Cases and authorities

Appeal from adjudicator, Strata Scheme Management Act

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Need to fund litigation - Whether funds available to party from other sources.

EQUITY [338] Equitable remedies - Injunctions - Interlocutory injunctions – Application to restrain use of property alleged to be subject to charitable trust to pay defendants’ costs of proceedings – Form of orders.

Separate question as to whether defendant has validly denied liability under Policy - where insured is liquidator of company - where insured commences proceedings to recover assets of company - where insured ordered to pay costs personally - where insured removed as liquidator - where insured ordered to pay costs of removal proceedings personally - where Policy excludes liability for claim directly or indirectly based upon, attributable to, or in consequence of, any "malicious or reckless act" which is "established by judgment or other final adjudication" - whether judgments in various proceedings "establish" "malicious" or "reckless" acts by insured.

FAMILY PROVISION - Claim by nephew who had been brought up as deceased's son - Applicant having financial needs - Bulk of estate left to deceased's friend who had received previous gift of land and had no competing financial need - Provision ordered - No question of principle.

FAMILY PROVISION ACT - claim by adult son with some intellectual disability - brought by Protective Commissioner as tutor - small estate - plaintiff left so much of income from half share as required for benefit of plaintiff with resort to capital if required for welfare and happiness of plaintiff - no basis for claim

PROCEDURE – Joinder – where whereabouts of proposed additional defendant, if alive, not known – where no sufficiently arguable case against proposed additional defendant

MOTOR ACCIDENT – application of Motor Accidents Compensation Act (NSW) 1999 – whether injury alleged is an “injury” under the Act – must satisfy temporal and causal requirements of the Act – proximate cause was negligence of claimant, not collision with motor vehicle pursuant to the Act – the Act does not apply - STATUTORY CONSTRUCTION – words and phrases – meaning of “injury” and “collision” under the Motor Accidents Compensation Act (NSW) 1999 – meaning must be determined having regard to the scope, objects and purpose of the Act – the definition of “injury” is to be given a restricted application in accordance with the legislative intention - ISSUE ESTOPPEL – notice of motion – strike out application – no issue estoppel arises

Evidence Act 1995 (NSW), s.138(1) - meaning of the terms "improper" and "in consequence of an impropriety" - purpose or intention to commit an impropriety is not essential in all cases - in some circumstances an assessment against an objective standard of behaviour is sufficient and subjective intention is irrelevant - not all inappropriate conduct on the part of a law enforcement officer will necessarily be "improper" within the meaning of that term in s.138(1)(a) - alternatively, conduct involving a relevant failure by a law enforcement officer to comply with statutory obligations may constitute either or both unlawfulness and impropriety for the purposes of a public policy discretion - whether arrest was unnecessary - therefore improper - duty of a judicial officer to give reasons - magistrate erred in law in failing to give reasons for the conclusion fundamental to the application of s.138 to the facts of the case - meaning of the "obtained" in s.138(1) of the Evidence Act 1995 (NSW).

INTERIM ORDERS - vacated hearing date - visa cancelled - proceedings to remain on foot

SUCCESSION - family provision - claims by teenage children of deceased's first marriage - deceased left second wife and baby - no assets except house - house passing to widow upon intestacy - whether plaintiffs left without adequate provision - whether any provision should be made for them

Insurance - Proper Construction of policy

Famiily Provision. Application under the Family Provision Act 1982 by a widow who had divorced the deceased a week before he died. Estate passed to young children. Order for plaintiff to retain the estate.

Criminal law - criminal appeal - Crown appeal - sentencing - manifest inadequacy - sexual assault - incest - sexual intercourse with a child - principles in Crown appeals - overall sentence ascertained - insufficient regard to identification of overlapping or different criminal conduct - requirement for transparency in sentencing process - assignment of criminality for each offence

Applications for leave to appeal - against refusal of leave to file amended statement of claim - some opponents not joined - necessity to adjourn - intention to further amend - costs orders to be made.

CRIMINAL LAW - application for an apprehended personal violence order - anonymous emails - whether reasonable grounds for fear - whether the District Court appeal a hearing de novo - whether the judge erred in treating the appeal as a hearing de novo - onus of proof - standard of proof - balance of probabilities - whether necessary to be satisfied that there was conduct amounting to harassment or intimidation - adequacy of reasons

LIMITATION OF ACTIONS - CROSS CLAIMS - SUCCESSIVE TORTFEASORS - DEFINITION OF "PRINCIPAL CAUSE OF ACTION" IN s 26(3) OF LIMITATION ACT - FUTILITY OF CROSS CLAIMS IN LIGHT OF BAR - SUMMARY RELIEF APPROPRIATE

appeal against conviction - charge of cultivate no less than commercial quantity of cannabis - two charges of unauthorised possession of firearm - appellant unrepresented at trial and on appeal - application for stay of proceedings - appellant unrepresented and indigent - application refused - appellant refused leave to appeal - grounds of appeal - appeal against refusal of stay - pre-trial voir dire - pre-trial procedures - - whether court should have held inquiry into appellant's fitness to be tried - appellant's medical fitness to continue with trial - appellant complains of voir dire being held in absence of jury - items taken from appellant's home in execution of two search warrants - bail conditions - evidence of identification of appellant - evidence alleged to have been illegally or improperly obtained - seizure of items in execution of search warrant - trespass to property - validity of search warrant - validity of certificate of identification of cannabis plants - evidence that shotgun was previously stolen - evidence of appellant's possession of police badge - evidence before jury in error - irregularity - no consequences - no miscarriage of justice - whether evidence illegally or improperly obtained - no such evidence - juror ineligibility - ground abandoned - alleged improper relationship between members of jury and members of prosecution team - no impropriety established - ground abandoned - execution of bench warrants during course of trial - alleged by appellant to have been observed by some jury members - ground abandoned - double jeopardy - certificate of dismissal of count of goods in custody - amendment of indictment - power to grant leave to amend indictment - separate trial of counts - abuse of process - official amnesty with respect to possession of firearms - firearms legislation repealed and replaced by time of trial - effect of repeal - prerepeal operation preserved by s30 Limitation Act 1987 - asserted bias of trial judge - post conviction remarks - no bias or reasonable apprehension of bias established - complaint about summing up - directions with respect to failure of accused person to give evidence - directions with respect to failure to call a witness - directions concerning firearms amnesty - verdict asserted to be unsafe and unsatisfactory - whether jury properly sworn - validity of indictment - whether appellant charged on indictment with offences that could only be prosecuted summarily - whether appellant initially charged under Firearms Act 1996 or Firearms Act 1989 - application for leave to appeal against sentence - comparable offender - whether irrelevant or unsubstantiated circumstances taken into account on sentencing - whether prior convictions wrongly taken into account - no error - appeal against conviction dismissed - leave granted to appeal against sentences - each appeal dismissed

TORTS – assault – wrongful arrest – false imprisonment – malicious prosecution – onus of proof – standard of proof - DAMAGES – assessment – compensatory damages – exemplary damages - WITNESSES – reliability – distinction between unreliable and intentionally dishonest evidence

JUDICIAL REVIEW - Application to intervene in criminal proceedings commenced in Industrial Court - Where claimant asserted that proceedings baseless - Where claimant asserted that proceedings begun out of time - Where claimant took no step before Industrial Court to challenge validity of proceedings - Supreme Court should not interfere pre-emptively

ENVIRONMENT AND PLANNING - Environmental planning - Statutes - Interpretation - meaning of “the subject land” in Clyde Waste Transfer Terminal (Special Provisions) Act 2003 (NSW), s4 - COSTS - whether “public interest” litigation - unsuccessful challenge to the validity of development consent - no error in trial judge’s discretionary finding that appellants not a “public interest” litigant

Family Provision. Claim by window in respect of an estate left to children of the first marriage subject to a life estate in favour of the widow. Whether it was appropriate to give an absolute interest to the widow and the extent of that interest.

verdict and judgment against each defendant - damages for personal injury - quantification of damages - obligation of counsel not to attack integrity or bona fides of colleagues unless sufficient basis can be shown to exist - effect of Gordian Runoff Ltd v Heyday Groups Pty Ltd [2005] NSWCA 29 - tax deductibility of fund management costs - plaintiff's entitlement to costs of fund management - re-litigating matters already the subject of judgment - adjustment under s151Z Workers Compensation Act 1987 - fund management damages as a head of damage - workers' compensation payments

CRIMINAL LAW - Sentence - Murder

EQUITY - company in liquidation - deed by which interest of joint venturer in property development transferred to two other joint venturers prepared after date of liquidation and executed by director void and of no effect - no oral declaration of trust or transfer of interest by company prior to liquidation established and alternatively ineffective due to absence of writing - no estoppel - other joint venturers precluded from maintaining arguments of which no notice given at commencement of hearing or until close of evidence - consideration of precise nature of relief in circumstances

CHURCHES AND RELIGIOUS ASSOCIATIONS - complaint against minister - resort to investigatory and disciplinary processes provided for in by-laws - application for interlocutory injunction to restrain such processes until further order - whether minister afforded natural justice - minister indicated unwillingness to participate except on certain conditions - decision adverse to him at meeting of which he had no notice - appeal lodged by minister - moves to implement decision although appeal pending - serious questions to be tried as to denial of natural justice - balance of convenience favours plaintiff

Duty of care - head contractor and occupier - Regulation 73 - safe means of access to work place - delegation of duty - liability in tort of employer to head contractor.

CRIMINAL LAW - offence under clause 18A Pawnbrokers and Second-Hand Dealers Regulation 2003 - not ensuring that a tag, label or attachment bearing a contract number or stock number was attached to item taken in trade or pawn during course of licensee's business - charges dismissed in Local Court - appeal to Supreme Court on ground involving a question of law alone - whether appeal involves question of law alone or question of fact and/or question of mixed fact and law - nature of obligation upon licensee under clause 18A - meaning of "ensure" - time when tag, label or attachment is to be affixed to item - obligation of Magistrate to give reasons for dismissing criminal charges - error of law established - matters remitted to Local Court

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - daughter's application - plaintiff's sisters have brought their own proceedings under the Act which they do not bring to trial, for the purpose of defending the plaintiff's claim. Inappropriateness of that tactic - factual considerations relevant to moulding of order to do minimum damage to structure of Testator's will while accommodating times by which plaintiff will have funds to purchase estate asset

PROCEDURE - Supreme Court procedure - permitting affidavits to be read when deponent not available for cross-examination - factors relevant to exercise of discretion - PROCEDURE - Supreme Court procedure - affidavits read, but deponent subsequently declines to be cross-examined - retrospectively treating affidavits as not read - EVIDENCE - judicial discretion to admit or exclude evidence - deponent not available for cross-examination - factors relevant to discretion - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - evidence - lack of utility of evidence of minutiae of virtues and shortcomings of family members

Practice and Procedure - Costs - Discretion - Matters to be taken into account

BAIL - charge of murder - s.9C Bail Act 1978 applicable - bail not to be granted unless exceptional circumstances justify grant of bail - nature and application of exceptional circumstances test - exceptional circumstances demonstrated - conditional bail granted

"Anshun" estoppel - earlier proceedings against the principal of the agent sued in the current proceedings

Judicial review of registrar - referral to two approved medical specialists - demonstrable error contained in certificate - medical appeal and dispute and the matters referred for assessment - face of the record.

CONSTRUCTION CONTRACTS - Progress payments - Building and Construction Industry Security of Payment Act - Adjudicator's determination re payment schedule - Whether judicial review available - Whether valid adjudication application had been made - Whether valid payment schedule under the Act

PRACTICE & PROCEDURE – Application by first and fifth defendants to strike out plaintiff’s amended statement of claim – Application by first and fifth defendants that proceedings be summarily dismissed – Plaintiff’s causes of action allegedly statute barred – Section 14(1)(b) Limitation Act 1969 (NSW) – Whether limitation question should be decided in interlocutory proceedings - TORT – First defendant engaged to design and construct works of refurbishment on building – Fifth defendant engaged to assess and certify refurbishment according to, inter alia, Building Code of Australia –Plaintiff alleged breach of duty of care by reason of “latent defects” in fire safety system of building – Plaintiff claimed cost of rectification – When claim for economic loss for latent defects in building arises – Meaning of term – Whether determination could be made in interlocutory hearing that alleged defects were not latent.

PRACTICE AND PROCEDURE – Cross-vesting – Application to transfer proceedings to Family Court s 5, Jurisdiction of Courts (Cross-Vesting) Act 1987 – Exercise of discretion under s 5 – Principles – Whether in the interests of justice the Family Court is the more appropriate court to determine the proceedings

Criminal law - Crown appeal - whether sentence manifestly inadequate - supply of a commercial quantity of ecstasy - principles in relation to the determination of a Crown appeal against sentence in the case of young offender (18 years of age)

CRIMINAL LAW - appeal against severity of sentence - aggravated indecent assault of a child under 10 - sexual intercourse with a child under 10 - guilty plea - objective seriousness - abuse of trust - trauma - commitment to rehabilitation - partial accumulation of sentences - whether error in application of s 54A as having regard to an irrelevant consideration - whether in error in failing to give effect to a finding of special circumstances - deterrence

Criminal law - Crown appeal - supply of commercial quantity of ecstasy - whether sentence manifestly inadequate - assistance to law enforcement authorities - prior good character - remorse - good prospects of rehabilitation

EQUITY [338] Equitable remedies - Injunctions - Interlocutory injunctions – Application to restrain use of property alleged to be subject to charitable trust to pay defendants’ costs of proceedings - Appropriate balancing exercise.

Claims for nervous shock brought by close members of the family of an injured worker alleging fault against his employer - application of damages provisions of workers compensation legislation - pre-litigation process - striking out of statements of claim.

COSTS - easement - disentitling conduct - offer of compromise

PROCEDURE - Supreme Court procedure - miscellaneous procedural matters - whether appropriate to make declaration of existence of a security interest, when no consequential orders claimed - PROCEDURE - Supreme Court procedure - miscellaneous procedural matters - application of slip rule to amend an order made in consequence of legal advisor's failure to put a relevant argument - circumstances when appropriate to use slip rule to correct legal advisor's omission

Criminal law - application to exclude evidence - s 137 of Evidence Act (NSW) - risk of unfair prejudice - prejudice occasioned by intense media scrutiny

FAMILY PROVISION ACT - claims by daughter and grandson - daughter given life estate in half of residue under will - whether absolute gift sufficient to enable home to be bought should be made - grandson suffers from schizophrenia - accommodation provided by his mother - whether provision for separate accommodation or continuing accommodation after death of his mother should be made

Criminal Practice & Procedure - allegations by child of sexual abuse - delay - accused absconds adding to delay - Longman direction - extended Longman (fragile recollection of child) - error but point not taken - r4 no miscarriae of justice.

WORKERS COMPENSATION - recovery by employer of indemnity from tortfeasor for compensation paid to worker - worker was injured in collision between his motorcycle and tortfeasor’s 4WD - worker did not sue for damages – employer sued for indemnity WCAct 1987 s.151Z(1)(d) and recovered indemnity below compensation paid and limited to one half of worker’s damages after 50% reduction for contributory negligence - tortfeasor challenged inclusion of worker’s non-economic loss in assessing tortfeasor’s liability to pay damages because degree of permanent impairment had not been assessed by medical assessor under MACA 1999 Part 3.4: see s.132(1) - tortfeasor contended that unless the machinery had been followed, worker had no entitlement to damages for non-economic loss and hence that element should not be included in assessment of liability to pay damages in respect of the injury referred to in s.151Z(1). HELD: Pt. 3.4 and s.132(1) did not apply to claim by employer for indemnity.