Cases and authorities

Leave to commence proceedings - s 52(4) MAA - dismiss proceedings

Local Courts - commencement of summary criminal proceedings - endorsement as to service on court attendance notice

EVIDENCE - facts excluded from proof - "without prejudice" privilege under section 131 Evidence Act 1995 - rationale of the privilege - construction of "in connection with" in section 131(1) Evidence Act 1995 - nature of the connection between the communication or document, and the attempt to negotiate a settlement of a dispute

PROCEDURE - costs - proceedings against trustee in bankruptcy - application for order for costs against such trustee on basis that costs will be provable in bankruptcy and trustee will not be liable - application at odds with fundamental scheme of bankruptcy - order not made

PRACTICE - court-appointed expert - whether leave to be given to a party to file an expert report in response to the report of the court-appointed expert

PRACTICE - Subpoenas - recipient of subpoena to produce document seeks payment in advance of reasonable expenses of compliance - request for payment made to solicitor issuing subpoena but refused - recipient takes out Notice of Motion seeking payment of such costs, but withdraws it - issuer of subpoena seeks costs of that Notice of Motion

PROFESSIONAL NEGLIGENCE - proceedings settled following mediation - offer accepted - settlement included in deed of release - deed of settlement not concluded - whether binding agreement was entered into

PRACTICE – Mareva orders – need for evidence of threat to assets

CRIMINAL LAW - SENTENCE APPEAL - Where Henry guidelines are used in regard to multiple offences, the principle of accumulation should be considered - CRIMINAL LAW - SENTENCE APPEAL - Whether an early guilty plea necessarily results in a full 25 per cent discount.

Partnership - whether entry into partnership caused by false representations - whether would not have entered into partnership if truth known - consideration of need for "specific evidence of reliance" or evidence explaining thought processes at the time - error in insistence on such evidence - consequences as to new trial including of associated credibility-based issues.

PROCEDURE - need for legal representatives to co-operate in distilling controversy and in bringing it before court

EQUITY & TRUSTS - breach of fiduciary duty by company directors and officers - use of company's money to purchase property for defendant - tracing - order for defendant to transfer property to company

Prasad direction - judge alone trial

Appeal decision of Local Court - Small Claims Division - Denial of Natural Justice - VCR - $663.85

PROCEDURE - Amendment – Applications for leave to amend to raise new defences at outset of trial – no prejudice claimed – one new defence is jurisdictional – leave to amend granted – other is contrary to position previously adopted by defendant but not unarguable – whether waived or estopped – held new defence not waived or estopped, leave to amend granted

PROCEDURE – EVIDENCE – Subpoenas and Notices to Produce – setting aside – oppressive – interrelationship of burden and apparent relevance – late service of extensive notice shortly before trial – effect of limitation of discovery to classes on rule that subpoena should not be used to seek further discovery.

Real property. Co-ownership. Trustees for sale. Variation of statutory trust. Liability of one co-owner to pay an occupation fee to the other. Whether there has been an ouster of one co-owner by the other.

SUCCESSION - family provision - claims by four adult children - whether each left without adequate provision - competing claim of fifth adult child to whom deceased's house devised - house only asset of estate - deceased's expressed wish to reward fifth child - relationships of the four plaintiffs and fifth child to deceased

EQUITY & TRUSTS - trustee's right of exoneration out of trust assets - nature and enforcement of right of exoneration after removal of trustee PRACTICE & PROCEDURE - court's power to approve, nunc pro tunc, sale of trust property by former trustee to enforce right of exoneration

Appeal against sentence - whether elements of offence taken into account as aggravating factors - s21A of Crimes (Sentencing Procedure) Act 1999 - robbery - actual or threatened use of violence as elements of offence - threatened or actual use of violence as elements of offence - commission in company as element of offewnce - whether facts justified aggravating factor of disregard for public safety - whether offences in Form 1 could be taken into account as aggravating factor of series of offences - error found in some respects - but no less severe sentence warranted in law.

Criminal law - appeal against sentence - aggravated dangerous driving occasioning grievous bodily harm - applicant drove through a red light a collided with a pedestrian - ingestion of a combination of drugs - discount for guilty plea - guideline judgment in Jurisic - prospects of rehabilitation - sentencing judge rejected expressions of remorse without evidentiary basis of genuineness - aggravating features were elements of the offence - error in sentencing process

Crown appeal - multiple offences of break, enter and steal - application of principles in Pearce v The Queen - issues of parity - role of Crown at sentence hearing - delay in finalising proceedings

Sentence appeal - plea of guilty and assistance to authorities - assault with intent to rob whilst armed with a dangerous weapon - whether matters properly taken into account by sentencing judge under s21A of Crimes (Sentencing Procedure) Act 1999 or whether matters were elements of the offence - use to be made of offender's criminal record - whether sentence manifestly excessive.

CRIMINAL LAW AND PROCEDURE - ROBBERY IN COMPANY - SENTENCE - "AGGRAVATING FACTORS" SCHEDULED IN STATUTE WHICH ARE ELEMENTS OF OFFENCE - ABSENCE OF EXPLANATION OF HOW SUCH FACTORS GIVEN ACCOUNT IN ASSESSMENT - RISK OF "DOUBLE COUNTING" - HOWEVER LESSER SENTENCE NOT WARRANTED

CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – General Deterrence & Intellectual Disability – The principle that individuals should not be allowed to take the law into their own hands is accorded less weight where the offender has an intellectual disability. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Personal Deterrence & Sexual Abuse of Defendant by Victim – Where the motivation is retaliation for prior sexual abuse the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate the behaviour is not isolated. - CRIMINAL LAW – SENTENCE APPEAL– Fresh Evidence – New evidence rejected as too narrow too contribute to sentencing exercise - CRIMINAL LAW – SENTENCE APPEAL– Where judges sentence two offenders at the same time, with detailed reasons regarding their respective criminality, appellate courts should be cautious between accepting one defendant had a justifiable sense of grievance.

PROCEDURE [101] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Amendment - Relevant considerations - Whether dictates of justice may best be satisfied by allowing or refusing amendment.

[ADMINISTRATIVE LAW] - Whether a determination should be declared void because the adjudicator failed to comply with basic and essential requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW) in determining that the plaintiff pay $11,137,998.30 to the defendant. - [ADJUDICATOR PRACTICE] - Whether, as a matter of practice, adjudicators should include statements in determinations to the effect that it is not to be assumed that matters not mentioned in the determination have not been taken into account. - [STATUTORY CONSTRUCTION] - Whether progress claims for the provision of related goods and services in Victoria in respect of construction work in New South Wales are able to be made under the Building and Construction Industry Security of Payment Act 1999 (NSW).

Appeal decision of Local Court - costs agreement

Crown Appeal - offences relating to malicious damage of property by fire - conspiracy to maliciously inflict grievous bodily harm with intent to do so - matters on a Form 1 document - early pleas of guilty and significant assistance to the authorities - whether error to impose wholly concurrent sentences - whether any of sentences manifestly inadequate

CRIMINAL LAW – CONVICTION APPEAL - charges of dishonestly obtaining money by deception – whether verdicts are unreasonable and cannot be supported having regard to the evidence – whether trial judge erred in failing to grant an application by the appellant for an adjournment so as to secure the attendance of witnesses – whether the trial judge failed to correct a mistake in the Crown’s closing address – SENTENCE – whether sentencing judge had failed to take into account onerous bail conditions

Torts - Negligence - Tripping case - Obvious danger - Pedestrian crossing - Insignificant risk - Subs 5B(1)(b) of Civil Liability Act 2002.

NEGLIGENCE - injury sustained by 16 year old when diving into the shallow end of a swimming pool - plaintiff intoxicated at the time of injury - liability of occupiers to adequately supervise - application of s 50 of the Civil Liability Act 2002 (NSW) - meaning of "self-induced intoxication" under s 50(5) of the Civil Liability Act - determination of a single cause of injury under s 50(1) of the Civil Liability Act. D

CONVEYANCING – Land Titles under Torrens System – Joint Tenancy and Tenancy-in-Common – Severance – Agreement not to sever joint tenancy – whether void as restraint on alienation – effect on transfer of one joint tenant’s interest to self as tenant-in-common – held that such transfer does not sever equitable joint tenancy where there is obligation not to sever. FAMILY LAW – Family Law Act 1975 – Property – interlocutory application to restrain severance of joint tenancy – inutility of injunction given ability of survivor and estate to continue adjustive property proceedings after death under s 79(8).

Sentence - affray - pleas of guilty - young offenders - power to deal with matter other than "according to law" exercised

ARBITRATION - leave to appeal from interim award - where question of fact - whether evidence on which arbitrator's conclusion could be based - where arbitrator decided claim on unpleaded basis - whether manifest error of law on face of award.

Adding insurer pursuant to s6 Law Reform (Miscellaneous Provisions) Act 1946 - whether common law extension to workers compensation policy responds to claim in contract against insured - question not arguable because of recent Court of Appeal decisions.

Interest on costs

Sale of pharmacy - supplier sues new owner for goods ordered prior to completion of sale - finding that the goods were ordered at the institution or instigation of new owner - no evidence to support findings - appeal allowed.

Judges and judgments - insufficient reasons, and findings. Pleadings - admissions of allegations of fact - whether assertion of implied contractual term is an allegation of fact.

WORKERS COMPENSATION - Proceedings for compensation - determination of claims - hearing by Commission - cross-examination - Arbitrator limited cross-examination of applicant worker and refused to allow further questions after 35 minutes - on review, Deputy President held that there was no denial of procedural fairness - on appeal, held that the Deputy President was not in error of law - consideration of practice of Commission.

NEGLIGENCE - plaintiff injured playing Oztag on an uneven playing field - liability of Council and Oztag Association - appropriate standard of playing field for amateur sporting games - meaning of "dangerous recreational activity" in s 5K of the Civil Liability Act 2002 (NSW) - determination of whether Oztag is a "dangerous recreational activity" - ss 5K and 5L of the Civil Liability Act 2002 (NSW) - causation. D

Criminal Law - Sentence - child sexual offences - whether sentence manifestly excessive - vulnerability of the victim - relevance of delay in prosecution.

Subpoena to give evidence - application to set it aside - proposed evidence irrelevant - impermissible purpose for issue of subpoena - proposed evidence inadmissible under s208L Legal Profession Act, 1987.

Form of orders and Costs - apportionment - generally successful party - broad brush approach - overall assessment

REAL PROPERTY - caveat - application for extension - caveator shown to be party to joint venture - property subject to caveat purchased with proceeds of sale of joint venture asset - whether caveator shows prima facie claim to interest in property - need for undertaking as to damages - caveator having liabilities substantially exceeding assets - undertaking not of substance - PROCEDURE - order quarantining funds pending determination of entitlements to them - one party seeks release of part of funds - whether Mareva-type exception for legal expenses applicable

Practice and Procedure - No triable issue

EVIDENCE – sexual assault – complaint evidence – delay in making – justifiability of – where complainant’s mother and offender in business relationship – where complainant and mother boarding in offender’s home - EVIDENCE – sexual assault – complaint evidence – delay in making – complainant told mother 66 days after event – whether “fresh in the memory” under s 66 Evidence Act 1995 - EVIDENCE – sexual assault – complaint evidence – where “vague” or lacking clear element of complaint – probative value not outweighed by prejudice where evidence has corroborative value - DIRECTIONS TO JURY – introductory directions as to respective roles of the Crown, defence and jury – whether stressed too significant an association between the Crown and the community – whether stressed too significant an association between jury and the community – whether amounted to saying that the Crown and jury “on the same side” – whether distinguished the Crown’s approach to the evidence as scrupulously fair as against the defence (D)