Cases and authorities

CIVIL PROCEDURE – Medical Negligence – Pleadings – Late application for amendment – Reasonable prospects of success – Leave granted

COSTS – where plaintiff failed to comply with directions for the filing of expert liability evidence – whether plaintiff or defendant should pay costs of two directions hearings that were necessary for the default to be considered – costs to be defendant’s costs in the cause

PRACTICE AND PROCEDURE – amendment of orders

PROCEDURE – civil – circumstances in which court may strike out pleadings or dismiss proceedings at an interlocutory stage – where defendant contends plaintiff allegedly used criminal conduct to prevent or hinder him from defending claim and prosecuting cross-claim – where defendant fails to establish that plaintiff stole unspecified documents relevant to proceedings during course of committing offences for which she has been found guilty – where defendant argues that plaintiff’s delays cause him significant prejudice – where unclear connection between allegedly stolen documents and defendant’s forensic position – where defendant’s reliance on UCPR 14.28 is misplaced – where no evidence of inexcusable or substantial delay

NOTICE OF MOTION – whether closed file should be reopened – whether default judgment should be brought immediately against defendant for failure to file defence in timely manner – where plaintiff’s notice of motion is misconceived and without any merit – where plaintiff’s claim for any relief is not made out

CIVIL PROCEDURE – cross-vesting – special federal matter – motion for an order under s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that the proceeding be determined by this Court – requirement under s 6(3) that there be special reasons for doing so in the particular circumstances of the proceeding – this requires some pertinent non-trivial consideration or circumstance which takes the case of out the run of the mill and which warrants the case being held in this Court despite involving a special federal matter – HELD – there are special reasons warranting that the matter be determined by this Court

CIVIL PROCEDURE – application challenging an interlocutory decision of the Children’s Court – oral application to stay proceedings in the Children’s Court – where the effect of the interlocutory decision was that the plaintiff was unable to subpoena documents from NSW Police – whether the Court’s parens patriae jurisdiction is engaged – whether the Court’s prerogative relief jurisdiction under the Supreme Court Act 1970 (NSW) is engaged – no grounds to justify intervention in the Children’s Court proceedings – application dismissed with costs

COSTS — Party/Party — Costs orders on appeal

LAND LAW — Conveyancing — Options — Call options — Whether on proper construction option could be validly exercised if purchase price had not yet been determined in accordance with terms of agreement — No issue of principle

CRIMINAL PROCEDURE — Indictment — Application for severance — Indictment charging five accused as being party to one, or both, of two separate conspiracies, in different locations, between different people and relating to different countries, with no overlap in time — Counts 1 and 2 are to be tried separately EVIDENCE — Alleged cross-admissibility of evidence relating to one conspiracy to proof of the other —Relevance other than to the state of mind of alleged common conspirator not established — Ruling made

CONFIDENTIAL INFORMATION – the plaintiffs are members of a group of companies providing information security services to the IT industry – the plaintiffs claim the first and third defendants each diverted and misused the plaintiffs’ confidential information – the plaintiffs seek a permanent injunction to restrain further misuse – whether the information was confidential – whether the information was misused – whether a permanent injunction should be granted against the first and third defendants in the absence of the plaintiffs seeking relief against other persons to prevent the misuse of the plaintiffs’ confidential information obtained through the first and third defendants. PRACTICE AND PROCEDURE – judgments and orders – the plaintiffs' confidential information is transferred to the first defendant’s personal laptop and associated hard drive – the Court considers making orders for the production of the personal laptop and hard drive – first defendant destroys the personal laptop and hard drive before the orders are perfected and notified to him – what did the first defendant know of the Court’s prospective orders of the time that he destroyed the personal laptop and hard drive – whether the first defendant’s conduct was designed to frustrate the making of future Court orders for production of the personal laptop and hard drive – what inferences should be drawn about the information on the personal laptop and hard drive at the time he destroyed the hard drive. CONTRACTS – Construction – employment contract made between the third plaintiff and the first defendant – whether the employment contract is wholly in writing – whether the full terms of a written contract bind the first defendant and the second plaintiff, a subsidiary of the first plaintiff, or whether only certain numbers recorded in the written form of contract were binding between them – whether the first defendant is entitled to a non-discretionary allowance under the employment contract. CONSUMER LAW – MISLEADING AND DECEPTIVE CONDUCT – whether the plaintiffs/cross-defendants made representations as to the financial benefits the first defendant/cross-claimant would be likely to derive from taking employment with the plaintiffs’ group – whether the representations were made – whether they were representations as to future matters – whether they were misleading or deceptive – whether the first defendant/cross-claimant relied upon the representations and whether he suffered any loss or damage as a result. EVIDENCE – Admission – Improperly obtained evidence – whether employer contravened Workplace Surveillance Act 2005, s 19 by authorising covert surveillance of employee’s work and personal laptops – whether evidence gathered by employer from employee’s laptops was illegally obtained under Evidence Act 1995, s 138 – whether such evidence is now inadmissible – whether employer’s conduct also contravened Criminal Code Act 1995 (Cth), s 478.1 for unauthorised access of restricted data.

CORPORATIONS – Directors and officers – Directors’ duties – Duty of care and diligence – Where executive directors alleged to have adopted a “rebate maximisation policy” – Whether policy led to buy stock irrespective of consumer demand – Whether non-executive directors failed to put in place internal controls to monitor procurement activities CORPORATIONS – Shares – Dividends – Where dividend allegedly declared in breach of section 254T Corporations Act 2001 (Cth) – Where dividend allegedly declared in breach of directors’ duties – Whether directors can act in breach of duty when declaring a dividend even without contravening section 254T – Whether reference to “creditor” in section 254T includes future creditors –– Meaning of “materially prejudice” expression in s 254T – Whether business judgment rule applies to decision to declare dividends CONSUMER LAW – Misleading and deceptive conduct – Whether executive directors made misleading and deceptive statements when negotiating credit facilities – Where executive director made statements concerning matters within his area of responsibility and about which he had personal knowledge – Where statements misleading or incomplete – Executive director found to have personally engaged in misleading and deceptive conduct on the facts DAMAGES – Damages caused by misleading and deceptive conduct – Proof – Where misled party acquired something of value as result of misleading conduct by way of security over loan – Held misled party’s onus of proof is discharged by showing value of security lower than value of loan DAMAGES – Damages caused by misleading and deceptive conduct – Quantification – Held damages to be assessed as the difference between the amount lent and the amount actually received in the receivership – Whether payment by receivers of creditors’ legal costs amounts of a distribution in the creditors’ favour

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Where tenant has caused soil contaminated with asbestos to be placed on the property – Whether there has been a valid termination of the tenancy agreement – Significant credibility issues relating to the tenant

COSTS — defamation and injurious falsehood claims — whether costs should be awarded on ordinary or indemnity bases in respect of each claim

CRIMINAL PROCEDURE — Stay of proceedings — Application for permanent stay refused by primary judge CRIME — Significant pre-trial publicity in the form of popular podcast and associated reports, which included matters which would be inadmissible at trial and prejudicial to the accused — Whether directions would be sufficient to ameliorate prejudice — Rare circumstances in which pre-trial publicity warrants a permanent stay of criminal proceedings CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment — Leave to appeal against refusal of a permanent stay — Further evidence admitted — Whether the primary judge’s discretion miscarried — The primary judge applied the correct test, did not fail to take into account relevant considerations and it was not unreasonable for the primary judge to refuse a permanent stay — Consideration of authorities concerning the grant of a permanent stay and the question of delay — Prejudice to the accused occasioned by pre-trial publicity and delay can be remedied or sufficiently ameliorated — Trust placed by the administration of justice in the ability of jurors to abide by directions

SENTENCING – Crown appeal – manslaughter – offender on ICO for dangerous driving – consumes ice – drives through pedestrian crossing killing child – sentencing judge failed to address specific deterrence and community protection – sentence of 6 years and 10 months with non‑parole period of 4 years and 6 months manifestly inadequate – offender re‑sentenced

CRIMINAL LAW — appeal against conviction — trial by jury of child sexual assault — two complainants —evidence of each complainant admitted as tendency evidence with regard to alleged offending against the other complainant — middle-aged applicant of good character in a particular respect with regard to absence of any suggestion of prior child sexual assault or sexual interest in children — character not raised by defence counsel at trial in any respect —deliberate decision of counsel — whether miscarriage of justice established

CIVIL PROCEDURE – interlocutory application – where proceedings had been stayed – where the order for a stay has been overtaken by subsequent orders of the Court – where the proceedings have been settled and a valid notice of discontinuance was filed – where plaintiff applied to lift the stay – where plaintiff also sought to pursue an unrelated constitutional matter – no utility in lifting the stay because the proceedings have been resolved – application dismissed with costs

CIVIL – high risk offender – application for extended supervision order – s 5B(d) – unacceptable risk – assessment must be absent the existence of “protective measures” – the Court is to take into account that which would be applicable in the absence of an ISO or ESO – National Disability Insurance Scheme support package applicable to defendant – NDIS support package as an “indirect” means of risk management – imposition of extended supervision order – duration – conditions – directions

COSTS – plaintiffs filed a Notice of Motion to amend their Statement of Claim – defendant initially opposed the motion but eventually consented to the amendments – leave granted to file Amended Statement of Claim – plaintiffs seek their costs of the motion – merits of the motion not determined – parties did not act unreasonably in the litigation – defendant’s change of position not merely a belated surrender or capitulation – appropriate to make no order as to costs

COSTS – offer of compromise – offer served 1.39pm Christmas Eve – offer open till noon 21 January 2020 – whether closing date “no less than 28 days after the date on which the offer is made” – r 20.26(5)(a) UCPR – principles for reckoning of time at [21]-[25] – offer not compliant. COSTS – family provision – executor offered $1M – plaintiff’s claim dismissed – whether plaintiff should pay indemnity costs or bear his own costs – where adverse costs order would alter the basis on which provision was refused – plaintiff to bear own costs.

CRIMINAL LAW - sentence - murder - premeditated shooting - 12 gauge shotgun discharged at close range - assessment of objective criminality - aggravating and mitigating factors - whether intention to kill - planning - disregard for public safety - placing another person’s life at risk - where offender the victim of earlier stabbing - where deceased and offender friends - where deceased committed home invasion on offender - knife used - post-traumatic stress disorder - impact on moral culpability - facilitation of course of justice

CIVIL PROCEDURE – Strike out statement of claim – interpretation of deed – role of recitals – res judicata – issue estoppel

CRIMINAL LAW – Indonesian accused charged with murder – Issue of whether accused was substantially impaired within s 23A of the Crimes Act 1900 (NSW) raised – Defence application to vacate trial date – Vacation said to be required so as to allow proper investigation and consideration of issues, including transcultural psychiatric issues, raised in report of an Indonesian psychiatrist – Vacation said to be required so as to allow proper investigation and consideration of whether MRI should be obtained to: (a) determine whether the accused suffered a traumatic brain injury as a result of a motor vehicle accident leaving her in a coma for two weeks when she was six years old; and (b), if so, the extent to which this was relevant to the issue of substantial impairment within s 23A of the Crimes Act – Application to vacate trial granted

REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) Part 10 – Merck order – observations on what is not permissible in the Merck order process and final articulation of certain questions

CRIMINAL PROCEDURE — Sentence proceedings — Reasons for sentence — Pronouncement of sentence SENTENCING — Federal offences — Three offences of conspiracy to cause an offer of a bribe to a foreign official contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) — Relevant factors on sentence — Objectively serious and within the mid-range — Damage caused by corruption of public officials — Past and future assistance given by the company to authorities — Need for general and specific deterrence — General deterrence achieved by rewarding a self-reporting company who assists investigating and prosecuting authorities — The company’s self-reporting and its response to the offending suggests remorse and contrition, and a desire to set about its own rehabilitation — Consideration of delay SENTENCING — Penalty for body corporate — Determination of the maximum penalty — The meaning of “benefit” in s 70.2(5)(b) of the Criminal Code Act 1995 (Cth) — Consistent with the legislative intention, benefit means net benefit — Discount for guilty plea, past assistance and an undertaking to provide future assistance

EMPLOYMENT LAW – Contracts of employment – EQUITY – Fiduciary duties – CORPORATIONS LAW – Corporations Act 2001 (Cth) ss 181(1), 182(1), and 183(1) – Duties of officers and employees – COMPETITION AND CONSUMER LAW – Australian Consumer Law ss 18 and 31 – TORT – Interference with contractual relations – REMEDIES – Availability of declarations – One company (the first company) entices employees of a competitor company (the second company) to leave and join the first company – Some of the employees recant and return – Allegations that two individuals employed by the second company who became employed by the first company breached their contracts of employment, fiduciary duties, and statutory obligations by assisting the first company in its recruitment campaign – Allegations that the first company induced them to breach or knowingly participated in their breaches – First company sues the employees who recanted for breach of contract – The six employees who recanted allege that one of the two individuals misled them into entering employment agreements with the first company – The six employees who recanted seek orders for rescission of their employment contracts – HELD – Individuals breached their employment agreements and equitable duties and one of them his statutory duties – HELD – Employment contract of one individual validly terminated for breach by second company – HELD – Declaratory relief refused as against the other individual – HELD – Interference with contractual relations and participation in breaches not established – HELD – Six employees who recanted not entitled to relief – HELD – Employment contracts not to be rescinded – HELD – The six employees who recanted breached their employment contracts to the first company

CORPORATIONS — winding up — voidable transactions — unfair preferences — insolvent transactions — payments to Deputy Commissioner of Taxation to reduce running balance account deficit —Corporations Act 2001 (Cth), s 588FA — where plaintiff liquidator’s investigations into company’s assets incomplete at time of final hearing — where evidence adduced by the plaintiffs does not provide an appropriate basis on which the Court can reach a reasonable decision about whether the defendant received more from the relevant payments than it would receive from the company in respect of the debt if those payments were set aside and the defendant were to prove as an unsecured creditor in the winding up of the company — whether the company was insolvent at the time that each of the relevant payments was made

ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Decision of State Parole Authority to revoke parole where offender had been charged with offences – Application of s170A Crimes (Administration of Sentences) Act 1999 (NSW) ADMINISTRATIVE LAW – Threshold test for procedural fairness – Regular practice – Requirements of State Parole Authority when revoking parole

COSTS – whether costs follow the event – whether the plaintiff was successful in the proceedings against the first defendant – whether the Court ought to make a costs order against the fourth defendant who filed a submitting appearance shortly before the commencement of the hearing – whether the fourth defendant took an active part in the proceedings.

INSURANCE – claim by ex-police officer for total and permanent disability (“TPD”) payment – need to provide proof to satisfaction of insurer of TPD under policies – contractual obligations of insurer to assess claim in good faith and act fairly and reasonably – whether insurer breached contractual obligations – whether it was fair of insurer to rely on certain medical opinions as adverse to claimant – whether insurer took into account written submissions of claimant – cumulative effect demonstrated a lack of overall fairness COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise and Calderbank offers – assertion that appellant unreasonably failed to accept respondent’s Calderbank offer – whether primary judge erred in refusing to make a special costs order – primary judge did not err in the exercise of his costs discretion

CRIME — Appeals — Appeal against conviction — Evidence to be used for a tendency purpose not to be admitted unless it has significant probative value — Evidence lacked significant probative value and was inadmissible — Failure to direct the jury as to ways the tendency evidence could be used — Trial judge’s advice or guidance as to inferences which could be drawn by the jury, in the absence of the jury, did not give rise to a reasonable apprehension of bias affecting the decision-maker — Necessary for trial judge to direct the jury as to how evidence of the appellant’s conduct, which was capable of being construed as evidencing consciousness of guilt, could be used — Whether admission of evidence which was prejudicial to the appellant, upon the urging of the appellant’s trial counsel, led to the appellant having an unfair trial — Incompetence of counsel — Operation of proviso excluded CRIME — Appeals — Appeal against sentence — Not addressed as the appeal against conviction allowed and new trial ordered

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Whether sentencing judge failed to assess the applicant’s moral culpability — Omission to undertake assessment of moral culpability in reasons does not always warrant intervention by this Court — Manifest excess established — Sentence was unjust as it was grossly disproportionate with the objective and subjective circumstances SENTENCING — Appeal against sentence — Re-sentence — Assessment of objective seriousness and moral culpability — Consideration of connection between offending behaviour and childhood trauma — Finding of special circumstances warranted

CRIME – bail – offence of taking and detaining – assessment of bail concerns – unacceptable risk test – whether risk of reoffending – whether risk of fleeing jurisdiction – very strong crown case – concern of not complying with bail conditions – presence of unacceptable risk – bail refused

EVIDENCE – application for exclusion of a witness’ evidence under s 146 Criminal Procedure Act 1986 (NSW) – late notice of Crown intention to call important witness – major change in defence case – abysmal defence s 143 disclosure – Crown able to call witness EVIDENCE – s 18 Evidence Act 1995 (NSW) – wife of accused objecting to giving evidence – children of wife and accused residing with the accused’s family – established likelihood that harm would or might be caused – harm outweighed by desirability of the evidence – witness compellable

EVIDENCE – hearsay evidence – overheard phone call – evidence relevant to motive – representation made in circumstances which make it highly probable that the representation is reliable –admissible EVIDENCE – $126,000 found in cars associated with the accused two days after the murder – relevant to motive – association with drug money argued to be unfairly prejudicial – admissible EVIDENCE – mandatory exclusion – evidence of encrypted BlackBerry phones being available to accused – relevant to explain absence of evidence of communication– minimal probative value – implication of accused’s involvement in drug trafficking – probative value outweighed by unfair prejudice – inadmissible

HIGH RISK OFFENDER – preliminary hearing – capacity of defendant to understand conditions – otherwise no question of principle

SUCCESSION — Family provision — Claims by partner and niece — Deceased’s partner received substantial insurance and superannuation payout and niece received estate — No issues of principle

CIVIL PROCEDURE – Parties – Representative order – Judgment entered for plaintiff against unrepresented estate of deceased with liberty reserved for any party interested in the estate to apply for judgment to be set aside or varied CIVIL PROCEDURE – Parties – Representative order – Judgment entered against deceased estate in circumstances where persons interested in the estate failed to obtain a formal grant of representation or consent to a representative order

HIGH RISK OFFENDERS – Extended Supervision Order – Application – Separate questions – Interpretation of s 5B(b) – Whether defendant is a supervised offender under s 5B(b) – Court has no power to make orders

CORPORATIONS – applications in three proceedings for orders setting aside statutory demands – where entities that issued the statutory demands have been deregistered between the issuing of the demands and the filing of the originating processes to have the demands set aside – where applications to have the statutory demands set aside cannot be made in accordance with s 459G because person on whom each application and supporting affidavit must be served has ceased to exist – plaintiff sought declarations that the statutory demands ceased to have effect upon deregistration of issuing entities.

COSTS – where plaintiffs seek order for costs in respect of defendants’ failure to serve valuation evidence by requisite date – where defendants unable to offer satisfactory explanation for default – defendants to pay costs

ESTOPPEL – estoppel by judgment – Anshun estoppel – unreasonableness of conduct – where plaintiff commenced proceedings seeking declaration that contract with defendant not terminated – where Robb J made such a declaration – where plaintiff now brings second proceeding under the same contract seeking damages – whether it was unreasonable for plaintiff not to have brought damages claim in earlier proceedings – whether second proceedings should be stayed

APPEALS – procedure – Court of Appeal – motion seeking review of a decision of the Court dismissing application to review decision of a single judge – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address. CIVIL PROCEDURE – Court of Appeal – application to review a decision of the Court – where application brought by way of a notice of motion – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address

CRIME — Appeals — Appeal against sentence – extension of time required – where applicant is a foreign national whose visa was cancelled following his conviction – where applicant is seeking revocation of that cancellation – where the applicant’s deportation not yet a certainty – whether likelihood of deportation a relevant factor in sentencing – where applicant has been unable to access programs in custody due to visa cancellation – whether subsequent hardship vitiated exercise of the sentencing discretion – no error found – extension of time refused

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Date of service of creditor’s statutory demand — Whether Court has jurisdiction to hear application to set aside creditor’s statutory demand. COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether unreasonable not to have accepted Calderbank offer.

LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – transfer from District Court to Supreme Court under s 140, Civil Procedure Act 2005 (NSW) – whether damages likely to exceed $750,000 – where plaintiff claims total loss of capacity to work – whether prejudice to first defendant due to delayed hearing – transfer of proceedings ordered

CIVIL PROCEDURE — notice of motion seeking to set aside order under slip rule – where judgment referred to the plaintiff’s submission – where this submission was not in fact made by counsel for the plaintiff – whether case advanced by plaintiff had been determined – notice of motion dismissed