Cases and authorities

Lee v Lee Hsu v RACQ Insurance Limited Lee v RACQ Insurance Limited Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant gave evidence father driving vehicle at time of collision – Where appellant alleged injuries caused by negligence of father – Where appellant’s blood located on driver's airbag – Where expert evidence relating to possible source of blood – Where expert evidence relating to seatbelt and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether trial judge's findings glaringly improbable or contrary to compelling inferences. Appeal – Rehearing – Where trial judge drew inferences and made findings of fact based on lay and expert evidence – Where Court of Appeal found inferences wrong in material respects – Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge – Whether Court of Appeal failed to conduct "real review" of evidence given and trial judge's reasons for judgment. Words and phrases – "contrary to compelling inferences", "glaringly improbable", "real review", "trial judge's advantage".

Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened. Words and phrases – "additional or separate punishment", "judicial power", "legislative punishment", "legislatively resentenced", "life imprisonment", "minimum term", "more punitive or burdensome to liberty", "non-parole period", "opportunity to be considered for release on parole", "parole", "severity of the punishment", "substantive operation and practical effect". Constitution, Ch III. Corrections Act 1986 (Vic), ss 74AAA, 74AB, 127

Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder's acceptance of owners' repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution. Words and phrases – "accrued rights", "alternative restitutionary remedy", "common counts", "completed stage", "contract price ceiling", "contractual incentives", "domestic building contract", "failure of basis", "failure of consideration", "limit on recovery", "measure of restitution", "notice", "primary and secondary obligations", "principle of legality", "protective provisions", "qualifying or vitiating factor", "quantum meruit", "quasi-contractual obligation", "repudiation", "restitution", "subjective devaluation", "unjust enrichment", "variations", "work and labour done". Domestic Building Contracts Act 1995 (Vic), ss 1, 3, 4, 16, 27, 38, 39, 53, 132.

Companies – Shares – Implied prohibition against financial assistance by company to acquire shares in company – Meaning of "financial assistance" – Where s 260A(1) of Corporations Act 2001 (Cth) provides that company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors – Where appellant companies' constitutions contained pre-emption clause which provided that, before a shareholder could transfer shares of a particular class, those shares must first be offered to existing shareholders of that class in proportion to the number of shares of that class already held by that shareholder – Where sole shareholder of one shareholder company entered into agreements for sale of shares – Where appellant companies claimed that agreements breached pre-emptive rights provisions – Where injunction sought under s 1324 of Corporations Act to restrain appellant companies from prosecuting proceedings in relation to pre-emptive rights on basis that proceedings contravened the prohibition against financial assistance in s 260A(1) – Whether funding by company of legal proceedings directed at compelling one shareholder to offer shares to other shareholders is financial assistance – Whether the companies should be enjoined from continuing legal proceedings at their expense to vindicate alleged breach of pre-emptive rights. Words and phrases – "acquisition of shares", "creditors", "financial assistance", "implied prohibition against financial assistance", "injunction", "material prejudice", "power to enforce company constitution", "pre-emptive rights", "shareholders". Corporations Act 2001 (Cth), ss 260A(1), 1324(1).

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review – Where Secretary of Department of Immigration and Border Protection gave Authority documents and information – Where Secretary notified Authority that s 473GB applied to documents and information – Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – Where documents and information not disclosed to referred applicant during review – Where fact of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to referred applicant. Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority – Whether implied obligation of procedural fairness precluded. Words and phrases – "disclosure", "document or information", "exclusion of procedural fairness", "exhaustive statement", "fact of notification", "natural justice hearing rule", "notification". Migration Act 1958 (Cth), Pt 7

Criminal law – Arson and attempted fraud – Appeal against conviction – Where prosecution case based on circumstantial evidence – Where appellant's house destroyed by explosion and resulting fire – Where appellant present at and seen running away from scene – Where appellant gave version of events to police consistent with innocence – Where appellant made insurance claim on house and contents in connection with fire – Where no apparent financial motive to commit offences – Where expert evidence that explosion caused by build-up of gaseous vapours – Where petrol residues found on appellant's clothes – Where no evidence of petrol residues in house – Whether open to jury to be satisfied of appellant's guilt beyond reasonable doubt – Whether prosecution excluded reasonable possibility that explosion caused by build-up of gas ignited by electrical fire. Words and phrases – "absence of apparent financial motive", "arson", "attempted fraud", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt", "inference consistent with innocence", "lack of motive", "reasonable possibility", "scientific evidence". Criminal Code (Qld), ss 408C(1)(c), 459, 461(1)(a).

Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five-member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant. Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re-sentencing exercise", "residual discretion". Criminal Code (NT), s 414(1)(c).

Immigration – Visas – Visa cancellation – Character test – Substantial criminal record – Where delegate of Minister for Immigration and Border Protection ("Minister") cancelled respondent's visa on character grounds under s 501(2) of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("AAT") made decision under s 43(1)(c)(i) of Administrative Appeals Tribunal Act 1975 (Cth) to set aside delegate's decision and substitute a decision not to cancel visa – Where Minister purported to re-exercise discretion to cancel visa – Whether Minister can re-exercise discretion on same factual basis in circumstances where AAT earlier decided not to cancel visa. Words and phrases – "Administrative Appeals Tribunal", "character test", "different factual basis", "finality to the administrative decision-making process", "from time to time as occasion requires", "general power", "ministerial override", "nature of merits review", "powers of AAT", "reasonable suspicion", "re-exercise of a power", "special power", "substantial criminal record", "visa cancellation". Acts Interpretation Act 1901 (Cth), ss 2, 33(1). Administrative Appeals Tribunal Act 1975 (Cth), s 43. Migration Act 1958 (Cth), ss 501, 501

Constitutional law (Cth) – Freedom of interstate trade, commerce, and intercourse – Where s 56 of Emergency Management Act 2005 (WA) ("EM Act") empowered Minister to declare state of emergency – Where s 67 empowered authorised officer to direct or prohibit movement of persons into emergency area – Where Minister for Emergency Services declared state of emergency in Western Australia in respect of COVID-19 pandemic – Where State Emergency Coordinator issued Quarantine (Closing the Border) Directions (WA) ("Directions") – Where paras 4 and 5 of Directions prohibited persons from entering Western Australia unless exempt traveller – Whether EM Act or Directions impermissibly infringed constitutional limitation in s 92 of Constitution – Whether infringement determined by reference to authorising provisions of EM Act – Whether provisions of EM Act imposed impermissible burden on interstate trade, commerce or intercourse – Whether exercise of power to make Directions raised constitutional question. Words and phrases – "burden", "COVID-19", "differential", "discrimination", "emergency", "emergency management", "freedom of interstate trade, commerce, and intercourse", "hazard", "intercourse", "interstate movement", "plague or epidemic", “protectionist”, "reasonable necessity", "state of emergency", "structured proportionality", "trade and commerce". Constitution, s 92. Emergency Management Act 2005 (WA), ss 56, 58, 67, 72A. Quarantine (Closing the Border) Directions (WA), paras 4, 5, 27.

Hood v Down Under Enterprises International Pty Limited Hood v New Directions Australia Pty Limited Practice and procedure – Costs – Offers of compromise – Calderbank letter – Application to amend orders – Where applications for special leave determined, and orders for costs made in favour of respondents – Whether applicant's failure to engage with respondents' Calderbank offer unreasonable – Whether Calderbank offer was open for acceptance when application for special leave instituted or before significant costs incurred – Whether orders should be amended such that applicant pay costs on indemnity basis. Words and phrases – "amend", "Calderbank letter", "costs", "High Court scale of costs", "indemnity costs", "orders".

Administrative law – Judicial review – Jurisdictional error – Sentencing powers of inferior court – Where s 7 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") empowered sentencing court to make intensive correction order ("ICO") directing that a sentence of imprisonment be served by way of intensive correction in community – Where power to make ICO was a discrete function arising after sentence of imprisonment imposed – Where s 66(1) of Sentencing Procedure Act provided community safety was paramount consideration in exercising discretion to make ICO – Where s 66(2) of Sentencing Procedure Act required sentencing court, when considering community safety, to assess whether making ICO or serving sentence by way of full-time detention more likely to address offender's risk of reoffending – Whether failure to comply with s 66(2) amounted to jurisdictional error – Consideration of categories of jurisdictional error in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531. Sentence – Sentence imposed by State court – Discretion to make ICO – Where community safety was paramount consideration in exercising discretion to order ICO – Where sentencing judge declined to make ICO and ordered sentence of imprisonment be served by way of full-time detention – Whether sentencing judge undertook assessment of community safety in accordance with s 66 of Sentencing Procedure Act. Words and phrases – "community safety", "error of law", "error of law by an inferior court", "full-time detention", "intensive correction order", "jurisdictional error", "misconception of function", "paramount consideration", "risk of reoffending", "sentencing process". Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 66, Pt 2 Div 2, Pt 5. Supreme Court Act 1970 (NSW), s 69

CONTRACTS - whether of loan or for investment - no question of principle.

Family law – Children – International child abduction – Where child removed from Ireland to Australia by appellant mother without consent of father – Where father granted declaration of guardianship in Ireland – Where respondent sought orders in Australia for return of child to Ireland under Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where no transcript or reasons for making Irish declaration provided to Australian courts – Whether bare declaration created issue estoppel preventing mother from submitting father did not have rights of custody under Regulations at date of child's removal from Ireland. High Court – Special leave to appeal – Where special leave granted in respect of finding of issue estoppel based on bare declaration by Irish court, absent transcript or reasons for decision – Where transcript belatedly provided to High Court prior to appeal hearing – Where factual foundation for grant of special leave removed – Whether continuation of appeal contrary to interests of administration of justice – Whether special leave should be revoked. Words and phrases – "bare declaration", "issue estoppel", "privity", "revocation of special leave to appeal", "rights of custody", "special leave to appeal". Convention on the Civil Aspects of International Child Abduction [1987] ATS 2. Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 2(1), 4, 13, 14, 15, 16, 29. Guardianship of Infants Act 1964 (Ir), s 6

Practice – High Court – Remitter – Judiciary Act 1903 (Cth), s 44 – Whether matter arising under Therapeutic Goods Act 1989 (Cth) should be remitted to Federal Court of Australia – Whether matter suitable to be heard in original jurisdiction of High Court of Australia – Where significant case management and fact finding required. Words and phrases – "arising under", "case management", "constitutional writ", "fact finding", "jurisdiction", "matter", "remittal", "special interest", "standing", "subject-matter of the proceeding". Judiciary Act 1903 (Cth), ss 39B, 44. Therapeutic Goods Act 1989 (Cth), ss 22D, 25(3)(a), 30C(2).

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded fear of persecution in Myanmar – Where plaintiff's bridging visa cancelled following criminal conviction – Where following release from criminal custody plaintiff taken into immigration detention under s 189 of Migration Act 1958 (Cth) ("Act") – Where plaintiff's application for protection visa refused and finally determined – Where ss 198(1) and 198(6) of Act imposed duty upon officers of Department administering Act to remove plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act required plaintiff to be kept in immigration detention until removed from Australia, deported, or granted visa – Where attempts by Department to remove plaintiff from Australia unsuccessful as at date of hearing – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Where plaintiff sought writ of habeas corpus requiring release from detention forthwith – Whether application for leave to reopen constitutional holding in Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 should be granted – Whether constitutional holding in Al‑Kateb should be overruled – Whether detention of plaintiff punitive contrary to Ch III of Constitution – Whether separation of plaintiff from Australian community pending removal constitutes legitimate and non-punitive purpose – Whether detention of plaintiff reasonably capable of being seen as necessary for legitimate and non‑punitive purpose. Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Whether detention of plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted. Words and phrases – "alien", "conservative cautionary principle", "deportation", "deprivation of liberty", "executive detention", "habeas corpus", "indefinite detention", "judicial function", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "penal", "power to exclude", "practicable", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "separation from the Australian community", "unlawful non-citizen". Constitution, s 51(xix), Ch III. Migration Act 1958 (Cth), ss 3A, 189, 196, 198.

Criminal practice – Particular offences – Accessory before the fact to constructive murder – Where foundational offence was attempted robbery armed with dangerous weapon – Whether accessory before the fact to constructive murder is an offence known to law. High Court – Special leave to appeal – Where New South Wales Court of Criminal Appeal ("CCA") ordered new trial – Where Crown sought orders setting aside orders of CCA and dismissing respondent's appeal against conviction – Where Crown argued accessory before the fact to constructive murder is an offence known to law – Where Crown argued different formulation of mental element in CCA and High Court – Where Crown conceded acceptance of its argument required CCA's order for new trial to be affirmed – Whether special leave to appeal should be revoked – Whether interests of justice warranted revocation of special leave to appeal – Whether Crown in substance seeking guidance as to scope of retrial – Whether case ceased to be appropriate vehicle. Words and phrases – "accessorial liability", "accessory before the fact", "accessory before the fact to constructive murder", "appeal against reasons", "appropriate vehicle", "armed robbery", "constructive murder", "derivative liability", "extended joint criminal enterprise", "foundational offence", "ground of appeal", "guidance", "gun", "high vis shirt", "interests of justice", "joint criminal enterprise", "jury", "jury direction", "knowledge of the act causing death", "mental element", "new trial", "no real dispute", "offence known to law", "primary liability", "revocation of special leave to appeal", "special leave to appeal", "state of mind", "trial judge's direction", "variation of orders". Crimes Act 1900 (NSW), ss 18, 346.

Babet v Commonwealth of Australia Palmer v Commonwealth of Australia Constitutional law (Cth) – Free and informed choice – Implied freedom of political communication – Where United Australia Party ("UAP") was formerly registered under Pt XI of Commonwealth Electoral Act 1918 (Cth) ("Act") and had been voluntarily deregistered under s 135(1) of Act – Where s 135(3) of Act precluded reregistration of UAP from occurring before next general election following voluntary deregistration – Whether s 135(3) invalid on ground that it impairs direct choice by people of Senators and members of House of Representatives – Whether s 135(3) invalid on ground that it impermissibly discriminates against candidates of political party or Parliamentary party that has deregistered voluntarily – Whether s 135(3) invalid on ground that it infringes implied freedom of political communication. Words and phrases – "annual disclosure obligations", "anti-avoidance purpose", "anti-phoenixing purpose", "anti-rollover purpose", "burden or impairment", "deregistration", "effective burden", "electoral choice", "electoral expenditure", "explicature", "free and informed choice", "implicature", "implied freedom of political communication", "Parliamentary party", "rational connection", "reasonably appropriate and adapted", "registered political party", "reregistration", "structured proportionality", "transparency purpose", "voluntary deregistration". Constitution, ss 7, 24. Commonwealth Electoral Act 1918 (Cth), Pts

High Court – Original jurisdiction – Application for constitutional or other writ – Application for stay – Where orders made by Federal Circuit and Family Court of Australia (Division 1) ("Division 1 Court") – Where plaintiffs sought writs of certiorari quashing orders of Division 1 Court – Where plaintiffs sought writs of prohibition, mandamus and declarations – Whether extension of time should be granted to seek constitutional or other writ – Whether application for stay should be granted. Words and phrases – "certiorari", "constitutional or other writ", "declarations", "exceptional cases", "extension of time", "interests of justice", "joinder orders", "mandamus", "orders by consent", "prohibition", "property settlement", "stay". Constitution, s 51(xxii). Family Law Act 1975 (Cth), ss 4, 39, 78, 79, 90AF, 114. Federal Circuit and Family Court of Australia Act 2021 (Cth), s 26. Judiciary Act 1903 (Cth), s 44.

Dinsdale v The Queen Criminal law - Sentencing - Crown appeals against sentence - Circumstances in which Court of Criminal Appeal should allow appeal against sentence and substitute its own sentence - Necessity to find and identify error before allowing appeal - Whether failure to do so in reasons of Court of Criminal Appeal. Criminal law - Sentencing - Crown appeals against sentence - Circumstances in which judicial discretion to suspend sentence should be exercised - Whether power to suspend sentence is confined by reference wholly, mainly or specially to the effect on rehabilitation of the offender. Criminal Code (WA), s 688. Sentencing Act 1995 (WA), ss 39(2), 76.

Natural justice - Reasonable apprehension of bias - Building and Construction Industries Security of Payments Act 1999 - Adjudicator has a history of disputation with plaintiff concerning plaintiff having refused to pay adjudicator's fees - Adjudicator refuses to accept challenge to his right to determine the matter - Critical significance that adjudicators determine the adjudications which come before them, without regard to extraneous circumstances as for example private communications with their colleagues about one or other of the parties

PROCEDURE - costs - whether the third and fourth defendants' costs should be assessed on a submitting appearance basis, or on an ordinary party/party basis - third and fourth defendants entered a full appearance - took no active part in the proceedings - offers were made to the third and fourth defendants to be represented by the solicitors for the plaintiff - offers declined - limitations on recovery of costs for the purposes of ensuring fairness to other parties to litigation - third and fourth defendants not entitled to full costs order against the estate merely because they filed full appearance - in substance third and fourth defendants maintained a submitting role - third and fourth defendants' costs to be assessed on a submitting appearance basis

PRACTICE AND PROCEDURE - Civil Procedure Act 2005 (NSW) s 72 - application for order to prohibit disclosure of information tending to reveal identity of a witness in proceedings - comparison advertising using findings of mystery shoppers - whether prohibition on disclosure of identity of mystery shoppers necessary to secure proper administration of justice in proceedings - order granted.

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Amendment – whether plaintiff should be granted to leave to further amend its list statement – - PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – whether defendants should be ordered to give further discovery – PROCEDURE – Pleading – Particulars – whether further and better particulars should be provided

PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Amendment – whether application to amend cross claim should be adjourned until application for special leave to the High Court has been heard

Probate - Sole issue concerns due execution of Will by testator - Presumption of regularity

CIVIL PROCEDURE - whether defamation proceedings in the Supreme Court of NSW should be transferred to Federal Court - whether the statutory criteria of s 5(1)(a)-(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) has bee made out - consideration of whether "interests of justice" require the defamation proceedings be transferred to Federal Court

PROCEDURE [553] – Costs – Costs of whole action generally – Whole action settled – Incidence of UCPR r 42.20 when settlement proceeds by way of order for dismissal – Usual rule – Whether one party surrendered – Whether party’s conduct unreasonable

PROCEDURE - Costs - plaintiffs successful in having contract for sale of premises partly commercial and partly residential rectified by adding to the purchase price "+ GST" - defence alleged GST not payable because not a taxable supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth) as plaintiffs were not carrying on an enterprise - order made for plaintiffs to seek a private indirect tax ruling from the Commissioner of Taxation - ruling made that not a taxable supply because GST turnover and projected GST turnover did not exceed the registration turnover threshold and no GST was payable - whether there should be a discount in the plaintiffs' costs for pyrrhic victory

PRACTICE – Jurisdiction – Federal jurisdiction of State courts – Admiralty – General maritime claim – Dispute was in federal jurisdiction – Admiralty Act 1988 (Cth) ss 4(3)(f), 9(1) -- where plaintiffs challenged the jurisdiction of the Consumer Trader and Tenancy Tribunal in a determination on shipping container fees -- whether the Tribunal has jurisdiction to determine a consumer claim under the Consumer Claims Act 1998 (NSW) which is also a maritime claim under the Admiralty Act 1988 (Cth) -- whether the Tribunal is a court of the State within the meaning of s 77(iii) of the Commonwealth Constitution – whether s 9(1) of the Admiralty Act 1988 (Cth) confers jurisdiction on the Tribunal -- whether the Tribunal was precluded from exercising jurisdiction in respect of D V Kelly’s claim.

PROCEDURE – Costs – Indemnity costs – where defendant obtains order more favourable than defendant’s offer of compromise.

COSTS – whether to order costs on indemnity basis

PROCEDURE - Costs - whether to order that interlocutory be payable forthwith - Uniform Civil Procedure Rules 2005, Pt 42 r 42.7(2)

PROCEDURE - Supreme Court Procedure - Court advice to trustees - Trustee Act 1925, s 63 - residuary estate in adult children of elderly mother with life interest she willing to renounce - whether class closed - undertakings proffered by children to account for a requisite share if mother had or adopted a further child or children

PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Generally – Anton Piller orders – whether Anton Piller order should be discharged – where application made after execution – when Anton Piller order may be discharged – grounds for discharge – procedure and evidence on application for discharge – evidence additional to that on ex parte application – evidence of “fruits of order”

PROCEDURE - Injunctions - plaintiff operates restaurant inside defendants club premises - defendant issues notice to plaintiff to quit premises - plaintiff claims occupation of premises attracts Retail Leases Act 1994 - plaintiff obtains injunction restraining defendant acting on notice to quit premises - whether serious question to be tried - contest as to whether injunction should be dissolved - whether balance of convenience favours a grant of injunctive relief.

FAMILY LAW AND CHILD WELFARE [500] – De Facto Relationships – Adjustment of property interests – Other matters – Costs – Relevant principles

PROCEDURE – Costs – Security for costs – corporate impecuniosity – application made late, days before expedited hearing – whether security for costs order should be made

REAL PROPERTY – caveats – application pursuant to s 74MA of the Real Property Act that defendant withdraw caveat over property owned by plaintiff – where plaintiff has been served with notice to complete in relation to sale of property – caveat not in valid form

CORPORATIONS – Winding up – Winding up in insolvency – (CTH) Corporations Act 2001 s 556 – calculation of employee leave entitlements for the purposes of (CTH) Corporations Act 2001 s 556 – whether the rule in Clayton’s case applies to accrual of annual leave – PROCEDURE – Costs – Departing from the general rule – whether costs should be ordered on an indemnity basis

CAVEAT - removal - meaning of "serious issue" - commercial risk - competing registered interest - application of principles in Inglis v Commonwealth Trading Bank (1972) 126 CLR 161

BUILDING AND ENGINEERING CONTRACTS - adjudication - interlocutory injunction - requirement of construction contract for valid adjudication - denial of procedural fairness - interlocutory relief on the condition of an undertaking instead of payment into court.

PROCEDURE – Supreme Court Procedure – New South Wales – Jurisdiction and generally – Jurisdiction – whether Supreme Court of New South Wales has jurisdiction to remove from the District Court, pursuant to Civil Procedure Act 2005, s 140, an appeal under (NSW) Strata Schemes Management Act 1996, s 200.

CIVIL PROCEDURE - costs - where defendant has wasted costs in defending defamation proceedings in the Supreme Court - where Supreme Court and Federal Court proceedings derive from predominantly the same factual matrix - interests of justice require defendant be recompensed for wastage of work

PROCEDURE - Cross-vesting - Jurisdiction of Courts (Cross-vesting) Act 1987, s 5(2)(b)(iii) - application by defendant that proceedings be transferred to the Supreme Court of Queensland - contract for performance of work by plaintiff resident in NSW in relation to land situated in Qld and owned by a Qld resident - defendant to rely on conversations in Qld alleged to have varied the contract and breached the Trade Practices Act 1974 (Cth) - plaintiff to rely on conversations in NSW - work done in NSW - predominance of witnesses resident in NSW - plaintiff's records in NSW

PROCEDURE - amendment - Statement of Claim on foot for two years - Plaintiff acting for himself seeks leave to amend - claim for exemplary and punitive damages disallowed - other claims closely related to existing claims.

APPEALS - Stay of orders in order to permit unsuccessful party time to consider whetehr to appael - where refusal to grant stay might render appeal nugatory - stay not granted.

PROCEDURE – application to join director of defendant in proceedings – whether case against director must fail – whether real question as to whether director gave personal guarantee – whether real question as to whether guarantee was given without consideration – whether real question as to whether director’s signature was affixed only in capacity as director or in personal capacity as well – application successful. - COSTS – application for costs incurred in application for transfer of proceedings – where proceedings commenced in Consumer, Trader and Tenancy Tribunal – where alleged that claim was not within jurisdiction of Tribunal as it was not a ‘building claim’ – meaning of ‘building claim’ – where alleged that cross-claim based on rescission for innocent misrepresentation could not have been determined by Tribunal – merits of cross-claim unknown – application for costs dismissed.

CONTRACT – remedies – specific performance – where the defendant agreed with the plaintiff to grant a mortgage over certain property owned by it in substitution for the discharge by the plaintiff of a mortgage over other property – the agreement was not in writing and there was no memorandum or note by the defendant of it as contemplated by s 54A(1) of the Conveyancing Act 1919 (NSW) – the plaintiff discharged the first mortgage but the defendant never gave it the second one – whether the agreement should be specifically performed on the basis that part performance occurred

VENDOR AND PURCHASER - whether vendors had validly terminated contract for sale of land - whether deposit forfeited to vendors - whether indemnity costs should be ordered against purchasers

PRACTICE AND PROCEDURE – application for leave to file third cross-claim summons and list statement against three proposed cross-defendants – pleading issues – whether pleading of causation case offers demonstrable link between misleading or deceptive conduct alleged and damage claimed – whether loss of opportunity case fully and properly pleaded – where loss of opportunity alleged as particulars to generalised allegations of loss and damage – list statement contained allegations of evidentiary matters and not material facts – estoppel case not relevant to third proposed cross-defendant – whether allegations of estoppel against first cross-defendant sustainable as pleaded – application for leave dismissed.