIMINAL LAW - CONVICTION APPEAL - SENTENCE APPEAL - drive in a manner dangerous - occasioning death - epileptic seizure - causation - whether epileptic seizure was a novus actus interveniens - meaning of “substantial risk” - whether an epileptic seizure was a substantial risk whilst driving - whether driving was “objectively dangerous” - whether correct to take into account sleep apnoea when assessing objective dangerousness - whether error in finding appellant aware that it was not safe to drive - whether appropriate weight given to expert evidence - whether appropriate to take into account failure to disclose epilepsy in RTA form for licence renewal - admissibility - relevance to assessment of objective dangerousness - whether error in refusing to admit document containing guidelines and standards for assessment of fitness to drive

Restraint of trade - service agreement - real estate agent - principles relating to grant of interlocutory injunction to restrain breach of restraint of trade covenant - whether more just to grant injunction than to award damages.

LIQUOR LAW – general – poker machine entitlements – whether lease prohibits or limits lessee’s proposed transfer of poker machine entitlements – INJUNCTIONS – interlocutory injunctions – in Equity’s auxiliary jurisdiction – role of requirement of inadequacy of damages – CONTRACTS - interpretation – when extrinsic evidence admissible – INTERPRETATION – admissibility of extrinsic evidence in relation to instruments – when possible

DEFAMATION - assessment - damages - aggravated compensatory damages for falsity of imputations and subsequent publications

CORPORATIONS – Deregistration – Reinstatement – Plaintiff and second defendant acquired first defendant, a company, for joint venture – Dispute between plaintiff and second defendant led to plaintiff’s removal as a director of first defendant – Second defendant conducted business of first defendant without assistance of plaintiff for over a decade – Contrary to second defendant’s assumption, plaintiff remained shareholder of first defendant – Second defendant sought to deregister first defendant – Plaintiff did not object to deregistration – First defendant deregistered – Plaintiff sought order that Australian Securities and Investments Commission (ASIC) reinstate registration of first defendant – Where plaintiff’s application for reinstatement brought in order to prosecute proceedings on behalf of first defendant against second defendant – Where foreshadowed proceedings have no reasonable prospects for success – Where plaintiff’s application for reinstatement brought in circumstances of serious delay – s 601AH(2) Corporations Act 2001 (Cth) considered – Whether plaintiff a “person aggrieved” by deregistration of first defendant – Whether just that first defendant be reinstated – Application dismissed

Damages - plaintiff injured in motor vehicle accident - life expectancy - extent to which plaintiff's health post-accident attributable to pre-accident undiagnosed conditions - modifications to plaintiff's home to allow for 24 hour live-in care.

Personal Injury: liability - damages - lifting, back injury

MAGISTRATES – APPEALS FROM MAGISTRATES – appeal limited to appeal against a judgment or order erroneous in law – whether plaintiff able to establish error in point of law – whether the Magistrate’s finding that a statement was “equivocal” can be said to have been erroneous in point of law – no error demonstrated. - CONTRACT – no term in agency agreement specifying that the premises be leased to a certain class of persons – no breach of the agreement. - TRADE PRACTICES – misleading and deceptive conduct – misrepresentation to the effect that proposed tenants were not self-employed – damage to leased property – findings in Local Court that damage was caused by tenants and that the statement made by the agent was not misleading.

Dispute involving neighbours - review - Registrar - nature of the application - need to make out a ground of appeal that justifies the disturbing of the decision - attempted reliance upon material not before the Registrar - direction to exchange witness statements - discretion - relevant considerations and questions of practice and procedure

LOCAL GOVERNMENT – building control – development application – local environment plan – construction – principles – whether a provision of a local environment plan constituted a development standard – whether the application was for “designated development” – whether application amenable to an objection under the State Environmental Planning Policy No 1 – whether the application was “in respect of” designated development – LOCAL GOVERNMENT – appeals – procedure – whether appeal incompetent – WORDS AND PHRASES – meaning – “in respect of” – “in respect of designated development” – COSTS – principles –administrative review proceedings

ESTOPPEL – dispute arising after arbitration – res judicata – Anshun estoppel – issue estoppel – cause of action estoppel – principles – effect of a deed of settlement – whether estoppel “available” under a deed of settlement – whether special circumstances within meaning of Arnold v National Westminster Bank PLC [1991] 2 AC 93 – CONTRACT – contract with Commonwealth – whether contractual obligations subsisted after the expiry of a contract – PROCEDURAL FAIRNESS – whether denial of procedural fairness – whether primary judge searched for and found an estoppel substantially different than that alleged – TORTS – NEGLIGENCE – liability – whether conduct gave rise to liability – WORKERS’ COMPENSATION – ENTITLEMENT TO AND LIABILITY FOR COMPENSATION – persons liable to pay compensation – whether Commonwealth liable to reimburse a company for workers’ compensation costs pursuant to a contract – whether conduct of contractor gave rise to a liability to pay for costs itself – whether reimbursement for such costs capable of including a fee for profit margin

LIMITATION OF ACTIONS - Extension of time - Police officer claims damages for post-traumatic stress disorder - Substance of case in negligence is allegation of systemic negligence - Particulars not so limited - Whether primary judge erred in treating case as a wider case rather than considering the imposition of a condition limiting the claim.

PRACTICE AND PROCEDURE – Discretion exercised in first instance to disallow further expert report under Uniform Civil Procedure Rules 2005 (NSW) – re-exercise of discretion where first expert disclaims competence, in particular specialised area – Allowance of further report on basis of justice to parties to the dispute despite tension with need for expeditious resolution of disputes.

PLEADING - consideration of necessity to intelligibly state facts and enable opposite party to know case called upon to meet - proposed statement of claim deficient - save as to defamation claims, no error in refusing leave to apply to re-plead - CAUSES OF ACTION - collateral attack on extant orders of Family Court - allegations of wrongful conduct leading to making of orders - no cause of action for damage from making orders - allegations of wrongful conduct in implementing orders - any such conduct did not cause damage for which sued - in exercise of discretion leave to apply from refusal of leave to apply to re-plead refused - DEFAMATION - defamation claims said to be futile because publications attracted absolute privilege - insufficient submissions on that matter - should be argued before single judge in Defamation List - to enable that, leave to appeal and to apply to re-plead the defamation claims.

PROCEDURE - Dismissal of proceedings - Application by defendants at close of plaintiff's case under Uniform Civil Procedure Rules 2005, r 29.9 - Whether on the evidence, a judgment for the plaintiff could not be supported

[CONTRACTS] - Deed - construction - whether implied duty to co-operate - whether implied duty to act reasonably and in good faith - whether defendant in breach of Deed for failure to indemnify plaintiff for costs of preparing Plan required by condition imposed on its approval to mine under the defendant's Rail Line - whether defendant in breach of implied duty to co-operate. [DECLARATIONS] - whether proposed declarations should be made - whether utility in making declarations.

CONTRACT – construction of agreement concerning terms on which proceedings settled – no question of principle – PRACTICE – costs – whether appropriate to order otherwise when offer made by plaintiff accepted by defendant

CRIMINAL LAW - APPEAL AGAINST CONVICTION - MURDER - fresh evidence - fitness to be tried - psychological assessment - neuropsychological assessment - assessment of intellectual capacity - intellectual disability

TORT - NEGLIGENCE - Motor accident - Whether factual errors made by primary judge - Whether primary judge erred in finding negligence - Whether apportionment for contributory negligence unreasonable.

claim under Compensation to Relatives Act 1897 - plaintiff successful against three out of four defendants - award of costs - whether costs of plaintiff assessed on an indemnity basis - plaintiff offer of compromise - offer not accepted by defendants - judgment on claim no less favourable than offer - plaintiff entitled to indemnity costs unless alternative order made - no exceptional circumstances - third defendant entitled to award of costs - application for Bullock order dismissed - interest on costs - costs already paid - plaintiff entitled to interest on costs - apportionment of award of damages under Compensation to Relatives Act 1897

Strike out statement of claim and cross claims as against the 4th defendant - security for costs

CORPORATION – IN LIQUIDATION – director – question whether monies paid to sole director were loan monies or monies in lieu of wages – absence of contemporaneous records such as wage books or other documents evidencing regular payments of salary or wages – characterisation of loan monies – whether drawings made by or on behalf of the defendant were remuneration or loan monies

PROCEDURE – Supreme Court procedure – order for compulsory mediation – circumstances in which appropriate

TORTS - nuisance - injunction to restrain threatened nuisance - trees planted near boundary - whether trees may interfere with neighbour's property and constitute a future nuisance - no imminent threat

Succession. Family Provision. Claims by three adult children. Deceased and his wife were estranged at the time of his death. Deceased died before agreement with wife could be implemented. Entirety of estate passed to widow by survivorship. Notional estate. Prescribed transaction. Competing claim of estranged widow. Relatively short relationship and marriage.

EVIDENCE [75] – Facts excluded from proof – On grounds of privilege – Professional confidence – Legal profession – Waiver of privilege – Effect of Evidence Act 1995 – Issue in proceedings incapable of fair determination without reference to confidential legal advice - PROCEDURE [33] – Courts and judges generally – Courts – Dismissal of proceedings for want of prosecution – Principles applicable – Relevant considerations.

COSTS – Costs of appeal – Application by unsuccessful respondent that each party pay its own costs – Costs to follow the event

REAL PROPERTY - Torrens system - caveats against dealings - where two caveats claimed interests in land for which there was no foundation - third caveat claimed estate or interest described as "charge and entitlement to lodge caveat" arising from written agreement - argued that agreement not operative when caveat lodged - argued that description of estate or interest insufficient to comply with Real Property Regulation - whether caveator had shown prima facie entitlement to keep caveat - where registered proprietor offered to pay money into court pending determination of caveator's claims

Criminal practice and procedure - manslaughter by reason of substantial impairment of mind - robbery with a dangerous weapon - difficulties of reconciling sentencing principles in mental illness matters - systemic failure by Corrective Services Department - gaol violence and death in custody - special circumstances in mental illness matters.

PROCEDURE - judgments and orders - execution of judgment - where one plaintiff has money judgment against two defendants - where in each of two other proceedings one of those defendants obtained a costs order against plaintiff - where costs not quantified in either case - whether execution of judgment by plaintiff should be stayed

EVIDENCE - relevance - expression of opinion by market participant about market practice - where pleading particularises allegation of market practice by reference to statutory analogies - opinion evidence - where witness not retained as expert - compliance with rule 31 not required

These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987 - Criminal law - Sentence - Indecent assault on 13 year old girl - Sentence not manifestly excessive.

PARTNERSHIP – dissolution and winding up – removal of receiver – when justified – accounts on basis of wilful default – when ordered – costs of unsuccessful notice of motion to remove receiver – RECEIVERS – removal – when justified – PROCEDURE – costs – costs of unsuccessful motion to remove receiver of partnership

Consumer Trading and Tenancy Tribunal jurisdiction with respect to building claims

PROCEDURE – costs – notice of motion resolved on first return date – orders claimed in notice of motion not appropriate for plaintiff’s real objective – no evidence of attempt to resolve real issue before notice of motion taken out – importance of solicitors seeking to attain objective by agreement before taking out notice of motion

CORPORATIONS – Voidness or otherwise of a charge under s267 Corporations Act 2002 (Cth) given to two directors in their trustee or executorial capacity – Principles of subrogation - Whether estate subrogated to security in favour of the Bank paid out by monies advanced under the charge later rendered void under s267.

defamation - proposal to add four defendants - expiration of limitation period - application to extend limitation period - disability - impairment of mental or physical condition

Criminal Practice & Procedure - murder - sentence - two Form 1 motor vehicle matters - standard non parole period 20 years - whether offence in mid range - reasons to moderate standard non parole - offender aged 54 years at time of offence.

damages for personal injury - negligence - liability in issue - contributory negligence - plaintiff's application to take evidence abroad - defendant's application for separate trials on liability and damages - applications interlinked and interdependent - test for taking evidence abroad - interests of justice - overseas witnesses material to plaintiff's case - caution against fragmentation of proceedings - onus on party seeking separate trials - just, quick and cheap resolution of trial issues

Criminal practice and procedure - Murder - Armed Robbery - standard non-parole period 20 years for murder - reasons to increase standard non-parole period - objective seriousness of crime - aggravating factor: burning the body of the deceased - absence of remorse

CORPORATIONS – Winding-up – Winding-up in insolvency – Statutory demand – Application to set aside statutory demand – Genuine dispute as to indebtedness – Offsetting and other like claims – Plaintiff and defendant, a builder, entered into building contract – Defendant lodged payment claims with plaintiff pursuant to s 13 Building and Construction Industry Security of Payment Act 1999 (NSW) – Plaintiff liable to pay defendant pursuant to s 14(4) Security of Payment Act – Defendant commenced proceedings and obtained judgment in its favour – Defendant served plaintiff with statutory demand in same amount as judgment debt – Whether seriously arguable that plaintiff entitled to relief pursuant to s 32 Security of Payment Act – Whether seriously arguable that plaintiff entitled to damages against defendant for defendant’s failure to complete building works on time – Whether seriously arguable that plaintiff entitled to damages against defendant for cost of rectifying defects in building works – s 459H Corporations Act 2001 (Cth) considered – Whether failure of plaintiff to lodge proofs of debt against defendant, now in liquidation, precludes plaintiff from raising alleged offsetting claims – Application granted.

Undisclosed principal - rental agreement - claim for payment of arrears and interest - procedure for hearing of claims in Small Claims Division - application to call oral evidence rejected by Assessor - admissions made in the pleadings concerning principal and agency agreement - limitations with respect to suing - allegations of denial of natural justice - second judgment

CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - application to Supreme Court by offender - limited nature of relief available under s.155 Crimes (Administration of Sentences) Act 1999 - convicted sex offender - offender's refusal to admit guilt - offender refused entry to custodial sex offenders treatment programme because of denial of guilt - parole refused - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information

SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – revocation of letters of administration – circumstances in which order for revocation of grant of letters of administration made – SUCCESSION – FAMILY PROVISION AND MAINTENANCE – principles upon which relief granted – extension of time – estate distributed - no property of persons to whom estate distributed identifiable - order for provision out of notional estate not able to be made