Cases and authorities

CIVIL PROCEDURE – interlocutory injunction –injunction previously granted on an ex parte basis – extension refused at inter partes hearing – no prima facie case – relief sought “under the general law” – no cause of action identified – requirements of Practice Note SC Eq 4. TRUSTS – corporate trustee of four family trusts – $30 million assets – trust distributions historically made to two families equally – representation by both families on board of trustee company – change in shareholdings of trustee company – shareholder meeting called – resolutions proposed which, if passed, will result in no representation of one family on the board – directors meeting called proposing to change trustee to appoint members of potentially disenfranchised family – injunction sought to restrain directors meeting until after shareholders meeting. DIRECTORS – “caretaker directors” – no allegation of breach of duty – no evidence as to voting intentions of shareholders – no prima facie case.

COSTS – departure from the usual rule – protective jurisdiction – where applicant unsuccessful in seeking a declaration and orders under s 86 of the NSW Trustee and Guardian Act 2009 (NSW) – where applicant reasonably commenced and maintained the application – where conduct of application as a whole not adversarial in nature – where applicant’s financial manager adopted a neutral position and provided valuable assistance to the Court – appropriate that all parties’ costs be paid out of the applicant’s estate on an indemnity basis

COSTS — Party/Party — Indemnity basis — Calderbank offer made by successful party — Whether offer defective — Whether rejection of offer unreasonable — Order for costs on indemnity basis made

NEGLIGENCE — Where plaintiff claimed she was injured while working for defendant at coal mine — Injury allegedly sustained as a result of plaintiff’s dump truck jolting upon hitting a ‘soft spot’ in road — Plaintiff claimed defendant’s failure to detect and repair ‘soft spot’ negligent EVIDENCE — Credibility of witnesses — importance of contemporaneous accounts — effect of litigation, motive and hindsight on recollection and reliability of evidence TORTS — Damages — Assessment of damages — Effect of pre-existing conditions — effect of Workers Compensation Act 1987 (NSW) for worker employed at coal mine

LAND LAW – possession of land – where plaintiff is the executor of the will of the registered proprietor – where defendant went into occupation of property after deceased’s death – where defendant has claim for provision under the Succession Act – no defence to claim for possession – defence struck out – leave to plaintiff to obtain default judgment

COSTS – Lump sum or gross costs orders – Whether lump sum costs orders should be made – Appropriate discount to lump sum or gross costs order CIVIL PROCEDURE — Stay of proceedings — Where proceedings stayed due to security for costs not being provided on time — Where security for costs paid late — Whether stay should be lifted — Whether cross claim barred by res judicata, Anshun estoppel or abuse of process

ADMINISTRATIVE LAW – Judicial review – jurisdictional error – whether primary judge erred in holding that District Court did not have jurisdiction to make directions for compensation pursuant to s 97(1) of the Victims Rights and Compensation Act 2013 (NSW) in circumstances where defendant originally convicted in Local Court – whether District Court had jurisdiction to make a compensation order when it was not the court which convicted the offender but which “confirmed” convictions on appeal.

ADMINISTRATIVE LAW — Jurisdictional error – Application for an inquiry into conviction – Whether primary judge who refused to consider or otherwise deal further the application in accordance with s 79(3)(a) of the Crimes (Appeal and Review) Act 2001 fell into jurisdictional error – Whether material presented on the application had been considered in previous applications for an inquiry – Nature of the discretion under s 79(3)

CRIMINAL LAW – conviction appeal – unfair or unbalanced summing-up causing miscarriage of justice – while there may be circumstances that permits a trial judge not to summarise facts, once a judge commences a summary it must be fair and balanced

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – whether the verdict of the jury was unreasonable and not be supported by the evidence – whether fresh evidence would have changed outcome of trial

COSTS – security for costs – plaintiff sues as tutor – whether security for costs may be required CIVIL PROCEDURE – registrars – review of registrar’s decision – application for extension of time – costs of proceedings up to registrar’s decision CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – challenge to will based on lack of knowledge and approval – whether there “may” be a cause of action – discretion – application granted on terms as to payment of lump sum on account of costs

CRIMINAL LAW – evidence - whether hearsay - where statements attributes shooting to co-accused - where shooting took place at makeshift Buddhist temple - whether statement may be second hand hearsay - notice to admit facts - where accused admits presence at the scene in response to notice - evidence admissible

CIVIL PROCEDURE — Pleadings — Striking out —Whether allegations concerning breach of joint venture agreement disclose reasonable causes of action — Whether joint venturers proper plaintiffs CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings —Whether allegations concerning breach of joint venture agreement disclose reasonable causes of action — Whether joint venturers proper plaintiffs CIVIL PROCEDURE — Parties — Joinder — Persons having the same interest in proceedings — Whether necessary to join joint venture company CIVIL PROCEDURE — Pleadings — Matter arising after commencement of proceedings — Where in the interests of just, quick and cheap resolution of issues to permit further amendment

CRIMINAL LAW – Evidence – Admissibility of expert opinion evidence – Where accused charged with murder – Issue of intoxication – Where Crown sought to lead evidence of expert opinion of a forensic psychiatrist as to the capacity of each accused to form the requisite intention – Issue not whether the accused had the capacity to form the intention but whether the intention was in fact formed – Evidence excluded

CRIMINAL LAW - evidence - statements made to witness - statements suggest knowledge of relevant events - whether hearsay - whether admissions - whether relevant to prove state of knowledge at earlier time - probative value slight - danger of unfair prejudice

CRIMINAL LAW – evidence - exasperation - futility - case management orders - statutory disclosure requirements - failure to comply with disclosure requirements - service by metaphorical dump truck - contempt for court orders - deterrence - application to exclude evidence - relevant considerations - where lawyers for accused repeatedly sought telephone evidence to be disclosed - where prosecution indicates telephone schedules provided - where police continue investigation - where new telephone service attributed to the accused - police serve evidence after date scheduled for trial - parties blindsided - failure to conduct timely and thorough investigation - unreasonably onerous task cast on accused lawyers - where trial delayed - no further prejudice to accused - evidence potentially important

CRIMINAL LAW - evidence - hearsay evidence - exceptions to hearsay rule - duty to make representations - whether owner under obligation - whether LEPRA creates a duty for the purpose of s 65(2)(a) of the Evidence Act - meaning of owner - nature of duty - relevance of common law authority CRIMINAL LAW - evidence - exceptions to hearsay rule - circumstances giving rise to high degree of probability that representations are reliable - contradictory versions of “the whole truth” - suspicion of malfeasance

CIVIL PROCEDURE - pleadings – claim for tort of misfeasance in public office – claim in respect of actions of police officers – claim against State of New South Wales on the basis of vicarious liability - whether the further amended statement of claim adequately pleads the cause of action - where plaintiff fails to identify the officers involved, invalid acts they committed or damage suffered – whether the defendant is vicariously liable - Law Reform (Vicarious Liability) Act 1983 (NSW) – pleading struck out – whether plaintiff should be permitted to re-plead – third iteration of the statement of claim but first one where plaintiff legally represented - where associated claim in trespass is unchallenged - leave given to the plaintiff to re-plead

APPEAL – Practice and procedure – freezing orders – discovery – whether primary judge erred in ordering discovery of documents in context of a challenge to freezing order originally made in aid of proceedings to be commenced in Hong Kong – where proceedings subsequently commenced in Hong Kong – where freezing order extended by consent but subsequent application to vacate freezing order – whether any error of principle in ordering discovery. CIVIL PROCEDURE – Application for leave to appeal – where grant of leave would lack utility – where primary judge did not err in discretionary decision relating to question of practice and procedure – where no issue of error or principle. CIVIL PROCEDURE – Freezing orders – whether discovery appropriately ordered in context of challenge to freezing orders originally obtained ex parte but subsequently extended by consent.

MENTAL HEALTH – practice and procedure – appeals – appeal against Mental Health Review Tribunal decisions – interlocutory application to stay medication while plaintiff prepares for hearing

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal child under the parental responsibility of the Minister for all aspects except culture and religion – where child has extensive history of drug use, sexual abuse and exploitation as well as mental health problems – where child has unsuccessfully attempted several voluntary programs to treat her drug abuse and mental health problems – where proposed treatment plan seeks to confine child to medical facility in order for the child to undertake detoxification program – where medical evidence that child’s drug use is extreme and inconsistent with survival in the immediate foreseeable future – where no treatment options involving less interference with the child’s liberty are available and viable in the circumstances – medical treatment and confinement of child authorised

COSTS – proceedings between co-owners of property – proceedings arise in a matrimonial context – no matrimonial proceedings on foot when proceedings commenced – defendant commences proceedings in Family Court – defendant seeks dismissal, stay or transfer of proceedings – accepted by parties that it would be appropriate to transfer proceedings to Family Court – whether plaintiff should be ordered to pay the defendant’s costs – where defendant incurred costs unnecessarily – whether appropriate that each party bear its own costs

APPEAL – Local Court – Modest amount in dispute – No point of principle – Unpaid invoices

COSTS – application for removal of caveats lodged by defendant – caveats claim a charge pursuant to finance broking agreements – agreement reached for caveats to be removed in exchange for the provision of alternative security – no longer a need for plaintiffs to pursue relief claimed in the Summons – defendant commences fee recovery proceedings against plaintiffs in County Court of Victoria – decision of the County Court likely to be important on question of costs – question of costs to be deferred until after the conclusion of the County Court proceedings

MEDICAL NEGLIGENCE – approval – whether proposed settlement in the best interests of the plaintiff – settlement approved

MEDICAL NEGLIGENCE – infant settlement – approval – whether proposed settlement in the best interests of the infant plaintiff – settlement approved

MEDIA AND COMMUNICATIONS – application by media to discharge non-publication order – whether order still “necessary”

CIVIL PROCEDURE - summary dismissal - decision of the Department of Housing NSW - refusal of priority housing - where statement of claim discloses no cause of action - allegation of discrimination - reasons for delay

CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution

CRIMINAL LAW - procedure - service of voluminous material by police - where Prosecutor not first provided with material - no filter - pre-trial arguments proceeding - trial imminent - application for police to desist - case management orders made

PRIVILEGE – legal advice privilege – communications with third parties at [45] – dominant purpose – waiver – limited waiver at [60] – disclosure to auditors at [66] – onus – evidentiary requirements. Objection to production of documents by auditor to liquidators – claim for privilege by third party – common law applies. Liquidators of two subsidiaries conducting examinations – orders for production to auditors of parent company – accounts prepared on consolidated basis – disclosure of legal advice by parent company to auditor on a confidential basis – review of legal advice referred to in audit letter – whether disclosure of legal advice by parent company to auditor amounted to waiver to auditor only, waiver to subsidiaries, or waiver generally. WAIVER – limited waiver – disclosure of privileged material to auditors ordinarily limited waiver only – no waiver by parent company to subsidiaries – no waiver generally.

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — although defendants have given conditional consent, the Court will not grant leave to file the draft amended pleadings in their present terms — where the Court is entitled to insist that any amendments that are permitted allege all material facts and give all necessary particulars COSTS — Party/Party — Costs orders in interlocutory proceedings — where the plaintiffs must be ordered to pay the defendants’ costs of and occasioned by the amendment of the pleadings — where the Court should not order that those costs be paid forthwith — where the Court should not make gross sum costs orders COSTS — Security for costs — Relevant factors — where, in the circumstances, the defendants are at least entitled to an order that requires the plaintiffs to increase the amount of the indemnity for costs by an appropriate amount CIVIL PROCEDURE — Pleadings — Amendment — where, in the circumstances, it would not be appropriate for the Court to impose a condition on the amendment of pleadings that stipulates that the party seeking leave may not call a lawyer for the other party at the hearing

COSTS — Party/Party — Costs orders in interlocutory proceedings — where the applicant is to pay the respondent’s costs of the notice of motion

CIVIL PROCEDURE – Subpoenas – Notices to Produce – Application to set aside – adjectival relevance – fishing – objection dismissed – production required

CIVIL PROCEDURE — Interlocutory applications — where the parties reached an impasse after the plaintiff has been unable to make mortgage payments out of net rents received — where the Court is forced to resolve minor disputes that are reflective of an unwillingness to come to a sensible compromise

EQUITY – Interlocutory relief – where plaintiffs seeks to restrain defendants from asserting an ownership interest or licence to use patents and communicate with patent authorities – where conflicting evidence as to the existence of a licence to use patents – whether plaintiff has established a serious question to be tried that website posts conveyed licence representations that were misleading or deceptive – whether balance of convenience favours the grant of an injunction – interlocutory restraints granted CIVIL PROCEDURE – Hearings – Suppression and non-publication order – where plaintiffs sought suppression order over letters exhibited to an affidavit – whether suppression order necessary to prevent prejudice to the proper administration of justice – suppression order granted in part

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – offences of violence – Violent Offenders Treatment Program – consideration of statutory criteria – risk of future offending

SUCCESSION – Practice and procedure – Intestacy – Entitlement to grant on intestacy – Where apparently valid Will in existence – Where the Defendant executor and sole legatee under the Will does not appear – Where no person propounds the apparently valid Will – Evidence required on application for a grant of letters of administration on intestacy – Whether a grant of letters of administration on intestacy can be made

CIVIL PROCEDURE — commencement of proceedings — statement of claim — form and content — application of r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) — no formal application made by the plaintiffs — just, quick and cheap resolution of the real issues in dispute — various iterations of a statement of claim provided to the Court — material pleaded in statement of claim which is not relevant — dictates of justice — leave granted to file and serve a further amended statement of claim CIVIL PROCEDURE — parties — representation — by unqualified persons — plaintiffs previously referred to the Pro Bono Scheme — assistance not provided

CRIMINAL LAW – evidence - pre-trial objections - where accused charged with supplying guns - related drug deal - where guns used in shooting offences - where accused in possession of guns and drugs after the event - whether admissible - whether tendency evidence - submission stripped of verbiage - where no tendency notice given - possession of drugs directly relevant - possession of guns relevant only to prove tendency - notice requirements dispensed with on condition of provision of proper notice CRIMINAL LAW - evidence - electronically recorded interview - where accused indicates he wished to consult with lawyer before answering questions - police offer to telephone lawyer - offer to persist with questioning - whether improper - whether unfair - evidence admissible CRIMINAL LAW - evidence - relevance - text messages - probative value - unfair prejudice - rulings on communications with eleven associates

COSTS – security for costs – relevant factors – where plaintiff resides overseas – where plaintiff is impecunious – where defendant’s business is targeted towards international students – where costs of proceedings would be considerable – whether proceedings would be stifled – whether enforcement of a costs order would be difficult – whether the plaintiff has reasonable prospects of success

PRACTICE AND PROCEDURE - Application for leave to bring or to continue proceedings against insurers under Civil Liability (Third Party Claim Against Insurers) Act 2017 (NSW), s 5 – Whether insurers entitled to disclaim liability – Whether conflict of interest exclusion clause apply – Whether lenders liability exclusion clause applies – Costs follow the event

COURTS – jurisdiction – appeal requiring leave to appeal from the Common Law Division – Trade Marks Act 1995 (Cth) – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Trade Marks Act – summons seeking leave to appeal dismissed for want of jurisdiction

CRIMINAL LAW – sentence appeal – eight counts of engaging in dishonest conduct in relation to providing financial services – further four offences of the same kind on a s 16BA schedule – money obtained from individuals – total loss to clients of $5,121,168.00 – losses incurred over a four year period – sentence of 10 years with non-parole period of 6 years imposed – whether sentencing judge erred in assessment of objective seriousness of offending – whether error in assessment of accumulation, concurrency and totality – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Industrial law (Cth) – Where Fair Work Act 2009 (Cth) contains National Employment Standards ("NES") – Where NES are minimum terms and conditions that apply to all national system employees – Where NES address paid personal/carer's leave – Where s 96(1) of Fair Work Act provides that employees entitled to "10 days" paid personal/carer's leave per year of service – Where s 96(2) provides that paid personal/carer's leave accrues progressively according to employees' ordinary hours of work – Where s 55(4) provides that enterprise agreement may only include terms not detrimental to employee when compared to NES – Where enterprise agreement provides that ordinary hours of work for employees are 36 hours per week – Where enterprise agreement provides that employees working 12‑hour shifts entitled to 96 hours paid personal/carer's leave per annum – Whether "day" in s 96(1) of Fair Work Act refers to one-tenth of equivalent of employee's ordinary hours of work in two‑week period ("notional day") or portion of 24-hour period otherwise allotted to working ("working day"). Words and phrases – "10 days", "day", "enterprise agreement", "fairness", "income protection", "minimum terms and conditions", "modern award", "National Employment Standards", "notional day", "ordinary hours of work", "paid personal/carer's leave", "working day", "working patterns", "working week". Fair Work Act 2009 (Cth), ss 3, 55, 85, 87, 96, 97, 99, 100, 101, 102, 104, 106A, 106E, 147, 186, 193. Workplace Relations Act 1996 (Cth), ss 246, 247, 249.

Negligence – Standard of care – Breach – Where woman suffering severe asthma attack treated by ambulance officers including intensive care paramedic – Where intensive care paramedic elected to administer intravenous ("IV") salbutamol rather than IV adrenaline in initial phase of treatment due to woman's high heart rate and high blood pressure – Where Clinical Practice Manual ("CPM") required that ambulance officers "consider" IV adrenaline – Whether decision to administer IV salbutamol contrary to CPM – Whether treatment fell below standard of care expected of ordinary skilled intensive care paramedic – Whether trial judge's finding that intensive care paramedic made clinical judgment to administer adrenaline "contrary to compelling inferences" or "glaringly improbable" – Whether administration of IV salbutamol supported by responsible body of opinion within medical profession. Words and phrases – "adrenaline", "ambulance officers", "appellate intervention", "breach of duty of care", "case management guidelines", "clinical judgment", "clinical pharmacology", "clinical practice manual", "contrary to compelling inferences", "emergency medicine", "flowchart", "glaringly improbable", "intensive care paramedic", "negligent omission", "operating in the field", "ordinary skilled intensive care paramedic", "range of reasonable responses", "responsible body of opinion within the medical profession", "salbutamol", "severe asthma", "standard of care", "trial judge's advantage".

CONTRACTS – Loan agreement – where plaintiffs advanced funds to defendant – where defendant defaulted in payments – no issue of principle GUARANTEE AND INDEMNITY – Actions to enforce guarantee – where defendant guaranteed payment of funds owing under loan agreement – no issue of principle

CIVIL PROCEDURE — court administration — case management — practice notes — expert conclaves — issue as to the drafting and provision of questions to expert damages conclaves — plaintiff’s proposed questions contrary to Uniform Civil Procedure Rules 2005 (NSW) and practice notes concerning joint expert reports and concurrent evidence — proposed questions rejected

CONTRACTS – proper construction of the Share Purchase Deed – whether its effect is that the Resilium Transaction should be reversed in its entirety JUDGMENTS AND ORDERS – reasons – orders necessary to give effect to principal judgment

CRIME – Proceeds of Crime – Plaintiff released from undertakings as to costs and damages