Cases and authorities

CRIME — Bail — Appeal bail — where applicant required to show cause why his detention is not justified — where applicant is due to stand trial for the offences in respect of which bail is sought in approximately two weeks’ time — where applicant has indicated an intention that he will apply to vacate the trial date — where the Crown case is a reasonably strong one — where the applicant relies on the difficulties preparing his defence if he remains in custody for the offences in respect of which bail is sought and for unrelated offences for which he also is due to stand trial — where the applicant relies on a need to access a mobile phone and associated SIM card — where the applicant is being held on protection for his own safety — whether the applicant has shown cause — application dismissed

CRIMINAL LAW ─ appeal ─ appeal against sentence ─ dishonestly obtaining and attempting to obtain a financial advantage by ─ existing sentence being served by applicant − totality principle ─ whether sentencing judge erred in accumulation of imposed sentence to existing sentence which resulted in a ratio of total non-parole period to total combined sentence of 80% ─ ratio substantially exceeding 75% not intended by sentencing judge ─ leave to appeal granted ─ appeal allowed ─ applicant resentenced

Contract – Construction – Where clause in contract for sale and purchase of property and assets of hotel business obliged vendor from contract date until completion to carry on business in "usual and ordinary course as regards its nature, scope and manner" – Where hotel business operated pursuant to licence and gaming machine entitlements – Where hotel business subject to variable licence conditions imposed under Liquor Act 2007 (NSW) and regulations – Where operation of business prior to completion restricted by public health order in response to COVID‑19 pandemic – Whether vendor obliged to carry on business in manner conducted as at time of contract to extent lawful – Whether vendor "ready, willing and able to complete and ... not in default" at time vendor served notice to complete. Words and phrases – "breach", "carry on the business", "contractual construction", "contractual obligation", "COVID‑19", "lawful operation", "nature, scope and manner", "ready, willing and able to complete", "reasonable businessperson", "usual and ordinary course", "warranty".

Mitchell v The King Rigney v The King Carver v The King Tenhoopen v The King Criminal law – Murder – Appeal against conviction – Extended joint criminal enterprise – Murder and constructive murder provided for by ss 11 and 12A of Criminal Law Consolidation Act 1935 (SA), respectively – Where appellants agreed to commit indictable offence of criminal trespass – Where during commission of offence one or more parties to agreement committed intentional act of violence causing death – Where appellants' agreement did not extend to intentional act of violence causing death – Where s 12A deemed perpetrator of intentional act of violence causing death in course of commission of major indictable offence punishable by ten years' imprisonment or more guilty of murder under s 11 – Whether common law doctrine of extended joint criminal enterprise could operate in combination with s 12A to render appellants guilty of murder based on foresight of possibility of commission by a co-venturer of any intentional act of violence. Words and phrases – "agreement", "common purpose", "constructive murder", "derivative liability", "extended joint criminal enterprise", "felony murder", "foresight", "intentional act of violence", "joint criminal enterprise", "murder", "pathway to murder", "primary liability", "primary offender", "primary party", "secondary offender", "secondary party". Criminal Law Consolidation Act 1935 (SA), ss 11, 12

CRIME — Application for the applicant to appear by audio-visual link for his sentencing proceedings — Where both the deceased and applicant come from the Bourke Indigenous community— Where application is opposed by the Crown — Where Crown relies upon the importance of Indigenous “cultural values and principles” requiring the applicant to be on country when sentenced — Where there is a legislative presumption for an “accused detainee” to appear before the Court by audio-visual link — Whether it is in the “interests of the administration of justice” for the applicant to appear physically before the Court — Recognition of the willingness of the criminal justice system to acknowledge and take into account cultural aspects in sentencing — Where the physical appearance of the applicant entails a lengthy and uncomfortable transfer — Application granted

EVIDENCE – re-examination – attempt to re-establish credit by reference to previous evidence – where previous evidence of variable consistency with present evidence – where previous evidence notably voluminous – permission to re-examine with reference to previous evidence refused

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders — Power to review the Suppression Order by the Court of Appeal — Powers of a single Judge of Appeal — Public interest does not significantly outweigh the competing public interest in open justice — Suppression Order should be lifted — Retention of Applicant’s pseudonym for the records and systems of this Court MENTAL HEALTH — Jurisdiction — Supreme Court — Power on appeals — Publication of names (s 162 of the Mental Health Act) — Whether s 162 affects any order that should be made under the Court Suppression Act — Whether s 162 binds the Supreme Court or the Court of Appeal — Whether s 162 encompass appeal proceedings from the Tribunal — Whether s 162 requires the Court to make orders under the Court Suppression Act — Inconsistent authorities on issue — General prohibition on identifying a relevant person

APPEAL – procedural fairness – whether unrepresented litigant denied opportunity to present case – parties – receiver not joined to proceedings – whether primary judge erred in not making findings about receiver – various other challenges to findings of fact – appeal dismissed

Criminal law - proceeds of crime – restraining orders – extension of time to comply with orders under s 39(1) Proceeds of Crime Act 2002 (NSW)

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody awaiting sentence for serious indictable offences – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted at juvenile justice centre – leave granted

TRAFFIC LAW AND TRANSPORT — Traffic law — Motors Accidents Compensation Act 1999 —Application by plaintiff to add claim for damages under the legislation — where claim under Motor Accident Compensation Act 1999 not identified by the parties until second defendant sought to amend defence – leave sought under section 109 LIMITATION OF ACTIONS — Time limits — Motor Accidents Compensation Act 1999 — leave sought under section 109 — where plaintiff not given full and comprehensive advice prior to second defendant raising issue in an amendment to its defence — whether plaintiff has provided a full and satisfactory explanation for delay —leave granted

CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where leave sought by officer or former officer of company – whether former officer acting in good faith – whether a serious question to be tried in circumstances where party seeking leave to proceed on behalf of the company against former director had herself entered into a Deed of Settlement shortly prior to the making of the application – whether the Deed of Settlement released some of the claims sought to be brought on behalf of the company – whether the party seeking leave to proceed had demonstrated a seriously arguable case that the company had suffered loss or damage and that it was in the best interests of the company to grant leave pursuant to s 236 of the Corporations Act

CRIME – Appeals – Crown appeal against sentence – where respondent pleaded guilty to two counts of aggravated sexual intercourse without consent – where further offences taken into account on a Form 1 – where respondent the de facto stepfather of female victim aged 14 – where aggregate sentence imposed of 7 years 6 months with non-parole period of 5 years – whether sentence manifestly inadequate – respondent resentenced

BAIL – appeal against conviction pending – necessity to show “special or exceptional” circumstances – unfitness to stand trial – reasonable prospects of success – likely that bulk of non-parole period will have been served by time appeal is heard – applicant vulnerable – special circumstances established – bail granted

CRIMINAL PROCEDURE — trial — whether constructive murder can be put to the jury as an alternate basis of legal responsibility — whether the accused was sufficiently on notice of the alternative basis of legal responsibility — direction to jury on alternative verdict of manslaughter

LAND LAW – strata title – owners corporation –maintenance and repair of common property – breach of obligation to maintain and repair common property – where unit affected by water leakage – where respondent lot owner unsuccessfully attempted to rent out unit in 2016 – action for recovery of loss of rent from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act STATUTORY INTERPRETATION – limitation of action – where claim made on 6 November 2020 for loss of rent pursuant to s 106(5) of Strata Schemes Management Act 2015 (NSW) – whether claim was time barred by s 106(6) of that Act – whether respondent first became aware of the loss in 2016 or on 6 November 2018 – whether “the loss” in s 106(6) refers to the kind or type of loss that the lot owner is entitled to recover under s 106(5) or the particular loss that she is seeking to recover APPEALS – cross-appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – where appeal with leave limited to a question of law – whether grounds of cross-appeal raised questions of law

STATUTORY INTERPRETATION – power to correct particulars of a marriage entered in NSW Register of Births, Deaths and Marriages – Birth, Deaths and Marriages Registration Act 1995 (NSW), s 45 – FJG and FJH married in NSW in 2009 – Register’s entry of their marriage included FJG’s personal details under the description “bridegroom” – Births, Deaths and Marriages Registration Act 1996 (Vic) – FJG born in Victoria and original birth certificate recorded sex as male – FJG subsequently effected a change of name under Pt 4 of Victorian Act in 2018 – FJG acknowledged her sex as “female” under Pt 4A of Victorian Act in 2020 – couple applied to have Registrar “correct” the entry for their marriage pursuant to s 45 to reflect FJG’s change of name and acknowledgement of sex – Registrar refused application – NCAT upheld application for review of Registrar’s decision – Registrar filed an internal appeal against NCAT’s decision – Appeal Panel referred questions of law to the Court – whether s 45 enables the Registrar to “correct” the Register’s entry for the marriage to reflect FJG’s change of name and acknowledgment of sex – held power to correct the Register does not extend beyond ensuring the particulars of the marriage that are recorded in the Register accord with the “official certificate of marriage” prescribed by the Marriage Act − whether s 45 permits a “correction” of the Register that would render an entry inconsistent with a certificate issued under s 50 of the Marriage Act 1961 (Cth) and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution – s 45 cannot require the correction of the Register in a way that is inconsistent with the “official certificate of marriage” produced under s 50 of the Marriage Act – no inconsistency under s 109 of the Constitution – whether s 45 authorises a “correction” that would amend the particulars of a marriage so that it records a marriage between persons of the same sex if, at the time of the marriage, same sex marriage was not lawful – issue does not arise JURISDICTION – Constitutional law – judicial power – State tribunal – whether NCAT had the jurisdiction or power to refer questions of law involving a Commonwealth law or the Constitution to the Supreme Court − whether the proceedings before NCAT involved the exercise of federal jurisdiction – NCAT’s “incidental jurisdiction” does not extend to a final determination of any genuine question arising under a Commonwealth law or the Constitution – application to NCAT to review decision of Registrar did not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction – in the exercise of its power to conduct merits review NCAT could refer to the Court such questions of law RELIEF – declarations – should not be made so as to potentially apply to facts and circumstances that may be materially different to present case

HIGH RISK OFFENDER – application for interim supervision order – application for examination by two psychiatrists and/or psychologists – where “plain English” drafting of court orders proposed to accommodate comprehension difficulties of the defendant

COSTS – whether plaintiff should have its costs in circumstances where plaintiff successful but on a basis of a submission as to whether payment claim had been effectively served opposite to the position maintained at the time

SENTENCING — manslaughter of wife — extreme provocation — uncharacteristic loss of control — otherwise exemplary life — advanced age in sentencing — special circumstances regarding standard non-parole period

CIVIL PROCEDURE — proceedings commenced by person under legal incapacity — settlement of proceedings — Court approval

SENTENCING — manslaughter – 13-week-old victim – where fatal injury caused by “vigorous” non-accidental shaking – being tired stressed and exhausted not mitigating – evidence of deprived and dysfunctional childhood – reduced moral culpability – no finding of remorse – potential for rehabilitation – reduction for early plea of guilty

CRIME – vacation of trial date

APPEALS – from Civil and Administrative Appeals Tribunal only “with respect to a matter of law” - statutory interpretation – when a registered interest holder has permanently vacated residential premises - whether a person may ‘passively’ move out of residential premises under s 8 of the Retirement Villages Act APPEALS – leave to appeal – no issue of principle or question of public importance - where application of facts to statutory test

SUCCESSION – Family provision – Claim under Ch 3 Succession Act 2006 (NSW) for a family provision order by two, now adult, stepchildren of the deceased, each of whom claims to have been a member of the household of which deceased was a member and wholly, or partly, dependent upon her – Initially dispute concerning whether each Plaintiff an eligible person – Ultimately accepted that each was a member of the household and partly dependent upon the deceased –Where limited contact with the deceased after early to mid-2000s, virtually no contact after 2012, and no contact at all following the death of the deceased’s husband, the father of the Plaintiffs, in 2016 – Detailed written reasons provided by the deceased for not making any provision for each Plaintiff – Relevance of reasons where dispute as to some of those reasons – Dispute as to whether factors warranting the making of the application – Whether the nature of the relationship of each Plaintiff with the deceased precludes, or whether otherwise on discretionary grounds the Court should not make, provision for each Plaintiff out of the deceased’s estate

APPEALS — Errors of Law — Failure to consider evidence — Failure to give reasons — Adequacy of reasons – motor vehicle incident – where Magistrate referred to CCTV footage to corroborate accounts of driver and witness – where evidence of one driver preferred over the other APPEALS — Disregard of relevant considerations – where “agony of the moment” submission not accepted by Magistrate

CRIME — Appeals — Appeal against sentence — Sexual and other offences — Sentenced to 9 months’ imprisonment but immediately released on recognizance release order – Whether sentencing judge erred by finding no alternative to imprisonment appropriate – Compelling subjective circumstances – Manifest excess – Grounds of appeal not made out – Leave to appeal granted – Appeal dismissed

CRIME — appeals — appeal against conviction — child sexual assault – where complainants were the applicant’s nieces – whether verdict unreasonable in respect of counts 1, 8, 9, 10 and 11 – open to jury to return guilty verdicts in respect of counts 1, 9 and 10 – reasonable doubt as to whether penetrative act occurred for count 8 – expressions “in” and “on” used interchangeably by complainant – reasonable doubt as to whether incident in count 11 occurred – confusion regarding presence of applicant where incident alleged to have occurred – ground of appeal allowed in part EVIDENCE – the opinion rule – exceptions – expert evidence – whether miscarriage of justice on account of expert evidence as to responses of child victims of sexual assault – evidence given within bounds of expertise – ground of appeal dismissed APPEALS — from jury verdict — nondirection – whether jury directions regarding expert evidence gave rise to a miscarriage of justice – absence of request for directions at trial – no requirement in the circumstances of the case to warn the jury on how expert evidence could not be used – leave to raise ground of appeal refused APPEALS — orders on appeal — substituted judgment or orders – substitution of conviction for indecent assault upon child upon quashing conviction for sexual intercourse with child – quashing aggregate sentence – remitting to District Court for resentencing

CRIME – appeals –appeal against sentence – child sex offences – manifest excess – eight counts of offending – child victims members of applicant’s extended family – pleas of guilty to two counts of persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – unlawful sexual acts – determinations of objective seriousness – s 66EA offences assessed by sentencing judge respectively as just below middle range and above midrange – where determinations outside proper exercise of discretion – examination of comparative cases – where far more serious offending required for such findings – error established – where applicant re-sentenced

GUARANTEE AND INDEMNITY – Actions to enforce guarantee – Multiple guarantors’ liability – turns on own facts.

ADMINISTRATIVE LAW – discretion to refuse relief on judicial review where statutory avenue of review and appeal available – costs assessment – alleged denial of procedural fairness – reconsideration by review panel not sought – review by panel an adequate and preferrable remedy – summons dismissed

COSTS – general rule that costs follow the event – application of the rule and discretion – where the first and second defendants seek an order that the plaintiffs pay their costs of the proceedings – where the plaintiffs have not accepted any of the Calderbank offers made by the first and second defendants – where leave to proceed against the insolvent first and second defendants was revoked by the Court – where there was no determination of the proceedings on the merits – whether the revocation of leave to proceed is an “event” for the purposes of the general rule as to costs contained in UCPR r 42.1 – whether the failure of the plaintiffs to accept any Calderbank offers was unreasonable in the circumstances – order made that parties bear their own costs

BUILDING AND CONSTRUCTION — design and construct contract AS4902-2000 — contractor to construct two buildings — airport hotel and long stay carpark — to be completed in September 2017 —principal wishes to use hotel rooftop for tenants — development consent does not approve this use — hotel and carpark tenants commence operations in September 2017 – occupation certificate limits use of rooftop terrace to maintenance only – principal maintains practical completion yet to be achieved. PRACTICAL COMPLETION — superintendent to issue certificate of practical completion — ‘conditional’ certificates issued for each building — retrospective date of practical completion on satisfaction of conditions — whether ‘conditional’ certificates comprise a certificate of practical completion — case law review at [205]-[209] — whether can give a retrospective date at [212]-[213] — ‘conditional’ certificates have no contractual force. DETERMINATION BY COURT— whether Court can determine date of practical completion — consideration of Abergeldie Contractors v Fairfield City Council — does not depend on Superintendent having been “manifestly unreasonable” – contractual standard is ‘reasonable’ — whether Court can determine liquidated damages. LIQUIDATED DAMAGES — superintendent’s certificate did not comply with the contract — whether Court can ascertain liquidated damages — liquidated damages calculated using objective criterion — Court can determine correct sum. DAMAGES — contractual regime for notifying and remedying defects — whether contract ousts common law damages — caselaw review at [248]-[253] — contract created exhaustive code governing parties’ rights regarding defects — common law damages not available — contractual regime not followed — unnotified defects apparent on reasonable inspection — not entitled to costs of rectification for such defects. BUILDING AND CONSTRUCTION — security — contractor substitutes cash retention for bank guarantee — whether principal entitled to retain GST on cash retention until bank guarantee returned —GST payable on release of retention.

ADMINISTRATIVE LAW – judicial review – decision made by Victorian WorkCover Authority – jurisdiction to undertake judicial review matter of Victorian official – Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – decision under s 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – decision not to consent to commencement of proceedings for damages out of time – whether administrative law error in Authority not finding absence of fault or omission of worker or legal representative – summons dismissed

CIVIL PROCEDURE – parties – commencement of proceedings without naming a defendant – proceedings for possession of land – where plaintiff is registered proprietor – where unidentified person in occupation LAND LAW – possession of land – where possession sought by registered proprietor against unidentified squatter

APPEALS – Practice and procedure – Procedural fairness – Duty to inform parties of proposed departure from basis upon which case is conducted – Where trial judge said to have adopted construction of commercial contract different from those proffered by parties during hearing – Where trial judge’s conduct said to constitute failure to accord procedural fairness to parties – Where principal issue at trial was existence, rather than construction, of contract in question – Whether trial judge’s failure to alert parties to proposed construction was procedurally unfair – Whether trial judge actually decided proper construction of contract – held that trial judge’s conduct and findings evince no failure to accord procedural fairness APPEALS – Scope of appeals – New point taken on appeal – Principle of finality – Where appellant did not raise questions of construction at first-instance in answer to respondent’s claim for damages for breach of contract – Where construction of contract raised on appeal under guise of procedural fairness as ground for avoiding liability – Where questions of construction readily apparent and able to be raised at first-instance – No issue of principle

CRIMINAL PROCEDURE — trial — late identification of fact relating to telephonic evidence — whether further evidence ought to be adduced to clarify fact — whether any unfairness to parties

CRIMINAL LAW – evidence – relevance – circumstantial evidence – lamppost there because it’s there – no question of principle

PROCEDURE — funds paid into Court under Trustee Act 1925 (NSW) Pt 4 —Application for payment out of court

MORTGAGES AND SECURITIES – personal property – Personal Property Securities Act 2009 (Cth) – where plaintiff seeks a declaration it is entitled to take possession of secured property – non-appearance of defendant

EQUITY – trusts and trustees – discretion of trustee – real property development joint venture conducted through a trustee company as trustee of the unit trust – plaintiff has a 50 per cent interest holding in the units in the unit trust – the defendants hold the other 50 per cent of the units in the unit trust - agreement to distribute profits in specie in the form of lots of the development – distribution commenced but not completed – building under development sued by the owners corporation in Technology and Construction List proceedings alleging defects in the construction – trust faced with unexpected external liabilities – further distribution suspended – judgment in March 2022 leaves caveats in place – trust deed requires corporate trustee to make provision for contingent liabilities – what orders should be made for distribution of trust assets to unit holders – owners corporation seeks by motion to restrain the distributions from the trust to leave less than $3.5 million – whether the Owners Corporation can be heard in these proceedings – whether an application for a freezing order by the Owners Corporation in the defect proceedings is a more appropriate vehicle for resolving the Owners Corporation’s motion.

REAL PROPERTY — easements — costs — final orders — whether departure from ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW) warranted — application for indemnity costs by defendants refused — where defendants object to proposed final orders — no issue of principle

EVIDENCE – admissibility – leave sought to reagitate admissibility of evidence excluded pre-trial – previous reasons for exclusion still relevant – further prejudice where forensic choices in witness cross examination already made and acted upon in absence of the evidence

CRIMINAL LAW – Interlocutory appeal – refusal of stay of special hearing – grounds – abuse of process – prosecution foredoomed to fail –– failure to give reasons CRIMINAL PROCEDURE – suppression of identity of participant in controlled operation – non-publication orders – no publication of evidence given at hearing

CRIME – appeals – appeal against sentence –robbery while armed with a dangerous weapon – using offensive weapon to intimidate – offences committed while applicant subject to parole for armed robbery offence committed in Queensland – pleas of guilty – where applicant would be transferred to Queensland when released to parole in NSW – where applicant sentenced to aggregate term of 8 years’ imprisonment – whether aggregate sentence imposed was manifestly excessive – totality with Queensland sentence – where no certainty about time to be spent in custody in Queensland after NSW sentence served - early life disadvantage – sexual abuse suffered in State care – drug habit attributable to sexual abuse – PTSD – prospects of rehabilitation - remorse for both offences – whether subjective case weighed heavily against indicative sentences and aggregate sentence – whether extra-curial punishment by corrective service officer threatening to shoot applicant whilst applicant in hospital – sentence not manifestly excessive - appeal dismissed

SENTENCING — appeal against sentence — whether sentencing judge failed to make findings as to the applicant’s reduced moral culpability — whether sentencing judge failed to apply correct principles concerning the sentencing of a juvenile —co-offenders — disparity between sentences — co-offenders sentenced by same sentencing judge — appeal dismissed

CRIMINAL LAW – evidence – application pursuant to s 65(2) of the Evidence Act – exception to the hearsay rule – application opposed by the accused – absence of a witness statement – reliance on Adam v The Queen – hearsay upon hearsay

SUCCESSION — Family provision — Claim by niece of deceased who with her sister went to live with the deceased and initially his mother in mid-1960s when niece was 7 years old following death of plaintiff’s father — Niece remained living with the deceased for 10 years to age approximately 17 — Niece returned to live with the deceased approximately 8 years later for a period of 15 months — Subsequent ongoing close relationship with the deceased EVIDENCE — Assessment of evidence of party previously convicted of perjury SUCCESSION — Family provision — Eligibility — Eligibility not disputed nonetheless there must be some material to enliven jurisdiction — Jurisdiction cannot be conferred by consent on the Court — Requirements of membership of household and dependency SUCCESSION — Family provision — Factors warranting — Consideration of factors warranting – Plaintiff’s position or status de facto akin to that of a child of the deceased SUCCESSION — Family provision — Adequacy of provision — Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life — Expressing a preference for a proposed expenditure, if the preference is soundly based, may inform what is proper maintenance or advancement for an applicant SUCCESSION — Family provision — Adequacy of provision — Reference point for assessing inadequacy of provision — Whilst plaintiff de facto akin in some respects to a child of the deceased, the deceased did not assume de jure obligations of a parent — Plaintiff in strong financial position with unencumbered house and other financial resources totalling approximately $1.6M — Plaintiff has minimal quantifiable financial needs — Plaintiff unable to point to any particular item whether by form of maintenance or advancement in life unable to be met out of existing resources — Such fact not conclusive or decisive of dismissal of claim nor is lack of financial need to be elided with adequacy of provision but nonetheless a significant fact in assessing adequacy of provision SUCCESSION – Strong competing claim of defendant (plaintiff’s son and deceased’s grandnephew) who lived with deceased in remaining years of his life to retain provision to him of residential property gifted under Will — Defendant provided care for deceased particularly in later years — Defendant reliant on deceased for accommodation

CRIMINAL LAW – evidence – tendency – whether evidence has significant probative value – where accused charged with murder – where accused raised self-defence – evidence of prior violent acts by deceased – tendency asserted in notice to be violent when his goals are frustrated – evidence capable of giving rise to the kind of tendency asserted in the notice – evidence admissible

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Whether pleadings disclose a reasonable cause of action