Cases and authorities

CIVIL PROCEDURE – Legal Professional Privilege – Evidence – Subpoena – Onus of Proof – Draft Expert Reports – Waiver

APPEALS – Appeal from decision of Supreme Court regarding winding up of family company – Where no error of kind in House v The King established – Where primary judge determined other relief suitable CORPORATIONS – Oppressive conduct – Where appellant severed ties with company – Where appellant nonetheless continued to be director of company – Whether appellant had been excluded from company management, business and affairs in a manner that was oppressive CORPORATIONS – Oppressive conduct – Whether Court should order buy out of appellant’s company share under s 233(1)(d) of the Corporations Act – Where nature of interest in company and associated family trust unable to be valued CORPORATIONS – Winding up – Whether company should be wound up under ss 232(e) or 461(1)(e) of the Corporations Act where other relief more suitable – Where liquidation of company would have consequences for otherwise solvent trust of which it is trustee

EVIDENCE – audio recordings – unable to be heard by judge – previous ruling – no alteration warranting altered ruling

SENTENCING — murder — guilty by verdict of a jury — infliction of serious physical assault including punches, kicks, an athletic kick to the head and stomping — deceased suffered an extensive catastrophic brain injury — offender found to have had an intention to kill — offender was the “muscle” in his co-offenders plan to exact retribution for purchasing a non-genuine pair of wireless earbuds — offender denied assistance from passers-by and told lies explaining the deceased’s state — consideration of whether childhood circumstances were such to reduce moral culpability — offender’s substance abuse and mental health considered — murder committed whilst on parole — consideration of parity principle regarding co-offenders — absence of remorse — offender’s subjective case was not compelling — no special circumstances found to justify altering the non-parole statutory ratio

JUDICIAL REVIEW – Review of medical assessment – Review Panel Certificate – Section 61 of the Motor Accidents Compensation Act 1999 (NSW) – Motor accident permanent impairment guidelines – Mandatory nature of guidelines – Constructive failure to exercise jurisdiction – Insufficient reasons – Legal errors – Order in the nature of certiorari – Remittal to different review panel – Order in the nature of mandamus

CIVIL PROCEDURE – Application for approval of settlement – Personal injury proceedings commenced on behalf of person under legal incapacity – Whether the Court is satisfied that the proposed settlement is beneficial to the plaintiff

COSTS — the plaintiff brought proceedings alleging breach by the defendant of a non-disparagement clause in a Deed of Release — the plaintiff established breach and the Court made a declaration to that effect but the Court declined to grant an injunction restraining further breach by the defendant on the footing that there was no realistic risk that the defendant would further breach — HELD — the plaintiff was entitled to an order for costs on the footing that it had, in practical terms, succeeded in circumstances where the defendant had denied breach and had denied the validity of the non-disparagement clause and had himself put that there was no realistic prospect of him further breaching

RESTRAINT OF TRADE — Partnership agreement — Application for interlocutory injunction — Consideration of the principles regarding restraint of solicitation and restraint on competition — Where the interest sought to be protected by the restraint is the partnership’s customer connection with the client, the reasonableness of the duration of the restraint will be assessed by considering the time taken to sever the partner’s connection with the customer in question including giving weight to the period the parties themselves have selected — Reasonableness of a non-competition clause is also assessed by reference to the adequacy of the non-solicitation clause PRACTICE — Appearance — Procedure — Representation of defendant company by director — Uniform Civil Procedure Rules 2005 (NSW) rr 7.1(2), 7.2(1)&(2) considered INJUNCTIONS — Interlocutory injunctions — Discussion of principles in relation to the approach of the Court regarding the requirements in respect of finding a prima facie case for relief — The Court has regard to the circumstances prevailing at the hearing of the application for relief — Consideration of principles regarding whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction is granted CIVIL PROCEDURE — Suppression and non-publication orders — Suppression order made prohibiting disclosure of information in confidential exhibit in respect of client lists

CIVIL PROCEDURE — Pleadings — Claims of privilege against self-incrimination and self-exposure to penalty — Where some individual defendants and one corporate defendant seek dispensation from requirement to plead defences to civil claims — Where plaintiffs allege breaches of civil penalty provisions of Corporations Act 2001 (Cth) but no penalty sought — Where ongoing criminal investigation separate to civil proceedings — Real and appreciable risk that information disclosed in each individual defendant’s defence would incriminate that defendant or expose him to civil penalty — Real and appreciable risk that information disclosed in corporate defendant’s defence would incriminate sole director of that corporate defendant or expose him to civil penalty — Relief substantially granted

CIVIL PROCEDURE – pleadings – striking out – whether the first defendant is a proper party – unincorporated association – not capable of being sued – claim against the first defendant struck out CIVIL PROCEDURE – pleadings – striking out – whether the pleadings disclose any cause of action – whether the pleadings are embarrassing – breach of privacy – no cause of action shown – injurious falsehoods – the pleadings are so lacking in specificity and complicated by irrelevancies that they are fundamentally defective – pleadings are embarrassing – whole of pleadings in Amended Statement of Claim against the second defendant struck out – liberty to replead TORTS – general principles – elements – breach of privacy – injurious falsehoods – tort of breach of privacy has not clearly emerged in Australia – pleadings lack specificity

CIVIL PROCEDURE – Summary Dismissal – Dismissal of proceedings – No reasonable cause of action disclosed – Claim against State of New South Wales for treatment in Commonwealth detention centres – State of New South Wales not responsible for plaintiff’s detention – Issue dealt with to finality in several Federal Court Proceedings – Statement of claim dismissed

CONTRACT – construction – party oral partly written contract – whether contract was formed to procure and fabricate steel soldiers – whether contract in part subject to a condition – whether contract limited to procuring steel in preparation of building works – whether contract subject to condition precedent that there be direction prior to fabricating. CONTRACT – breach of contract – whether award of damages includes an amount corresponding on GST component for a supply on a tax invoice. CONTRACT – construction – whether additional sums by way of administration charges payable – no reference to administration charges in standard terms and conditions – no proper basis for establishing claim for additional sums.

APPEALS – procedure – whether denial of procedural fairness in refusal of appellants’ adjournment application – appellants given reasonable opportunity to be heard – no denial of procedural fairness APPEALS – further evidence – where appellant sought to raise arguments under Farm Debt Mediation Act 1994 (NSW) not made at trial – leave to rely on further evidence in support of new argument – arguments raise issues of fact – leave refused DEED – construction – deed to be understood objectively having regard to commercial purpose and object

CRIME – Appeals – Appeal against conviction – whether jury verdict unreasonable – where applicant convicted of murder – causation – where injuries to deceased’s spleen caused death – whether blow or blows inflicted by applicant caused spleen rupture – whether alternative explanations for spleen rupture were reasonably open – intention – whether applicant intended to inflict grievous bodily harm – whether manslaughter conviction should be substituted for murder

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for abuse in institutions – costs

CIVIL PROCEDURE – dismissal of proceedings for want of due despatch – show cause hearing – failure to comply with Court orders – delay – where events have transpired which have interfered with capacity to bring matter to state where ready for hearing – respondent given further opportunity – costs

CORPORATIONS - Registration time for security interests - Application under Corporations Act 2001 (Cth) s 588FM to fix registration time under the Personal Property Securities Act 2009 (Cth) - Where Plaintiff was unaware that a registrable security interest had arisen under a PPS lease -Whether failure to register security interest was due to inadvertence

ADMINISTRATIVE LAW – Judicial review – appeal from NCAT Appeal Panel – requirement of leave – meaning of “on a question of law” – procedural fairness – whether Commissioner of Police denied procedural fairness by Appeal Panel – where plaintiff sought to narrow the scope of Tribunal’s jurisdiction – where it was not open to plaintiff to assume argument would be accepted by the Tribunal – nature of relationship between parties considered – no denial of procedural fairness – whether Tribunal had an obligation to supervise plaintiff’s consideration of the request for information – not for the Tribunal to positively satisfy itself that plaintiff had considered legislation – where ample time had elapsed – plaintiff had obligation to be familiar with obligations under legislation – plaintiff experienced in litigation – adequate reasons in refusing to allow fresh evidence on appeal – whether the failure to admit evidence on appeal so unreasonable or plainly unjust – content of reasons – reasons given were adequate – appeal dismissed STATUTORY INTERPRETATION – Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and Government Information (Public Access) Act 2009 (NSW) (GIPA Act) – whether 60(1)(a) of the GIPA Act is picked up by s 20(5) of the PPIP Act – whether s 60(1)(a) of the GIPA Act imposes a “condition or a limitation” – not picked up by the PPIP Act

COSTS — party/party — costs orders in interlocutory proceedings — whether costs should be the defendant’s costs in the cause

CRIMINAL LAW – sentence – murder – offender found guilty at trial – findings of fact as to what occurred – where, on the evidence, it is unknown what role the offender played in murder – disposal of the body as relevant to objective seriousness – related offence of dishonestly obtaining a financial advantage by deception – good prospects of rehabilitation – consideration of victim impact statements

CIVIL PROCEDURE – joinder of new party – complex negligence claim regarding treatment of stroke patient – where proposed new defendant ambulance service who responded to plaintiff’s deterioration – where hearing already set down, but over the plaintiffs’ vigorous objection – where objection to a hearing date in belief that evidentiary picture not yet fully clear – where proposal to join second defendant arises from that belief’s vindication CIVIL PROCEDURE – service of new specialist reports – Uniform Civil Procedure Rules r 31.28 – “exceptional circumstances” – substantive question really whether new expert needed to opine on hospital protocol CIVIL PROCEDURE – commentary on nature and purpose of Uniform Civil Procedure Rules

CRIME – appeal – appeal against sentence – selling stolen goods on eBay using identity of another person – whether sentence imposed was manifestly excessive – Intensive Correction Order – sentence not manifestly excessive – appeal dismissed

CIVIL PROCEDURE – notice of motion – stay sought regarding costs pending application for leave to appeal to Supreme Court – applicable principles - whether plaintiff will suffer prejudice – real risk not established – stay refused – costs

LAND LAW — caveat — Real Property Act 1900 (NSW) ss 74K, 74O — application by the plaintiff to extend the operation of a caveat lodged on the defendant’s property — where matrimonial settlement orders made by the Federal Circuit and Family Court of Australia (the Family Court) awarded the property to the defendant and made provision for payment by her to the plaintiff of a settlement sum of $1.5 million to be raised by sale of the property if it was not paid by a particular date — where the Family Court made orders that the plaintiff be at liberty to lodge a caveat over the property and in the event that order was not sufficient to permit the lodgement of a caveat, the parties will do everything necessary to lodge a consent caveat — whether the orders give rise to a caveatable interest — HELD — the orders give rise to a caveatable interest — form of caveat lodged insupportable — caveat not extended but leave given to the plaintiff to lodge a caveat reflecting the caveatable interest found by the Court — injunction ordered restraining the defendant until further order from taking steps to procure the lapsing of the new caveat

COSTS – Claim and Cross-Claim settled – Cross-Claim dismissed by consent – no reason not to award costs to cross-defendants – Statement of Claim resolved by consent judgment for plaintiffs – mini-trial not appropriate – earlier offer declined – judgment less favourable than plaintiffs’ offer

HIGH RISK OFFENDER – final hearing – extended supervision order – whether conditions address the defendant’s risk of committing further serious offences - extended supervision order made

APPEALS — leave to appeal decision of Local Court - whether leave required — interlocutory decisions – whether decision was interlocutory or final – jurisdiction of Local Court – decision did not dispose of proceedings – leave required – no question of principle – leave refused – appeal dismissed APPEALS — leave to appeal decision of Local Court – costs decision – special circumstances required for costs order – whether Magistrate applied the incorrect test – Civil and Administrative Tribunal Act 2013 (NSW), s 60 - no question of principle – leave refused – appeal dismissed

CRIME — Murder — Sentence after guilty plea — Offender intoxicated by methylamphetamine at time of offence — Intoxication was self-induced — No evidence of remorse — Discount for utilitarian value of guilty plea — No special circumstances CRIME — Wounding with intent to cause grievous bodily harm — Sentence after guilty plea — Offender intoxicated by methylamphetamine at time of offence — Intoxication was self-induced — No evidence of remorse — Discount for utilitarian value of guilty plea — No special circumstances

CIVIL PROCEDURE — Representative proceedings — Claims by plaintiffs who underwent breast augmentation surgery at various premises associated with the defendants — Whether there are no, or no sufficient, common questions identified in the Statement of Claim — Whether Statement of Claim, which seeks to articulate those common questions, is deficient CIVIL PROCEDURE — Subpoenas — To produce documents — Application to set aside on basis of legislative constraints relating to disclosure of personal and health information CIVIL PROCEDURE — Discovery — Further and better discovery — Dispute about the range of documents relevant to the determination of the limitation period with respect to the claims brought by the plaintiffs or some of them — Proper interpretation of s 50D of the Limitation Act 1969 CIVIL PROCEDURE — Subpoenas — To produce documents — Subpoenas addressed to various of the plaintiffs’ experts — Application to set aside on basis of legal professional privilege CIVIL PROCEDURE — Subpoenas — To produce documents — Application for leave nunc pro tunc to make redactions to various documents previously produced on discovery

CIVIL PROCEDURE – stay of proceedings – pending proceedings in other matter against the same defendant – where both proceedings involve recovery of overtime and other award entitlements under Public Hospital Medical Officers State Award – whether present proceedings should be adjourned or “hibernated” pending final determination of representative proceedings – whether case management principles and overriding purpose warrant stay of proceedings – where stay of proceedings would preclude sensible case management – consequences of delay to plaintiff and individual claimants – application dismissed

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for abuse in institutions - leave granted nunc pro tunc – costs

CIVIL PROCEDURE – Legal professional privilege – Waiver of privilege – Issue waiver – Whether the common law or Evidence Act 1995 (NSW) applies – s, 122, 131 and 131A of the Evidence Act 1995 (NSW) – Directions made

CIVIL PROCEDURE – Possession of land – application for default judgment – late appearance of the defendant – hearing vacated

SUCCESSION – FAMILY PROVISION – claim by three adult children – where deceased purchased property as joint tenant with a fourth adult child – where only significant asset of estate was deceased’s former interest as joint tenant – whether adequate provision was not made – whether a notional estate order should be made

ADMINISTRATIVE LAW – judicial review – appeal from Personal Injury Commission Appeal Panel – deterioration – additional relevant information - “purple passages”

TORTS — Nuisance – representative proceedings brought against a State entity – class action – where plaintiffs claim that their properties were affected by the construction of the Sydney Light Rail for extensive periods TORTS — Nuisance — private nuisance – elements – relevance of “common and ordinary” use of land – whether interference with plaintiffs’ property was substantial and unreasonable – whether interference was foreseeable – whether it is necessary to establish that the defendant failed to take care – whether s 43A of the Civil Liability Act 2002 (NSW) applies – whether defendant can rely on a defence of statutory authority – whether the defendant is liable for the nuisance – period of the nuisance – damages – loss of profit TORTS – Public nuisance – elements – private action for public nuisance – where plaintiffs claim mental anguish and economic loss – whether plaintiffs suffered substantial damage over and above that suffered in common with other members of the public affected by the nuisance – s 141 of the Roads Act 1993 (NSW) CIVIL PROCEDURE — Representative proceedings — Group members — consideration of common questions agreed upon by the parties – procedure for identifying group members and assessing their loss

CONTRACTS – Duress – Illegitimate pressure – Affirmation – agreement to terminate property development joint venture – where one party entered agreement under duress – duress from gun attack – agreement performed by both parties – whether duress ended – whether performing agreement constituted affirmation – whether rescission barred by affirmation CIVIL PROCEDURE – Hearings – Procedural fairness – whether affirmation pleaded at first instance – whether parties below conducted case on basis of affirmation PARTNERSHIPS AND JOINT VENTURES – Joint venture agreements – Rights and duties between joint venturers – assets of joint venture – tracing – whether properties bought with joint venture funds APPEALS – Point not taken below – Pleadings – new arguments raised on appeal – whether Court should hear new arguments – whether leave should be granted to amend notice of appeal CORPORATIONS – Directors and officers – Directors’ duties – Fiduciary duties – where director personally entered deed – company not party to deed – where company involved in a joint venture – whether deed terminated joint venture – whether director breached duties – whether relief available - whether loss shown

CRIME – appeals – appeal against conviction – application to withdraw plea of guilty – where applicant admitted to elements of the offence at sentencing hearing CRIME – appeals – appeal against conviction – where applicant contends that sentencing judge took into account wrongly translated phone records – where sentencing judge only relied on phone records to demonstrate relationship between applicant and the co-accused CRIME – appeals – appeal against sentence – whether sentence imposed was manifestly excessive – whether sentencing judge attributed sufficient weight to applicant’s mental health condition, age, and the COVID-19 pandemic

CRIMES — appeals — appeal against conviction — persistent sexual abuse of a child — where offending occurred against MK’s three “stepsons” and RB’s daughter — statutory construction — Crimes Act 1900 (NSW), s 66EA — whether proper construction is that offence made out by proof of two or more unlawful sexual acts (the “first construction”), the existence of a relationship “in which” the unlawful sexual acts were committed (the “second construction”) or the existence of a sexual relationship over and above the unlawful sexual acts (the “third construction”) — text of s 66EA favours second construction — legislative context and purpose do not suggest any other construction — s 66EA(2) plainly states what converts a “relationship” into an “unlawful sexual relationship” is the commission of two or more unlawful sexual acts in the course of that relationship (“in which”) — the word “maintains” in s 66EA(1) does not add anything to the actus reus of the offence beyond satisfaction of s 66EA(2) — earlier judgments favouring third construction are “plainly wrong” and should be overruled — whether trial judges erred in giving directions on elements of a s 66EA offence — directions conformed with second construction notwithstanding it was superfluous for the juries to determine a “continuity or habituality of sexual conduct” — no “real chance” directions affected either jury’s verdict — leave to appeal allowed for MK — extension of time to appeal refused for RB as proper construction of s 66EA is fatal to merits of appeal — appeals dismissed

CRIME – appeals – two appeals against conviction – where both applicants pleaded guilty and subsequently sought leave to withdraw their guilty pleas prior to conviction and sentence – where leave was refused as no miscarriage of justice arose – where recent decision in White v R [2022] NSWCCA 241 held interests of justice test not miscarriage of justice test applies to applications to withdraw guilty pleas prior to conviction – whether miscarriage of justice arose because wrong legal test was applied – where first applicant only sought to withdraw plea after attempts to pursue avenues to reduce sentence fell away – where second applicant’s evidence of threats rejected – no circumstances to question integrity of either applicant’s pleas – held result before primary judge in both appeals would have been the same whichever of the two tests were applied – no substantial miscarriage of justice occurred – both appeals dismissed CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied by judge on application for leave to withdraw guilty plea before conviction and sentence – whether White was correct in drawing a distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea on appeal – whether different tests apply to pre-conviction applications and post-conviction appeals – cannot be said White is plainly wrong in making the distinction between two categories

CIVIL PROCEDURE – prior court approval of settlement –application for orders for moneys to be paid out of court to person other than the plaintiff – legal costs – solicitor/legal cost – funds to be paid out of Court

POSSESSION – notice of motion – orders seeking summary judgment or in the alternative default judgment – defendant bankrupt – where no evidence from the plaintiff or a responsible person that, in that person's belief, the defendant has no defence to the claim – default judgment more appropriate

PRACTICE AND PROCEDURE – costs – gross sum costs order – security for costs order – no point of principle.

CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Categories of discovery CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Costs of compliance — Costs to be costs in the cause of new proceedings if those proceedings are commenced within three months CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Costs of preliminary discovery application — Where defendant relied on submissions of other defendants

NEGLIGENCE — Personal injuries — Settlement approval – where plaintiff claims that the defendant failed to take measures to prevent an assault on him in custody – where defendant asserts that the plaintiff’s injuries arose after he committed a serious offence – where proposed settlement includes judgment for the defendant – where plaintiff under a legal incapacity – whether the Court is satisfied that the settlement is for the plaintiff’s benefit

CIVIL PROCEDURE — application to strike out summons — matter irregularly commenced by summons instead of statement of claim — application to strike out defendant’s notice of appearance — application for summary dismissal — cannot be finally determined without proper pleading — application for suppression of the plaintiff’s identity is refused

CORPORATIONS — Winding up — Statutory demand — Application to set aside – Service by post - Where affidavit evidence is that statutory demand was sent by express post to address with an incorrect postcode – Whether service of the statutory demand was deemed effective CORPORATIONS — Winding up — Statutory demand — Application to set aside – Whether delivery of the statutory demand by an electronic means to an employee constituted effective informal service

COSTS — costs in family provision proceedings — where applicants unsuccessful — where Calderbank offer made — indemnity costs not ordered

ADMINISTRATIVE LAW — judicial review — Motor Accidents Compensation Act 1999 (NSW) — decisions of medical assessor and delegate of President of Personal Injury Commission on review application — conflicting reports of psychiatric experts — whether medical assessor applied correct test for causation, gave adequate reasons and disclosed path of reasoning and complied with applicable guidelines — whether delegate engaged with plaintiff’s arguments and complied with s 63 — errors established — medical assessment and review determination set aside

JUDGMENTS AND ORDERS – consequential orders – whether payments to discharge loan should be applied to interest in priority to principal