Cases and authorities

CIVIL PROCEDURE – application to amend List Response and serve further evidence

TORTS – negligence – personal injury – liability – duty of care – breach of duty – causation – credit – surveillance footage – Markus ruling – damages – non-economic loss – economic loss – out of pocket expenses – future treatment - quantum of damages

COSTS – whether monitors appointed to company pursuant to Insolvency Act 1986 (UK) should be jointly and severally liable with company for costs of unsuccessful application for recognition of moratorium under UK Act as a foreign main proceedings under Model Law on Cross-Border Insolvency – costs order made against joint monitors and company jointly and severally COSTS – application for gross sum costs order – whether costs estimated on a fair, logical and reasonable approach – order refused

COSTS – succession – family provision – application for further provision refused – incidence of costs – adverse effect on plaintiff’s financial position if costs order made against him – plaintiff’s application was for provision in the nature of advancement not maintenance – no sufficient reason to depart from the usual order as to costs – solicitor-client costs out of the estate – form of order

JUDICIAL ADVICE – whether appropriate to give judicial advice – whether costs should be paid from trust estate

CRIME – Appeal and review – Stated case – Refusal to state a case – Application for judicial review – Where application before District Court raised no questions of law – Where all grounds of review in this Court represent challenges to factual findings or are otherwise devoid of merit – No jurisdictional error established – Attempt to circumvent lack of further right of appeal on grounds of fact – Application dismissed JUDICIAL REVIEW – Ground of review other than procedural fairness – Decision not authorised – Where primary judge provided revised transcripts of reasons after delivering judgments ex tempore – Whether judgments void because Court functus officio after initial delivery of judgment – Revision of transcripts entirely orthodox – No error established JUDICIAL REVIEW – Bias rule – Apprehended – Particular factual matter giving rise to alleged bias – Where primary judge contacted respondent seeking submissions in response to applicant’s application – Applicant copied on email – No apprehension of bias CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Where no relevant Commonwealth law identified – No inconsistency CONSTITUTIONAL LAW – State legislative power – Proportionality – Whether lack of consonance between Crimes (Domestic and Personal Violence) Act 2013 (NSW) and Declaration on the Elimination of Violence against Women – Act does not purport to enact Declaration as part of domestic law – Challenge misconceived

CONTRACT – construction – written contract largely in Mandarin entered into between two businessmen without legal assistance – contract concerned acquisition of 40% interest in company with interests in land - whether contract entitled investor after three years to sell the shares or alternatively to obtain title to 40% of the land – no material difference between competing translations – literal meaning of one last sentence favoured transfer of 40% of the land to exiting shareholder – whether legal meaning of contract accorded with literal meaning

CONTRACTS — construction — where agreement to pay royalty following “actual sale” of mineral — where royalty a percentage of “net sales realisation” amount — whether “actual sale” occurs when title passes to buyer — whether “net sales realisation” is after deduction of sales realisation expenses CONTRACTS — termination — where breach of time stipulation for making of payment — where demand made after giving further time for payment — whether breach of essential term justifying termination — whether repudiatory conduct evincing an unwillingness to render substantial performance

PROFESSIONS AND TRADES – medical practitioners – challenge to finding of professional misconduct – where medical practitioner sent inappropriate text messages and voice messages to patient – where breach of health practice conditions limiting intake of alcohol and prescription medication – where conduct found to be unsatisfactory professional conduct – whether such conduct of “sufficiently serious nature” to warrant suspension or cancellation of registration – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to finding that not competent to practise – where medical practitioner admitted alcohol use disorder – where evidence that remission requires period of three years of abstinence – where medical practitioner not yet commenced period of abstinence – where alcohol dependence could grossly impair judgement and clinical ability – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to protective orders made by Tribunal cancelling medical practitioner’s registration – whether challenge involved question of law – where assertion that error of law in House v The King sense – whether Tribunal failed to consider effect of medical practitioner’s alcohol dependence – whether protective orders excessive – whether Tribunal failed to provide sufficient reasons

COSTS – variation of order – apportionment where appellant partly successful on appeal – interest on costs

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Whether appeal from exercise of cross-vested jurisdiction and so lies only to Federal Court – Whether leave to appeal required CIVIL PROCEDURE – Cross-vesting – Where appellant became bankrupt after commencing proceedings in Supreme Court – Whether a “matter arising under” the Bankruptcy Act – Distinction from exercise of jurisdiction in bankruptcy – Cross-vesting legislation not intended to require appeals from judgment in a matter arising under a Commonwealth Act to be instituted in federal Court where first instance court not exercising cross-vested jurisdiction – Primary judge was not exercising cross-vested jurisdiction – Cross-vesting legislation not engaged CONSTITUTIONAL LAW – The Judiciary – ‘Matter’ – Proceedings not owing existence to federal law but stayed by operation of federal law nevertheless constitute a ‘matter’ arising under federal law APPEALS – Leave to appeal – Whether leave required from declaratory orders – Whether declarations can be interlocutory – Declarations were interlocutory for purposes of leave to appeal – Leave to appeal required – Appellant directed to file application for leave to appeal lest the appeal be dismissed

APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court’s unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused

CRIMINAL LAW – conviction appeal – elements of the offence – written directions to jury – question trail – no oral explanation of directions – miscarriage of justice – appeal allowed – new trial ordered

CRIME — Appeals — Appeal against conviction — applicant represented by competent trial counsel before withdrawing his instructions — it was open to the trial judge to refuse a further adjournment in circumstances of delays in obtaining new counsel, the length of the trial to date and the applicant’s ability to conduct the trial — it is a matter for the jury whether to accept or reject evidence of witnesses —no appeal lies against a verdict of not guilty — the obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot apply to a witness who cannot be located — evidence of unsuccessful attempts to locate witnesses — applicant alleged unreasonable verdicts where inconsistencies in a witness’ evidence — no fundamental inconsistency that ought to have caused the jury reasonable doubt as to the applicant’s involvement — applicant is bound by forensic choice not to call witnesses — documents to be tendered agreed before trial counsel was dismissed — trial judge correct in not admitting evidence of a co-offender’s previous conviction where circumstances of the conviction were unknown — none of the verdicts of guilty were unsafe, unreasonable or inconsistent — it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt — transcript shows the extent to which the trial judge sought to ensure the applicant obtained a fair trial — time taken by the jury was not unreasonably short or an indication that they did other than discharge their functions appropriately CRIME — Bail — Appeal bail — second application for release made by applicant for the purposes of preparing his appeal — appeal is to be dismissed — basis for bail being granted has fallen away — release application dismissed

SENTENCING – terrorist offence – utilitarian value of plea for federal offence – Xiao error – applicant re-sentenced

MANSLAUGHTER – unlawful and dangerous act – applicant kicked and stomped on head of deceased – alcohol fuelled violence – poor criminal record – starting point for sentence prior to discount for plea of guilty near maximum penalty – offence found to be at “highest end of culpability” – whether characterisation of offence was open – whether sentence was manifestly excessive – disparity with co-offender – appeal allowed – applicant re-sentenced

CRIMINAL LAW – appeal against conviction – two counts of murder – alleged killing of methylamphetamine “cook” and his girlfriend for stealing drugs – Crown case implicating appellants depended on evidence of two Crown witnesses – whether verdicts unreasonable – assessment of credibility and reliability of Crown witnesses – discrepancies within and between evidence of two Crown witnesses – appeal upheld – convictions quashed

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Claim for offsetting — Whether offsetting claim was genuine — Where Plaintiff was assigned claims by third party against the Defendant company — Question as to assignability of bare right to litigate — Where the genuine commercial interest exception would otherwise have applied.

CRIME – murder trial – application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 – application granted

COSTS - Proceedings commenced by litigant in person purportedly on behalf of his two children who were then persons under a legal incapacity – Named Plaintiff not identified in Statement of Claim as tutor for those persons and no application made that, as tutor, he be permitted to commence or carry on the proceedings without a solicitor – Subsequent appointment by litigant in person of solicitor following which an independent person appointed to act as the tutor for the person under a legal incapacity, the other child having attained the age of 18 years – Amended Statement of Claim filed in accordance with the UCPR - Costs reserved in relation to the proceedings commenced by litigant in person

CIVIL LAW - appeal from Local Court - plaintiff self-represented - documents lacking legal finesse - where plaintiff did not appear - where statement of claim struck out - procedural fairness - confusion - woefully inadequate record - conflict as to whether matter dealt with in court or chambers - the plaintiff’s right to be heard - failure to give reasons - appeal allowed and matter remitted to the Local Court

CRIMINAL LAW – sentencing – manslaughter – 62 year old man kills his wife of 30 years – happy normal relationship – frenzied knife attack – inexplicable crime – severe psychiatric illness – where prosecution accepts substantial impairment defence – plea of guilty in the local court – assessment of moral culpability and objective criminality – relevance of reduction of charge pursuant to s 23A – protection of community – substantial adjustment to non-parole period

CRIMINAL LAW – murder – sentence after trial – single stab wound – assessment of objective criminality – unplanned attack – no intention to kill – where offender armed with knife – deterrence – offender motivated by anger – blamed victim for theft of property – where offender previously convicted of wound with intent – relevance of criminal history – mitigating factors – where based on history provided by offender – offender unreliable and self-serving historian – hearsay evidence not accepted on balance – facilitation of the course of justice – small reduction in sentence

LEGAL PRACTITIONERS – whether reference to Legal Services Commissioner should be made – conduct unrelated to legal practice – no reference made

APPEALS – separate questions answered in Equity Division – subsequent attempt to raise additional issues rejected – leave to appeal refused – principle in Anshun 147 CLR 589 applicable APPEALS – procedure – freezing order – sufficient basis for order extending freezing order – leave to appeal refused

APPEAL – application for leave – interlocutory decisions of District Court – decisions to refuse amendments, to strike out certain paragraphs and to refuse to join new defendants – insufficient prospects of success to warrant grant of leave – application dismissed

CRIME – murder trial – reference in evidence to drug supply by Accused – application for discharge of jury – relevant discretionary considerations – discharge refused

CRIMINAL LAW – murder trial – subpoena issued by defence – application to be excused from production of documents on ground of public interest immunity – claim for public interest immunity upheld

SUMMARY DISMISSAL – no question of principle

RES JUDICATA – multiple prior proceedings in this Court arising out of the administration and liquidation two companies that also gave rise to the events the subject of these proceedings – whether plaintiffs’ claims in these proceedings are precluded by the doctrines of res judicata, issue estoppel or Anushun estoppel – whether plaintiffs’ claims in these proceedings are an abuse of process POWER OF ATTORNEY – determination in previous proceedings that power of attorney irrevocable by reason of Powers of Attorney Act 2003 (NSW), s 15 – construction of power of attorney – consideration of whether attorneys owed fiduciary duties to principal – held that attorneys owed duties not to obtain unauthorised benefits (or confer such benefits on third parties) and not to act in circumstances of conflict between attorneys’ interests (or interests of third parties) and principal’s interests FIDUCIARY DUTIES – breach of fiduciary duties by attorneys in entering into a series of deeds dealing with the proceeds of the principal’s rights and interests in respect of which the attorneys had been appointed to act on behalf of the principal – alleged conspiracies – whether third party induced or procured breaches of fiduciary duties – whether third party knowing recipient of property obtained by breaches of fiduciary duties – whether breaches of fiduciary duties were a dishonest and fraudulent design in which third party was a knowing assistant – use of power of attorney to retain solicitor to act in name of principal but for benefit of third party a fraud on the power remedies as against attorneys and third parties LAND LAW – Torrens title – indefeasibility of title – fraud exception to indefeasibility LEGAL PRACTITIONERS – consideration of what constitutes engaging in legal practice within the meaning of s 10 of the Legal Profession Uniform Law (NSW) – consequences of attorneys appointed under power of attorney undertaking work that amounted to engaging in legal practice in circumstances where the attorneys were not qualified entities within the meaning of the Uniform Law

ADMINISTRATIVE LAW — Standing — plaintiff sought to challenge public health orders — whether the plaintiff had standing where he had never been charged with and had no intention of breaching directions made under the public health orders — consideration of propositions emerging from authorities on “sufficient interest” — the plaintiff has standing where the law interferes with his private right irrespective of whether other members of the public have the same right and are similarly affected — provisions of the public health orders interfere with the plaintiff’s right to leave his home PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — public health orders purporting to authorise police officers to request and require production of evidence from persons of their name and place of residence and vaccination status — amendment to s 112 to include police officers as authorised officers able to direct that a person’s name and address be provided — s 112 is not to be regarded as the exclusive source of police officers’ powers to enforce the Act — s 7 and Part 8 of the Act must be construed in the context of the background of statutory and common law — police officers exercising powers under the Act are bound by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — consideration of the effect of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 on the question of privilege against self-incrimination — no relevant distinction between the clauses considered in Kassam, which were found not to infringe the privilege against self-incrimination, and those impugned in this case — directions specifically providing that “required evidence” be carried and produced on request expressly overrides the privilege and the right to freedom of movement —amended summons dismissed

INTERNATIONAL ARBITRATION – whether proceedings commenced in this Court involved the determination of a matter that, in pursuance of an arbitration agreement, is capable of settlement by arbitration – construction and scope of arbitration agreement – consideration of characters of matter to be determined in these proceedings, including plaintiffs’ claims and defendant’s proposed defence – whether claims and proposed defence one matter for the purpose of s 7(2)(b) of the International Arbitration Act 1974 (Cth) – where defendant precluded from relying on proposed defence in proceedings in this Court by reason of anti-suit injunction issued by the High Court of Singapore – where plaintiffs had exercised right of election under arbitration agreement to commence proceedings in this Court rather than have their claim determined by arbitration – where plaintiffs also relied on anti-suit injunction to prevent defendant from pleading its proposed defence to plaintiffs claims in these proceedings – abuse of process.

LAND LAW – easements – right of carriageway – actionable nuisance – plaintiff’s land has the benefit of a right of carriageway 48.645m long over the defendants’ land – right of carriageway used as a driveway to access public road – defendants constructed fence along the right of carriageway with 7.4m gap to permit plaintiff access to his land – plaintiff constructed large shed north of the gap and has a barn south-west of the easement area – plaintiff owns numerous vehicles including 11m long bus – whether fence with only 7.4m gap obstructs the plaintiff’s enjoyment of rights under the easement – held that fencing impedes or restricts ability of dominant owner to move large vehicles from easement to large shed and from easement to south-western area of the land – real substantial interference with enjoyment of rights – held appropriate to grant injunctive relief to remedy continuation of interference

SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for Plaintiff in the last Will of the deceased – Significant competing claim of the Defendant, the widow of the deceased – Long marriage - Written agreement made in 2005 for mutual Wills made by the deceased and the Defendant which constituted a binding promise made which would be breached if the deceased had left any of his estate to the Plaintiff. No suggestion that the deceased changed his Will after 2005 or that the Defendant had changed, or intended to change, her Will, which, in terms, reflected her binding promise to the deceased Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision ought to be made for his proper maintenance and advancement in life and, if so, in what amount.

CIVIL PROCEDURE – application by son of plaintiff to intervene in proceedings for judicial review of decision by the Secretary of the NSW Ministry of Health - application for joinder – whether joinder proper or necessary – interested party in judicial review proceedings – application granted

APPEAL – application for leave to appeal – judicial review of conduct of local council – whether local council an impounding authority – powers of council officers to impound stock straying on public road – whether alpacas are stock or animals PROCEDURE – costs – availability of gross costs order – notice of intention to make gross costs order – whether procedural unfairness

BAIL – application for bail pending appeal – applicant convicted of murder – appeal against conviction pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – interrelationship between proposed grounds of appeal and delay in hearing appeal as well as length of sentence still to be served – nature of consideration of grounds of appeal in hearing bail application pending appeal against conviction – length of submissions – some grounds reasonably arguable but given length of sentence and period of time until appeal heard special or exceptional circumstances not demonstrated – bail concerns appreciable – bail refused.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – De-stapling scheme – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Destapling scheme – Whether requirements to order scheme meetings are satisfied.

COSTS – where party to which subpoenas directed produced documents with redactions – where Court’s authority to make redactions not hitherto sought – where party issuing the subpoenas sought declaration that producing party in contempt – where party producing documents sought orders confirming the redactions – where Court declined to make declaration of contempt but ordered that many such documents be produced without redaction – what costs orders should be made in relation to the applications

COSTS – security for costs – whether further security should be ordered

CIVIL PROCEDURE – No point of principle

COSTS — Party/Party — Bases of quantification — Indemnity basis — Where proceedings summarily dismissed — No issue of principle

CRIMINAL PROCEDURE — trial — jury — discharge of jury — where individual juror discharged following empanelment — where parties did not consent to commence trial with 11 jurors —jury discharged

CRIMINAL PROCEDURE — trial — jury — discharge of individual juror — where juror disclosed connection to family of accused following empanelment — juror discharged

BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – statutory duty under s 37 – application to amend Technology and Construction List Statement – whether sufficient merely to identify the alleged defects – whether necessary to plead the risks the builder was required to manage and the precautions the builder should have taken to manage those risks

JUDICIAL REVIEW – Assessment of whole body impairment – Extension of time – UCPR 59.10 –Failure to respond to a substantial and clearly articulated argument – Duty to provide reasons – Jurisdictional error – Error on the face of the record – Denial of procedural fairness – Decision of Review Panel set aside

COSTS — Party/Party — No hearing on the merits — Bases of quantification — Indemnity basis — Timing — Costs payable forthwith

CIVIL PROCEDURE – Cross-claims – against plaintiff – application to amend Commercial List Cross-Claim List Statement to add claim for relief against forfeiture – where clause in lease obliged lessees to pay rent without any deduction or set-off whatsoever – where lessees allege unconscionability on the part of the lessor – whether leave should be refused on basis claim bound to fail EQUITY – relief against forfeiture – where clause in lease obliged lessees to pay rent without any deduction or set-off whatsoever – whether such a clause effective without more to deny relief against forfeiture

CRIMINAL LAW – trial by judge alone – special hearing – murder – wholly circumstantial case – reasons for verdict

CRIME — Appeals — Appeal against conviction — offences under s 193C, Crimes Act – dealing with property suspected of being proceeds of crime – whether necessary to particularise serious offence(s) from which funds derived – consideration of analogous provision in s 400.9, Criminal Code (Cth) – held, not necessary to particularise serious offence(s) – whether trial judge failed to provide adequate reasons – whether verdicts unreasonable – whether trial judge erred in finding that defence in s 193C(4) was not made out – appeal dismissed