Cases and authorities

LAND LAW – co-ownership – statutory trust for sale – application by plaintiffs under Conveyancing Act 1919 (NSW) s 66G(1) – timeshare resort operated by company on property – where property is co-owned by hundreds of defendants – where company passed resolutions to authorise certain co-owners to make application to the Court for the appointment of trustees for sale in respect of the property – whether it is appropriate to appoint trustees for sale – no reason to refuse relief – trustees for sale appointed

SUCCESSION — Family provision — Consent orders — Parties presented consent orders to the Court — Following requisitions to address jurisdictional and other aspects of the orders, a precursor email was sent by the Associate to the List Judge inviting parties to consider and respond to a final form of proposed orders — The respective plaintiff solicitors responded approving the orders but no response was received from the defendant’s solicitors — Court-initiated follow-up of the parties three months after the precursor email revealed for the first time a contentious issue regarding the orders was vexing the parties but not disclosed to the Court — Consequent upon listing of the matters, it transpired that a reason for the nondisclosure arose from a misapprehension regarding what was appropriate by way of communication with the Court — Final orders subsequently and expeditiously made LEGAL PRACTITIONERS — The duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings endures to the final conclusion of the proceedings and not merely to a point where the parties have settled the proceedings in principle but final orders have not been entered PRACTICE AND PROCEDURE — Principles regarding email communications with judges’ chambers — Legal practitioners are not precluded from alerting a judge by correspondence to the Associate, copied to all other legal practitioners for active parties, that there is dispute between the parties as to orders and to request for the matter to be relisted so that any such contentious matters can be addressed in open court

CORPORATIONS – Receivers and managers – Powers – Court-appointed receiver sought advice and directions regarding various proposed adjustments to director loan accounts – where the parties affected by those directions were represented at the hearing – directions given LIMITATION OF ACTIONS – Debt – Acknowledgement – loan repayable on demand – debt acknowledged in financial statements of company – whether acknowledgement was “made to” the creditor within the meaning of s 54 of the Limitation Act 1969 (NSW) CONTRACTS – Debt – loan agreement – where amount of advance was paid by one director into company bank account and then paid from that account to another director – whether the money was borrowed from the director who made the payment or from the company – whether repayments had been agreed to be made and had been made by means of various adjustments to director loan accounts. COSTS – where application for winding up resolved by consent orders for appointment of receiver – whether costs should be awarded against plaintiff – whether costs previously awarded against plaintiff should be payable forthwith

CIVIL LAW – high risk offender – final hearing – extended supervision order – where interim order breached on the day it commenced – defendant in custody at time of hearing – frotteuristic and paedophilic disorders – cognitive impairment – no dispute that order should be made – no question of principle

CRIMINAL LAW – release application – applicant required to show cause – commercial drug supply – kidnapping – proceeds of crime – applicant allegedly high ranking member of criminal organisation – Alameddine organised crime network – difficulty of assessing strength of prosecution case – drug runs – fifty thousand person customer base – Versace run – Tommy run – Sam the Lobster man run – distinctly fishy – where alleged victims of detain offences uncooperative – possible gaps in prosecution case – whether evidence establishes applicant user of particular encrypted messaging handle – ENTERPRISE – whether indispensable link in chain of reasoning requiring proof beyond reasonable doubt – very long delay to trial date – three years – applicant’s wife struggling with three infant children – applicant’s sister extremely disabled – stringent bail conditions – large surety – cause shown on balance – risks mitigated by conditions of bail

CONTRACT – loan contract involving sale of land – oral contract – part performance of an oral contract – no question of principle EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – no question of principle

CRIMINAL LAW – sentence – special hearing where the defendant is unfit to be tried – where the defendant suffers from a Psychotic Disorder –imposition of a limiting term under Mental Health (Forensic Provisions) Act – nominating a best estimate of the sentence that would have been passed in an ordinary trial – consideration of objective seriousness of the offences – consideration of aggravating factors and mitigating circumstances in determining the limiting term

EVIDENCE – admissibility of evidence – expert opinion – whether the expert opinion is relevant to the proceedings – whether the expert opinions expressed are wholly or substantially based on specialised knowledge – where the expert is a practising attorney in the United States of America who has not practised in Australia – where the expert had direct experience in a similar case

CIVIL PROCEDURE – pleadings – application for leave to amend statement of claim – where a case which has never before been raised is pleaded – application refused

EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Where defendants sought to change branding of restaurants – Where plaintiffs sought injunction to stop defendants from proceeding from rebranding and mandatory injunction to require defendants to restore rebranded retail outlets to original branding

COSTS – Party/party – General rule that costs follow the event – Costs where party no longer pressing a Motion – No point of principle

WORKERS COMPENSATION – Work injury damages – Common law remedies – Limitation periods – Three-year time limit after date of injury to commence proceedings for damages – Leave required to commence proceedings under s 151D of the Workers’ Compensation Act 1987 – Where proceedings have commenced against a defendant within the three year time limit after date of injury and another defendant is added after the lapsing of the three year time limit – Whether the granting of leave to commence proceedings after the three year time period following the work injury is in the interests of justice

ASSOCIATIONS AND CLUBS — Rights, duties and liabilities of members — Committees — Issues resolved by fresh election — No further utility in proceedings

SUCCESSION – Probate and administration – Entitlement to grant – deceased dies intestate leaving a small net estate of approximately $250,000 – deceased’s mother, an unsecured creditor of his estate, but not his next of kin, applies for administration of the estate – plaintiff gives reasonable notice of her application to the next of kin, the deceased’s four children, who do not apply for administration of the estate – satisfactory evidence that the plaintiff is a creditor of the estate – the plaintiff claims that after the estate satisfies the unsecured debt owed to her that the remaining assets of the estate are held on trust for her other two children, the deceased’s siblings – the next of kin have shown interest in receiving an account of the future administration of the estate from the plaintiff – further conflicts of interest are in prospect in the administration of the estate between the deceased’s siblings and the deceased’s children – it is not economically viable to appoint an independent professional administrator to administer the estate for a fee to manage these conflicts independently – whether the plaintiff should be appointed administrator of the estate – consideration of the conflicts of interest to be encountered in the administration of the estate – whether the plaintiff should be appointed administrator of the estate – whether constraints should be placed upon the plaintiff’s administration of the estate due to the prospective conflict of interest.

COSTS — Where plaintiff wishes to discontinue proceedings — Where proceedings discontinued by Plaintiff following agreement — Whether agreement was a compromise or an effective surrender by the defendant — Whether parties acted reasonably — Whether plaintiff’s case was “almost certain to have succeeded”

ADMINISTRATIVE LAW – judicial review – medical appeal panel determination of permanent impairment – reductions for pre-existing injury and previous secondary psychological injury – whether appeal panel complied with requirements for exercise of its statutory function STATUTORY INTERPRETATION – whether guidelines for evaluation of permanent impairment inconsistent with Act – guidelines having effect in accordance with Act – statutory provisions to be read harmoniously – whether permanent impairment guidelines invalid to extent of inconsistency with operative provision of Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) – reading that Act harmoniously with Workers Compensation Act 1987 (NSW)(1987 Act) WORKERS COMPENSATION – psychological injury – determination of degree of whole person impairment – deduction for asymptomatic pre-existing psychological condition – disregard of secondary psychological injury – whether possible to apply s 65A without assessing permanent impairment with respect to injury subject to claim – interaction between 1987 Act, s 65A and s 323 of 1998 Act

COSTS — indemnity — whether defendant’s conduct amounts to relevant “delinquency” – principles at [17]-[18] – defendant’s efforts to evade liability by asset divestment, liquidation and bankruptcy waylay proceedings for 6 months and increase plaintiffs’ costs — indemnity costs ordered for part of proceedings.

EQUITY — Trusts and trustees — Constructive trusts — Whether bonds held on trust at the time that they were transferred — Whether admissions to that effect relevant — Whether trust is remedial or constructive on proper construction of declaration made by this Court — Where orders imposing trust ambiguous EQUITY — Trusts and trustees — Breaches of trust — Whether transfer of bonds was breach of trust — Whether third party participant liable as knowing or voluntary recipient, knowing assistant, or for procuring breach of trust EQUITY — Equitable remedies — Equitable compensation — Whether beneficiaries must prove loss CONSUMER LAW — Misleading or deceptive conduct — Whether non-disclosure of transfer of bonds was misleading or deceptive or amounted to deceit

LEGAL PRACTITIONERS – whether solicitor on record should be restrained from acting for the Defendants – whether solicitor in possession of confidential information regarding the Defendants – getting to know you factors – whether a fair-minded reasonably informed member of the public would regard the proper administration of justice to require the solicitor to be prevented from acting.

CORPORATIONS – winding up – voidable transactions – where common ground that it follows from principal judgment in relation to payments that the claims made by plaintiff against the first and third defendant be dismissed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

COSTS – owner sues builder and director – seeks damages of $3.66 million – judgment against builder for $1.13 million – whether entitled to usual costs order – builder makes no submission to the contrary – costs order made.

APPEALS — Procedural fairness — Hearing rule – failure to allow cross examination -

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor fabricated evidence or made factual errors resulting in jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in an error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor adopted wrong criteria in NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in jurisdictional error or error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor had conflict of interest or decision was affected by actual or apprehended bias or he abused his power such that the assessment suffers from jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate —decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel — whether limited time to submit application to appeal constituted denial of procedural fairness — whether decision was open to delegate WORKERS COMPENSATION — medical assessment — certificate of determination — whether certificate of determination tainted by jurisdictional error or error of law on face of the record in decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — Civil Procedure Act 2005 (NSW) — defamation — injurious falsehood

LAND LAW — Caveats — Formal requirements — Requirement to specify particulars of estate or interest claimed

TORTS – negligence - damages – incapacitated person – approval of settlement

COSTS – where plaintiff succeeded against first defendant but not against remaining defendants – application for Sanderson order in respect of costs of other defendants – whether there was some conduct on the part of the first defendant which would make it fair to impose on him liability for the costs of the other defendants – whether plaintiff should pay costs of second defendant on indemnity basis – whether plaintiff should be ordered to pay costs thrown away by reason of its narrowed case at trial

HIGH RISK OFFENDERS — Continuing detention orders — Application — whether Court has “a high degree of probability” that defendant poses unacceptable risk of committing serious offence — where defendant is currently subject to extended supervision order — whether existing extended supervision order sufficiently mitigates risk of defendant committing serious violence offence in community — where defendant has a known history of offending and attacks — sexual focus on young women — discretion — protection of community as paramount consideration — where defendant breached previous supervision conditions — poor therapeutic value of a continuing detention order on defendant’s prospects of rehabilitation

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — abuse of process — estoppel — Anshun estoppel — cause of action estoppel — issue estoppel — whether cause of action in defamation in Supreme Court is substantially the same as compensation claim in Federal Court — proceedings dismissed

COSTS – Costs assessment – Determination – Costs in the cause – Assessment of costs where one party has had substantial success in a hearing – Application of a Merck order – Where contest regarding the formulation of common questions in representative proceedings is an inevitable part of the costs for each party

CIVIL PROCEDURE – Discovery – Further discovery – Whether necessary for resolution of real issues in dispute – Whether a material change in circumstances has to be established to justify an order for further discovery in representative proceedings – Whether further discovery imposes on a defendant in representative proceedings a significant financial burden contrary to the overriding purpose of the Civil Procedure Act – Application for further discovery where no articulated reason and significant burden placed on other parties to proceedings

CIVIL PROCEDURE - Court of Appeal - Expedited hearing - Where an expedited hearing of an application for leave to appeal and appeal against an order made on an interlocutory basis is sought - Where the order varied and deleted certain conditions of an Extended Supervision Order - Where it was contended that expedition should be ordered having regard to the public interest and so that the appeal not be rendered inutile - Where expedition was opposed on the grounds of prejudice

CIVIL PROCEDURE - Court of Appeal - Judges of Appeal - Powers of - Power of single Judge of Appeal - Whether orders sought by motion are orders that could be properly made by a single Judge of Appeal

CIVIL PROCEDURE — security for costs — non-resident applicant for leave to appeal — unpaid costs orders in other proceedings — no issue of principle

Crime – Appeals – Appeal against sentence of 48 years’ imprisonment – Application for leave to appeal – multiple child sexual offences – sexual offending against biological daughters – offending that is “heinous, depraved and appalling” – asserted failure of sentencing judge to take into account the applicant’s own history of child sexual abuse –asserted error in finding the applicant’s mental health issues increase the need for specific deterrence and protection of the community – manifest excess – appeal allowed – applicant resentenced

CRIME – appeals – appeal against sentence – alleged error in finding transgender applicant did not have difficult and dysfunctional early life and difficulties which wreaked havoc on her life – sentencing judge did not set criteria to be established prior to considering applicant’s transgender status – no miscarriage of justice or unfairness established by not finding facts which findings had not been sought

CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced

COSTS – No issue of principle

ADMINISTRATIVE LAW — judicial review — whether evidence served on applicant – whether applicant denied procedural fairness ADMINISTRATIVE LAW — judicial review — alternative relief by way of internal appeal not availed of — avoidance of statutory scheme for appeals — absence of satisfactory explanation — value of claim small — whether statutory power to refuse judicial review should be exercised

MENTAL HEALTH – forensic patient – extension of status of forensic patient – treatment resistant schizophrenia – cognitive impairment – no funding for supported independent living - application opposed – consideration of statutory criteria

COSTS – where plaintiff in the court below seriously injured in a fall on a building site – where parties disagree upon some aspects of the final calculations anticipated by the appeal judgment – whether a medical expense incurred after an award of damages can be claimed as an additional out-of-pocket expense – whether UCPR 42.15A should be applied – whether a differential costs order as to costs of appeal should be made

APPEALS — leave to appeal – leave required because monetary threshold not met – alleged defamation in social media posts – posts removed after limited exposure – defence of justification upheld – defence of honest opinion also upheld – contingent assessment of damages of $15,000 – amount in issue not approaching $100,000 threshold – disproportion between amount of possible damages and legal costs – no significant error of law, issue of principle or matter of general importance identified – court invited to reconsider factual findings of trial judge – no clear prospect of a different outcome if leave were granted, the appeal allowed, and a retrial held

Courts – State courts invested with federal jurisdiction – Powers – Exercise of powers – Where Supreme Court of Victoria uniquely empowered to make group costs order ("GCO") – Where s 1337H(2) of Corporations Act 2001 (Cth) allows transferor court to transfer proceeding to another court if, having regard to interests of justice, it is more appropriate – Where s 1337P(2) of Corporations Act provides that if proceeding transferred then transferee court must deal with proceeding as if, subject to any order of transferee court, steps that had been taken for purposes of proceeding in transferor court, or similar steps, had been taken in transferee court – Where group proceeding commenced in Supreme Court of Victoria – Where plaintiffs applied for GCO – Where fifth defendant applied for transfer of group proceeding to Supreme Court of New South Wales – Where primary judge ordered transfer application be determined after GCO application – Where GCO made – Where considerable risk that group proceeding would not be able to continue without GCO – Whether fact of Supreme Court of Victoria having made GCO relevant to exercise of discretion under s 1337H(2) of Corporations Act to transfer proceeding – Whether GCO will remain in force and be capable of being enforced by Supreme Court of New South Wales if proceeding transferred to Supreme Court of New South Wales – Whether Supreme Court of New South Wales has power to revoke or vary GCO if it remains in force – Whether group proceeding should be transferred to Supreme Court of New South Wales pursuant to s 1337H of Corporations Act. Words and phrases – "access to justice", "appropriate forum", "class action", "connecting factors", "contingency fee", "discretion", "federal jurisdiction", "group costs order", "group proceeding", "interests of justice", "jurisdiction", "removal", "similar steps", "statutory fiction", "steps", "stultification", "transfer", "transfer application", "transferee court", "transferor court". Corporations Act 2001 (Cth), Pt 9.6A, Div 1. Judiciary Act 1903 (Cth), s 79. Civil Procedure Act 2005 (NSW), Pt 10. Legal Profession Uniform Law (NSW), Pt 4.3, Div 4. Legal Profession Uniform Law (Vic), Pt 4.3, Div 4. Supreme Court Act 1986 (Vic), s 33

Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Where Gumatj Clan or Estate Group of Yolngu People claim entitlement to compensation under Native Title Act 1993 (Cth) for "past acts" "attributable" to appellant – Where Gumatj Clan claim past acts attributable to appellant are specified appropriations to appellant and grants to third parties of interests in land in Gove Peninsula in Northern Territory – Where appropriations and grants occurred between 1939 and 1969 by or under ordinances made by Governor-General under Northern Territory (Administration) Act 1910 (Cth) – Where Gumatj Clan claim each appropriation or grant invalid at time it occurred to extent inconsistent with native title rights and interests in relation to land then recognised at common law – Whether power conferred on Commonwealth Parliament by s 122 of Constitution to make laws for government of territory extends to making law with respect to acquisition of property otherwise than on just terms within meaning of s 51(xxxi) of Constitution – Whether extinguishment by or under law of Commonwealth of native title recognised at common law before commencement of Native Title Act constituted acquisition of property within meaning of s 51(xxxi) – Whether grant of pastoral lease in 1903 by Governor of South Australia under Northern Territory Land Act 1899 (SA) had effect of extinguishing non-exclusive native title rights over minerals on or under subject land. Words and phrases – "abstracts", "accession", "acquisition of property", "authorised and legally effective", "common law rule of recognition", "disjoined", "equality before the law", "erosion", "exception", "exception or reservation", "exclusive possession", "exclusive rights", "extinguishment", "for the government of a territory", "information of intrusion", "inherently defeasible", "inherently fragile", "land", "liberty of access", "minerals", "native title", "native title norms", "native title rights and interests", "non-derogation from grant", "on just terms", "pastoral lease", "plenary power", "precedent", "radical title", "recognition", "reservation", "sever", "skeletal principle", "taking", "title", "traditional laws and customs", "valid exercise of sovereign power", "with respect to", "withdrawal of recognition". Constitution, ss 51(xxix), 51(xxxi), 96, 122. Native Title Act 1993 (Cth), ss 14, 18, 223, 226, 228, 238, 239. Northern Territory (Administration) Act 1910 (Cth). Northern Territory Land Act 1899 (SA), ss 24, 25, Sch A, item (l).

EVIDENCE – admissibility of video recording - s 11 Surveillance Devices Act 2007 (NSW) – defendant filmed while speaking to plaintiffs – told that he is being filmed – continues to converse – whether “consent, express or implied”. WORDS AND PHRASES — “consent, express or implied” — Surveillance Devices Act 2007 (NSW), s11(2)(a)(ii)

CORPORATIONS – winding up – liquidators – powers – company holding rental collections on behalf of third parties – where provisional liquidators have determined that company has no entitlement to funds – where potential dispute about that matter – whether provisional liquidators justified and acting reasonably in paying the funds to those third parties

COSTS – party/party – general rule that costs follow the event – where there is an application for costs arising from preliminary discovery – whether a party has conducted itself so unreasonably that another party should obtain the benefit of a costs order – whether the Court is satisfied that one party would have almost certainly succeeded if the matter was fully tried.

TAXES AND DUTIES – Land Tax – Surcharge land tax – Foreign person – Whether the exemption for historical testamentary trusts to surcharge land tax under clause 66(4) of Schedule 2 of the Land Tax Management Act 1956 (NSW) affects whether a subsidiary of the trust is a foreign person