Cases and authorities

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – duplication of proceedings – vexatious litigant order

CIVIL PROCEDURE – interim preservation – freezing order in relation to Australian assets of Hong Kong resident – in aid of prospective award and judgment in pending arbitration in Hong Kong – where interim measure made by consent in Hong Kong arbitration in relation to Hong Kong Assets – where preservation order made in PRC Court – whether good arguable case and sufficient prospects of obtaining judgment demonstrated – where respondent pleads detailed defence to applicant’s case in the arbitration CIVIL PROCEDURE – interim preservation – freezing order in relation to Australian assets of Hong Kong resident – whether danger of dissipation of Australian assets COMMERCIAL ARBITRATION – international commercial arbitration – interim measures – UNCITRAL Model Law – concurrent jurisdiction of this Court with arbitral tribunal and supervisory court in lex arbitri – comity and deference to arbitral tribunal – whether Court should exercise concurrent jurisdiction to make a freezing order

COSTS – whether unsuccessful claimant for provision out of deceased estate should pay own costs and pay defendant executor’s costs – no question of principle

CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — Jurisdiction to make freezing order — Discretion whether to make freezing order — Winding up application against company that is trustee of self-managed superannuation fund — Where assets had been transferred to beneficiaries and associated entities — Asset transfers occurring without discharging tax liabilities — Where assets now held by beneficiaries and associated entities appear less than quantum transferred — Where evidence led raises risk of continued dissipation of assets without reserving funds to meet judgment — Where liquidator if appointed has prospective claims against beneficiaries and associated entities.

ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — whether the defendant’s circumstances constituted ‘manifest injustice’ - whether the State Parole Authority sufficiently considered mandatory considerations ADMINISTRATIVE LAW — Procedural Fairness — whether the Commissioner was afforded the opportunity to provide adequate submissions to the State Parole Authority

ADMINISTRATIVE LAW – judicial review – injuries sustained by plaintiff in workplace accident in 2011 – claim under Workplace Injury Management and Workers Compensation Act 1998 – challenge to decisions of Approved Medical Specialist and Appeal Panel – Approved Medical Specialist finds no causal link between 2011 workplace accident and any injury to plaintiff’s right shoulder – decision confirmed by Appeal Panel – claim of denial of procedural fairness and of legal unreasonableness in decision-making – held no denial of procedural fairness – legal unreasonableness not demonstrated – plaintiff’s claim for relief not established – Amended Summons dismissed

CONTRACTS – Construction – Interpretation – Where exclusion clause in insurance policy referred to particular legislation “and subsequent amendments” – Whether replacement legislation a “subsequent amendment” CONTRACTS – Construction – Principles – Correction of mistakes by construction – Where policy includes a reference to repealed legislation – Whether parties may be taken to have known of repeal and replacement of repealed legislation as part of surrounding circumstances – Whether reference absurd or clear mistake – Whether reference to be construed as reference to replacement legislation in light of surrounding circumstances

CIVIL PROCEDURE – parties – vexatious litigants – fourth application to set aside vexatious proceedings order – application dismissed CONTEMPT – allegation of contempt of court – whether enforcement of costs order in breach of undertaking given to the Court – no leave sought to bring proceedings – Vexatious Proceedings Act 2008 (NSW) s 14 – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given

TORTS – general principles – Civil Liability Act 2002 (NSW) – personal injury – “spear tackle” or “dangerous throw” during a rugby league match – whether “intent to cause injury” – presumption that a wrongdoer intends the natural and probable consequences of his or her conduct. WORDS AND PHRASES – meaning of “intent to cause injury” – Civil Liability Act 2002 (NSW), s 3B(1) – actual, subjective, intention NEGLIGENCE – defences – Civil Liability Act 2002 (NSW) – s 5L materialisation of an obvious risk of a dangerous recreational activity – whether intentional act – whether effected with intent cause injury – recreational activity where an intention to cause some degree of injury is likely or common.

LAND LAW – easements – imposition of easement by Court – standard of appellate review – requirement that proposed easement be “reasonably necessary for the effective use or development” of the land – Conveyancing Act 1919 (NSW), s 88K(1) LAND LAW – easements – validity – characterisation under general law – rights not to confer exclusive use of servient tenement – enclosure of community land for waste transfer and recycling facility – loss of owner’s use of enclosed land and limited use of residue – whether proposed easement capable of being characterised as an easement LAND LAW – community land – inability of Council to grant easement over community land – whether Court can impose easement where owner cannot grant it – Local Government Act 1933 (NSW), s 46 and Conveyancing Act 1919 (NSW), s 88K

TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk

CIVIL PROCEDURE — admissibility of expert report — service out of time — leave — where necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) — whether exceptional circumstances shown — impecuniosity

COSTS – party/party – Uniform Civil Procedure Rules 2005 (NSW), r 42.34 – where plaintiff recovers less than $500,000 – transferred from District Court – unsuccessful claim for equitable relief – whether commencement and continuation of the proceedings in the Supreme Court was warranted

DUST DISEASES – proceedings commenced against deregistered company – claim for general damages –claimant died – s12B Dust Diseases Tribunal Act – proceedings not “commenced and pending before the Tribunal at the person’s death” – Court can reinstate company and validate proceedings nunc pro tunc. CORPORATIONS – reinstatement – transitional provisions – company dissolved in 1997 under s509 Corporations Law – s571 and s574 Corporations Law repealed 1 July 1998 when section 601AH enacted – meaning of “ASIC’s powers” in s1362CH Corporations Law – operation of s1439 Corporations Law – Shaw v Goodsmith preferred to City West Water – transitional provisions to Corporations Act – s1408 – have power to reinstate company under s601AH Corporations Act. CORPORATIONS – reinstatement – effect of reinstatement – s601AH(5) – caselaw review at [63]-[68] – proceedings against deregistered company not automatically validated on reinstatement – ANCILLARY ORDERS – differing statements on breadth of power reviewed at [70]-[76] – four considerations apparent from case law review at [77]-[85] – can validate proceedings nunc pro tunc at [92]. CORPORATIONS ACT and s79 Judiciary Act – exercising federal jurisdiction – s1337A, s1337B(2), s1337B(5) Corporations Act – no gap – Dust Diseases Tribunal Act not ‘picked up. CORPORATIONS ACT – concurrent operation of State laws – s5E, s5F, s5G – Dust Diseases Tribunal Act has declared various Corporations Act provisions to be excluded, but not reinstatement powers – state and corporations legislation operated concurrently for 22 years – no direct inconsistency suggested. WORDS AND PHRASES – meaning of “pending” at [62] – meaning of “hear and determine” at [103].

COSTS — Security for costs — Relevant factors – Uniform Civil Procedure Rules, r 42.21(d) – whether the defendant/applicant has established that there is reason to believe that the corporate plaintiffs will be unable to pay the costs of the defendant if ordered to do so.

INSURANCE — Claims — Fraud — Proof — Where fires started in hotel — Where claim denied based on allegation that plaintiff started the fires

Preliminary application for “extension order” – order to extend status of defendant as a “forensic patient” under the Act – defendant diagnosed with moderate Intellectual Disability – defendant with a number of convictions for sexual offences against children – defendant currently detained in a correctional centre – limiting term of imprisonment to expire 1 December 2020 – primary object of the Act to protect the safety of members of the public – whether plaintiff has satisfied the Court to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient – whether the Court is satisfied to a high degree of probability that the defendant’s risk cannot be adequately managed by means less restrictive than being a forensic patient – Court so satisfied on a preliminary basis – extension order made.

APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act 2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act 2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

COSTS — Party/Party — Whether costs should follow the event — Whether s 60 of the Civil and Administrative Tribunal Act 2013 (MSW) binds Supreme Court — Held that it does not

PRACTICE AND PROCEDURE – Application for adjournment – History of non-compliance with Court’s orders – Application refused

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Abuse of process — Where plaintiff commenced proceedings seeking same relief as prior dismissed proceedings — Where prior proceedings were dismissed due to plaintiff’s failure to appear — Where plaintiff has not paid costs of earlier proceedings — Whether proceedings constitute an abuse of process

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 22(2), (3), (5) – An adjudication determination upheld a claim for a variation of a building contract consisting of a direction by a head contractor to a sub-contractor to provide spotters for mobile elevated work platforms – Challenge to the determination on the grounds that it discloses no evident or intelligible justification for upholding the claim and that the adjudicator denied the plaintiffs procedural fairness because he found them on bases not the subject of submission duly made – HELD – Challenges not made out – Importance of recognising that adjudicators’ determinations are not judgments of a court, that the procedural behaviour of adjudicators and determinations should not be examined with an overcritical or pedantic eye but should be viewed with common sense and without undue legality and should not be scrutinised with a fine-tooth comb approach.

CONFLICTS OF LAWS – trust law – administration of trust – judicial advice – Western Australian trust – inherent equitable jurisdiction – whether New South Wales statutory advice provision applies – court relies on cross-vested Western Australian statutory power EQUITY – trusts and trustees – judicial advice – appeal – applicable principles – proposed appeal from judgment referring trustee’s claim to arbitration and otherwise staying proceedings – proposed appeal from adverse costs order

ADMINISTRATIVE LAW — Decisions made under Motor Accidents Compensation Act 1999 (NSW) — Whether third defendant applied incorrect test in determining causation — Whether third defendant applied incorrect test in determining whether proposed treatment was reasonable and necessary — Whether fourth defendant failed to identify error

CHILD WELFARE — Care proceedings — Independent Legal Representative for the child or young person — Whether Independent Legal Representative for the child should be removed or replaced CHILD WELFARE — Care proceedings — Guardian ad litem — Whether s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires the Court to appoint a guardian ad litem where child or young person is a party to the proceedings and the Court is of the opinion that they are incapable of giving proper instructions to a legal representative — Interaction between ss 98(2A), 100 and 101 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) CHILD WELFARE — Care proceedings — Parties to care proceedings — Whether Independent Legal Representative for the child or young person should be a party to proceedings — Whether child or young person should be a party to care proceedings

COSTS — Security for costs — Appropriate quantum of security — When tranches of security ought to be paid — Where applicant is the defendant in one of seven Takata Air Bag Class Action Proceedings — Where extent of the evidence and how the remainder of the proceedings will be case managed yet to be determined ­— Consideration of conflicting approaches employed by plaintiff ‘s and defendant’s experts

POLICE – search warrant – police seized computer and made copy of hard drive – search warrant invalid – hard drive contained child abuse material – police wishing to investigate child abuse material but presently subject to interlocutory regime – whether discretionary relief for destruction of computer and copy of hard drive should issue – relief refused to owner – police released from restriction

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – Family provision proceedings – Where plaintiff successful at first instance but lost on appeal – Whether to make no order as to costs of first instance and appeal proceedings

CRIMINAL LAW – sentence appeal – one offence of aggravated indecent assault on a victim under the age of 16 and aggravated sexual intercourse with a victim under the age of 16 – whether principle of totality properly applied – leave to appeal granted – appeal dismissed.

APPEAL – sentence appeal – specially aggravated break and enter – assault occasioning actual bodily harm with intentional wounding – where applicant entered partner’s house with axe – where injury caused to partner and friend – whether sentencing judge engaged in two-tier sentencing – whether Form 1 matter considered appropriately – whether consideration given to remorse – where no error by sentencing judge – where sentence falls at more severe end of statistical range – where appellate intervention not compelled

APPEAL – conviction appeal – trial by jury – indecent assault – sexual intercourse without consent – acquittal on Counts 1, 2 and 4 – finding of guilt on Count 3 – conviction appeal – whether verdict of guilty on Count 3 unreasonable due to inconsistency with acquittals on the other counts – where acquittals not necessarily dependent on adverse findings as to complainant’s credibility – where finding of guilt on Count 3 not inconsistent or unreasonable APPEAL – sentence appeal – whether evidence of a prior intimate relationship is relevant to objective seriousness – where seriousness of offending not mitigated by prior sexual relationship between offender and victim

CRIMINAL PROCEDURE — Trial — Judge alone —Particulars — Whether Crown should be permitted to amend the particulars of the Crown case

CRIMINAL LAW – murder – evidence – 18 objections to evidence proposed to be led by the Crown – relevance – probative value – unfair prejudice – expert evidence of police officer – evidence of drug supply – other orders – whether view warranted

PROCEEDS OF CRIME – application under s.24 Proceeds of Crime Act 2002 (Cth) for payment to Defendant of reasonable living expenses – counsel for Defendant seeks to tender three non-contemporaneous documents relating to generalised and statistical household living expenses – no prior notice given to counsel for the Plaintiff of intention to tender documents – consideration of relevance and weight – issue of reasonable living expenses to be determined with reference to particular circumstances of the Defendant – documents not admitted

PROCEEDS OF CRIME – application under s.24 Proceeds of Crimes Act 2002 (Cth) (‘POC Act’) for payment to Defendant of reasonable living expenses – affidavits of Defendant in support of application – cross-examination of Defendant – general principle that leave required to cross-examine a witness in an interlocutory application – open question whether leave required given nature of the statutory scheme in POC Act – assumption that leave requirement applies to s.24 POC Act application – significant challenge to credibility and reliability of Defendant’s evidence – cross-examination of Defendant to assist Court in determination of s.24 application – leave granted

CORPORATIONS – winding up – where company in liquidation – application by liquidator for approval to enter into deed of settlement – where compromise debts of the company – where obligations under deed may be discharged more than three months after date of deed – Corporations Act 2001 (Cth) ss 477(2A) and (2B) – whether appropriate for Court to approve deed – approval granted

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of decisions of a medical assessor and proper officer – Application of wrong test for causation – Failure to take into account relevant considerations – Denial of procedural fairness – Review dismissed

PRACTICE AND PROCEDURE – Application for a stay pending an appeal against a determination of the Local Court – Triable issue – Balance of convenience – No point of principle

CORPORATIONS — Winding up — Liquidators — Remuneration — Remuneration earned by employees of incorporated entities — Whether characterised as liquidators’ disbursements or remuneration — Whether Court approval required to derive profit — Whether exception in s 60-20(4A) of IPSC applies

Costs – No point of principle

LAND LAW — Torrens title — the plaintiff claims an equitable interest in a rectangle of 7.3657 square metres of land (“the subject rectangle”) of which his neighbour, the defendant, is the registered proprietor – the subject rectangle is subtracted from the plaintiff’s otherwise generally rectangular land – plaintiff claims he uses the subject rectangle – the plaintiff relies upon a March 1987 agreement between himself and the previous owner of the defendant’s land for the transfer of the subject rectangle to the plaintiff – the plaintiff paid $500 in consideration to the previous owner, who signed the agreement – the plaintiff did not lodge a caveat to give effect to this agreement – the plaintiff considers he also has an adverse possession claim over the subject rectangle – Court satisfied that the defendant has been notified of the hearing – but the defendant makes no appearance at the hearing – whether the plaintiff’s claim should be pleaded – whether the matter can be resolved through a court annexed mediation.

ADMINISTRATIVE LAW – whether there has been jurisdictional error - Local Court decision – Magistrate refused application for professional costs – seeks prerogative relief – whether Magistrate failed to correctly apply s 214 Criminal Procedure Act

BANKRUPTCY – where applicants challenge distribution of surplus property of incorporated association in liquidation – Associations Incorporation Act 1984 (NSW) s 53 – where applicants subsequently become bankrupts – whether applicants’ interlocutory processes stayed by Bankruptcy Act 1966 (Cth), s 60(2) – whether s 60(2) subject to implied limitation that the action must have necessary connection to bankrupt’s estate – Bankruptcy Act 1966 (Cth), s 60(4) – whether wrong done to the bankrupts – declaration made PRACTICE AND PROCEDURE – where bankrupts apply to remove themselves as parties and join new party to interlocutory processes – whether removal of parties appropriate – whether joinder of new party proper or necessary – Uniform Civil Procedure Rules 2005 (NSW) r 6.24 – application dismissed

EMPLOYMENT AND INDUSTRIAL LAW – Contract – Breach of contract by use of what was said to be confidential information – Where no written contract of employment – Where Defendants alleged to have taken confidential documents and client contacts – Where Defendants alleged to have established a competing business using the confidential information as a “springboard” – Whether Defendants breached implied duties of fidelity and confidentiality – Whether Plaintiffs entitled to an injunction EQUITY – Breach of confidence – Conduct constituting breach – Where Defendants alleged to have taken confidential information and client contacts – Where Defendants alleged to have established a competing business using confidential information as a “springboard” – Whether equitable duty persists where an equivalent contractual duty exists – Whether Defendants breached their equitable obligation – Whether Plaintiffs entitled to an injunction or account of profits EQUITY – Fiduciary duties – Fiduciary relationships – Employee and employer – Conflict of interest and duty – Where Defendants’ position low in the hierarchy of the Plaintiffs’ business – Whether fiduciary duty arises CORPORATIONS – Employees – Duties – Duty not to use position as employee improperly – Duty not to use information improperly – Whether information required to be “confidential” – Whether Defendants contravened provisions of the Act

COSTS – application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – cost principles – where proceedings stayed by force of the Bankruptcy Act – where plaintiffs’ seeks gross sum cost order following the defendant filing for bankruptcy – where plaintiff’s bankruptcy petition evidenced capitulation in relation to the plaintiffs’ claim - quantification of the appropriate specific gross sum to be awarded – gross sum cost order made

APPEALS – appeal from the Local Court to the Supreme Court – whether a payable debt existed at the time of the commencement of the proceedings – whether s 553 of the Corporations Act 2001 (NSW) operated to convert the debt owed into a right of proof – where the debt is due two years after the issue of a certificate of completion for upgrade works – where the two-year period had not yet elapsed

MISLEADING OR DECEPTIVE CONDUCT – Misleading or deceptive conduct – misleading or deceptive conduct by silence - alleged non-disclosure relating to sale of shares in private company – where purchaser was an experienced commercial participant – whether primary judge erred in characterising specific representation as providing an “assurance” to the purchaser of shares in private company – whether primary judge erred in finding that the purchaser had a “reasonable expectation” that certain disclosures would be made – whether any misleading or deceptive conduct was causative of loss or damage – where as a matter of common sense causation, loss sustained was due to a calculated risk by an experienced commercial participant, and not by any alleged misleading or deceptive conduct

REVENUE – stamp duties – declaration of trust – whether document styled “Declaration of Trust by Nominee” merely acknowledged position after grant of probate and resealing of grant – dutiable transaction - whether mere acknowledgement a dutiable transaction – significance of Duties Act 1997 (NSW) being tax on transactions, rather than tax on instruments PRECEDENT – precedential authority of dissenting judgment – precedential authority of statements applicable to earlier legislation – precedential authority of points assumed without argument TRUSTS – property held on trust for beneficiary – beneficiary’s will appointed his executor as sole beneficiary of his estate – effect on trust of grant of probate of will and resealing in NSW – estate not fully administered – nature of obligations owed by trustee to executor who was also sole beneficiary of deceased estate – construction of declaration of trust – whether document merely acknowledged existing state of affairs

CRIMINAL LAW – Sentence appeal – Offence of doing act with intent to pervert the course of justice – Whether sentencing judge erred in assessing offence as in the midrange of objective seriousness – No error established CRIMINAL LAW – Sentence appeal – Whether sentencing judge’s misstatement of maximum penalty for additional drive while disqualified offence impacted aggregate sentence – Misstatement had no material impact CRIMINAL LAW – Sentence appeal – Whether sentence manifestly excessive – Not manifestly excessive in the circumstances