Cases and authorities

COSTS — Party/Party — lump sum costs — costs for the running of various costs applications — deduction for contingencies

CIVIL PROCEDURE – parties – identity of parties – non-publication of a party’s name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiff permitted to commence and carry on proceedings using a pseudonym

CRIMINAL LAW – proceeds of crime – production orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

APPEAL – leave to appeal – stay ordered pending disposal of criminal charges – charges disposed of – utility of appeal – whether question of law – whether need to determine legal issue to prevent frustration of right of appeal TENANCY – residential tenancy agreement – termination – criminal conduct relied on by landlord – criminal charges laid – whether defence of termination proceeding would prejudice criminal defence

ADMINISTRATIVE LAW – judicial review – application for injunctive relief – plaintiff’s security classification – Corrective Services NSW Inmate Classification and Placement Policy – Commissioner of Corrective Services NSW made decision declining to approve the recommendation of the Serious Offenders Review Council – no proper basis for injunctive relief – consideration of Clark v Commissioner for Corrective Services [2016] NSWCA 186 – application dismissed – no order for costs

HIGH RISK OFFENDERS – application for an Interim Supervision Order – whether proposed conditions are appropriate or should be modified

HIGH RISK OFFENDERS – Crimes (High Risk Offenders) Act 2006 – final hearing – application for extended supervision order – Court’s discretion to dismiss application – disputed conditions – no question of principle

NEGLIGENCE – Duty of care – Foreseeability – psychiatric injury – plaintiff witnessed physical injury to employees of a sub-contractor on site NEGLIGENCE – Vicarious liability of sub-contractor for employees’ tort of negligence

CONSUMER LAW — Misleading or deceptive conduct COMMERCE — Restraint of trade — Enforcement and remedies — Compensation

SETTLEMENT – approval of settlement – plaintiff under legal disability

APPEALS – incompetence – where relief sought in notice of appeal includes setting aside money judgment against a defendant other than the appellant – where appeal not brought by or on behalf of other defendant – whether to strike out of notice of appeal reference to judgment against other defendant – inherent power to strike out APPEALS – procedure – parties on appeal – where consequential relief in appeal includes setting aside costs orders made against appellant and other defendant jointly and severally – where other defendant not party to the appeal – whether other defendant “directly affected by the relief sought” under Uniform Civil Procedure Rules, r 51.4 APPEALS – procedure – stay of appeal pending satisfaction of judgment and costs orders below – where quantity of costs not agreed or assessed – where judgment and other costs orders the subject of the appeal – whether appeal an abuse of process COSTS – security for costs – on appeal – where appellant impecunious – where evidence suggests order for security would not stultify appeal – whether “special circumstances” within Uniform Civil Procedures Rules, r 51.50

PROCEDURE – application to strike out plaintiff’s defence – exercise of the Court’s power for summary judgement for possession

EVIDENCE – cross examination about evidence which accorded with statement previously made in Senate inquiry and sent to employer – whether evidence prohibited by s 16(3) Parliamentary Privileges Act 1987 (Cth) – purpose of questions asked - purpose not prohibited – s 128 Evidence Act 1995 (NSW) – whether evidence tended to prove an offence committed - certificate issued

ADMINISTRATIVE LAW – workers compensation – judicial review of decision of Medical Appeal Panel of the Workers Compensation Commission – assessment of Whole Person Impairment – dysesthesia – whether Appeal Panel went beyond grounds of appeal – whether use of definition of dysesthesia was introduction of new material – whether Panel failed to afford procedural fairness – whether Panel was bound to reconsider every aspect of previous MAC in issuing new MAC – summons dismissed

COSTS — Party/Party — Court’s discretion — Defendant to pay Plaintiff’s costs

CONTRACTS – contract of employment – breach of contract – consequences of breach – right to termination – where termination without notice – onus of demonstrating that termination was justified – where additional grounds available to justify termination EMPLOYMENT AND INDUSTRIAL LAW – contract – conditions of employment – whether plaintiff breached conditions of employment by failure to disclose pecuniary interests, engagement in external work, and “assorted misconduct” EMPLOYMENT AND INDUSTRIAL LAW – contract – termination – summary dismissal – whether the plaintiff engaged in serious or persistent breaches of his contract of employment which entitled the defendant summarily to dismiss the plaintiff without notice EMPLOYMENT AND INDUSTRIAL LAW – public sector – local government – General Manager of council – determinations as to allegations of serious breaches of contract of employment giving rise to summary dismissal LOCAL GOVERNMENT – public officers – disclosure of interests – Local Government Act 1993 (NSW) part 2, div 1 – whether plaintiff knew or ought reasonably to have known that disclosure was false or misleading in a material particular

CRIME – murder – judge alone trial – intention to inflict at least grievous bodily harm proved – self‑defence disproved – evidence of accused rejected – tendency evidence considered

ADMINISTRATIVE LAW – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Medical assessment — Medical dispute — Degree of permanent impairment as a result of an injury — Review of decision of Appeal Panel – Whether Appeal Panel failed to respond to a substantial and clearly articulated argument

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where relief sought includes an order in the nature of certiorari – where appeal panel found demonstrable error in decision-maker’s approach – where demonstrable error included applying the wrong test – where appeal panel proceeded to its own assessment – whether appeal panel erred in identifying error in decision-maker’s application of the wrong test – whether appeal panel itself applied the wrong test STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where the primary legislation provides for a deduction for any proportion of an impairment that is due to a previous injury or pre-existing condition or abnormality – where the primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of the guidelines would require a nil deduction for a pre-existing but asymptomatic psychiatric injury or condition – whether the guidelines are inconsistent with the primary legislation – whether the guidelines are beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant has suffered previous psychiatric injury – where condition related to previous psychiatric injury was asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made

CRIMINAL LAW – procedure – application to vacate trial date – where complainant not available for medical reasons – refusal of adjournment application – where accused consented to Prosecutor’s application – where evidence to be used as tendency evidence in respect of other complainants – role of Prosecutor – role of trial Judge – case management – tail wagging dog – whether decision unreasonable or plainly unjust CRIMINAL LAW – application to discharge jury – antecedent adjournment application not dealt with – where trial Judge insists on empanelling jury – where jury made aware of complainant who was unavailable – application of wrong test – question is not whether there may be a “substantial miscarriage of justice”

CRIMINAL LAW – sentence appeal – applicant pleaded guilty to two offences of aggravated break enter and commit serious indictable offence contrary to s 112(2) of the Crime Act 1900 (NSW) – co-offender convicted of one offence of aggravated break enter and commit serious indictable offence – whether error in sentencing judge not referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 when that case had not been brought to her attention in the sentence hearing – Bugmy v The Queen considerations did not arise – whether the applicant’s sentence should be reduced for parity reasons – no justified sense of grievance – appeal dismissed.

CRIMINAL LAW – appeal – appeal against sentence – parity – whether applicant has a justifiable sense of grievance having regard to the sentence imposed on a co-offender

SUCCESSION – Administration of estates – Application under Trustee Act 1925 (NSW), s 98 – Funds held in Court represent surplus proceeds of mortgagee sale – Distribution order

CONTRACTS — Performance — deed of settlement — deed between owners corporation and owner as a result of water damage to property and resulting mould and related illnesses — whether Defendant had properly fulfilled obligations under the deed

CONTRACTS – discharge by frustration – agreement for lease – landlord agrees to carry out Landlord’s Works to construct shopping centre and grant lease of part of shopping centre to tenant – development consent obtained – whether agreement varied so as to incorporate a department store – held that agreement was varied – development application for revised shopping centre refused – appeal against refusal dismissed – held that agreement as varied was frustrated CONTRACTS – discharge by abandonment – agreement for lease – agreement made in 2008 – lengthy period during which landlord was not carrying out Landlord’s Works and tenant was not calling upon landlord to perform – certain rights of tenant under contract expired – development consent authorising the Landlord’s Works due to lapse in February 2014 – inference drawn that parties had mutually agreed to abandon agreement by about the beginning of 2014 CONTRACTS – discharge by frustration – agreement for lease – Landlord’s Works authorised by a development consent – common assumption that Landlord’s Works would continue to be able to be carried out lawfully – neither party contractually responsible for maintaining that state of affairs – common assumption proves to be mistaken when development consent lapsed – agreement held to have been frustrated

CORPORATIONS — Winding up — Statutory demand — Application to set aside CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt – Whether contractual breach amounts to total failure of consideration CORPORATIONS — Winding up — Statutory demand – Whether an offsetting claim has been established CORPORATIONS – Winding up – Statutory demand – Whether to set aside for some other reason – Where the contract between the parties contains a dispute resolution clause

HIGH RISK OFFENDERS – extended supervision order - preliminary hearing – serious sex offender – whether the court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision – where defendant has extensive criminal record – where defendant had sexual assault and indecent assault convictions – where defendant has mental health issues and substance abuse disorder – where defendant’s risk assessment is above average – interim supervision order granted – nature of conditions of ISO to be imposed

TORTS – general principles – contributory negligence – where respondent injured while driving a grader on a coal mine haul road after rain event at night – where respondent hit a lamination in the road – where other employees using the area had failed to notice hole in the road – whether respondent guilty of contributory negligence NEGLIGENCE – damages – personal injury damages – future attendant care – future economic loss – out of pocket expenses – where primary judge did not make deduction for vicissitudes for future medical expenses or future attendant care – whether appropriate to account for respondent’s pre-existing conditions when awarding future out of pocket expenses and costs of future attendant care NEGLIGENCE – damages – non-economic loss – s 151G Workers Compensation Act 1987 (NSW) – whether primary judge was required to determine extent to which respondent would have developed pain and disability due to underlying conditions COSTS – party/party – bases of quantification – indemnity basis – where offer purported to be made pursuant to UCPR r 20.26 – whether offer complied with requirements of r 20.26 – whether primary judge erred in ordering indemnity costs in reliance on offer

EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether trustee can exercise power to exclude

CIVIL PROCEDURE — Discovery — whether the categories of documents sought are relevant to facts in issue

MENTAL HEALTH – forensic patient – extension of status as forensic patient – application for interim extension order and order for examination of defendant – whether matters alleged in supporting documentation if proved, justify making of an extension order – whether court could be so satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if she ceases to be a forensic patient – less restrictive means

CIVIL PROCEDURE – amendment – application for leave to amend statement of claim – proposed claim concerns financial matters between parties to a de facto relationship – where claims made relate to compliance with Family Court orders – Family Court has jurisdiction to deal with matters – where regardless plaintiff is estopped from raising proposed claim – unreasonable not to raise proposed claim in Family Court proceedings – where claims are statute-barred barred – where plaintiff self-represented – notice of motion dismissed – leave given to serve proposed further amended statement of claim

CRIMINAL LAW - appeal against conviction - prescribed sexual offence - evidentiary ruling - Criminal Procedure Act 1986 (NSW), s 293 - appellant charged with counts of sexual intercourse without consent - appellant admitted sexual intercourse in ERISP but maintained complainant had consented - portions of appellant’s answers concerning complainant’s conversation about her sexual history ruled inadmissible - whether admissibility under s 293(4)(a) had been advanced at trial - whether leave to do so should be granted on appeal - whether excluded answers were evidence of complainant’s sexual experience at time of alleged offence - whether excluded answers formed part of connected set of circumstances - whether probative value of excluded evidence outweighed distress, humiliation or embarrassment of complainant - whether if evidence wrong excluded, proviso applied - appeal allowed, convictions quashed and retrial ordered EVIDENCE - Criminal Procedure Act 1986 (NSW), s 293 - evidence of conversations prior to alleged prescribed sexual offence concerning complainant’s conversation about her sexual history - whether exception in s 293(4)(a) applied

CRIME – appeals – application to set aside judgments and orders – jurisdiction to reconsider appeal

CONTRACTS – implied terms – good faith – where subcontract provided for an extension of time regime including a power for the contractor to extend time “in its absolute discretion” and with “no obligation to extend, or to consider whether it should extend” – contractor not obliged to act reasonably with regard to the prevention principle or in good faith due to contractual scheme and language used CONTRACTS – remedies – liquidated damages – penalty – where residential building subcontract provided for delay damages at a rate of $3,500 per day – stipulated rate not penal in character

CONTRACTS — oral contract — formation of contract — terms CONTRACTS — remedies — Specific performance

CIVIL PROCEDURE – Leave to rely on an expert’s report and affidavit – Where report filed outside the timeline set by a guillotine order – Leave granted

TORT – defamation – injurious falsehood – injunctions – whether final injunction should be granted – principles to be applied in the exercise of the Court’s discretion to grant a permanent injunction in defamation cases – freedom of speech – suppression order – permanent restraining order – final injunction granted

CIVIL LAW – forensic patient – expiration of limiting term – whether status as forensic patient should be extended – preliminary hearing – interim order pending final hearing – assessment of risk – where defendant committed brutal murder 25 years earlier – risk factors – where current supervision minimises risk – where no evidence of ongoing support if defendant ceases to be a forensic patient – nature of legal test to be applied on preliminary hearing CIVIL PROCEDURE - preliminary hearing - excessive volumes of material - screaming into the void

CIVIL PROCEDURE – Pleadings – Amendment –Application to amend Technology and Construction List Statement – Whether contentions as to duty and breach of duty were made with sufficient particularity

HIGH RISK TERRORISM OFFENDER – Final hearing – Application by the State for extended supervision order – Convicted NSW terrorism activity offender – Whether Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – Where defendant convicted of whipping fellow Muslim to administer Sharia law – Where defendant refused to renounce his offending and stated only that he lacked authority to carry out the punishment – Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism and terrorist organisations – Where defendant involved in conversion to Islam, as he understood it, of those with whom he came into contact – Where defendant was a guide and mentor with engaging personality capable of exerting significant influence over younger or vulnerable persons – Relevant risk of commission of serious terrorism offence established – ESO granted subject to conditions

CIVIL PROCEDURE — Implied undertakings — Release from Harman undertaking re use of documents obtained under subpoena in two previous proceedings

CRIME — conspiracies to import a commercial quantity of border controlled drugs — plea of guilty and conviction after trial — role of offender — level of seniority in conspiracies — parity with other offenders

EQUITY – CONTRACT – equitable interests in real property – priorities – specific performance of a Deed of Settlement (the Deed) requiring the granting of a legal mortgage – construction – parties entered into the Deed settling earlier litigation which required the defendant in that litigation to pay certain amounts and secure its obligations by granting a mortgage over unencumbered real property owned by it – property was held in trust for another party – where the parties to the earlier litigation had agreed outside the terms of the Deed not to report or make any complaint about illegal conduct – construction of provisions of the Deed requiring payment and extent of the obligations secured – whether the Court should withhold specific performance of the Deed – who as between the plaintiff and the beneficial owner of the property has priority – claim by the owner of the land against its trustee for equitable compensation for breach of trust

ADMINISTRATIVE LAW – judicial review – alternative relief by way of appeal not availed of – absence of satisfactory explanation – avoidance of time limit for an appeal – avoidance of need to obtain leave to appeal – value of claim small – whether relief should be refused on discretionary grounds ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel of NCAT – error of law by Tribunal member identified by Appeal Panel – whether Appeal Panel erred in law in dismissing error as immaterial – whether member found breach of duty by landlord entitling tenant to compensation ADMINISTRATIVE LAW – judicial review – grounds – irrelevant consideration – whether finding of Appeal Panel an irrelevant consideration – overlap of grounds – reliance on “no evidence” and unreasonableness as equivalent to a prohibited consideration – whether error of law LEASES AND TENANCIES – residential tenancy – right to quiet enjoyment – failure to repair drains resulting in stormwater impeding access to car park – no substantial interference LEASES AND TENANCIES – residential tenancy – reduction of facilities provided with the residential premises – failure to repair drains resulting in stormwater causing deterioration of lawn in common area – reduction of rent allowed – whether entitlement to compensation

DEFAMATION — website and ancillary social media operated by defendant — assertions that company with which second plaintiff closely associated selling “toxic honey” — other assertions about second plaintiff directly — all imputations made out — no defences able to be relied upon — tort established — effect of implausible nature of statements on award of damages — damages awarded INJURIOUS FALSEHOOD — written online statements that corporate first plaintiff selling “toxic honey” — whether statements false — whether statements malicious — relevance of possibly sincere belief in truth of statements in determination of malice — difficulty in assessing quantum of damages to civil onus and standard of proof — damages awarded PERMANENT INJUNCTION — whether defendant should be permanently restrained from repeating statements and making similar statements — relevance of previous conduct of defendant in litigation

CONTRACT – contractual construction – proper scope of jurisdiction agreement in employment contract – where jurisdiction clause elliptical as to its scope – where multiple agreements – where jurisdiction clause only contained in one agreement – whether jurisdiction clause in one agreement applied to claim in respect of alleged breach of post-employment restraints contained in a related agreement. EMPLOYMENT – restraints of trade – where senior executive employed pursuant to an Employment Agreement containing post-employment restraints of trade and an exclusive jurisdiction clause for courts of Singapore and a Singapore choice of law clause – where executive posted to Japan pursuant to a further contract but with his original contract continuing in effect – where executive also subject to a deed poll containing further post-employment restraints and governed by Japanese law – where employer sued to enforce only restraints contained in deed poll – whether proceedings caught by exclusive jurisdiction clause contained in original Employment Agreement – whether proceedings in New South Wales should be stayed. EQUITY – Injunctions – anti-anti-suit injunction – anti-suit injunction. PRIVATE INTERNATIONAL LAW – anti-anti-suit injunction – exclusive jurisdiction agreement – proper construction of scope of jurisdiction agreement – principles applicable to construction of jurisdiction agreements – relationship between jurisdiction agreement and choice of law clauses PRIVATE INTERNATIONAL LAW – concurrent proceedings in Singapore and New South Wales – whether New South Wales proceedings in relation to post employment restraints in a Deed Poll should be stayed by reason of an exclusive jurisdiction clause in a separate Employment Agreement.