CRIME - Sentence following trial – manslaughter – self-defence rejected by jury – facts found – question of offender’s disadvantaged background – relevance to act causing death – reduction in moral culpability – reduced need for sentence to reflect principle of general deterrence
CIVIL PROCEDURE — Court administration — Court powers — Control of proceedings — where non-party filed evidence relating to a claim outside leave granted to make submissions and inconsistent with court orders — where non-party had notice of and opportunity to be joined to proceedings — evidence rejected
EQUITY – General principles and maxims – Set-off – Rule in Cherry v Boultbee – Defaulting trustee – Principle in Re Dacre – Principle in Morris v Livie – Assignment – Assignee takes subject to equities BANKRUPTCY – Discharge – Liabilities not released upon discharge – Meaning of ‘fraudulent’ in s 153(2)(b)
CONTRACTS – Formation – Intention to create legal relations – Whether agreement signed by the plaintiff constituted a binding contract – Whether unjust contract under the Contracts Review Act 1980 (NSW) EQUITY – Unconscionable conduct – Special disability or disadvantage – Independent advice – Inequality of bargaining power – Whether unconscientious advantage taken – Whether defences of laches and acquiescence applied – Whether Limitation Act 1969 (NSW) applied by analogy – Whether transaction ought to be set aside EQUITY – Trusts and trustees – Constructive trusts – Remedial – Breaches of trust – Whether a constructive trust arises – Whether knowing receipt of trust property – Whether encumbrance of trust property constitutes a breach of trust EQUITY – Fiduciary duties – Breach – Agent and principal – Whether donee of power of attorney acted in best interests of the plaintiff
COSTS – whether there is a “cause” to determine result of earlier order – summons – plaintiff substantially successful – costs orders in interlocutory proceedings – general principles – Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.7 – meaning of words “costs in the cause” – orders of Registrar – Supreme Court Act 1970 (NSW) s 131
APPEAL – leave to appeal – from determination of the appeal panel of NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) s 83 – university collection of personal information from plaintiff and his brother for purpose of pre-visa assessment – grounds of appeal against appeal panel determination unclear – plaintiff submitted collection of information was incompatible with fundamental rights to education and privacy – plaintiff alleged denial of procedural fairness – no error of law made by appeal panel to justify grant of leave – no question warranting grant of leave – plaintiff suffered no detriment from appeal panel’s approach – summons dismissed
EQUITY – specific performance – agreement for purchase of shares, to be satisfied in part by transfer of purchaser’s share of land co-owned with vendor – purchaser obliged to buy the shares rather than only having an option to do so – purchase price to be paid within a reasonable time – purchaser in control of company in meantime – before time for payment arrives vendor removes assets used in conduct of company’s business so as to pressure purchaser to pay – unclean hands – relief refused – plaintiff remitted to claim for judgment at law – costs
PRACTICE AND PROCEDURE – orders necessary to give effect to primary judgment – where Share Sale Agreement to be rescinded pursuant to s 237 of the Australian Consumer Law – whether further orders should be made dealing with parties’ rights once rescission takes effect – where parties not agreed as to consequences of rescission COSTS – where Commercial Proceedings and Defamation Proceedings heard together – what order for costs should be made in each proceeding – where plaintiffs substantially unsuccessful in Commercial Proceedings – where cross-claimants substantially successful in Commercial Proceedings – where plaintiff recovered modest damages in Defamation Proceedings – whether an order for indemnity costs should be made in either proceedings – whether s 40 of Defamation Act 2005 (NSW) enlivened
CORPORATIONS – directors’ duties – joint venture company – joint venture to produce a consumer affairs television program for the ABC – ultimately The Checkout – whether a term of joint venture that each joint venturer would inform the other of any opportunity to produce any further series of The Checkout or any equivalent or similar consumer affairs show – whether a breach of such term – whether a breach of duty to act in good faith in the best interests of joint venture company and for a proper purpose – whether a duty to act in the best interests of shareholder of the joint venture company MISLEADING OR DECEPTIVE CONDUCT – whether failure of one joint venturer to inform the other of negotiations with the ABC concerning new consumer affairs show constituted misleading or deceptive conduct DEFAMATION – whether emails sent by one joint venturer to the ABC were defamatory of the other joint venturer – whether defence of justification, common law and statutory qualified privilege or honest opinion made out
CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse – leave granted nunc pro tunc – costs
CONTRACT – Claim by the plaintiff that he lent $170,000 to the first defendant for a period of two years at an interest rate of 5% per annum pursuant to an oral agreement – the first defendant denies the loan – reliance on spoken words to establish cause of action – conversation must be proved to reasonable satisfaction of the Court – HELD – Loan not proved
COURTS AND JUDGES — Courts — cross-vesting — where first defendant as liquidator has brought proceedings against plaintiffs in District Court for insolvent trading and seeks recovery — where second plaintiff has commenced proceedings in Federal Circuit and Family Court of Australia for division of matrimonial property — where first plaintiff seeks orders to remove District Court proceedings to Supreme Court and then transfer to Federal Circuit and Family Court of Australia — where orders are opposed by liquidator — whether Supreme Court should exercise its power — Civil Procedure Act 2005 (NSW), s 140 — Corporations Act 2001 (Cth), s 1337H — interests of justice — balance of relevant factors — whether proceedings are intertwined or discrete — orders refused
EMPLOYMENT AND INDUSTRIAL LAW — contract — restraint of trade — interlocutory injunction — where defendant has provided undertakings in relation to non-solicitation of employees and customers — where remaining issue in dispute in relation to interlocutory relief is whether defendant should be restricted from working for the plaintiff’s competitor in any capacity — whether in the alternative the defendant should be permitted to work for the plaintiff’s competitor in a limited capacity without client contact — interlocutory relief granted in the form sought by the defendants referred to as the “warehouse proposal”
CIVIL PROCEDURE — court administration — case management — directions — Court reserved on case management orders following contested directions hearing — orders made in respect of, inter alia, restoration of trust fund, service of documents, and points of claim
CRIMINAL LAW – sentence – murder – victim impact statement – young offender – objective seriousness – extended joint criminal enterprise - psychological evidence – family and developmental history – psychological history – physical and mental health – drug and alcohol use – sexual abuse history – criminal history – future offending – risk assessment – general and specific deterrence – special circumstances – orders
APPEALS — appeal from Local Court to Supreme Court — application for judicial review — decision not to exercise jurisdiction under Dividing Fences Act 1991 — failure to draw Local Court’s attention to jurisdictional fact — error of law established — appeal upheld
CIVIL PROCEDURE — Originating process — where it is claimed parts of amended statement of claim should be struck out under r 13.4 or dismissed under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) — whether there is a high degree of certainty about ultimate outcome of proceedings — role of consideration of the just, quick and cheap resolution of the real issues in the proceedings under Civil Procedure Act 2005 (NSW), s 56 CONTRACTS — where it is claimed employment contract contains implied terms which were breached resulting in employee’s constructive dismissal – claim bound to fail CONTRACTS — construction — deed of release — whether deed contained implied term — claim legally untenable where implied term contrary to express terms CONTRACTS — whether deed void ab initio as the result of breach — claim legally untenable — deed remains binding and precludes claims for damages for breach of contract and claimed breaches of Corporations Act 2001 (Cth), Pt 9.4AAA during course of employment CONTRACTS — construction — deed of release — that deed did not apply to breaches of Corporations Act 2001 (Cth), Pt 9.4AAA after termination of employment arguable EMPLOYMENT AND INDUSTRIAL LAW — contract of employment — repudiation — whether repudiation accepted — employment ended by resignation on payments made by employer in accordance with deed
CIVIL PROCEDURE – suppression and non-publication – orders for suppression of names and use of pseudonyms in action for trespass to the person – no question of principle
CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – consolidation of two Common Law Division proceedings and District Court proceedings with Technology and Construction List proceedings – all proceedings involve common facts as to liability – all parties but one consent to transfer and consolidation. SEPARATE QUESTIONS – plaintiff seeks damages determined before liability – plaintiff “will certainly win” – contrary to common sense – unlosable cases are not infrequently lost – waste of time and costs to proceed otherwise.
APPEALS – leave to appeal – appeal from Appeal Panel of NCAT – appeal on question of law – grounds – ground to be more than merely arguable – whether reasons adequate – whether plaintiff denied procedural fairness CIVIL PROCEDURE – application by plaintiff to vacate hearing – late medical certificate – chronic illness – pro forma certificate – nature and history of proceedings – cost and inconvenience to respondent - whether proceedings futile LEASES AND TENANCIES – residential tenancy agreement – holding over period – notice of termination without reasons – whether retaliatory notice – tenant evicted whether relief available in NCAT
CAVEATS – application for extension of caveat – where estate or interest in land specified in caveat differs from caveatable interest claimed at hearing of application – erroneous specification in caveat of estate in fee simple as the estate or interest claimed by the caveator – s 74L of the Real Property Act 1900 (NSW) not applicable – application dismissed INTERIM INJUNCTIONS – no issue as to serious question to be tried – where defendant has given sufficient undertaking – balance of convenience does not favour granting injunction – application dismissed
EQUITY – trusts and trustees – remedial constructive trusts – Baumgartner principles – where the land is included as an asset of a partnership – quantification of contributions of parties - whether there has been relevant premature termination constituting unconscionability of retaining sole legal title – whether appropriate relief required imposition of a constructive trust over the property as tenants-in-common CORPORATIONS – shares – rectification of share register – application to correct the register pursuant to s 175 Corporations Act 2001 (Cth) LEASES AND TENANCIES – rent and outgoings – payment of rent – where rent not paid by a tenant in common
CRIMINAL LAW – offences – murder – trial — judge alone – where accused stabbed the deceased multiple times - accused pleaded not guilty to murder but guilty to manslaughter by reason of substantial impairment – Crown asserted defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether Crown could assert defence of mental illness – where psychiatrists qualified on behalf of Crown and accused agreed that accused did not know that his acts of stabbing the deceased were wrong – where Crown could raise the defence in circumstances where accused had put mental illness in issue – proof was on the balance of probabilities whether raised by the accused or the Crown - special verdict of act proven but not criminally responsible
SUCCESSION — Family provision — Claim by adult grandson CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — Incapacity for self-management – Protected Management order – Part only of Estate – Management committed to NSW Trustee MENTAL HEALTH — Management of estate — Financial management order
COSTS — security for costs — quantum and form — Court earlier satisfied that security for costs ought to be provided by corporate plaintiffs — Court earlier considered that security ought to be provided by means of charge granted by first plaintiff over its shares in first defendant — subsequent change in position — suspension of trading of shares in first defendant lifts — market value of shares declines — security for costs ordered
JUDGMENTS AND ORDERS – stay of execution – where appeal lodged – judgments created by registration of certificate of costs assessor - whether “proceedings” constituted by registration – appeal against Review Panel determination - appeal by way of rehearing – whether Part 7 of the Legal Profession Uniform Law Application Act 2014 precluded reliance on ss 67 and 135 of the Civil Procedure Act - whether serious question to be tried at hearing of the appeal – where balance of convenience lies – stay granted on condition of partial payment into court of judgment sum
COSTS – Party/Party – Exceptions to the general rule that costs follow the event – whether plaintiffs’ conduct in joining the second and fourth defendants to the proceedings supported an order for costs to be assessed on an indemnity basis COSTS – Party/Party – Orders when proceedings involve multiple parties – Bullock and Sanderson orders – whether the burden of an unsuccessful defendant’s insolvency should be cast on the plaintiffs or the successful defendants
CIVIL PROCEDURE – Notice of motion – Referral or direction to NSW Police Force or Attorney General – Stay of proceedings – Allegations of fraud or criminal conduct – Abuse of process – Indemnity costs – Scandalous material
COSTS – guarantee and indemnity under a sub-lease - where plaintiff seeks order to recover all legal costs pursuant to guarantee and indemnity under sub-lease in a specified amount – where legal costs incurred up to 27 July 2021 quantified at hearing – whether plaintiff’s later costs of proceedings should be ordered on a fixed sum or indemnity basis
CIVIL PROCEDURE – application by first defendant for stay of proceedings – whether abuse of process established CIVIL PROCEDURE – application by first defendant for summary dismissal of proceedings – whether no reasonable cause of action disclosed – where first defendant self-represented – meaning of “notice” and “application” in s 136 of the Proceeds of Crime Act 2002 (Cth) CIVIL PROCEDURE – application by plaintiff for summary dismissal of the first defendant’s cross-summons – whether no reasonable cause of action disclosed – where cross-summons disputes the constitutional validity of the pecuniary penalty order regime under the Proceeds of Crime Act 2002 (Cth) in cases of tax fraud – where similar issue previously considered by Court of Appeal in related appeal brought by first defendant
APPEAL – Crimes (Appeal and Review) Act – costs awarded against prosecutor following adjournment – lower court adopted wrong test – no question of principle
EVIDENCE – appeal from magistrate – damages for breach of contract to construct bore – where fine sand egression prevented installation of pump – admissibility of evidence contained in a report – opinion rule – whether opinion was a lay opinion – whether evidence was an expert opinion – where author of report not called to give evidence – where appellant conceded report was a business record – other exclusionary rules still applied – diagram and structure of Evidence Act not applied – denial of opportunity to cross-examine – fundamental precept of adversarial system of justice
COSTS – costs of an application for preliminary discovery – where applicant for preliminary discovery successful on some but not all categories for discovery – whether applicant should pay defendant’s costs of preliminary discovery application in addition to costs of compliance with orders
SUCCESSION – Administration of estates – The deceased died intestate in 2020 – The first Plaintiff, the uncle of the deceased, seeks letters of administration – First necessary to determine the persons entitled on intestacy in order to ascertain whether he has a beneficial interest in the deceased’s estate – First Plaintiff seeks order giving liberty to distribute the estate on particular basis – Searches do not reveal identity of deceased’s father – Whether any further searches would reveal identity – Benjamin Order made – Determination of matters in doubt to enable entitlement to distribution and then administration of deceased’s estate – First Plaintiff justified in distributing the estate to himself as uncle of the deceased – Order also made that the Plaintiffs’ costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased
CORPORATIONS – Winding up – Statutory demand – Demand issued for loan debt – Interstate address nominated in demand – Whether debt “due and payable” – Whether nullity – Demand not a nullity - Other defects alleged including alleged lack of verification – Service of Originating Process by email to solicitor for creditor – Effect of s 600G and the deeming provisions in ss 105A and 105B of the Corporations Act 2001 (Cth) – Whether originator believes on reasonable grounds electronic address for the addressee to be a current for receiving electronic communications s 9 Corporations Act 2001 (Cth) – Service valid – Failure to attach SEPA notice – Whether unconscionable reliance on defects – Whether applicant can rely on ground not raised in affidavit in support of application EXPERT EVIDENCE – ss 105A and 105B of the Corporations Act 2001 (Cth) – When is an electronic communication sent and received – “capable of being retrieved”
CRIMINAL PROCEDURE — Trial — Directions to jury — Self-defence with excessive force — Mental health impairment STATUTORY INTERPRETATION — Definition of “mental health impairment” — Exclusion — Onus of proof — Whether meaning of “mental health impairment” is question of fact for the jury
SUCCESSION — family provision — approval of release — plaintiff enters into deed of family arrangement with deceased and others whereby deceased and deceased’s wife promise to transfer real property to plaintiff and plaintiff’s then-husband at undervalue — plaintiff promises by deed not to seek to challenge in any way the wills of the deceased or deceased’s wife — defendant executor seeks to enforce deed against plaintiff by approval of release of rights to apply for a family provision order under Succession Act 2006 (NSW), s 95 — whether relevant term of deed constitutes release for purposes of s 95 — whether to approve release — deceased exerts pressure on plaintiff to execute deed without seeking legal advice — plaintiff receives insufficient legal advice — plaintiff under financial pressure — attempt at early inheritance and equality of result among deceased’s children undermined by precariousness of plaintiff’s marriage — approval of release declined SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — plaintiff with significant medical needs — plaintiff receives early inheritance by deed of family arrangement — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — further provision ordered
CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – privilege against self-incrimination – where witness to be asked about events in which drugs were used – where reasonable grounds for objection – where in the interests of justice that the witness give the evidence - s 128 certificate granted
CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – privilege against self-incrimination – where witness to be asked about events in which drugs were used – where reasonable grounds of for objection – where in the interests of justice that the witness give the evidence - s 128 certificate granted
CRIMINAL PROCEDURE – trial – judge alone – murder – notice of motion – public interest immunity – non-publication order made restricting publication of transcript until seven days after conclusion of trial
CRIMINAL PROCEDURE – trial – judge alone – murder – evidence – application for three Crown witnesses to give evidence via AVL – application not opposed – orders made
LAND LAW – leases and subleases – interpretation of leases and subleases – where one condition of termination of leases and subleases by lessor is service of notice of termination requiring vacant possession 3 Months from the date of service – where lessor served notices of termination on 30 March 2022 requiring vacant possession no later than 30 June 2022 – where lessee alleges that notices should not have required vacant possession before 1 July 2022 and that notices are accordingly invalid – “Month” defined in leases and subleases as a named month – 3 Months from date of service held to include April, May and June 2022 – notices held to have erroneously called for vacant possession by 30 June 2022 – notices nonetheless held to be valid and effective as notices would make it clear to a reasonable recipient that lessor was seeking vacant possession only in accordance with identified provisions of leases and subleases WORDS AND PHRASES – “Month” – “Named Month” – “Calendar Month”
WORKERS COMPENSATION — medical assessment — medical dispute — referral of medical dispute for assessment by Approved Medical Specialist — degree of permanent impairment as a result of an injury — scope of referral ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record
LEASES AND TENANCIES – whether landlord unlawfully re-entered into possession of retail tenancy – where administrator appointed to tenant company – whether tenant repudiated lease – whether changing of locks constituted re-entry and taking possession – whether administrator had given written consent to exercise property rights under s 440B of Corporations Act – held landlord lawfully terminated for repudiation and fundamental breach GUARANTEE AND INDEMNITY – claim by landlord to recover unpaid rent, loss of bargain damages and other losses under guarantee and indemnity in sub-lease – whether guarantee and indemnity discharged by unlawful re-entry or splitting of debts on assignment of lease and guarantee – consideration of various heads of claims – held landlord entitled to recover from guarantor under sub-lease terms
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — caveat lodged on basis of spurious claim to interest in land thwarting enforcement of writ for levy of property — caveator fails to prosecute claim when given opportunity to do so — summary declaration that caveator has no estate or interest in land
CONTEMPT — Civil contempt — Breach of orders – where orders required executors to file and serve a statement of accounts (in common form) – where new orders were made requiring more detailed accounts and documents to be produced – where executors filed and served accounts purportedly in response to both orders – where contempt charges brought in relation to both orders - whether contempt charge in relation to first orders has utility – where executors' accounts did not cover the whole period of their administration of the deceased’s estate but breach fully remedied by compliance with new orders – discretion not to exercise contempt jurisdiction – whether charges in relation to second orders should be dismissed for imprecision – whether contempt charges are an abuse of process where applicants also seeking relief to revoke the grant of probate to the executors – where contempt charges in relation to later orders raise multiple alleged breaches – finding of limited breaches and civil contempt
CIVIL PROCEDURE – discovery, subpoena and production – grounds for resisting – objection to production and inspection – public interest immunity – immunity granted – another process may be available if redacted material significant and capable of being protected
CRIME – confiscations – restraining order – proceeds of crime – where no exclusion application has been made in respect of the property –statutory requirements satisfied – no point of principle
CRIME – Crimes Act 1914 (Cth) – breach of parole – appeal against non-parole period – fresh evidence relating to psychiatric issues – nature of appeal as rehearing – non-parole period varied
COMMERCIAL ARBITRATION — Composition of arbitral tribunal — Grounds for challenge to arbitrator — Circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence — Whether there is a real danger of bias on the part of the presiding arbitrator CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether public interest in reasons for judgment outweigh public interest in suppression
EQUITY – trusts and trustees – judicial advice – whether jurisdiction under s 63 Trustee Act 1925 (NSW) engaged – whether Court should exercise discretion to provide advice – where allegations of breach of duty against trustees and director of trustees – whether trustees should incur the expense of defending claims if there is another party with a personal interest in defending the same claims
APPEAL – nature of appeal – appeal from Local Court non-publication orders – de novo hearing – Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 MEDIA AND COMMUNICATIONS – non-publication orders – when “necessary” – need to identify relevant ground – scope of information “otherwise concerning” a party – suppression of affidavit evidence indicating expected response to publication – Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 MEDIA AND COMMUNICATIONS – non-publication orders – purpose of order – protecting safety of person – protection of other public interest – need to identify public interest PRACTICE AND PROCEDURE – statutory protection of child’s identity – court orders to similar effect inappropriate and unnecessary - Children (Criminal Proceedings) Act 1987 (NSW), s 15A
ADMINISTRATIVE LAW – Judicial review – Review of decision of the State Parole Authority refusing the plaintiff’s release on parole – Whether Authority erred in law in its interpretation of the relevant statutory provisions STATUTORY INTERPRETATION – Interpretation of statutory provisions governing the release of terrorism related offenders on parole – Whether the State Parole Authority erred in concluding that the plaintiff was a person who had an association with another person or organisation who has advocated support for any terrorist act or violent extremism – Whether it was necessary for the Authority to be satisfied that the plaintiff shared a common purpose of terrorism or violent extremism with the other person or organisation in order to come to the view that the plaintiff had the relevant association WORDS AND PHRASES – associate – association
COSTS – winding up of partnership – where no partnership assets – where partners are equally responsible for the failure to keep proper accounts and records during the partnership – where defendant ought to be entitled to costs in respect of plaintiff’s abandoned claim – mixed outcome of proceedings – where referee appointed pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to take account of the partnership – adoption of referee’s report – where inconsistency in court orders as to whether a certain item should be allowed – where referee’s report proposed two scenarios, one in which the item was allowed and one in which the item was disallowed – question of which scenario in report should be adopted – no question of principle
DAMAGES – plaintiff partially successful in claims for misleading and deceptive conduct and in a claim for indemnity under a mortgage during a hearing on issues relating to liability – damages hearing then takes place – plaintiff elects to pursue indemnity based on the mortgage and abandons an inconsistent remedy for misleading and deceptive conduct that would otherwise result in the mortgage being set aside – whether all the plaintiff’s damages were caused by the misleading and deceptive conduct of the defendant – what particular legal costs and expenses are recoverable under the indemnity clause in the mortgage. COSTS – plaintiff successful on some but not all issues in the principal proceedings – what costs orders are appropriate in the circumstances – what costs order should be made in respect of the damages hearing. CIVIL PROCVEDURE – damages hearing after hearing on liability – during damages hearing plaintiff advances extensive claims for indemnity on a mortgage in respect to a range of legal costs and expenses which have not been the subject of detailed pleadings and were not the subject of specific determination during the liability hearing – whether the damages hearing is an appropriate vehicle for the determination of these claims.
COSTS – three proceedings heard together – plaintiff in main proceedings substantially successful in relation to all claims other than its building contract claims – plaintiff had limited success in relation to building contract claims – offers of compromise – whether the offers complied with the Uniform Civil Procedure Rules 2005 (NSW) – whether the offers involved substantial compromise
CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — party seeking restoration of parental responsibility of children pursuant to the parens patriae jurisdiction — no exceptional circumstances arising to invoke jurisdiction CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — seeking same potential outcome in multiple courts
HUMAN RIGHTS – political discrimination – university statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs – university nursing degree requires students to complete clinical placements approved by university – student expresses scepticism about safety of Covid-19 vaccination – university cancels student’s clinical placements – internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct – whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination – Nursing and Midwifery Board of Australia Code of Conduct – whether student’s views or beliefs about Covid-19 vaccination are “religious or political”
CIVIL PROCEDURE – Preliminary Discovery – Applicants previously commenced proceedings against proposed defendants – no evidence of alteration of view – jurisdiction of the Court where no proceedings – jurisdiction and power of the Court to order discovery or production when proceedings on foot – applicants had already decided to sue – UCPR rule 5.3 not applicable – summons dismissed.
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim against Senior Member of NCAT for actions in the exercise of their functions as a Member — Members of NCAT immune from civil liability in such circumstances — proceedings dismissed as having no prospect of success
CIVIL PROCEDURE — stay of proceedings — claim for damages for alleged sexual abuse in 1966 — where alleged perpetrator died before applicant on notice of allegation — where no other witnesses to alleged assault or management of the school — where no relevant documentary records — no meaningful opportunity for applicant to investigate or challenge alleged sexual abuse — no meaningful opportunity for applicant to investigate or challenge issues of vicarious liability — stay ordered
CIVIL PROCEDURE — second application to file further amended statement of claim — no preclusive rule — dependent upon interests of justice in the particular circumstances of the case
CONSUMER LAW – representative proceedings – misleading or deceptive conduct – self-propelled crop sprayer – whether representations as to robustness, 4WD capability, crop spraying and braking ability misleading or deceptive – whether representative plaintiffs have established loss
NEGLIGENCE – vicarious liability – employer and employee – whether employees of company were working for company or director of company – whether work being performed formed part of company’s business – representative proceedings - where plaintiff and group members seeking damages for losses caused by Carwoola Bushfire – where employees of company used a power cutting tool which emitted sparks and caused the bushfire – where employees and company breached their duty of care to plaintiff and group members INSURANCE – liability insurance – legal liability insurance – conditions and warranties – exclusions – whether work formed part of the insured’s business - whether reasonable precautions were taken – failure to comply with statutory obligations - specific exclusions in endorsement to the policy – whether the use of a power cutter to cut steel constituted using spark producing equipment - noscitur a sociis maxim - ejusdem generis principle
CORPORATIONS — Winding up — Conduct of liquidation — Costs, charges and expenses — Where plaintiffs being directors, creditors and shareholders of a company in liquidation incur costs said to be for and on behalf of the company, or in the advancement or protection of the company’s interests — Where records of costs do not distinguish between costs incurred for the benefit of the plaintiffs personally or the company exclusively — Whether the liquidator would be justified in paying the costs claimed by the plaintiffs
CONTRACTS — Duress — Illegitimate pressure — Where parties entered into a deed of settlement and a further deed of amendment — Where the plaintiff claims for amounts owing under the deeds — Where the defendant alleges that his entry into the deeds was procured by threats and violence by the plaintiff or his agents — Whether the deeds were signed under duress
COSTS – trusts and trustees – indemnity of trustee – series of judgments given, determining the scope of the indemnity of a trustee – the parties contest the quantification of the indemnity – Court considers gross sum costs orders under Civil Procedure Act 2005, s 98(4)(c) – what final costs order should be made.
CRIMINAL PROCEDURE – autrefois convict – double jeopardy – oppression – separate offences to prior conviction in form, elements and for all practical purposes – extraordinary nature of stay of criminal proceedings – public interest immunity – public interest immunity granted – procedure available for disclosure of information if shown to be material
HIGH RISK OFFENDER – extended supervision order – length of ESO and some conditions in issue – recidivist pedophile – offended whilst on parole in 2020 – already breached ISO and orders made under the Child Protection (Offenders Prohibition Orders) Act – offending against young children spanning 30 years – importance of scheduling conditions – order made for 4 years
CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Whether plaintiff can recover damages pursuant to s 236 of the Australian Consumer Law in respect of loans made to the first defendant that are unpaid
JUDGMENTS AND ORDERS — Judgment sum — Interest payable COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Set off — Whether costs should be set off against judgment debt
JUDGMENTS AND ORDERS — Enforcement — where defendant successful against two plaintiffs —whether to vary orders staying enforcement pending appeal by one plaintiff — where overriding purpose promoted no variation — no variation to orders made
SUCCESSION — Family provision — applicant daughter — substantial inter vivos provision — resources depleted through bankruptcy — very substantial testamentary provision — obligation of applicant to provide accurate financial information — moderate additional provision awarded
COSTS — Security for costs — Quantum and form — Where antecedent orders made for security to be given in tranches — Applicant seeks additional security to “top-up” amounts ordered by reference to past costs actually incurred
TORTS – negligence – personal injury – liability – pleading of slip – duty of care – breach of duty – causation – damages – pre-accident conditions – evidence of injuries sustained by the incident – surveillance evidence – non-economic loss – economic loss – out of pocket expenses – future treatment – care of another – direction for short minutes
EQUITY — Trusts and trustees — whether daughter and son-in-law held proceeds of property sale on trust for father/father-in-law — whether daughter and son-in-law were in breach of trustee obligations and duties — breaches of trust established — equitable compensation ordered CIVIL PROCEDURE — where settlement of proceedings is commenced on behalf of a person under legal incapacity — s 76 Civil Procedure Act 2005 (NSW) — where agreement requires the approval of the court — approval granted CIVIL PROCEDURE — Appearance — where leave to withdraw a submitting appearance is belatedly sought — Uniform Civil Procedure Rules 2005 (NSW) — trial by ambush or surprise may result — leave refused
CIVIL PROCEDURE – freezing orders – proceeds of sale of Australian property formerly owned by foreign defendants – proceeds held by second defendant – freezing order made in aid of cross-claim for contribution by first defendant – second defendant applies to vary freezing order on ground of hardship – alleged lack of funds to defend proceedings – no assurance that funds released would be used for that purpose – application refused
EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where there was a common intention between the plaintiff and the deceased that the plaintiff hold a proprietary interest in the property the subject of the will — Where defendant held property as constructive trustee for the benefit of the plaintiff — Where defendant sold property without consulting plaintiff, and transferred the proceeds of the sale to his personal bank account — Where defendant breached duties as constructive trustee SUCCESSION — Trusts and trustees — Breach of trustee’s duties — Where defendant failed to keep proper accounts, to facilitate inspection of those accounts, and distributed estate funds otherwise than in accordance with fiduciary duties — Whether liability of defendant excused by operation of s 52 and 85 of Trustee Act 1925 (NSW) SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal SUCCESSION — Construction — Whether the plaintiff’s interest is subject to provisions in the will entitling the defendant to the income from investment of the proceeds of sale of property in which the plaintiff had an interest prior to the deceased’s death
CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively
CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively
PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Enforcement of foreign judgment – Enforcement at Common Law – People’s Republic of China – People’s Court – Civil mediation judgment – Minshi tiaojie shu (民事调解书) – Civil mediation judgment – Whether judgment to be registered must be determined to be a judgment by reference to the law of the foreign jurisdiction or the law of the forum – Judgments to be enforced
CIVIL PROCEDURE – Motion to determine issues on a preliminary basis that are part of substantive proceedings – Motion to re-open previous interlocutory judgment – Motion to amend Summons to appeal judgment of Local Court to include substantive relief other than determination of appeal – Motion dismissed
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust schemes – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.
HIGH RISK OFFENDER – application for extended supervision order – history of sexual offences against children –long history of forms of conditional liberty pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – significant physical and mental ailments -residence in secure aged care facility – possibility of alternative forms of supervision – continuing unacceptable risk – extended supervision order imposed – no dispute as to less onerous conditions
CIVIL PROCEDURE – proceedings instituted on behalf of the plaintiff by a tutor on the basis that she was a person under legal incapacity – proceedings settled – whether approval of settlement required under s 76 Civil Procedure Act 2005 – whether plaintiff remains a person under legal incapacity – application for removal of tutor Rule 7.18 Uniform Civil Procedure Rules 2005 – consideration of legal incapacity under Division 4 Civil Procedure Act 2005 and Rules 7.13-7.16 Uniform Civil Procedure Rules – consideration of whether applicant incapable of managing own affairs – plaintiff no longer a person under legal incapacity so as to require a tutor – order under Rule 7.18 removing tutor from the proceedings – approval of settlement under s 76 not required
SUCCESSION — family provision — complete determination of final substantive and costs orders to be made following earlier judgments — no point of principle
CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – same subject matter – where accused was employee of the defendant – where accused not cooperating with defendant – where accused’s trial imminent – where civil proceedings recently commenced – stay refused but case management orders made to take account of trial
CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 – claim for damages following alleged physical and sexual assault by officer in juvenile detention – leave granted
ADMINISTRATIVE LAW – Judicial review – error of law – error of law on the face of the record – s 69 of the Supreme Court Act 1970 (NSW) – not in issue that Coroner’s reasons form part of the record ADMINISTRATIVE LAW – Jurisdictional error – error of law on the face of the record – failure to consider clearly articulated claim or submission – failure to consider substantial evidence in respect of clearly articulated claim – failure to accord procedural fairness EVIDENCE – Public interest immunity – general principles – identification of relevant harm to public interest from disclosure – identification of relevant harm to public interest from non-disclosure - balancing the gravity of harm to public interest from disclosure against the gravity of harm to public interest from non-disclosure – whether potential relevance in coronial proceedings sufficient to establish harm to the public interest in the administration of justice from non-disclosure of material information – significance of tailored orders COURTS AND JUDGES – Coroner’s court – coronial proceedings – procedural fairness – excluding information on the basis of public interest immunity does not involve denial of procedural fairness COURTS AND JUDGES – Principles of open justice – open justice in coronial proceedings – relevance to determining public interest immunity claim and effect of tailored orders
CIVIL PROCEDURE – summary disposal - dismissal of proceedings – plaintiff unrepresented – application for summary dismissal by one of fifteen defendants – proceedings commenced by summons in 2021 – defendant was a solicitor who had been retained by the plaintiff in 2013 - affidavit material suggesting claims in negligence and/or breach of retainer – where retainer terminated in 2013 - any claim of plaintiff statute-barred – where no loss caused by any breach of duty or retainer – no reasonable cause of action – proceedings dismissed
INSURANCE – indemnity – operation of Insurance Contracts Act – alleged misrepresentation by insured – rights of insurer – operation of ss 21, 26, 27 and 28 of Insurance Contracts Act 1984 (Cth) – whether reasonable person in insured’s position would be expected to understand significance of certain disclosures in a confusing renewal questionnaire – relevant to insurer’s decision to underwrite – whether there was any relevant misrepresentation or failure to disclose – waiver by insurer – no rights under s 28(3) in circumstances
CRIMINAL LAW – sentence – murder – offender found guilty at trial – no major depressive disorder causally related to offending – intention to kill – middle of range of relative seriousness
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused when held on remand at juvenile justice centre – leave granted
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – plaintiff serving sentence for serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil of a school run by the Department of Education – leave granted
CIVIL PROCEDURE - commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil attending a Department of Education school – leave granted
SUCCESSION – Family Provision – claim by an adult son, for provision from the estate of his deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased's will makes limited provision for the plaintiff, the deceased’s younger son – the deceased conducts farming and grazing operations on a family property in western New South Wales – under his last will the deceased left the family’s farming and grazing property to his elder son, the defendant – early in his career the plaintiff departed from the family property and established a rural agency business – the deceased encumbered the family property in order to fund the younger son’s acquisition of the agency business – the defendant remained on the family property during the deceased’s lifetime – whether the deceased made adequate provision for the plaintiff under his last will – whether further provision out of the deceased’s estate should be made for the plaintiff’s advancement in life – whether the plaintiff made any financial contribution to the acquisition, conservation and improvement of the deceased’s estate – whether the plaintiff obtained substantial financial benefits from the deceased during the deceased’s lifetime – whether the plaintiff was a estranged from the deceased – whether the plaintiff has sufficient financial resources that he does not require further provision out of the deceased’s estate.
SUCCESSION – Probate of the Will granted to the Plaintiff and two Defendants – Application brought by Plaintiff for revocation of the grant and for grant to be made to independent administrator – Where due and proper administration of deceased’s estate not able to be completed – Defendants are non-active parties who do not file an appearance, a defence to the Statement of Claim and who do not appear at the hearing – Form of orders – Whether to appoint independent administrator or simply revoke grant and make fresh grant to the Plaintiff – Little point in making grant to independent administrator as unlikely that Defendants would co-operate with her – Order for revocation of grant, with fresh grant to the Plaintiff – Consequential orders made relating to collection of known assets and repayment to the estate of amount said to be the subject of investigation
EQUITY – trusts and trustees – court’s power to appoint new trustee – testamentary trust – plaintiff with disability – plaintiff has life beneficial interest in fund – plaintiff’s sister appointed by will as trustee – falling-out between plaintiff and sister – whether to appoint plaintiff’s brother or public trustee – general desirability of independent trustee – modest trust estate – public trustee to charge fees – no position taken by residuary charitable beneficiary – plaintiff’s brother appointed as trustee
TRAFFIC LAW AND TRANSPORT — traffic law — licensing of drivers — appeals and applications — cancellation of licence — powers of Transport for NSW — powers of Local Court — medical examination — licence conditions — declarations and injunctions – orders
CORPORATIONS — Financial services — Misleading or deceptive conduct — Where claims relate to representations said to have been made as to the security or safety of investment in certain financial products — Where plaintiffs plead several representations as to safety, existence of mortgages, rate of return, existence of guarantees, and the extent and nature of the due diligence process — Whether there was a further representation that the relevant fund was “very safe” —Where representations made orally in Mandarin and in written Chinese — Whether the representations were misleading and deceptive and causative of loss suffered by the plaintiffs. CORPORATIONS — Financial services — Unconscionable conduct — Statutory unconscionability — Whether conduct of the defendants “unconscionable” in the circumstances — Where allegations of vulnerability or relationship of dependence.
CIVIL PROCEDURE – abuse of process – permanent stay sought because of abuse of process – dismissal for abuse of process – dismissal on terms – stay of proceedings until costs paid COSTS – gross sum costs order – costs payable forthwith
EQUITY –Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – Where proposed amendment to Trust Deed to give trustee power to insert trustee remuneration clause – Where application responds to recent changes to legal and regulatory environment and is sought to enable trustee to meet potential liabilities against it and its directors – Where trustee is not-for-profit company with nominal capital – Whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee. SUPERANNUATION – Private Sector Funds – Amendment of Trust Deed
TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Application — whether Motor Accidents Compensation Act 1999 (NSW) applies — where not immediately clear from pleadings — where question not suitable to be answered in notice of motion — where left to trial judge
CIVIL PROCEDURE – funds in Court – dispute as to whom funds should be paid – competing claimants mutually indebted – set-off – order for payment to both claimants to reflect set-off – one claimant not a party to proceedings – order made for joinder COSTS – proceedings concerning caveats – underlying dispute determined in other proceedings – no need for proceedings to continue once money paid into Court – proceedings to be dismissed – appropriate to order otherwise than the plaintiff pay the defendants’ costs – costs order made in favour of plaintiff
CRIMINAL LAW – procedure – radical departure from orthodoxy – proceedings a travesty – entire proceedings conducted in absence of prosecutor – three minutes – prosecutor not notified of sentencing hearing – where Magistrate aware of absence of prosecutor but chose to continue – transcript must be seen to be believed – denial of procedural fairness – ground of appeal upheld CRIMINAL LAW – sentencing – requirement to give reasons – “incident of judicial process” – massive workload of Magistracy – brief reasons may suffice – no reasons given at all – ground of appeal upheld CRIMINAL APPEALS – judicial review – prerogative relief – where statutory appeal available – ordinary course to decline prerogative relief – case out of the ordinary – process fundamentally flawed – decision should be quashed – advantages of remitter in particular circumstances – certiorari granted
INSURANCE – trade credit insurance, description at [2] – financier insured for default of customer’s guarantor – construction of insurance policy, principles at [135]-[144] – construction of defined terms, principles at [145]-[147] – relevance of post-contractual conduct at [149]. SHIPPING – bills of lading – “to order” – negotiable bills – principles at [78]-[79] – significance of “notify party” at [80]. FINANCE – supply chain finance to commodities trader – Sharia-compliant Murabaha facility, description at [21] – trader submits sham commodity contracts in support of drawdown requests – financier and trader did not strictly comply with finance documents when advancing funds – transactions not Sharia-compliant – trader goes into liquidation – guarantor defaults – insurer denied indemnity on basis of non-compliance with Sharia principles and finance documents. PRIVATE INTERNATIONAL LAW – choice of law clause in favour of New South Wales (NSW) law – non-exclusive jurisdiction clause in favour of the Dubai International Financial Centre (DIFC) in United Arab Emirates (UAE) – policy required insured to comply with “applicable material laws” – DIFC would apply chosen law – arguable in DIFC that NSW law displaced by public policy of UAE – where public policy of UAE based on Sharia principles of Islamic law – UAE public policy not “applicable material law” within the meaning of the policy. WORDS AND PHRASES – “material”, “material default”, “applicable material laws” at [186]-[188], [209].
LAND LAW – transfer of title – right of possession CONTRACTS – collateral contract – transfer as condition precedent to obligations – “essential term” – repudiation – right to damages only CIVIL PROCEDURE – summary judgment – granted but stayed pending cross-claim or other appropriate order
CORPORATIONS – statutory demand – application by plaintiff to set aside the defendant’s statutory demand under s 459G of the Corporations Act 2001 (Cth), plaintiff argues that it has raised a genuine dispute with respect to delivery of the goods the subject of invoices, payment of which is claimed under the statutory demand – requirements for genuine dispute – genuine dispute not established – HELD – proceedings dismissed
COSTS — party/party — exceptions to general rule that costs follow the event — administrative tribunals — appeal from decision of Guardianship Division of New South Wales Civil and Administrative Tribunal — appeal unsuccessful — appeal to Supreme Court commenced and carried on by plaintiff’s sister in the plaintiff’s name at plaintiff’s request — order subsequently made by the Court subject to further order that the plaintiff’s sister be appointed as the plaintiff’s tutor — New South Wales Public Guardian seeks personal costs order against tutor — whether costs principles applicable in the Court’s protective jurisdiction favour making no order as to costs where person under incapacity requests tutor to commence and carry on proceedings — no order as to costs with intent that parties bear own costs
COSTS – security for costs – assessment of quantum – where security provided in tranches – method of assessment – shareholder class action – litigation funder – whether discount from estimated party-party costs appropriate
EQUITY – SUCCESSION – Executors and administrators – Removal of administrator – Court acting of its own motion EQUITY – Trusts and trustees – Powers, rights, duties and liabilities – Power to provide for maintenance and advancement of minor beneficiaries – Administration of trusts – Court’s supervision of – Appointment and removal of trustees OCCUPATIONS — Legal practitioners — Barristers — Duty to court
CIVIL LAW – application for summary dismissal – plaintiff sues on guarantee – defence of unconscionable conduct – defence and facts disputed – where third defendant relies on uncritical acceptance of her own version of events – contradicted by earlier “statement of truth” – not a proper case for summary disposal CIVIL LAW – indemnity costs – application for summary dismissal devoid of merit – flaws in application brought to defendant’s attention – Calderbank offer
APPEALS – appeal under UCPR r 49.4 – whether the appellant was released from his obligation to repay a partial and permanent disability benefit – construction of Deed of Release – appellant’s obligation to repay cannot be said to fall within “the matters the subject of this Deed” – failure to raise the matter in previous District Court and Court of Appeal proceedings – Anshun estoppel
COSTS – leave to appeal under s 385 of the Legal Profession Act 2004 – appeal two years and seven months out of time – exhausted right of appeal under s 384 – delay not satisfactorily explained, excused or justified – summons dismissed
PARTNERSHIPS AND JOINT VENTURES – joint venture agreement to develop commercial property – part of proceeds of sale held in trust account – contract provides for expert determination of dispute – expert determination leaves final balance of account undetermined – second expert determination sought after proceedings commenced – parties’ proprietary interest in sale proceeds prior to final determination of amount due – amendment of summons – costs
CORPORATIONS – winding up in insolvency – presumed insolvency from failure to comply with statutory demand – discretion to dismiss or adjourn winding up application – whether discretion should be exercised to allow insolvent company to pursue litigation – winding up order made
LAND LAW – leases – obligation to make good – where roof of demised premises in state of disrepair and prone to leaking – where roof damaged by hailstorm – where lessor obliged to make good, including by rectifying roof pursuant to an insurance claim to be made by lessor - where lessee claims obligation to make good requires complete replacement of roof – where lessor claims obligation to make good may be discharged by works of lesser scope – held that obligation to make good requires complete replacement of roof – damages not an adequate remedy – held that declarations and orders should be made compelling replacement of roof
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — where plaintiff described grievances without reference to cause of action known to law — where proceedings dismissed CIVIL PROCEDURE — Parties — Removal of parties — where potential claim against company — where defendant joined was director of company — separate legal personalities — where defendant removed from proceedings
EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions — criminal proceedings where maker not available where representation against the interests of the person who made it at the time it was made and was made in circumstances that make it likely the representation is reliable — trial judge not affirmatively satisfied that the evidence is likely to be reliable — evidence not admissible
CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — discharge of whole jury where prospects of concluding trial with sufficient number of jurors bleak
EVIDENCE — Tendency evidence — Criminal proceedings —admissibility of evidence relating to tendency to participate in drug rips —evidence of the accused having a tendency to engage in drug rips after the alleged offence relevant and admissible — probative value outweighs danger of unfair prejudice — risk of unfair prejudice can be managed by directions to the jury as to appropriate and impermissible uses
CONTEMPT — Criminal contempt — Contempt in the face of the court — Witnesses — witness refusal to give evidence interfered with the administration of justice — appears witness is guilty of contempt — direct Registrar to commence proceedings
EVIDENCE — Opinion evidence — Exceptions — Expert opinion — whether blood splatter evidence based on expert knowledge or based on observations of similarities between bloodstains that jurors could make themselves — knowledge and experience required to make such a comparison — evidence admissible as expert opinion.
CONSUMER LAW – Alleged misleading or deceptive conduct – Accessorial lability GUARANTEE AND INDEMNITY – Contract of guarantee – Deeds – Fraud – Whether second defendant signed deed – Whether fourth defendant falsely attested signing of deed NEGLIGENCE – Duty of care where claim for pure economic loss – Whether witness owed duty of care – Loss of opportunity case – Issues as to reliance and causation – Defences – Proportionate liability, concurrent wrongdoers, contributory negligence
PRACTICE AND PROCEDURE – Statement of claim purporting to plead multiple causes of action including allegations of conspiracy and misfeasance in public office – Where case put by the plaintiff in the course of the hearing of the notices of motion was different to and narrower than the pleadings – Where the proceedings had been commenced against a background of numerous other proceedings in which similar allegations had been made – Where all previous proceedings had been dismissed – No reasonable cause of action disclosed – Proceedings statute barred in any event – Proceedings dismissed
EVIDENCE ON COMMISSION – ex parte application – orders sought pursuant to ss 32 and 33 of the Evidence on Commission Act 1995 (NSW) – Request for Assistance by the United States District Court for the District of New Jersey for documents to be produced – orders made – no question of principle
CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – whether parties should bear their own costs when leave sought retrospectively
CIVIL PROCEDURE – Appeal from Local Court to Supreme Court – Declarations and costs sought COSTS – Party/party – Appeals LAND LAW – Community title – Neighbourhood scheme – Neighbourhood association – appointment of law firm to represent neighbourhood association – appointment of managing agent
CIVIL PROCEDURE – late application to rely on irrelevant expert evidence – two and a half weeks before hearing date – professional negligence proceedings regarding events in 2011 - unexplained delay – no point of principle
CIVIL LAW – procedure – leave to commence proceedings – when plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – no question of principle
CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend pleadings and rely upon further expert evidence – where proposed amendments sought after significant delay – whether delay adequately explained – where new claim would significantly broaden the factual issues and scope of evidence – where previous application brought for leave to amend refused – where arguable but difficult case – plaintiff seeks leave to rely upon further evidence – where plaintiff previously granted leave to rely on evidence and faced a guillotine order – application to amend granted in part – leave granted to rely upon further evidence on conditions
CIVIL LAW – high risk sex offender – extended supervision order – dispute as to conditions and duration of order – efficient and co-operative conduct of legal representatives – time constraints and workload of court – brief and truncated reasons – no question of principle
PRACTICE AND PROCEDURE – Application for adjournment – Repeated failures on the part of the defendant to comply with orders of the Court requiring the filing of pleadings and evidence – Application for adjournment refused – Judgment entered – No point of principle
CORPORATIONS LAW – EQUITY – Corporations Act 2001 (Cth) ss 436A(1), 443A(1), and 443D – equitable lien – the principle in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 (the Universal principle) that a creditor who holds security which forms part of a winding up or insolvent administration and which is cared for, preserved, or realised at the expense of the liquidator or administrator cannot conscientiously take advantage of the efforts of the liquidator or administrator without meeting her or his expenses in so doing. Equity creates a charge over a fund created by the realisation of the security as a result of those efforts. – where voluntary administrators trade the company’s business at a loss, and earn renumeration on the asserted footing that they are doing so to protect the company’s asset in the form of goodwill to facilitate a sale of its business as a going concern – where the liquidators (previously voluntary administrators) assert an equitable lien over the proceeds of chattels belonging to secured creditors or securing their claims and in the possession of the company as security for their renumeration – where the company has a fund generated by the sale of secured assets not being the company’s business – whether the Universal principle applies – necessity for the costs and expenses to be incurred exclusively with respect to the property cared for, protected, or realised – limitation of the lien or equitable charge to creating security over that asset or the fund created by its realisation – necessity for the costs and expenses to be reasonably incurred – necessity for the costs and expenses to be adequately proved – HELD – the Universal principle does not apply and the claimants have in any event have not proved the quantum of the expenses alleged by them to have been incurred and renumeration earned for the exclusive benefit of the secured creditors. CORPORATIONS LAW – voluntary administration/liquidation – application for approval or renumeration – HELD – renumeration should be approved.
Family law and child welfare – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application by paternal aunt for leave to appear in person in care proceedings – whether leave should be granted – approach to be taken to applications for the grant of leave – HELD – leave refused