Cases and authorities

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District and Local Courts – Transfer of District Court personal injury proceedings to the Supreme Court

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – general principles – forensic patient – limiting term due to expire – factors under s 127(2) – unacceptable risk – orders

SECURITY FOR COSTS – Uniform Civil Procedure Rules 2005 r 42.21(1)(e) – inherent jurisdiction of the Court to order security for costs against a natural person – first and second defendants apply by Motion for an order for security for their costs – plaintiff accepts he is impecunious and will not have sufficient means to meet a costs order if he is unsuccessful in the proceedings – whether the plaintiff is suing for his own benefit or for the benefit of some other person – whether an order for security for costs should be made and if so in what amount. INTERLOCUTORY RELIEF – freezing orders – freezing orders made at the outset of the proceedings against the first and second defendants but later dissolved after a contested hearing – application for the restoration of freezing orders against the first and second defendants on the basis of alleged further evidence – similar application brought and settled by consent on 23 March 2021 – whether fresh evidence since then warrants the restoration of the original freezing orders – whether freezing orders should be made against other defendants joined to the proceeding since the making of the consent orders.

DEEDS – delivery – intention to be immediately bound – lessee and lessors entered into heads of agreement concerning proposed lease – heads of agreement reserved to each party a right to withdraw from negotiations at any time prior to execution of formal lease documents by both the lessee and the lessors – lessee signed a lease and an incentive deed – both documents in the form of deeds – soft copies of deeds sent to lessors by email – originals sent by lessee’s solicitor to lessors’ solicitor by courier – lessee’s solicitor suggested a procedure involving an exchange of deeds – solicitor subsequently accepted a procedure that involved the deeds being signed first by the lessee and then by the lessors who would then attend to registration of the lease – agreed process not necessarily inconsistent with right to withdraw at any time prior to execution of formal lease documents by both sides – lessee withdrew from transaction prior to lessors executing documents – held that lessee did not evince an intention to be immediately bound by deeds – held that there was no delivery of deeds – lessee held to be entitled to withdraw from the transaction

COSTS – indemnity basis – where defendants lodged caveats with no reasonable prospects of success and to prevent property sale – where defendants were self-represented – no issue of principle

CRIMINAL LAW – detention application following grant of bail by single judge – terrorist offence – legislative requirement for exceptional circumstances – fulfilled by prospect that length of remand may exceed sentence if respondent convicted of offence charged CRIMINAL LAW – detention application – relevance of strength of Crown case – difficulties of assessment before whole brief served CRIMINAL LAW – detention application – assessment of risk of committing serious offence if released – relevance of duration and extent of police surveillance of respondent prior to his arrest and charge – application refused

CRIME — appeals — appeal against conviction — miscarriage of justice — where video recordings taken at 12:45am and 12:46am were in evidence — where applicant submitted that the recordings could not have proven lack of consent to sexual intercourse unless they were nearly contemporaneous with the offending — where applicant submitted that the offending occurred at 11:45pm and there was no opportunity for the offending to have occurred at around 12:45am — where applicant submitted that his evidence given at trial as to the gap in time between the recordings and sexual intercourse was wrong — no miscarriage of justice — appeal dismissed

CIVIL PROCEDURE – Interim preservation – Freezing orders – whether material matters not disclosed at ex parte hearing – whether freezing orders should be dissolved or continued

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings – the proceedings concern the publication of material concerning a child who was removed from the care of his parents in 2017. The Defendants published material concerning the child (including on Facebook) which identified the child as well as caseworkers and medical practitioners involved in the child’s treatment – interim orders were made in 2017 and 2018 restraining the Defendants from publishing information about the child – the proceedings for final relief were stayed pending the outcome of a related criminal matter concerning the Defendants. The Defendants by their Notice of Motion sought a number of orders and declarations some of which were not pressed at the hearing, but the principal orders sought were a declaration that the DCJ has no standing to maintain the proceedings against them for permanent orders restraining the Defendants from publishing details of the child and dismissal of these proceedings. The DCJ filed a Notice of Motion seeking the Defendants’ Notice of Motion be dismissed and that the Defendants’ pay the DCJ’s costs of both Notices of Motion. Held: (1) there is no purpose, utility or need for a declaration that the child is no longer in the care of the Minister: at [26]; (2) the DCJ has standing to maintain the proceedings and there is no basis for the declaratory relief sought in that connection: at [32]; (3) the proceedings continue to be stayed pending the hearing of the related criminal proceedings: at [36]; and (4) the Defendants are to pay the DCJ’s costs of the Defendant’s Notice of Motion and of the DCJ’s Notice of Motion: at [45]. The Court indicated it will consider whether to publish a redacted version of its 2017 Reasons: at [42].

PRACTICE AND PROCEDURE – parties – joinder – proceedings for specific performance of a Deed – application by third parties to become defendants – whether applicants are necessary parties to the proceedings – order sought by plaintiff would require defendant Council to proceed to close a public road that adjoins land owned by applicants – held that applicants would be directly affected by orders sought by the plaintiff – applicants held to be necessary parties to the proceedings – application for joinder granted

PRACTICE AND PROCEDURE – subpoena seeking documents “relied” on by the Premier when making alleged admission of law – Premier not a party – no proper forensic purpose – no question of principle

ADMINISTRATIVE LAW – Judicial Review – Racing industry – Power to suspend a race club’s registration – Power to issue show cause notice – Whether a chairperson of a race club a person registered or licenced by Racing NSW – Dismissed

CIVIL PROCEDURE — Protective jurisdiction —Settlement — Court approval

COMMERCE — Restraint of trade — Enforcement and remedies — Injunction — Balance of convenience

ADMINISTRATIVE LAW – judicial review – workers compensation – whether decision of Medical Appeal Panel ought be set aside – adequacy of reasons for adopting and confirming erroneous reasons of the Approved Medical Specialist – deduction for “pre-existing condition” under s.323(1) Workplace Injury Management and Workers Compensation Act 1998 – need for identification of relevant date – consent orders by parties under Rule 36.1A Uniform Civil Procedure Rules 2005 – relief granted

APPEALS – from Local Court – appeal as of right on questions of law – appeal by leave on mixed question of fact and law – construction of contract – where contract wholly oral – leave granted on question of mixed fact and law CONTRACT – construction – parties to a contract – where contract to supply meat to supermarket business – where contract wholly oral – where supermarket business traded under different names over several years – where invoices for supply of meat issued in trading names of the business – whether contract with director personally or company operating supermarket business

COSTS – expedited hearing challenging validity of proposed acquisition notice – offers of compromise made in context of urgent hearing – whether time made available for acceptance reasonable – Calderbank letters – whether plaintiffs’ refusal was unreasonable – whether proceeding public interest litigation

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

CIVIL PROCEDURE – application for permanent stay – historical child sexual abuse – alleged perpetrator deceased in 1996 – assault said to have occurred in 1968 – effect of effluxion of time – extant documentary evidence – whether defendant can meet claims against it – whether proceedings would be oppressive or bring administration of justice into disrepute

CRIME – appeal against conviction – Applicant found guilty by jury of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) under s. 38(a) Crimes Act 1900 (one count), aggravated indecent assault under s. 61M(1) Crimes Act 1900 (19 counts) and committing an aggravated act of indecency under s. 61O(1A) Crimes Act 1900 (two counts) – ground of appeal contends that guilty verdicts on 10 of 22 counts were unreasonable or cannot be supported on the evidence – Applicant a sleep technician charged with committing offences against five separate female victims during course of overnight sleep studies at medical facility – consideration of totality of evidence – sleep studies recorded on CCTV but not all acts of Applicant clearly visible in recordings – significant role of tendency directions in determination of verdicts – held that verdicts of guilty on each of the 10 challenged counts was open to the jury – conviction appeal dismissed CRIME – Crown sentence appeal – Applicant sentenced to aggregate term of imprisonment for six years with non-parole period of three years and nine months – five female victims aged between 16 and 29 years – offences committed over six-week period in 2018 – Applicant qualified as medical practitioner working as sleep technician – Applicant entered sleep study room and committed offences against victims whilst purporting to touch them for purposes associated with the sleep study – whether error in assessment of objective seriousness concerning six of 22 offences (ground 1) – whether error in failing to provide reasons as to how Applicant’s prior good character taken into account (ground 2) – whether aggregate sentence manifestly inadequate (ground 3) – ground 1 upheld in part (by majority) – ground 2 rejected – ground 3 rejected (by majority) – Crown sentence appeal dismissed (by majority)

APPEALS — leave to appeal — summary judgment where amendment to defence refused — opportunity to advance further evidence in support of amended defence — limited grant of appeal

CIVIL PROCEDURE — pleadings — implied abandonment — certain pleadings not expressly raised during trial — supporting evidence admitted — forensic decision by respondent to leave evidence unopposed — pleading unaddressed by primary judge — self-represented litigant — whether pleadings abandoned or merely overlooked in course of proceedings — remedy sought on appeal EQUITY — equitable remedies — equitable compensation — availability — misappropriation of company funds by director — moneys applied for personal uses — recovery of moneys by company EQUITY — fiduciary duties — breach — rule in Barnes v Addy — whether evidence of breach by primary wrongdoer established

CRIME — Appeals — Application for extension of time for leave to appeal against sentence not opposed by Crown —Sentencing judge failed to take into account utilitarian value of the plea of guilty — Correctness of Diaz v R [2019] NSWCCA 216 not in issue as Crown conceded (based on Diaz v R) that re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 was required even where the only error is a “Xiao error” and there is no challenge to the percentage discounts for the pleas of guilty — Not satisfied that any lesser overall sentence or non-parole period is warranted — Appeal dismissed CRIMINAL PROCEDURE — Sentencing —Sentencing judge questioned the Crown about the appropriateness of a particular sentence — Consideration of the ambit of the prohibition in Barbaro v The Queen — no breach of prohibition established

CRIME — appeals — appeal against sentence — application for leave to appeal — whether irrelevant consideration taken into account — whether sentence was erroneously determined by reference to co-offender’s sentence CRIME — drug offences — supply prohibited drug — commercial quantity

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to put defence case fairly before the jury CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to give the jury a full Liberato direction

EMPLOYMENT LAW – contract – interlocutory restraint of trade – enforcement and remedies – restraint against employment with competing business – real estate agency – where provision of real estate agency services takes place – strength of prima facie case – adequacy of damages as an alternative remedy – balance of convenience

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up — Whether company is and will be solvent in future — Where loan agreement entered into with related company — Whether conduct was contrary to commercial morality or the public interest — Where director withdrew funds from company prior to appointment of liquidator — Whether to impose condition that default judgments, presently under challenge, be paid — Whether to terminate winding up.

CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Application by one of six defendants to strike out the claims advanced against her — Allegations made in the Plaintiff’s Amended Statement of Claim that the Second Defendant procured the Third Defendant’s alleged breaches of his fiduciary duties to the Plaintiff — Inferences relied upon in support of the claim against the Second Defendant — Held: the Plaintiff’s claim is not so obviously untenable or groundless that it will fail if the matter proceeds to trial — Application to strike out dismissed

LAND LAW – easements – application for extinguishment of right of way – whether easement abandoned – “deeming provision” in Conveyancing Act, s 89(1A) – relevance of conduct of predecessors in title – exercise of discretion – whether easement has become obsolete – whether easement would impede the reasonable user of the plaintiffs’ land without securing practical benefit to the defendants – whether there would be substantial injury to the defendants if extinguishment granted

COSTS – where Class 4 proceedings in Land and Environment Court dismissed by consent – where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs – where notwithstanding consent orders applicant clearly successful party – whether manifest error in failing to order respondents pay applicant’s costs of proceedings

APPEALS – Orders on appeal – Remittal – Whether more appropriate for Court to finally resolve part of the dispute – Where neither party sought remitter – Where Court has all the evidence and submissions – Where Court in best position to understand own judgment – Order for remittal set aside CONTRACTS – Remedies – Specific performance – Whether to exercise discretion to decline specific performance – Imbalance of rights and entitlements of parties – Impairment of development application – Lapse of time – Difficulty of framing orders for specific performance – Likelihood that ongoing supervision necessary – Land of no greater importance to appellant than its value – Availability of alternative remedies – Specific performance declined – Lord Cairns’ Act damages awarded in substitution for specific performance – Resolution of competing valuations COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offer of compromise made during hearing – Where appellant only liable for costs if successful solely on basis of offer – Offer not the basis of appellant’s success – No reason for costs not to follow event COSTS – Party/Party – Exceptions to general rule that costs follow the event – Whether error found by Court of Appeal was attributable to successful appellant not raising point at trial – Where appellant has always advanced case in appropriate terms – No reason for costs not to follow event

COSTS – indemnity costs – offer of compromise –reasonableness of rejection – where plaintiff accepts its failure to accept second offer enlivens first defendant’s entitlement to indemnity costs COSTS – against non-parties – litigation funder – whether litigation funder should pay first defendant’s costs COSTS – whether funds in court should be paid out to first defendant pending assessment of its costs

CRIME — Murder — Partial defences — Substantial impairment – trial by judge alone – where accused admitted to stabbing deceased 31 times but relied on partial defence of substantial impairment – where accused was schizophrenic and non-compliant with medication due to alcohol dependence – whether capacity to understand events, judge whether actions were right or wrong or control his actions were substantially impaired by abnormality of mind or by intoxication – whether impairment so substantial as to warrant reduction in liability from murder to manslaughter – community values – accused convicted of manslaughter

TAXES AND DUTIES — Payroll tax — Liability — Employment agents — whether the workers are provided in and for the client’s business TAXES AND DUTIES — Payroll tax — Liability — Employment agents — whether arrangements between parent company and subsidiaries are employment agency contracts — interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “client” — whether the services of workers “procured” by subsidiaries for parent company

CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Confidential information detailing applicant’s assistance to the authorities provided to the Court by the Crown but not to the applicant’s legal representatives – Application of HT v The Queen – Appeal allowed

CORPORATIONS – leave to bring derivative action – company’s only asset is shares in trading company – derivative suit seeks to appoint liquidator to trading company – trading company profitable – family dispute – not satisfied as to good faith – not satisfied in best interests of company – value destructive of sole asset – oppression suit on foot – issues may be ventilated in existing proceedings.

CIVIL PROCEDURE — Medical examinations — Application for order that plaintiff submit to further medical examinations — Granted in part

CIVIL PROCEDURE – Costs orders – Gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – costs dispute judgment between solicitors (the defendant/cross-claimant) and former clients (the plaintiffs/cross-defendants) – clients’ claim struck out on the basis that no reasonable cause of action was disclosed and judgment for the solicitors entered on the Cross-Claim – solicitors seek gross sum costs order instead of assessed costs – both parties consent to the matter being dealt with on the papers – the former clients put on no submissions – solicitors acted for themselves for a period – whether a specified gross sum should be ordered instead of assessed costs – what is the quantum of appropriate order.

CIVIL PROCEDURE – leave to appeal – where proceeding referred to arbitration and balance stayed – whether arbitration agreement applied to referred proceeding – whether error in ordering stay – leave to appeal refused

COSTS – gross sum costs order – where submissions and evidence in support of application for gross sum costs order served prior to the hearing of the applicants’ application for judicial review against the possibility that the application for judicial review was unsuccessful – where application for judicial review dismissed with costs – where Court made directions on delivery of judgment for applicants to provide submissions in response – whether application for a gross sum costs order was an application to set aside or vary the original costs order – whether application governed by UCPR r 36.16(3) or 36.16(3A) – where applicant for the gross sum costs order did not file a notice of motion seeking the order within 14 days of the costs order being entered – whether any requirement to do so should be dispensed with

CORPORATIONS – directors in dispute on matters unrelated to company – plaintiff makes threats to harm the company’s project – no indemnity offered – not satisfied as to good faith – plaintiff’s claims may largely be brought in oppression suit on foot – not satisfied derivative suit in company’s best interests –leave refused.

CORPORATIONS — Winding up — Practice and procedure — Application for adjournment of winding up — Where application brought several weeks after administrator was appointed — Where there are difficulties with proposed deed of company arrangement — Whether to adjourn the winding up. CORPORATIONS — Winding up — Insolvency — Where application founded upon unpaid creditor’s statutory demand — Where presumption of insolvency not rebutted.

COSTS — Where proceedings defended by way of tutor — Whether protective costs order should be made CIVIL PROCEDURE — Alternative dispute resolution — Referral to court-annexed mediation CIVIL PROCEDURE — Pleadings — Amendment

COSTS — Security for costs — Relevant factors — Timing

CORPORATIONS — Winding up — Appointment of liquidators — Where liquidator was previously Court-appointed receiver and manager of assets of the company — Where plaintiff seeks to reverse his previous consent to the receiver and manager’s appointment as liquidator — Where plaintiff foreshadows claim against receiver and manager under s 420A of the Corporations Act — Where receiver and manager has claim in respect of his remuneration — Whether to grant leave to the receiver and manager to be appointed and act as liquidator in the winding up.

CIVIL PROCEDURE – interlocutory costs – plaintiffs sue as assignees – plaintiffs previously permitted, in principle, to amend statement of claim, but ordered to pay defendants’ costs of amendment applications – application by defendants for orders for immediate payment of sums on account and for payment of those sums to be made a condition of leave to amend – alleged stultification – Rozenblit v Vainer – defendants’ applications successful

PROCEDURE – notice to produce – issued in proceedings challenging the validity of public health orders – width of notice – relevance of documents sought to bases upon which validity challenged – notice set aside – no question of principle

SUCCESSION — Family provision — Claim by adult child — Estate almost entirely left to testator’s second wife — Adult children of testator and late first wife seek provision — Plaintiffs in relatively secure circumstances — Where one plaintiff has lived overseas for more than thirty years

CONTRACT – proper construction – whether document executed by the parties in the Chinese language constituted a binding promise by the defendant to repay the plaintiff as a debt money that plaintiff paid the defendant to invest in a company that the defendant stated would develop property in Sydney – whether the document did not come into effect as an agreement because not all persons alleged to be parties to it executed the document – whether any contract evidenced by the document was void for uncertainty – where plaintiff paid large sums to the defendant for the purpose of investment in the company – where defendant had in turn paid large sums to the plaintiff in purported repayment of the funds advanced RESTITUTION – where defendant contended he executed the document under the mistaken belief that it was enforceable – where defendant sought to recover the payments he made to the plaintiff on that basis

CORPORATIONS – Winding up – Members voluntary winding up – Proceedings and execution – Leave not required COSTS – Lump sum assessment