Cases and authorities

APPEALS – leave to appeal – where primary judge refused leave to appeal to raise argument not dealt with by magistrate – whether argument made to magistrate – no error of primary judge in concluding not made

CRIME – appeals – appeal against sentence – re-sentence – accumulation of sentence – special circumstances – whether sentencing judge erred in variation of statutory ratio CRIME – appeals – appeal against sentence – conceal corpse – objective seriousness – whether sentencing judge erred in his determination that the applicants knew of the location of the deceased’s body but failed to disclose it – remorse – whether sentencing judge erred in his rejection of remorse CRIME – appeals – appeal against sentence – manifest excess – manslaughter – conceal corpse – objective seriousness of offences

CRIME – sentencing – federal offences – where applicant pleaded guilty to a foreign incursion offence contrary to part 5.5 of the Commonwealth Criminal Code – where sentencing judge had regard to principles developed in respect of terrorism offences contrary to part 5.3 of the Code – whether sentencing judge erred in sentencing the applicant by reference to principles applicable to terrorism offences under part 5.3 rather than foreign incursion offences under part 5.5 – consideration of the notion that there exist discrete principles applicable exclusively to particular kinds of offence in light of the overarching principle in Markarian – whether extent of radicalisation at the time of offending legally irrelevant to foreign incursion offences – whether sentencing judge erred in having regard to statements in terrorist cases concerning the weight to be given to the protection of the community when sentencing the applicant for a foreign incursion offence

CRIMINAL LAW – trial - appeal against conviction – joint trial – aggravated sexual assault – manslaughter – hinder discovery of evidence – question of error in the directions to the jury concerning the use made of evidence of lies – whether convictions not supported by the evidence CRIMINAL LAW – appeal against sentence – asserted error in findings of fact concerning level of intoxication of complainant – asserted failure to take into account absence of planning – asserted error in assessment of seriousness of crime – question of delay as a mitigating feature – question of extra-curial punishment as mitigating feature – relevance of post offending conduct – prospects of rehabilitation – manifest excess

PRACTICE AND PROCEDURE – Application for extension of time to file application setting aside judgment of South Korean Court under s 6 of the Foreign Judgments Act – Where judgment debtor did not seek order setting aside judgment in time – Where judgment debtor instead sought orders for security of costs for application to set aside registration – Extension of time granted

CORPORATIONS – interim injunction – to prevent sale of company’s property – no serious question to be tried – no issue of principle

CRIME – Murder – Sentencing – infant victim – no substantial offending – no prior abuse or domestic violence – severe assault – onerous incarceration conditions – special circumstances – sentence imposed.

EQUITY — Trusts and trustees — Judicial advice ––Preliminary consideration by the Court of matters relevant to the application for judicial advice

CIVIL PROCEDURE — Notices to produce — Application to set aside — Before hearing — Relevance to a fact in issue — Legitimate forensic purpose COSTS — Party/Party — General rule that costs follow the event — Application of the rule

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW), s 62 - application for further assessment - proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment - further medical opinions covering similar ground to opinions previously considered - further medical opinions accepted to be additional relevant information - whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect - need for identification of jurisdictional error or error of law on face of record - primary judge erred in finding reviewable error - appeal allowed and decision of proper officer restored

INJUNCTIONS - application for freezing order – application for delivery up of excavator

CORPORATIONS – winding up – application for approval of liquidators remuneration – Insolvency Practice Schedule (Corporations) s 60-10 – whether claim for remuneration reasonable – no issue of principle CORPORATIONS – winding up – distribution of surplus – Corporations Act 2001 (Cth) s 488(2) – grant of special leave to distribute surplus to contributories of the company

CIVIL PROCEDURE – Whether leave should be granted to rely on affidavit evidence served late – issues as to lack or relevance and inadmissibility of evidence. CIVIL PROCEDURE – admissions – withdrawal – where leave sought to withdraw admissions made in verified defence – whether leave to withdraw admission should be given.

EMPLOYMENT LAW – contract – interlocutory restraint of trade – employee restrained from working elsewhere during “employment” by employer – employee purports to terminate employment claiming 28 day notice period and then leaves after 28 days – prima facie case – contract provides for three month notice period – subsequent variation refers to earlier contract containing 28 day notice period – construction principle in Fitzgerald v Masters – whether “employment” continues after employment relationship ceases – whether employee’s notice of termination was wholly ineffective or effective after three months – injunction granted against employment with new employer for three months from date of employee’s notice

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Intention –– Resulting trusts –– Common intention constructive trusts –– Constructive trusts arising out of the failure of a joint endeavour –– Finding as to the existence of such trusts evolving from one to the other over time as a result of changing circumstances EQUITY — Equitable interests in property — Nature of equitable interests EQUITY — Equitable remedies — Equitable compensation

COSTS – costs of successful application for winding up of joint venture company on just and equitable ground – where just and equitable ground established principally due to conduct of defendant shareholder – whether costs of winding up application should be paid out of company’s assets or by defendant shareholder – no other issue of principle

SUCCESSION – burial rights – where mother and father have equal ranking at common law – whether mother or father should have carriage of the funeral and custody of the deceased's body – burial or cremation – Aboriginal religious, cultural and spiritual considerations – mother granted relief sought.

ADMINISTRATIVE LAW – judicial review – decision of professional disciplinary authority – decision to discontinue inquiry into complaint – refusal of internal review of initial decision – review sought by complainant – availability of orders in nature of certiorari APPEAL – application for leave to appeal from judgment in supervisory jurisdiction – review of decision of Legal Services Commissioner discontinuing inquiries into aspects of complaint – complaint as to disciplinary matter – whether complainant had any right or interest affected by decision PROCEDURE – judicial review – role of decision-maker as contradictor in challenge to decision – exception to principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 – whether contravention would be appealable error

EVIDENCE ON COMMISSION – request from a Court of the United Kingdom for production of documents held by the Commissioner of Police for NSW

CORPORATIONS – voluntary administration – second meeting of creditors – application for extension of convening period under Corporations Act 2001 (Cth) s 439A – no issue of principle

EVIDENCE — Privileges — Client legal privilege — Litigation COSTS — Party/Party — General rule that costs follow the event — Application of the rule

PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — Each of two partners took out life insurance policy in his name over life of other partner — Ownership of proceeds of policy

CROSS VESTING – tort – where plaintiff alleges sexual abuse by servants or agents of the defendant in Queensland – whether interests of justice require transfer of proceedings to the Queensland Supreme Court

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 – Forensic patient – Limiting term expired – Interim extension order due to expire – Whether applicant poses continuing unacceptable risk – Whether risk can be adequately managed by less restrictive means – Status as forensic patient extended in the circumstances – Status extended for a period of three years

APPEAL – appeal from Local Court – question of law – principles of statutory construction – whether the magistrate erred in law by finding the definition of “butterfly knife” in Sch 1, cl 1(6) of the Weapons Prohibition Act 1998 necessarily requires the item to have a sharpened edge capable of cutting – whether the magistrate erred in law by dismissing the charge – remittal – costs – orders

COSTS – No issue of principle

HIGH RISK OFFENDERS – application for an extended supervision order by the State of New South Wales under s 25 of Terrorism (High Risk Offenders) Act 2017 UNACCEPTABLE RISK – where defendant has criminal history involving affray, destroy and damage property, goods in custody and recklessly causing grievous bodily harm in company – where defendant previously associated with members of a group, some of whom have been convicted of terrorism offences or are currently incarcerated for such offences – where defendant has not committed a terrorism offence -whether the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing serious terrorism offence if not kept under supervision – whether defendant likely to comply with conditions if Extended Supervision Order made – balancing interests of community with personal liberty

CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead

DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff’s imputations – whether harm done by substantially true plaintiff’s imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b)

APPEAL – application for leave – challenge to interlocutory ruling on access to documents – misconceived allegation of bias – unsubstantiated allegations of perjury by solicitor – delay in giving judgment – no demonstration of prejudice – no arguable ground of error identified CIVIL PROCEDURE – production of documents – documents in custody of the court – application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13 – files sought to support application under Vexatious Proceedings Act 2008 (NSW) – access to documents produced – parties to proceedings the subject of the filed notified – objection to access – grounds of objection

APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused

WORKERS COMPENSATION – common law damages – negligence of employer – contributory negligence – economic loss, past and future – damages awarded

Notice of motion to transfer proceedings from Supreme Court to the Federal Court – representative proceedings – application made over four years after proceedings commenced – basis for application said to be Federal Court being well designed system to handle representative proceedings – motion dismissed.

APPLICATION FOR STAY – stay of proceedings currently being heard – query whether appeal lies from refusal to recuse – when interlocutory appeal available – stay refused

COSTS — Party/Party — Exceptions to general rule that costs follow the event

JUDGMENTS AND ORDERS – variation of reasons – change in circumstances – where appellant died after delivery of reasons but before making of final orders – where proposed relief based on appellant’s expected remaining lifetime – whether to reopen appeal – whether to vary proposed relief on account of appellant’s death ESTOPPEL – proprietary estoppel – where appeal against successful proprietary estoppel claim dismissed – where defendant now deceased – consequential orders COSTS – gross sum costs order – Civil Procedure Act 2005 (NSW), s 98(4) – order agreed

CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where property transferred sold by transferee – where part of proceeds of sale used to pay legal costs of transferee subject to undertaking to repay if appeal allowed – consequential orders and declarations COSTS – orders when proceedings involve multiple parties – where no relief sought against one defendant – where that defendant joined in defence with other defendant – whether to order plaintiff’s costs be paid by those defendants jointly COSTS – offers of compromise/Calderbank offers – whether time allowed for consideration of offer reasonable

GARNISHEE ORDER – application to suspend – s.124A Civil Procedure Act – proceedings commenced 2018 – payment arrangement agreed – not observed – default judgment – first garnishee order unsatisfied – further payment arrangement – not observed – second garnishee order resulted in $458,000 – late application to set aside garnishee order and sue for business defects – refuse interim orders to require garnisheed moneys to be held in trust account – not satisfied appropriate to suspend garnishee order.

CORPORATIONS – examinations relating to insolvency – whether time for application to set aside examination summons should be extended

CIVIL PROCEDURE – representative proceedings – shareholder claim against public company and chief executive officer – where level of likely directors and officers insurance cover revealed shortly after proceedings commenced - where company went into administration shortly thereafter and proceedings stayed - where efforts then made to settle proceedings - where part of settlement comprised a deed of company arrangement – where balance of settlement involved compromise by insurer – court approval – whether settlement reasonable inter partes – whether settlement reasonable inter se – where claimed costs and commission would consume bulk of settlement pool - whether costs proportionate - whether plaintiffs’ legal advisers and funders engaged in disentitling conduct

LAND LAW — Conveyancing — Requirements of writing — Agreement to create or dispose of interest in land — Where beneficiaries including executrix agree in writing to bid among themselves to purchase estate property instead of sale by public auction — Whether subsequent purported oral variation enforceable —Conveyancing Act 1919 (NSW), s 54A(1)

NEGLIGENCE — workplace injury — third-party tortfeasor — plaintiff unloading sheep from trailer when deck allegedly dropped on his arm by defendant — whether accident occurred as alleged — breach — liability of employers — damages WORKERS COMPENSATION — uninsured liabilities — where plaintiff sought and received payments from, and employers reimbursed, the Nominal Insurer — whether employers entitled to indemnity from third-party tortfeasor — whether defence pleaded — proper construction of s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) — meaning of "the person by whom the compensation was paid"

EVIDENCE — documentary evidence — tender of documents — admissibility — late service — res gestae

ADMINISTRATIVE LAW – Grounds of review other than procedural fairness – Motor Accidents Medical Assessment and application for review – jurisdictional error and error of law – failure to deal with causation and apportionment to pre-existing injury – failure to provide adequate reasons – failure to exercise jurisdiction and apply correct test – jurisdictional pre-condition for review – capacity to challenge original decision after internal refusal to refer for review – summons dismissed.

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion COSTS – fixed in gross sum – appropriateness of such an order – discounts applied to legal costs – conduct of plaintiff in increasing costs of proceedings

PRACTICE & PROCEDURE – application for recusal of presiding judge at trial on grounds of apprehended bias – comments made about liability conclave process and arrangements made by the parties – context of application by plaintiff to significantly amend Statement of Claim on day 3 of trial – proposed deployment of problematic conclave report in support of application to amend

CORPORATIONS – Registration time for security interests – Application under Corporations Act 2001 (Cth) s 588FM(1) to fix registration time for security interests registered in the register established under the Personal Property Securities Act 2009 (Cth) – Whether failure to register security interest was accidental or due to inadvertence – Relevance of financial position of company granting security interest

CIVIL PROCEDURE - pleadings - form and content of pleading - claims against various defendants for breach of contract, misleading and deceptive conduct, unfair terms and negligence - where applicants allege that statement of claim is fundamentally flawed – strike-out application pursuant to UCPR r 14.28 – whether misrepresentations as to future matters – accessorial liability - where the pleading is unclear and embarrassing - pleading and amended statement of claim struck out - leave given to the plaintiffs to re-plead

CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

TAXES AND DUTIES – land tax – liability – exemptions – low cost accommodation – statutory criteria for exemption – satisfaction of Commissioner as to use and occupation of land in accordance with approved guidelines – construction and operation of guidelines – whether land used and occupied primarily for low cost accommodation – requirement that land is or includes a community or residential community within the meaning of the Residential (Land Lease) Communities Act 2013 – land subdivided under the Community Land Development Act 1989 and wholly subject to a community scheme does not meet that description – Land Tax Management Act 1956, s 10Q TAXES AND DUTIES – land tax – liability – exemptions – low cost accommodation – statutory criteria for exemption – satisfaction of Commissioner as to use and occupation of land in accordance with approved guidelines – construction and operation of guidelines – whether land used and occupied primarily for low cost accommodation – requirement that more than 50% of sites or homes are occupied by specified persons – criteria not met STATUTORY INTERPRETATION – guidelines approved by Treasurer under Land Tax Management Act 1956, s 10Q – application of ordinary principles of statutory construction to determine scope and operation of guidelines TAXES AND DUTIES – administration – interest – remission – no further remission of interest justified in the circumstances of the case