Cases and authorities

EVIDENCE – expert evidence – advance rulings – plaintiff’s rehabilitation expert provided report and subsequently died – unfair prejudice under Evidence Act s 135 – unavailability for cross-examination – cost of responding to two expert reports – Practice Note limits parties to one expert per specialty – second defendant yet to obtain its expert evidence – premature application under s 192A – notice of motion dismissed

CRIME – Bail – release application – proposed conviction and sentence appeal – preliminary question of jurisdiction to hear and determine release application – no appeal “pending” before the Court – no jurisdiction to hear application – on the assumption that jurisdiction did exist, s 22 test not met by applicant

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Application to extend caveat over former matrimonial home when proceedings on foot in Federal Circuit and Family Court of Australia Division 2

COSTS — Party/Party— Bases of quantification — Indemnity basis — Calderbank “walk away” offer made shortly after commencement of proceedings — No issue of principle

CIVIL PROCEDURE – pleadings – admissions – whether amendment withdraws admission without leave – rule 12.6(2), Uniform Civil Procedure Rules 2005 (NSW) – principles at [52]-[61] – dangers of multiple allegations of fact in single paragraph of pleading – on plain reading of pleadings, there was either no withdrawal of admissions or any withdrawal made no difference to plaintiff’s pleaded case – no leave required.

CIVIL PROCEDURE – negligence – medical negligence – application for interim payment under s 82 of Civil Procedure Act 2005 – whether if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where competing expert medical opinions concerning liability

CIVIL PROCEDURE — Court of Appeal — variation of costs order — whether non-acceptance at first instance of an Offer of Compromise and Calderbank offers warranted departure from ordinary cost consequences — whether the Court should “order otherwise” for the purposes of UCPR r 42.15(2)

TORTS – trespass to the person – false imprisonment – wrongful arrest – reasonable grounds to suspect –genuine belief of arresting officer – appellant named and described by victim – statement by co-accused placed appellant at scene – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 TORTS – malicious prosecution – laying of charge – reasonable and probable cause – detective mis-represented contents of statements in interview with appellant – whether malice established – whether belief in guilt of person charged TORTS – malicious prosecution – allegation against appellant withdrawn by victim – whether mis-representations made by detective to appellant’s barrister – maintaining of charge in changed circumstances – whether malice established – whether lack of reasonable and probable cause

CIVIL PROCEDURE – pleadings – form and content of pleading – real issue to be tried

CONTRACTS – whether Heads of Agreement executed following a mediation binding on the parties – proper construction of Heads of Agreement

SPECIFIC PERFORMANCE – the plaintiffs sold real estate to the defendant under a standard form Law Society/Real Estate Institute contract for the sale of land – the property land comprises a block of six apartments on a single title – the plaintiffs seek a decree of specific performance of the contract – the plaintiffs contended the defendant failed to complete the contract on the date appointed by and is now in breach of the contract – the defendant resists specific performance of the contract contending the plaintiffs are not ready, willing and able to complete the contract on the basis that they had not adequately answered requisitions said to be requisitions on title – argument confined to certain requisitions which both parties accept are requisitions on title – whether the plaintiffs answered the requisitions on title and are ready willing and able to perform the contract.

CRIMINAL LAW – Appeal against conviction – judge alone trial - applicant found guilty of sexual assaults on two young boys some 50 years earlier – whether reasons of trial judge complied with s 133 of Criminal Procedure Act 1986 (NSW) – inconsistencies in complainants’ evidence with established facts – divergence of complainants’ evidence from their police statements – evidence of reconstruction of aspects of complainants’ recollection – uncontradicted evidence of appellant’s movements at the time – convictions quashed and acquittals entered

JUDGMENTS AND ORDERS – enforcement – orders made by the High Court of New Zealand concerning property registered in Australia – custody and control of the funds to be vested in the official trustee

LEGAL PROFESSION – client confidentiality – disclosure of information obtained during the course of a retainer in ex parte proceedings by solicitor against former client – copy documents on file confidential even if originals read in open court – no waiver of confidentiality by client in trying to circumvent solicitor’s lien

COSTS – whether successful defendants should be deprived of costs order by reason of abandoning allegations of fraud in closing submissions – where allegations of fraud formed part of unclean hands defence to plaintiffs’ allegations of fraudulent misappropriation – where plaintiffs failed to prove fraudulent misappropriation – where defendants’ abandoned allegations did not occupy material time at trial COSTS – whether appropriate to apportion costs between issues and reduce any costs order in favour of successful defendants by reason of their abandonment of certain issues in closing submissions COSTS – where two plaintiffs with separate claims – where some evidence relevant to both claims – whether costs order in favour of successful defendants should be made against plaintiffs jointly severally or whether separate orders should be made against each plaintiff in respect of the defendants’ costs of defending that plaintiff’s claim FREEZING ORDERS – whether freezing orders should continue pending unsuccessful plaintiffs’ foreshadowed appeal – where plaintiffs have filed notice of intention to appeal – where plaintiffs have not filed notice of appeal, have not articulated grounds of appeal and made no submissions as to whether they have a good arguable case on appeal

CIVIL PROCEDURE — self-represented litigant — notice of motion — application to vacate the hearing date — refused

RELIEF – challenge to Local Government elections – timing of declaration that elections void – costs

PRACTICE AND PROCEDURE – application for preliminary discovery – application for orders restricting basis on which defendants to application for preliminary discovery have access to allegedly confidential material to be relied on by plaintiff for preliminary discovery

ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — “I will buy you a house” — No issue of principle

CORPORATIONS – remedies – where liquidator of company assigned rights to plaintiff on basis that fruits of success ultimately be paid to liquidator after payment of plaintiff’s costs – where finding earlier made that directors declared dividend in breach of s 254T of the Corporations Act 2001 (Cth) – where finding earlier made that declaration of dividend and writing off of shareholder loan voidable transactions for purposes of s 588FF of that Act – finding made of amount due by company to the plaintiff – nature of remedies that should be awarded to plaintiff – whether remedies should extend beyond requiring directors and parties into whose hands proceeds of dividends flowed to pay plaintiff the amount found to be due by the company to the plaintiff BUILDING AND CONSTRUCTION – further findings concerning matters not decided in primary judgment

CIVIL PROCEDURE – Summary Judgment – Summary Dismissal – Stay of Proceedings – Whether there are serious issues to be tried – Whether there is no reasonable cause of action disclosed – Default Judgment – Application for default judgment while defendants awaiting particulars – Security for Costs – Where party has provided undertaking but has not provided security or set out ability to meet costs orders

CIVIL PROCEDURE — Interim preservation — Freezing orders – release of funds paid into court – whether necessary for second defendant’s living expenses and legal representation at trial – where second defendant restrained from selling property – limited release of funds ordered

CIVIL PROCEDURE – unrepresented litigant – leave to issue subpoenas – documents sought irrelevant to remaining issues in proceedings – no point of principle

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — where parties agreed to terms of referral to Approved Medical Specialist — where Appeal Panel found Approved Medical Specialist erred by going beyond terms of referral — whether referral entitled Approved Medical Specialist to assess degree of permanent impairment arising from body parts not specifically referred — Judicial Review dismissed

CRIME – jury trial – defence application for Mahmood direction concerning certain persons not called by the Crown – ruling deferred until after closing addresses – defence application for warning under s.165 Evidence Act 1995 concerning evidence of Ashley Mills – consideration of relevant factors – application for s.165 warning declined

CORPORATIONS – Winding up – Proceedings against company – Where debt disputed – whether parties reached agreement that costs of renovations would be recorded as a loan against the company EVIDENCE – Documentary evidence – Business records – whether records were contemporaneous or issued retrospectively ESTOPPEL – Promissory estoppel – Existing or expected legal relationship – whether the Company accepted or acquiesced to a benefit to the detriment of the second and third respondents EQUITY – Equitable remedies – Restitution

CIVIL PROCEDURE — Arbitration — Application for stay of proceedings pursuant to s 8 of the Commercial Arbitration Act 2010 (NSW) — Where Court proceedings involve parties not party to the arbitration agreement, and claims argued to fall outside the scope of the agreement

CORPORATIONS — Oppression — Where first defendant company formed by plaintiff’s deceased father and managed (following his death) by plaintiff and his two brothers — Where plaintiff alleges he was excluded from the management, business and affairs of defendant company — Where plaintiff “severed ties” with the company CORPORATIONS — Winding up — Court ordered winding up — Just and equitable — Where plaintiff alleged irremediable breakdown of relationship of quasi-partnership — Whether quasi-partnership principles applicable to company established by different persons than those who suffer a breakdown of a personal relationship LAND LAW — Co-ownership — Statutory trust for sale — Where plaintiff made part payment of the purchase price — Where plaintiff’s deceased father made part payment of the purchase price — Presumption of advancement — Whether repayment of plaintiff’s contribution to purchase price by second defendant amounted to purchase of plaintiff’s interest in property LAND LAW — Co-ownership — Rights between co-owners — Occupation fee

ASSOCIATIONS AND CLUBS – jurisdiction of courts – justiciability – whether party pre-selection process justiciable – application of Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24 – whether statutory provisions create an interest in members allowing Court to enforce procedures under Party Constitution ASSOCIATIONS AND CLUBS – unincorporated political party – pre-selection dispute – where constitution of a party authorises Federal Executive to intervene in the management of a State Division – whether “management” includes “management and control” – whether power to endorse candidates for election is exercise of management function – whether power to endorse candidate subject to Constitution of State Division

LAND LAW — Conveyancing — Contract for sale — Certificates and inspections — LAND LAW — Conveyancing — Contract for sale — Deposit — LAND LAW — Conveyancing — Contract for sale — Rescission — COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — where contract for sale did not annex a swimming pool compliance certificate — whether s 52A(4) of the Conveyancing Act 1919 (NSW) avoids a special condition purporting to vary the requirement to annex a swimming pool certificate — whether the purchaser validly rescinded the contract — whether deposit should be returned to the purchaser — whether indemnity costs should be ordered where a Calderbank offer was made

INSURANCE — Property insurance — Home and contents — Exclusions — events involving swimming pools excluded from coverage — swimming pool lifted causing damage to pool and pool enclosure — plaintiff not aware of lack of coverage under policy — failure to give necessary advice. NEGLIGENCE — duty of care — insurance broker — whether insurance broker failed to advise of exclusion regarding events involving swimming pools — whether insurance broker breached common law duty and statutory duty under the Corporations Act 2001 (Cth) — breach established. EVIDENCE — tendency evidence — affidavit evidence from former clients regarding service insurance broker provided — admissibility objection — whether the evidence had “significant probative value” — Evidence Act 1995 (NSW), s 97(1)(b) — admitted. EVIDENCE — credibility and reliability – authenticity of documents. CAUSATION — onus — liability — whether defect existed — whether reasonable precautions taken by insured. DAMAGES — assessment— whether too remote — actions of plaintiff — expert evidence.

COSTS – proceedings between landlord and tenant – where parties had mixed success on principal issues – where defendant ought be regarded as having enjoyed more success than the plaintiff – order made that plaintiff pay half of defendant’s costs

EVIDENCE – hearsay – exceptions – criminal proceedings – where witness refused to answer questions – whether the witness was unavailable -whether transcripts of witness’s evidence before Crime Commission admissible – whether representations against interest – whether representations likely to be reliable in the circumstances of when they were made – whether evidence unfairly prejudicial to accused

CIVIL PROCEDURE — approval of settlement — by consent — whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity — settlement approved

COURTS AND JUDGES — Bias — Disqualification

CIVIL PROCEDURE — Pleadings — Defamation — Whether pleadings contain sufficient particulars — Whether pleadings should be struck out

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Application to vary contact arrangements refused when hearing already fixed in Children’s Court

HIGH RISK OFFENDERS – Application for only Continuing Detention Order – Jurisdiction to make order even if ESO would sufficiently manage risk – Discretion – Need to take account of capacity of plaintiff to apply for ESO – Satisfaction based on assumption that matters alleged will be proved – matters alleged include that risk or defendant incapable of management in community – IDO issued.

CORPORATIONS — Winding up — Statutory demand — Application to set aside — JUDGMENTS AND ORDERS — Amending, varying and setting aside — CIVIL PROCEDURE — Parties — Representation — where application to set aside a creditor’s statutory demand was declined and costs orders made — whether judgment should be stayed, set aside or varied — whether court should dispense with Rules to permit person who is not a director to represent company while a solicitor is on the record

CIVIL PROCEDURE – subpoena to defendants’ former solicitor – privilege claimed – waiver – counsel in expert determination formally instructed by plaintiffs but briefed by defendants – common law test in Mann v Carnell applied – privilege waived.

CONTRACT - economic duress – unconscionable conduct – the plaintiff supplies security vetting services to the defendant pursuant to a contract – plaintiff alleges the defendant’s officers forced the plaintiff to accept the termination of the contract by threatening conduct that was unconscionable and that amounted to economic duress – defendant denies its officers engaging in the conduct alleged – whether the defendant’s officers engaged in conduct alleged – whether the conduct was unconscionable or amounted to economic duress – what consequences flow from a finding that the defendant’s officers engaged in unconscionable conduct amounting to economic duress. HELD: – the defendant’s officers did not engage either in unconscionable conduct or conduct amounting to economic duress. CONSUMER LAW – Misleading or deceptive conduct – reliance – where the plaintiff claims economic duress and the defendant cross-claims for misleading and deceptive conduct – whether the cross defendant engaged in misleading and deceptive conduct - the cross-defendant fails to disclose Australian Tax Office debts of an associated entity to the cross-claimant – whether the cross defendant misrepresented the reasons for a company restructure – the cross-claimant enters negotiations with the cross-defendant – whether the cross claimant relied upon the cross defendants’ misleading and deceptive conduct – whether any relief should be given in light of the dismissal of the plaintiff/cross-defendant’s claim.

HIGH RISK OFFENDER – final hearing – application for continuing detention order – appropriate accommodation for defendant found – continuing detention order not pressed – alternative application for extended supervision order – extensive record of offending and institutional misconduct – maximum security inmate – long periods of segregation in custody – in custody since 17 years of age – tumultuous upbringing – lack of social and community supports – comprehensive regime of supervision required – extended supervision order imposed with conditions

CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal capacity – whether proposed settlement is in the interests of the plaintiff

CRIME – Appeals – Appeal against sentence – wrong facts provided on sentence in respect of number of pills referable to count 2 – re-sentence – exercise of discretion – applicant’s subjective factors – hardship – conditions in custody – COVID-19 related – special circumstances

CRIMINAL LAW – Application for leave to appeal against conviction – Where the applicant was found guilty by a jury of recklessly inflicting grievous bodily harm following an incident with police at a random breath testing station – Whether there was a failure on the part of the Crown to put its case to the applicant when cross-examining him – Consideration of the application of the rule in Browne v Dunn – Where the applicant was clearly on notice of the case against him – Whether the rule necessitated the Crown putting specific propositions in cross-examination – Whether it was open to the jury to find the Crown case established beyond reasonable doubt CRIMINAL LAW – Application for leave to appeal against conviction – Where grounds of appeal asserted that the trial judge had misdirected the jury in relation to a complaint of injury said to have been made by the applicant and in relation to the fact that the police witnesses had read their statements when giving evidence in chief – Where no issue had been taken by counsel at trial – Application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – Directions entirely appropriate in light of submissions which had been made by counsel in his closing address to the jury – Leave to rely on those grounds refused – Appeal dismissed

CRIME — appeals — appeal against sentence — aggravated dangerous driving causing grievous bodily harm — victim suffered a severe brain injury — where vehicle was travelling in excess of 200km/h with unrestrained passenger — where offending assessed as being “well above the mid-range” — whether the sentencing judge erred in assessment of objective seriousness — no error — whether the sentencing judge erred in the assessment of impact on the victim — limited evidence put before the sentencing judge — no error — term of imprisonment not manifestly excessive — automatic disqualification — failure to exercise jurisdiction with respect to variation of automatic period

CRIME — appeals — appeals against sentence by two co-offenders convicted of joint criminal enterprise to commit murder — both applicants allege manifestly excessive sentence — both applicants allege parity error — applicant Mouhtaris alleges further and related error in sentencing judge’s finding that applicant’s offending was at the mid-range of objective seriousness — applicants relied on range of subjective factors on sentence

CRIMINAL LAW -appeal against conviction on sexual offences – Crown witness – said to accused in presence of jury “Don’t worry. We’ll get you off…” – Judge gave jury direction that did not repeat the words as addressed – possibility that jury might hold statement against applicant – other types of prejudice raised on appeal but not at trial – no miscarriage of justice – leave to appeal granted – appeal dismissed

CRIME — violent offences — choking, suffocation or strangulation — s 37(1A) of the Crimes Act 1900 — meaning of “intentionally chokes” — declaration that “intentionally chokes” means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head” CRIME — appeals — appeal against directed acquittal — where primary judge directed acquittal for intentional choking — direction based on erroneous construction of “intentionally chokes” — where it was open on the evidence for the jury to find “choking” on its correct construction CRIME — appeals — appeal against conviction — inconsistent verdicts — whether conviction in respect of sequence 4 is inconsistent with acquittal in respect of sequences 1-3 and acquittal by jury in respect of counts 1 and 2 — where evidence of witness in relation to sequence 4 was supported by evidence of bruising — no inconsistency in verdicts CRIME — appeals — appeal against sentence — manifest excess — no error of principle demonstrated CRIME — appeals — discretion not to remit matter for retrial — where accused has served a longer time in prison than the head sentence imposed STATUTORY INTERPRETATION — legislative purpose — s 37(1A) of the Crimes Act 1900 (NSW) — meaning of “intentionally chokes” — context of the provision — where there is clear legislative intention to deter controlling behaviours by perpetrators of family and domestic violence — purpose of provision to prohibit conduct capable of restricting breathing and/or blood flow to or from the head

JUDICIAL REVIEW – jurisdictional error – Motor Accident Injuries Act medical review panel – erroneous or wrong understanding of statutory task to be performed upon review – failure to perform statutory task JUDICIAL REVIEW – jurisdictional error – Motor Accident Injuries Act medical review panel – whether causation established – application of erroneous or wrong test for causation – whether scientific evidence or certainty necessary – failure to exercise jurisdiction JUDICIAL REVIEW – error of law – error on the face of the record – Motor Accident Injuries Act medical review panel – failure to consider relevant material