Cases and authorities

COSTS – Offer of Compromise – Offer by plaintiff of judgment dismissing proceedings is an offer “in favour of the defendant” and complies even though it provides “no order for costs”. JUDGMENTS and ORDERS – Possibility of other proceedings diminishing damages – unlikely result – assess as uncertainty or require undertaking as to repayment – other consequential issues – indemnity refused

CORPORATIONS – winding up – where company in liquidation – where company hired aircraft from creditor – where payment made by company to creditor after commencement of winding up – whether payment a void disposition – Corporations Act 2001 (Cth) s 468(1) – whether exemption in s 468(2)(b) applied – whether Court should exercise discretion to declare payment is not void

CRIMINAL PROCEDURE – trial – lies – where Crown did not seek to rely on pretext call evidence as containing admissions or rely on consciousness of guilt reasoning – where Crown asserted in closing address applicant made truthful admissions in pretext call from which it could be concluded that applicant had lied in his evidence to the jury – where no direction to jury given – whether absence of a direction occasioned a miscarriage of justice

No question of principle

BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1989 should be quashed – reference date – whether cl 4.1 of the construction contract was one by or in accordance with which the date for a progress claim was determined – whether term expressly nominates the date by which the claim may be made – whether s8(2)(a) of the Building and Construction Industry Security of Payment Act 1999 enlivened

EQUITY – Trusts and trustees – indemnity of trustee – the plaintiffs and the defendant were registered proprietors as joint tenants of certain real property – the defendant held his one third interest as joint tenant in the property on trust for the plaintiffs – the property sold and the net proceeds held pending the outcome of these proceedings – pursuant to orders of the Court part of the proceeds were applied by the plaintiffs to acquire another property – the defendant incurs expenses and tax liabilities as the trustee of his legal interest in the property – the plaintiffs accept liability to indemnify the defendant as trustee – what is the quantum of that indemnity in relation to the defendant’s expenses and in relation to the defendant’s potential liability to capital gains tax – whether the defendant’s expenses were reasonably and properly incurred – how should the defendant’s indemnity be secured – in what priority should the proceeds of sale be applied to satisfy the defendant’s indemnity.

CRIME – sentence – application for inquiry under Crimes (Appeal and Review) Act 2001 (NSW),Pt 7 – application for stay of sentence – power to stay sentence – Supreme Court Act 1970 (NSW), s 23 JUDGMENTS AND ORDERS – application for judicial review – custodial sentence of full time imprisonment – challenge to lawfulness of imprisonment – applicant on bail pending determination of judicial review proceedings – fresh application for judicial review filed while on bail –whether fresh application effected statutory stay – application out of time – Supreme Court Act 1970 (NSW), s 69C(4) JUDGMENTS AND ORDERS – custodial sentence –application for special leave to appeal to High Court – application for stay – criteria for grant of special leave – whether exceptional circumstances – Judiciary Act 1903 (Cth), s 35A

APPEAL – application for leave to appeal – interlocutory decision joining insurers – whether insurers’ entitlement to disclaim liability “beyond argument” – no determination of insurers’ liability – inutility of interlocutory appeal – leave refused

APPEAL – sentence appeal – aggravated break and enter – larceny – take and drive conveyance – assault occasioning actual bodily harm – resentence – where conclusions of sentencing judge generally agreed with – where different assessment of subjective case – where applicant labouring under drug addiction and mental illness – referral to Drug Court for assessment

CIVIL PROCEDURE — Assessment of damages

HABEAS CORPUS – return of writ – application for immediate release – plaintiff had unsuccessfully sought judicial review of District Court appeal from Local Court sentence – whether plaintiff was in lawful custody on day of return of writ – whether sentence had expired whilst plaintiff was on bail pending application for judicial review – whether re-commencement of District Court sentence by order of Court of Appeal was stayed by further application for judicial review – whether warrant of Court of Appeal was defective – whether sentence stayed by statutory appeal from Local Court to Supreme Court – application for release dismissed

CIVIL PROCEDURE — Subpoenas — Scheme of arrangement — Noteholder resolution prerequisite for satisfaction of conditions precedent — Noteholders not scheme creditors — Where identity of noteholders not known to Plaintiffs because of custodial arrangements — Where third party acquisition of number of notes may lead to blocking stake — Whether proper forensic purpose for subpoena to compel disclosure of identity of noteholders.

PROTECTIVE JURISDICTION – Management of the affairs (person and property) of a vulnerable person – Interlocutory orders designed to facilitate independent medical examination and a visitor’s report to Court.

HIGH RISK OFFENDER – final hearing of application for extended supervision order – basis for making of an order conceded – question of length of order – question of conditions attaching to order

CORPORATIONS – practice and procedure –company in liquidation plaintiff in District Court proceedings – application for leave to commence and proceed with further amended cross-claim – claims for relief under Fair Trading Act 1987 (NSW) and for mistake at common law and in equity – Corporations Act 2001 (Cth) s 471B COURTS AND JUDGES – where limited jurisdiction to determine equitable claims –claim for rescission of agreement based on mistake in equity – issue of construction – District Court Act 1973 (NSW) s 134(1)(d) – no jurisdiction to determine equitable claim for rescission – leave to commence and proceed with cross-claim granted, except in relation to equitable claim for rescission

LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase — Alleged breach of fundamental term — Remedies CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Remedies

CIVIL PROCEDURE – Pleadings – Application to file amended Commercial List Statement – Where deliberate decision made not to plead issue contained in the amendment– Where reasons for the change of position insufficient – No issues of principle

ADMINISTRATIVE LAW - judicial review - appeal from decision of New South Wales Civil and Administrative Tribunal - working with Children clearance - where defendant was charged with multiple counts of sexual intercourse and sexual assault of a minor - where charges did not proceed to Court because complainant did not want to give evidence - whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act - where Tribunal conflated concepts of not being satisfied offences occurred and finding that allegations were groundless - where Tribunal erred in finding allegations groundless - where Tribunal erred in giving negligible weight to witness statements - where undue weight placed on evidence not being tested in circumstances where defendant did not require witnesses for cross-examination - where denial of procedural fairness - decision set aside and matters remitted to tribunal

COSTS – indemnity costs – whether unreasonable for defendants not to accept Calderbank offer – reasonableness of period of time offer open for acceptance – where terms of offer raised question of capacity to accept – held not unreasonable to refuse offer – whether defendants engaged in disentitling conduct to warrant indemnity costs orders from later dates – held plaintiffs not established defendants’ conduct was unreasonable – indemnity costs orders refused

APPEAL – burden of proof – elements of claim – evidence that floor safe when surface dry – failure of plaintiff to prove water on floor – weight of evidence did not support claim – admitted fact – inspection system adequate – no error in fact-finding TORTS – negligence – breach of duty – allegation of water on floor – management had system of inspection admitted to be adequate – no breach of duty to take reasonable care – Civil Liability Act (NSW) ss 5B, 5C TORTS – negligence – duty of care – slip and fall at shopping centre – duty of shopping centre manager – no duty to ensure floor surface dry – duty to take reasonable care to maintain dry surface – adequacy of system of inspection

CRIMINAL LAW – sentence appeal – possession of a commercial quantity of a border controlled drug suspected of having been unlawfully imported – sentence of imprisonment for 18 years with a non-parole period of 12 years – error in failing to assess the utility of an early plea of guilty – need to resentence applicant – sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months.

CRIMINAL LAW – sentence appeal – offence of dealing with money intended as a instrument of crime where value of money was more than $100,000 – maximum sentence of 20 years imprisonment – applicant played an integral role in transferring money in and out of Australia – applicant in charge and giving directions to a number of locally based participants – person Nguyen part of syndicate controlled by applicant – Nguyen physically attended banks and carried out transactions on behalf of applicant – when sentenced Nguyen received a much less sentence than the applicant – whether the applicant had a justifiable sense of grievance due to the disparity between her sentence and that of Nguyen – appeal against sentence dismissed.

CRIMINAL LAW – appeals – appeal against sentence – offences of dangerous driving occasioning death and failing to stop and assist – whether overall sentence was manifestly excessive – limited finding about objective gravity for dangerous driving offence – poor subjective case – very adverse criminal record – appeal dismissed

Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where plaintiff entered Australia in 1948, before commencement of Nationality and Citizenship Act 1948 (Cth) – Where plaintiff born in Malta and entered Australia as a British subject – Where plaintiff became citizen of United Kingdom and Colonies in 1949 and then Malta in 1964 – Whether within power of Parliament to treat plaintiff as an alien within meaning of s 51(xix) of Constitution – Whether plaintiff entered Australia as an alien. Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "foreign power", "independent sovereign nation", "non-citizen resident British subject", "permanent allegiance", "permanent protection", "Queen of Australia", "sovereign power", "treat as an alien". Constitution, s 51(xix). Migration Act 1958 (Cth), s 501. Nationality and Citizenship Act 1948 (Cth). Statute of Westminster 1931 (Imp). Statute of Westminster Adoption Act 1942 (Cth).

CIVIL PROCEDURE – Stay of proceedings – Pending appeal

CORPORATIONS – financial services – external dispute resolution scheme – proper construction of tripartite contract constituted by AFCA rules between financial services licensee, AFCA and complainant – whether AFCA had authority, jurisdiction or power to determine complaint – where complaint about conduct of licensee’s representative – whether complaint arose from provision of a financial service by the licensee to the complainant – whether licensee a financial firm for the purpose of the AFCA rules CORPORATIONS – financial services – external dispute resolution scheme – whether AFCA had dealt with complaint in a procedurally fair and impartial manner

CORPORATIONS – winding up – where company in liquidation – application for approval of liquidators remuneration – Insolvency Practice Schedule (Corporations) s 60-10 – whether claim for remuneration reasonable

SUCCESSION – Family provision order sought by Plaintiff widower of the deceased – Marriage of 48 years, although separation under one roof, 4 years before the deceased’s death – Estate comprising one half interest as tenants in common in matrimonial home of the deceased and Plaintiff, in which Plaintiff and deceased had lived for about 38 years – No provision for husband in the Will of the deceased – Provision only made for two adult children of the marriage – Antipathy between the children and the Plaintiff – Reasonable estate in value – Financial resources of the Plaintiff considered – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life – Obligation of the deceased towards surviving spouse – Nature of provision to be made – Whether absolute interest, life estate, Crisp order, or other form of provision should be made – Competing claim of each of the adult children of the deceased and the Plaintiff – Provision to be made for Plaintiff by way of absolute interest subject to conditions – Alternative relief if conditions not met – Costs of proceedings significant – Unable to determine costs as offers said to have been made that may be relevant

WORKERS’ COMPENSATION – Construction of Workers Compensation Act 1987 (NSW) s 38A – Whether payment at special rate pursuant to s 38A payable from time of injury or from time the worker satisfies the definition of “worker with highest needs” – consideration of the defined term ‘worker with highest needs”

CRIME – work health and safety – application for judicial review of verdict of acquittal – risk of death or serious injury to other persons – conduct of employee in the course of his duties – prosecution of employer – employer acquitted due to dishonesty of employee – attempt by prosecutor to review acquittal – Work Health and Safety Act 2011 (NSW), s 19(2) JUDICIAL REVIEW – supervisory jurisdiction – acquittal – principle of double jeopardy – application for judicial review in supervisory jurisdiction of the Supreme Court by prosecutor following acquittal – circumstances in which the Court’s jurisdiction to review an acquittal is engaged JUDICIAL REVIEW – supervisory jurisdiction – discretion to refuse relief – opportunity to address trial judge or to seek stated case to the Court of Criminal Appeal prior to final orders – failure to apply to judge – subsequent attempt to invoke supervisory jurisdiction

CORPORATIONS — voluntary administration — Legal proceedings — moratorium on legal proceedings against company under administration — administrators appointed after publication of reasons but before final orders made — section 440D Corporations Act 2001 (Cth) — whether making orders a step in proceedings requiring leave — application for leave under s 440D — whether proposed orders of successful appellant reflect reasons given for appeal

APPEAL – sentence – offence of possession of CITES specimens and regulated live specimens contrary to s.303GN(2) Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) – offence of engaging in conduct in capacity as a Commonwealth public official with the intention of dishonestly gaining a benefit contrary to s.142.2(1)(a)(iii) Criminal Code (Cth) – offence of dealing with money over $10,000 believed to be proceeds of crime contrary to s.400.6(1) Criminal Code (Cth) – further offences under s.303GN(2) EPBC Act and abuse of public office to gain advantage contrary to s.142.2(1)(a)(ii) Criminal Code (Cth) taken into account on sentence – Applicant employed as a Senior Biosecurity Officer by Commonwealth Department of Agriculture and Water Resources – Applicant used information obtained in course of employment to facilitate illegal importation of regulated specimens for sale – whether sentencing Judge erred in failing to consider alternatives to fulltime imprisonment in sentencing Applicant – error not demonstrated – whether sentencing Judge erred in failing to give full effect to “Ellis principle” – error not demonstrated – whether sentencing Judge erred in failing to give discount for Applicant’s assistance and offer to assist – error not demonstrated – whether sentencing Judge erred in relying upon Applicant’s employment to reduce mitigating factor of prior good character where his employment was already relied upon in proof of an element and had not been obtained for purpose of committing offences – error not demonstrated – whether aggregate sentence was manifestly excessive in all the circumstances – offences of considerable objective gravity – offences committed by public official occupying position of trust within Department administering EPBC Act – importance of general deterrence on sentence where public official uses inside information to abuse position of trust – sentence not manifestly excessive – appeal dismissed

EVIDENCE — Hearsay — Exceptions — Admissions — Whether previous representations admissible against the accused as admissions against interest EVIDENCE — Hearsay — Exceptions — Admissions — Admissions made with authority — Whether previous representations admissible against the accused as admissions made with authority

EVIDENCE — Hearsay — Exceptions — Non-hearsay purpose

COSTS – party/party – specific court rules in relation to costs – application of Uniform Civil Procedure Rules 2005 (NSW), r 42.19(2) – plaintiff discontinues proceedings brought as trustee – whether the Court should make no order as to costs – constitution of proceedings defective – plaintiff failed to obtain judicial advice – plaintiff to pay defendant’s costs apart from unsuccessful application to transfer proceedings to Family Court

HIGH RISK TERRORISM OFFENDER - preliminary hearing - whether interim supervision order (“ISO”) should be made - whether psychiatrist and psychologist should be appointed to examine Defendant - “convicted NSW terrorism activity offender” - Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism - Defendant serving full sentence of imprisonment for seven years for non-terrorist offences - Defendant disengaged from PRISM program - parole refused - held relevant risk of commission of serious terrorism offence established - ISO granted subject to conditions - order made for psychiatric and psychological examination by court-appointed experts

COSTS – application for indemnity costs – r 42.14 UCPR – where plaintiffs’ offer of compromise not accepted and plaintiffs obtain judgment no less favourable – where plaintiffs made significant changes to their case after the offer of compromise was made – where offer of compromise was made one business day before hearing in a complex matter – application for indemnity costs refused COSTS – plaintiffs sought costs order in respect of expert reports not relied upon at trial – order refused

PRACTICE AND PROCEDURE – application to file amended statement of claim – Civil Procedure Act 2005 (NSW) s 64 – application to rely upon further evidence notwithstanding earlier guillotine order – where claim against director for unreasonable director-related transactions – Corporations Act 2001 (Cth) s 588FF, s 588FDA and s 588FE – no issue of principle – leave granted to amend pleading – leave granted to rely upon further evidence

CRIMINAL PROCEDURE — stay of proceedings — inherent power to prevent abuse of process — application for continued detention under the Crimes (High Risk Offender’s) Act— where defendant is in custody parole revoked and bail refused in relation to new criminal charges — whether the making of a continuing detention order is inimical to the defendant’s ability to defend the new charges against him — whether requirement that defendant submit himself to psychiatric assessment would interfere with right to silence — where defendant will not be required to attend assessment until released on bail — where court cannot foreshadow what might occur at the conclusion of the defendant’s parole period — no basis to stay proceedings HIGH RISK OFFENDERS — interim detention orders — whether Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence — where defendant has a history of committing serious acts of violence against intimate partners — where new charges committed notwithstanding defendant having been on parole and under supervision — where defendant would be at unconditional liberty if no order was imposed — where risk posed to persons in an intimate relationship with defendant persist — interim detention order made

ADMINISTRATIVE LAW – Where application for inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 dismissed – Whether decision to dismiss application involved error – Whether failure to consider arguments made in support of application – No question of principle

BUILDING AND CONSTRUCTION – limitation period – limitation period for actions arising out of defective building work more than ten years after completion of work – limitation period originally contained in s 109ZK of Environmental Planning and Assessment Act 1979 – section renumbered as s 6.20 – as originally enacted, s 109ZK applied only prospectively – defendant’s building work done before enactment of s 109ZK – whether limitation period applied to building work done before section enacted – whether s 6.20 replaced s 109ZK – whether limitation period applied to loss of the kind alleged by the plaintiff. STATUTORY CONSTRUCTION – amending legislation – limitation section renumbered and reworded – transitional and savings regulations – regulations deferred commencement and qualified scope of limitation period – effect of repeal of regulation – further regulations including amended regulations preserving repealed sections and qualifying renumbered section – whether effect of legislation and amendment was a period of time during which limitation period did not apply – whether legislation displaced operation of Interpretation Act 1987 – observations on undesirability of regulations affecting operation of statute.

CRIMINAL LAW – appeal against conviction – aggravated break and enter of a dwelling house and commit serious indictable offence – sexual intercourse without consent – pre-trial ruling – additional context evidence – reasons for lack of complainant – cross-examination of applicant – prosecutorial conduct – post-offence conduct – consciousness of guilt direction

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Where applicant had assisted the authorities by making an induced statement outlining the circumstances of the importation and his involvement in it – Statement far more detailed than the facts tendered on sentence – Where Crown tendered the applicant’s statement in the context of his assistance – Failure on the part of both the Crown and counsel then appearing for the offender to address the issue of the use to which the statement could be put by the sentencing judge – Where the sentencing judge made a series of findings based on the statement as to the applicant’s role and his level of criminality in comparison with his co-offenders – Where those findings were adverse to the applicant – Error established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Objectively serious offending involving the importation of sixteen times the commercial quantity of cocaine – Where applicant pleaded guilty and expressed genuine contrition – Where applicant co-operated with law enforcement and provided a high level of assistance extending to promised future assistance – Where applicant had fears for his personal safety arising out of his assistance to authorities – Where applicant’s criminality at a substantially higher level than either co-offender – Applicant re-sentenced CRIMINAL LAW – Practice and procedure – Use which can be made on sentence of an induced statement which has been made by an offender for the primary purpose of assisting the authorities – Necessity for both the Crown and defence to be clear at the time of tendering the statement as to the use to which it is intended that such statement be put – Observations as to the obligations on both the Crown and the defence to assist a sentencing judge – Observations as to the basis on which the sentence hearing should properly have been conducted

CRIMINAL LAW – sentence appeal – three counts of supply a prohibited drug, two of which involved a large commercial quantity – discount allowed for plea of guilty – discount erroneously applied to aggregate sentence rather than indicative sentences – need to re-sentence – despite error, a less severe sentence is not warranted in law – appeal dismissed.

CRIMINAL LAW – sentence appeal – attempt to possess an unlawful imported border controlled drug (methamphetamine) – applicant convicted after trial – 142kg of methamphetamine – sentence of 10 years with a non-parole period of 6 years and 6 months – whether sentence manifestly excessive – whether error in not properly taking into account the prior good character of the applicant – leave to appeal granted but the appeal dismissed.

CRIMINAL LAW – sentence appeal – driving in a manner dangerous occasioning grievous bodily harm and cause bodily harm by misconduct in charge of a vehicle – collision between semi-trailer and two cars – serious injuries caused to occupants of cars – whether objective seriousness of offending aggravated by knowledge of defective brakes and ignoring the speedometer – whether aggregate sentence manifestly excessive – appeal against sentence dismissed.

EMPLOYMENT LAW – contract – interlocutory restraint of trade – enforcement and remedies – restraint against employment with competing business – fixed interest securities broker – prima facie case – balance of convenience

BAIL REVIEW - release application

COSTS – Basis of quantification – Four separate proceedings heard together – Overlapping parties where Plaintiffs in certain proceedings were Defendants in others – Parties successful on certain claims and unsuccessful in others – Whether appropriate for no order as to costs across all proceedings – Where successful and unsuccessful claims within a proceeding.