Cases and authorities

NEGLIGENCE – vicarious liability of State – persons in service of Crown – police officers NEGLIGENCE – breach – standard of care – mental illness – major depressive disorder – post-traumatic stress disorder – traumatic events – employer’s systems of work – whether plaintiff should have been referred for psychiatric assessment NEGLIGENCE – breach – foreseeability of risk – objective test – whether psychiatric harm to plaintiff reasonably foreseeable NEGLIGENCE – causation – factual causation – whether plaintiff would have disclosed mental condition if referred for assessment NEGLIGENCE – causation – concurrent cause – non-tortious psychiatric and physical injury – whether properly taken into account in assessing damages NEGLIGENCE – defences – contributory negligence – whether plaintiff should have reported symptoms WORKERS COMPENSATION – common law remedies – interest on damages – Workers Compensation Act 1987 (NSW) s 151M – whether mediation offer unreasonable

COSTS – indemnity costs – formal offer of compromise by plaintiff bettered in judgment – presumptive entitlement to indemnity costs – commercial claim – “modest” degree of compromise – construction arguments in support of claim not explained – no sufficient reason to depart from presumptive entitlement

APPEALS – Appeal as of right – Appeal seeking leave – Questions of mixed law and fact – Procedural requirements for appeal seeking leave – Objections to competency of appeal CONTRACTS – Authority to contract on behalf of business – Actual, implied and ostensible authority – Representation to authority required to be made by person who has actual authority

CORPORATIONS – external administration – whether appropriate to wind up company on just and equitable ground – Corporations Act 2001 (Cth) s 461(1)(k) – where assets requiring urgent preservation – where directors cannot ascertain solvency of company – where liquidator would have powers of investigation – where application not opposed – company wound up.

EQUITY – Assignment – Assignability of causes of action by liquidator – Whether respective causes of action reposed in new trustee or in companies in their own right – Whether bare right to litigate or personal chose in action assignable by liquidator EMPLOYMENT AND INDUSTRIAL LAW – Whether binding contract of employment in absence of signed contract of employment – Obligations of good faith and honesty as incident of common law employment relationship EQUITY – Fiduciary duties – Whether employees owed fiduciary duties – Where no powers or discretions delegated to or exercisable by employees – Whether finance company mandated to raise capital owed fiduciary duties – Whether knowing assistance in breach of fiduciary duty on part of various defenants CORPORATIONS – Directors and officers – Attribution of knowledge to corporate entities – No attribution of knowledge where officer on frolic of his own EQUITY – Equitable wrongs – Applicability of vicarious liability to equitable wrongs EQUITY – Equitable remedies – Equitable compensation – Causation – Loss of opportunity – Where companies not a going concern at time – Value of lost opportunity to secure capital raising and overcome financial difficulties – Proportionate liability DAMAGES – Nominal damages for breach of duties of good faith and honesty implicit in employment relationship

CIVIL PROCEDURE — application for leave to appeal against summary dismissal of — no reasonable cause of action — where applicant sued his former solicitors — advocates’ immunity — no question of principle

JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – motion seeking variation of final orders – where judgment left open a number of outstanding issues – whether outstanding issues need to be determined by a judge of the Equity Division

APPEAL – application for leave to appeal – challenge to interlocutory decision refusing summary dismissal of proceedings – where no issue of principle or general public importance – no injustice shown – costs – challenge to costs order where no ground of appeal directed at costs – no reasonably arguable error in exercise of costs discretion

ADMINISTRATIVE LAW — judicial review — requirement to demonstrate jurisdictional error or error of law on the face of the record — no error demonstrated ADMINISTRATIVE LAW — remedies — discretionary factors — where statutory right of appeal not availed of — absence of satisfactory explanation — avoidance of need to obtain leave to appeal — whether relief should be refused on discretionary grounds LEASES AND TENANCIES — concurrent lease — relationship between concurrent lessee and tenant under current lease — assumption of obligations to tenant by concurrent lessee

EQUITY – Trusts and trustees – Judicial advice – advice pursuant to Trustee Act 1925 s 63 – Charitable Trusts Act 1993, s 10(2) where the testator demonstrates a general charitable intention – where doubt exists about the identification of two of the charities named as residuary beneficiaries – where a testator’s charitable intention can also be inferred from other charitable gifts in the will and from the deceased’s medical history – whether the gifts in relation to the doubtfully identified charities fail.

COSTS — relevance of reasonableness in rejection of offers of compromise – presumption in favour of indemnity costs not displaced – indemnity costs ordered.

HIGH RISK OFFENDERS – Extended Supervision Order – unacceptable risk – burden and onus of proof – importance of defendant’s perception as to level of regulation - in the particular facts an Extended Supervision Order appropriate for a period of 2 years.

HIGH RISK OFFENDER – final hearing – application for extended supervision order - defendant convicted of only one offence – index offence of shoot with intent to murder offence in 2008 – history of offences involving violence and guns - defendant currently on a community treatment order and interim supervision order – mental illness – need for long term psychiatric care - extended supervision order imposed with conditions

PRIVATE INTERNATIONAL LAW – stay of proceedings – whether the Court a plainly inappropriate forum – where proceedings brought by plaintiff against defendant/cross-claimant seeking to restrain it from calling on $37 million standby letter of credit issued by cross-defendant in Peoples’ Republic of China in relation to plaintiff’s obligations under development contract made in New South Wales –where defendant/cross-claimant seeks orders that cross-defendant make payment under the letter of credit or pay damages or compensation for non-payment – where plaintiff’s ultimate holding company had simultaneously commenced proceedings in the Taiyuan Intermediate People’s Court of Shanxi Province against issuing bank PRACTICE AND PROCEDURE – application to strike out or have dismissed certain claims in cross-claim list statement CONSUMER LAW – whether obligations undertaken under a standby letter of credit capable of amounting to representations that the obligations will be performed – whether this will depend on all the circumstances of the case – whether such a question apt for summary resolution

COSTS – proceedings concerning validity and enforceability of a Deed – where proceedings concluded by consent orders – no hearing on the merits – consent order provided for Deed to be set aside – whether first and second defendants capitulated or surrendered to claims of plaintiff and cross-claimant – whether costs should be awarded on an ordinary or indemnity basis

CONTRACTS—Contract for the sale of land — Construction — Purchase of strata title unit by description — Building as constructed materially different from draft strata plan attached to contract — Purchaser entitled to rescind and return of deposit

COSTS – Civil Procedure Act 2005 (NSW) – Ordinary basis – Gross sum costs – Desirable to avoid expense/delay/aggravation/futility of costs assessment – No evidence of financial position

COSTS — defendants offer to bear own costs if meritless application withdrawn — plaintiff persist, including by putting on unbelievable evidence — indemnity costs ordered.

Purported application for review – applicant’s convictions set aside – no jurisdiction

TORTS – trespass to the person – false imprisonment – defences – where respondent passenger on applicant’s cruise ship – where respondent detained in guest cabin for five days pending return of ship to port where alleged sexual assault would be investigated by local police – whether captain justified in detaining respondent “for the preservation of order and discipline or for the safety of the vessel or the persons or property on board” – whether justification defence in Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413 part of Australian common law – whether that defence requires that captain subjectively believe detention is necessary PRIVATE INTERNATIONAL LAW – applicable law – choice of law rules – torts – where alleged tort committed on ship on high seas – where applicable law the law of ship’s flag – where law of flag neither pleaded nor sought to be proved – where primary judge applied substantive law of New South Wales SHIPPING AND NAVIGATION – false imprisonment – alleged sexual assault by passenger on cruise ship on high seas – confinement of passenger by order of captain – captain’s power to detain – whether confinement necessary

CRIME – application for extension of time to bring appeal against conviction – offence of indecent assault under s.61L Crimes Act 1900 – claim of miscarriage of justice arising from conduct of defence counsel at trial – advice as to whether accused should give evidence at trial – accused did not give evidence – complaint concerning cross-examination of complainant – held accused made informed decision not to give evidence at trial – trial conducted in accordance with instructions of accused – miscarriage of justice not demonstrated – extension of time refused

OCCUPATIONS — Legal practitioners — Generally — Court’s supervisory jurisdiction to restrain legal practitioners from acting other than to preserve confidential information — No issue of principle

CRIME — Federal offences — Conspiracy — bribing a foreign public official — elements of offence — whether crown required to identify foreign public official STATUTORY INTERPRETATION — Extrinsic materials — Acts Interpretation Act 1901 (Cth), s 15AB — use of second reading speech — use of external report on implementation of convention STATUTORY INTERPRETATION — Legislative history — where subsequent amendment was made to clarify interpretive question or rectify deficiency in original enactment STATUTORY INTERPRETATION — Treaties — Convention on Combating Bribery of Foreign Public Officials in International Business Transactions STATUTORY INTERPRETATION — Legislative purpose — Acts Interpretation Act 1901 (Cth), s 15AA — where purpose is found in Convention STATUTORY INTERPRETATION — Extrinsic materials — Judicial interpretation — where no domestic jurisprudence — where limited international jurisprudence

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — where plaintiff in custody — Felons (Civil Proceedings) Act 1981

ADMINISTRATIVE LAW – Judicial Review – Leave to Appeal – Mis-exercise of discretion – Error of law in construction of lease – No evidence – Leave to appeal refused

HIGH RISK OFFENDER – application for mandatory psychiatric and psychological examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – not opposed by counsel for the defendant – long history of sexual offences – evidence of continuing sexual attraction to children – several breaches of existing extended supervision order leading to re-incarceration – mandatory examinations and interim supervision order imposed – circumscribed dispute about conditions – dispute resolved

CONTRACTS – formation – intention to create legal relations – agreement evidenced by course of conduct – regular rate of payment – record of hours worked – whether payment for work performed gave rise to contractual rights or obligations on a quantum meruit TORTS – negligence – workplace injury – whether injured party a worker or deemed worker – whether work done under contract of employment – non-compliance with procedural requirements if claim for work injury damages – application of Workplace Injury Management and Workers Compensation Act 1998 (NSW), Sch 1, cl 2

EVIDENCE – plaintiff’s evidentiary statement – whether paragraphs offend the hearsay rule.

EVIDENCE – leave to cross-examine prosecution’s own witness – evidence unfavourable to the prosecution – prior inconsistent statement – no question of principle

CORPORATIONS – liquidators’ remuneration –application by liquidators for orders pursuant to Insolvency Practice Schedule (Corporations), ss 60-10 and 60-20 – whether remuneration claimed by liquidators is reasonable

COSTS – Summons for removal of caveat – no determination on the merits – order made by consent for removal of caveat – agreement for preservation of proceeds of sale pending further agreement or order of the Court – Cross-Summons filed seeking proprietary relief in respect of proceeds of sale – order made that each party’s costs in respect of the Summons be treated as that party’s costs in respect of the Cross-Summons

PRACTICE AND PROCEDURE – informal adjournment application – application dismissed COSTS – costs follow the event – mixed outcome of proceedings – interest on costs payable from date of costs order

CORPORATIONS – voidable transactions – husband and wife directors and shareholders of company – company acquires four properties – net equity in properties is $2 million – couple separate – company sued for building defects for $3 million – company insolvent – couple agree partial property settlement in respect of the properties owned by the company only – ‘asset strip’ to defeat prospective creditors –company not a party to Family Court proceedings or orders – couple discharge mortgages – company transfers properties to husband and wife. VOIDABLE TRANSACTIONS – whether Family Court orders constituted “transaction of the company” – whether later transfer of properties by the company a “transaction” – consideration of Mateo and s. 588FF Corporations Act at [172]-[177] – whether relief sought is inconsistent with Family Court orders – consideration of Higgins and s. 90AC and 90AE, Family Law Act at [203]-[208] SECTION 588FF – order sought to transfer property – whether to exercise discretion to make order – reliance on legal advice – how to account for benefits conferred by directors on company – insufficient evidence.

CRIMINAL APPEAL – pending application for bail and leave to appeal against sentence – application for orders under s 12 – attempt to challenge Extended Supervision Order – no question of principle

CRIME – environmental offence – Water Management Act 2000 (NSW) – appeal against sentence – whether judge adopted a two stage approach to sentencing – whether judge erred in not taking into account publication order in determining quantum of fine – whether error in assessing objective seriousness of offence – whether mistake of law and appellant company’s lack of intention to commit the offence was mitigating factor – whether genuine contrition and remorse demonstrated – whether quantum of fine was manifestly excessive

CRIME – appeals – application for leave to appeal against conviction – whether verdicts unreasonable – principles to be applied – open to the jury to be satisfied beyond reasonable doubt CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittals not necessarily attributable only or principally to doubt about the complainant’s credibility CRIME – statutory non-publication order on disclosure of identity of victim – s 578A Crimes Act – no appeal against convictions at trial of prescribed sexual offences

CRIME – appeals – appeal against aggregate sentence as manifestly excessive – whether aggregate sentence is unreasonable and unjust – whether indicative sentences for Counts 1, 2, 3, 4, 6, 7, 9, 10 and 12 are excessive relative to the sentences indicated for Count 12 and the Sequence 1 offence – whether findings as to objective seriousness and subjective factors in mitigation resulted in an unjust sentence warranting the Court’s intervention

CRIME – related jury trials to take place in close proximity – trial for money laundering to be followed by tax fraud trial – application for temporary non-publication order concerning first trial to protect administration of justice with respect to second trial – accused in first trial not an accused in second trial – common features and persons in both trials – substantial media interest in both trials – test of necessity – importance of open justice principle – temporary non-publication order made

SUCCESSION – Executors and administrators – Appointment pursuant to s 74 of the Probate and Administration Act 1898 (NSW) of administrators cum testamento annexo colligenda bona

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Consent orders JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppressions of material fact SUCCESSION – Family provision – Application for leave for former spouse of deceased to bring claim for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3

COSTS — security for costs — application for further security for costs

SENTENCING – Penalties – Community Service Order – Whether conviction must be recorded SENTENCING – Sentencing procedure – Correction of sentence – Whether error of law in sentence originally passed SENTENCING – Sentencing procedure – Offence by child under 16 years – Where dealt with according to law – No discretion to refrain from entering conviction as required for Community Service Order

CRIMINAL LAW – Crown appeal against sentence – manifest inadequacy – where respondent pleaded guilty to sexual offences against 14 year old boy – where respondent a victim of childhood sexual abuse – where unchallenged medical evidence indicated causal link between childhood abuse and offending – where respondent sentenced without proceeding to conviction – whether unreasonable or plainly unjust for sentencing judge not to have recorded convictions – whether sentence unreasonable for not reflecting objective seriousness of offending and need for general deterrence, denunciation and recognition of harm to victim

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Unacceptable risk of causing serious harm conceded — No means of managing risk by other less restrictive means — Time of extension contested — Factors relevant — Extension granted

CHARITIES AND NOT-FOR-PROFITS — Charitable purposes — Other purposes beneficial to the public — Gift for preservation of fauna and flora SUCCESSION — Construction — Charitable gifts — Whether charitable SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63

PRACTICE – leave to proceed against company in liquidation – Corporations Act 2001 (Cth), s 500 – appeal from orders obtained by company in liquidation concerning title to property – whether appeal required extension of time and leave – where new point sought to be advanced on appeal – leave granted, subject to security for costs and filing of application for leave to appeal

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence of the debt — Whether there is an offsetting claim.

HIGH RISK OFFENDERS — extended supervision orders — relevance of material to proceedings — information is relevant if it relates to the issues in the proceedings — material not relevant

CIVIL PROCEDURE – Originating process – amendment – claim by liquidators to recover unfair preferences – whether liquidators’ reliance upon presumption of insolvency outside pleaded case – late amendment application to plead reliance on presumption – Corporations Act 2001 (Cth), s 588E(8) – where amendment consistent with liquidators’ case run at trial as notified in advance of trial – where no objection by defendant until closing submissions

CORPORATIONS – winding up – voidable transactions – whether unfair preferences and insolvent transactions – payments to related entity within extended 4-year relation-back period – where presumption of insolvency of one company under Corporations Act 2001 (Cth), s 588E(8) – whether companies insolvent in fact CORPORATIONS – winding up – loan by related entity to company – money subsequently repaid – whether unfair preference under Corporations Act 2001 (Cth), s 588FA – whether a Quistclose trust existed