Cases and authorities

CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – whether the conduct of the company was contrary to commercial morality – where all the company’s debts have been discharged – where applicant offered undertakings as to providing ongoing financial support to the company upon termination – no issue of principle

CRIMINAL LAW – application under s 78 of the Crimes (Appeal and Review) Act 2001 – whether doubt or question as to guilt of applicant – aggravated sexual intercourse without consent, and attempted sexual intercourse without consent – where Court of Criminal Appeal had dismissed applicant’s appeal – two prior applications under s 78 unsuccessful – where applicant put forward the same issues dealt with in two previous applications – where no special facts or special circumstances raised – refusal to consider or otherwise deal with the matter pursuant to s79(3) of the Act

LEGAL PRACTITIONERS – practising certificate subject to conditions relating to financial management and tax affairs – barrister contravened conditions – whether psychiatric disorder provided “reasonable excuse” to justify not treating contraventions as professional misconduct LEGAL PRACTITIONERS – barrister made representations to Bar Council – Tribunal found that those representations knowingly false – whether open to Tribunal to make those findings – whether Court of Appeal in position to make findings determining issue LEGAL PRACTITIONERS – barrister made representation as to future conduct namely that would sell property to discharge tax liabilities – where barrister acted contrary to representation – whether that conduct constituted professional misconduct LEGAL PRACTITIONERS – finding of professional misconduct – whether barrister a fit and proper person to remain on Supreme Court roll of lawyers

ADMINISTRATIVE LAW – constructive failure to exercise jurisdiction – where appellant alleges primary judge failed to address “substantial, clearly articulated” arguments – whether arguments based on “established facts” – whether primary judge’s approach raised those arguments for separate determination EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) – where primary judge found appellant incapacitated by transient condition for short period at time of resignation from police force – whether it follows that appellant incapable from infirmity of body or mind of exercising the functions of a police officer at that time – meaning of “infirmity” in Police Regulation (Superannuation) Act

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where appellant pleaded guilty to one count of using a carriage service to menace, harass or offend, four counts of using a carriage service to groom a person under the age of 16 years for sexual activity and one count of using a carriage service to procure a person under the age of 16 years for sexual activity – Where sentencing judge erred by failing to take into account the utilitarian value of the appellant's plea of guilty – Error established giving rise to the necessity to exercise the sentencing discretion afresh – Where plea was entered at the first available opportunity – Where the appellant had co-operated with authorities – Whether specific discount should be applied to reflect that co-operation – Where appellant demonstrated genuine remorse – Where appellant had no prior criminal history – Where offending was planned and involved the creation of false identities - Serious offending committed over a sustained period of time – Where offending involved predatory and manipulative behaviour towards teenage girls – No lesser sentence warranted in the fresh exercise of the sentencing discretion - Leave to appeal granted – Appeal dismissed CRIMINAL LAW – Sentence – Relevance of delay when sentencing a Federal Offender

CIVIL PROCEDURE – Interim preservation – Freezing orders – Sale of house not an attempt to dissipate assets – Applicant does not adduce any evidence to demonstrate the sale was underhand or not at a proper value – Discretion of the Court – Freezing orders are not made

CORPORATIONS – Winding up – Conduct of liquidation – Validity of proof of debt – Where plaintiff creditors undertake to seek leave to appeal defendant liquidator’s rejection of their proof of debt and fail to do so

COSTS – motion for determination of separate question – amendment to Commercial List Cross-Claim Statement made when motion part heard had effect that any answer to separate question would not be relevantly dispositive - whether motion for separate question would have been brought had the foreshadowed amendment been made earlier - whether separate question likely to have been ordered in any event

EQUITY — Trusts and trustees — Judicial advice – Where trust formed for purpose of making payments to creditors following administration of company – Where orders made under the Trustee Act 1925 (NSW) would allow trustees to administer the trust in the interests of creditor beneficiaries more practically than under trust deed.

COSTS — Party/Party — General rule that costs follow the event — Bases of quantification — Indemnity basis — Offer of compromise — Trustee basis — Payable out of a fund — Deceased estate

APPEALS – procedure – stay pending special leave to appeal to the High Court – where orders for payment of money to trustee in bankruptcy – where trustee in bankruptcy gave undertaking not to distribute or deal with any funds paid to him – whether stay necessary to preserve subject matter of appeal – whether costs of motion seeking stay should be “costs in the cause in the High Court”

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 ss 14 and 15 – incomprehensible pleadings – application for leave to proceed – no discernible cause of action – application dismissed

LAND LAW – Co-ownership – Statutory trust for sale – Application by trustee for possession of property – One co-owner failing to respond to notices to vacate issued by the trustees seeking possession of the property to effect its sale – Whether the co-owner in possession of the property is entitled to remain in the property until its sale – Whether the trustee is entitled to a writ of possession to effect a sale of the property

CIVIL PROCEDURE – application to vacate 3 day trial on medical grounds – principles at [17]-[21] – plaintiff in hospital – feeling sick, complaining of chest pains, elevated blood pressure – no report from GP or specialist that unable to attend Court – history of non-compliance with directions due to non-specific illness unsupported by medical evidence – application refused.

ADMINISTRATIVE LAW – Judicial Review – Review Committee under Health Services Act 1997 (NSW) determined no jurisdiction – jurisdictional error – also error of law on the face of the record – failure to exercise duty and jurisdiction – statutory construction – meaning of “re-appoint” – whether “position” was of the same kind; STATUTORY INTERPRETATION – Health Services Act 1997 (NSW) – plain and grammatical meaning – legislative intention – use of Second reading Speech – appeal against decision “not to re-appoint” – whether the subsequent position was “of the same kind” – whether re-appointment

PROCEDURE — Judgments and orders — Application for stay of orders pending proposed appeal — No identification of any, or any reasonably arguable question, for determination of appellate court.

OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates CIVIL PROCEDURE — Determination of separate question — Whether decision subject to appeal or review under s 100 of the Legal Profession Uniform Law (NSW) — Whether a designated local regulatory authority, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), is taken to have refused an application to vary an Australian practicing certificate by not determining the application within 90 days

CONTRACT – building and construction contracts – interpretation – expert determination clause – whether expert determination is final and binding – where parties’ precluded from commencing litigation following expert determination unless value of the determination exceeded a threshold amount – where value of the determination to be calculated without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)

CIVIL PROCEDURE – direction sought for provision of contact details of witnesses subject to unserved subpoenas – tantamount to preliminary discovery – very late in proceedings – no worthwhile purpose in provision on material before the Court – application refused

PROCEDURE – notices of motion – orders dismissing proceedings or striking out statement of claim sought – Rules 13.4 and 14.4 of the Uniform Civil Procedure Rules 2005 (NSW) – statement of claim not properly pleaded – required particulars of serious allegations not provided – whether proceedings time barred – no reasonable cause of action – abuse of process – motion granted – proceedings dismissed.

SUCCESSION – Executors and administrators – Proceedings against executors and administrators – Application for revocation of grant – Alleged contempt – Subpoenas and notices to produce in probate matters – Investigative function

PROCEDURE — Application to have hearing dates vacated — whether principles in ss 56–58 of the Civil Procedure Act 2005 (NSW) support the vacation of hearing dates. CORPORATIONS — Winding up on the just and equitable ground. CORPORATIONS — Directors and officers — Directors’ duties — Duty of care and diligence — Duty to act in good faith in the best interests of company and for proper purpose — Director’s involvement in transactions with companies he controls. EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Director’s involvement in transactions with companies he controls.

CONTRACTS — Construction — Interpretation — objective approach to construction CONTRACTS — Termination — Breach of term or repudiation CONTRACTS — Termination — exclusion of common law remedies — whether parties can exclude common law remedies for breach of contract without express words to that effect CONTRACTS — Termination — Breach of term — whether parties can justify termination of contract on alternative grounds to those given but which existed at time of purported termination

CRIMINAL LAW – Offences – Sentence following a trial where offender found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – Where the offender intervened in an altercation between his father and the deceased – Where deceased used a knife to seriously injure the offender’s father – Where the offender then repeatedly stabbed the deceased – Offending aggravated by the use of a weapon and the fact that the offender was on conditional liberty at the time – Spontaneous offending initially followed by a response which was entirely excessive – Offender 18 years of age at the time – Guarded prospects of rehabilitation CRIMINAL LAW – Sentence – Finding facts following the verdict of a jury – Where Crown case of murder clearly rejected by jury – Where Crown submitted that it was open to reagitate factual issues on sentence based upon propositions denied by the offender and apparently rejected by the jury – Necessity to find facts consistent with the verdict of the jury – Necessity to interpret the jury’s verdict in accordance with the manner in which the cases were presented at trial – Facts found accordingly

PRACTICE AND PROCEDURE — appointment of guardian ad litem under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) — whether appointment could be delegated by Tribunal to the Secretary of the Department of Justice

COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance

NEGLIGENCE — Causation — Motor vehicle accident — Where plaintiff diagnosed with adjustment disorder secondary to back injury caused by accident — Where back injury consisted in the aggravation of existing degenerative changes — Whether psychiatric injury remained causally related to the accident even after physical restrictions attributable to the accident subsided

AGENCY — Property, Stock and Business Agents Act 2002 (NSW) — where person performs services without real estate agent licence — whether services performed as “real estate agent” STATUTORY INTERPRETATION — Property, Stock and Business Agents Act 2002 (NSW) — definition of “real estate agent” — meaning of phrase “as an agent”

ADMINISTRATIVE LAW – jurisdictional error – challenge to determinations of Industrial Relations Commission – whether plaintiffs were denied procedural fairness – whether Commission failed to have regard to relevant consideration – whether Commission erred in placing onus on moving parties – whether decision was legally unreasonable

CRIMINAL LAW – Appeal – Appeal against sentence – Whether sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness – Where a fair reading of the sentencing judge’s remarks did not support the conclusion that the applicant’s conditional liberty was taken into account in determining the objective seriousness – Whether sentencing judge failed properly to consider Bugmy principles or the evidence giving rise to the application of those principles – Evidence adequately considered and principles taken into account – Whether sentence manifestly excessive – Comparative cases considered – Leave to appeal granted – Appeal dismissed

CRIMINAL LAW – sentence appeal – offences comprised aggravated take and detain a person with intent to obtain advantage, the circumstances of aggravation being the infliction of actual bodily harm and the advantage being psychological gratification – further offences of assault occasioning actual bodily harm and of driving with a high range content of alcohol in his blood were brought – with the exception of the driving offence, all offences were domestic violence related and committed against the same victim – aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months – whether sentence was manifestly excessive – injuries described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm – use by court of comparative cases – principles relevant to appellate review of aggregate sentencing – principles to be applied in domestic violence cases – manifest excess not made out – appeal against sentence dismissed.

CRIME – jury – rejection of application to discharge jury and juror – where it was submitted that juror deliberately lied on oath when being examined as to whether or not he participated in an external conversation with another juror and overheard by a court officer as to the meaning of a mandarin expression used by a witness in his evidence – whether sufficient for a finding of misconduct within the meaning of s 53A(1)(c) of the Jury Act 1977 (NSW) that there was a possibility or reasonable apprehension that juror may have deliberately lied – whether trial judge in fact made a finding to that effect – proper construction of s 53A of the Jury Act. CRIME – jury – rejection of application to discharge jury pursuant to s 53C of the Jury Act – discretionary decision – whether House v The King error demonstrated in exercise of trial judge’s discretion – where reasons given in an ex tempore judgment – proper approach to be taken by appellate court on review of such a decision. CRIME – sexual offences – aggravated sexual assault in company – meaning of “in company” – complicity – joint criminal enterprise – meaning of “common purpose” – whether verdicts of guilty were supported by the evidence.

CRIMINAL LAW – sentence appeal – attempted sexual intercourse without consent – maximum penalty of 14 years imprisonment – assault on victim in train carriage – applicant under influence of methamphetamine at time of offending – no connection between mental condition and offending – applicant raised in environment of drug abuse and violence – previous conviction for producing child abuse material – finding of remorse – prospects of rehabilitation guarded – whether sentence manifestly excessive – limitations on use of comparative cases – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – sentence appeal – supply a prohibited drug on an ongoing basis – maximum penalty of imprisonment for 20 years – four matters on a Form 1 – whether sentence imposed on the applicant was manifestly excessive – whether applicant had a justified sense of grievance by reason of receiving a longer sentence than a co-offender – same judge sentencing both offenders – clear differences between applicant and co-offender – parity principles observed – no error on part of sentencing judge – appeal dismissed.

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where applicant offered undertakings as to providing for company’s solvency upon termination – whether company is and will be solvent in future – termination application dismissed

CIVIL LAW - high risk offender - terrorism - violent extremism - whether offender should be subject to further extended supervision order - whether unacceptable risk offender will commit serious terrorism offence - where offender has committed no acts of terrorism - where offender has family members involved in such activities - offender susceptible to influence - calculus of risk - appropriate test - where offender made substantial progress on previous ESO - supportive family - attack on credibility of offender’s father - where senior politician describes father as community leader and man of courage - where offender rejected associates with connection to extremism - strong case of rehabilitation and network of positive influences

HIGH RISK OFFENDERS – final hearing – application for a continuing detention order – serious violent offender – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence if not kept in detention – antisocial personality disorder – non-completion of Violent Offenders Treatment Program in custody – absence of suitable accommodation – Duration of orders so imposed – continuing detention order imposed

CIVIL PROCEDURE – application for witness in Czech Republic to give evidence by audio visual link – where witness suffers from hereditary angioedema and has two young children – where witness’ credit will be in issue – whether in the interests of justice to make order – application granted

CIVIL PROCEDURE – Summary dismissal of appeal as incompetent – Where plaintiff seeks to appeal from judgment of District Court – Whether summons incompetent because it has been brought in the Common Law Division under Pt 50 of the UCPR and not by notice of appeal in the Court of Appeal in accordance with Pt 51 – Appeal not incompetent but irregular – Proceedings removed to Court of Appeal under s 51(1)(b) of the Supreme Court Act 1970 (NSW)

COSTS – where plaintiff succeeded against only one of two remaining defendants with commons legal representation – where plaintiff unreasonably failed to accept a genuine compromise offered by unsuccessful defendant prior to commencement of proceedings – no issue of principle INTEREST – pursuant to Civil Procedure Act 2005 (NSW) on sum payable under contract ordered to be specifically performed

PRACTICE AND PROCEDURE – notice to produce – whether seeks production of documents referred to in affidavits – whether seeks production of a specific document – whether seeks discovery – whether tends to subvert operation of Practice Note SC Eq 11

COSTS – exceptions to general rule that costs follow the event – offers of compromise – walk away offers made by defendant in early and late stages of proceedings – no real element of compromise in early offer – evidence available at date of later offer raised significant difficulties for plaintiff’s claim – indemnity costs awarded on basis of later offer under Uniform Civil Procedure Rules 2005 (NSW) r 42.15A

COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge’s partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant

APPEALS – from finding of fact – inferences from primary facts – two competing hypotheses on the evidence – where primary judge applied a process of inferential reasoning based on circumstantial evidence – whether primary judge erred in applying this process to make findings of fact – duty of an appellate court to decide for itself which of the two hypotheses was the more probable – appellate court to discharge this duty by weighing the conflicting evidence and drawing its own inferences and conclusions CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company and for proper purpose – where board resolved to purchase a property for “visiting executives” of the group – appellants were sole occupants of the property – whether the appellants were “visiting executives” for the purposes of the resolution of the board EQUITY – fiduciary duties – fiduciary relationships – directors – conflict of interest and duty – no profit rule – whether the appellants improperly used their position as directors of the respondent to gain a benefit for themselves – whether the appellants intended to reside at the property on an exclusive, indefinite and continuous basis at the time of the resolution EVIDENCE – circumstantial evidence – inferential reasoning – between two competing hypotheses – no direct evidence as to the appellants’ intention at the relevant time – where primary judge constrained to rely on events post-dating the material resolution – reasoning by way of “links in the chain” – whether such “links” made it reasonable to conclude on the balance of probabilities that the appellants had breached their fiduciary duties EVIDENCE – inferences – Jones v Dunkel – where neither of the appellants gave evidence at trial – court entitled to infer that their evidence would not have assisted their case – court not entitled to infer that the evidence would have been adverse to the appellants EVIDENCE – standard of proof – the Briginshaw principle – where the nature of the breaches alleged amounted to serious wrongdoing on the appellants’ behalf

OCCUPATIONS – Legal practitioners – Disciplinary proceedings – Removal of practitioner’s name from the roll – Having misappropriated trust money – Tribunal found respondent was probably not a fit and proper person to be an officer of the court and recommended removal from the roll – Appellant seeking an order that respondent’s name be removed from the roll

SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole

CRIMINAL PROCEDURE — power to extend time for leave to appeal — delay of years between imposition of sentence and bringing of application —extension refused on basis that expansion not warranted — no acceptable explanation for delay in application — submissions of applicant largely based on assertions of fact not founded on evidence in application SENTENCING — appeal against sentence — fresh or new evidence — documentary evidence tendered on behalf of applicant in proceedings on sentence sought to be impugned years later — issue of availability at time of sentence of material advanced on all grounds — relevance of asserted onerous prison conditions — relevance of asserted exceptional hardship to family of incarcerated applicant — grounds not made out