Cases and authorities

PROCEDURE – Discovery – Discovery sought to demonstrate good arguable case in freezing order application – Whether discovery sought is too broad – No issues of principle.

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule

CIVIL PROCEDURE – orders of judgement – payment of sum on account of costs as condition of leave to make application for amend - quantum

COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause

LOSS AND DAMAGE – quantum – Corporations Act 2001 (Cth) s 1041I(1) – Australian Securities and Investments Commission Act 2001 (Cth) s 12GF(1) – costs and expenses incurred by the plaintiff in responding to the defendants’ disseminations of information and material in contravention of the law recoverable from the defendants – internal costs which would have been incurred anyway not recoverable. COSTS – Civil Procedure Act 2005 (NSW) ss 98(1), 98(2), 93(3), 94(4) – specified gross sum order instead of assessed costs appropriate.

COSTS — Party/Party — Specific court rules in relation to costs — Action could not have been brought in inferior court COSTS — Party/Party — Interest on costs

CIVIL PROCEDURE - Registrars - review of Registrar’s decision - refusal to set aside a notice to produce and subpoena - motions arising from alleged breach of settlement agreement - many interlocutory skirmishes - application for freezing order - security for costs - appropriate costs order when motions withdrawn or dismissed

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter

CRIME – Appeals – Appeal against conviction - Miscarriage of justice – Principle of incontrovertibility – Whether evidence challenged acquittal of a non-party – Whether an abuse of process – No application of principle of incontrovertibility. CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Unreliable witnesses – Facts which required proof beyond reasonable doubt – Verdict of acquittal substituted.

CIVIL PROCEDURE – stay of Court orders pending appeal – order to vacate property and remove chattels – COVID-19 virus – need for self-isolation – availability of alterative accommodation – conduct since order made

LAND LAW – Contract for the sale of land – Purchaser fails to pay agreed deposit of 10% of purchase price – Purchaser unwilling and unable to complete – Contract terminated following Purchaser’s failure to complete – Vendor promptly resells property for a lower price – Vendor seeks recovery of deposit and damages under cl 9 of standard form contract – Whether provision for recovery of deposit is a penalty – Recovery of damages for deficiency on resale and costs and expenses arising from breach – Damages for loss of bargain – Whether provision for interest if completion delayed is a penalty

CRIME – proceeds of crime – forfeiture orders

REAL PROPERTY – application for stay of writ of possession – whether defendants entitled to relief in anticipation of regulations that might be made pursuant to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 or s 229 of the Residential Tenancies Act 2010

CRIMINAL LAW – bail – COVID-19 – novel coronavirus – pandemic – relevance to bail application – likely delays in summary hearing – conditions of incarceration – suspension of personal visits – access to lawyers – emergency legislation arising from medical emergency – need for accused to be free for lawful purposes – vulnerability of prisons and inmates – exponential increase in recorded cases – self isolation and house arrest – virtual courts

MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – agreement providing for customer to purchase livestock as agent for financier – financier retains title – whether a security interest MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – priorities – agreement by livestock agent to purchase cattle for customer and fund subsequent agistment and feedlot charges – security for recoupment of agistment and feedlot charges – whether a purchase money security interest – whether a purchase money obligation

CIVIL PROCEDURE – default judgment – review of Registrar’s decision declining to set aside default judgment – default judgment against guarantor under chattel mortgage agreement for underground mining equipment – mining equipment repossessed after default under chattel mortgage agreement – whether defendant has arguable or triable defence to claim – defendant seeks to challenge assessment of fair market value of mining equipment – no triable or arguable defence disclosed – default judgment confirmed – application dismissed

STATUTORY INTERPRETATION – whether reference to “compensation” in s 134AB(1) of the Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether or not awarded under the Act or the Act of some other state or territory – expressio unius reasoning inappropriate where dealing with interpretation of a “patchwork” statute. WORKERS COMPENSATION – whether worker who was injured in Victoria but was not entitled to compensation under Victorian workers compensation legislation was nevertheless required to pass through statutory gateways under Victorian legislation when seeking common law damages – where worker had received compensation under NSW workers compensation scheme – whether reference to “compensation” in s 134AB(1) of Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether awarded under that Act or the Act of some other state or territory.

WORKERS COMPENSATION ­– determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4 and 9A

CRIMINAL LAW – sentencing – drug offences – supplying large commercial quantity of gamma-butyrolactone – GBL – drug imported from China – whether Judge erred in assessment of objective criminality – whether sentence manifestly excessive – whether error in failing to apply Victorian authority relating to importation of the same drug ­– authority described GBL as “low reward drug” – where Judge referred to “modest profit” received or expected – relevant matter was taken into account – no error in approach

CRIME – sentencing – mitigating factors – sexual intercourse without consent – community correction order imposed – offender’s self-induced intoxication taken into account in mitigation – error conceded – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA) CRIME – sentencing – aggravating factors –whether offender in a position of trust or authority in relation to the victim – victim was niece of offender and heavily intoxicated – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k) CRIME – sentence appeal – appeal against inadequacy by Director of Public Prosecutions – error conceded – whether custodial sentence required –– discretion not to re-sentence

APPEAL - sentence - importing commercial quantity of a border controlled drug (methamphetamine) - applicant sentenced in 2015 - sentencing Judge did not have regard to utilitarian value of plea of guilty - Xiao v R error established - consideration of factors relevant to utilitarian value of plea - discount allowed - applicant with stronger subjective case on sentence in 2020 - lesser sentence warranted - applicant resentenced

CIVIL PROCEDURE — Originating process — Amendment — Negligence — Indemnity for claim under s 151Z(1)(d) Workers Compensation Act 1987 (NSW) — Tree fall on car — System for inspecting the road — Expert reports — Better particulars of alternate system of inspection — Use of internet resources — Delay

SUCCESSION – Probate and administration – Renunciation of Probate by executrix – When renunciation may be retracted – Whether leave to retract should be given

CONTRACTS — Construction — Interpretation — Natural and ordinary meaning CONTRACTS — Rectification — Intention — Common intention

CIVIL PROCEDURE — Set aside a subpoena — Whether there is a legitimate forensic purpose for which access is sought — Whether it is “on the cards” that the documents will materially assist the defendants’ case — Where the plaintiff claims against the defendants in injurious falsehood

ADMINISTRATIVE LAW – judicial review – s 69 of the Supreme Court Act 1970 – no leave required to institute – leave to bring proceedings out of time – inflexible application of policy – pre-release leave – exceptional circumstances – reasons for decision – further amended summons dismissed – costs reserved

COSTS — Party/Party — Bases of quantification — Ordinary basis

HIGH RISK OFFENDER – serious sex offender – application for interim supervision order – conditions – electronic monitoring – access to financial information – access to internet, electronic devices and communications – access to healthcare information – condition abrogating privilege against self-incrimination is permissible

APPEAL – Leave to appeal – winding up order – no substantial injustice. CORPORATIONS – Winding up on just and equitable ground – where directors planned to place company into liquidation in any event.

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — trial judge refused to discharge jury although applicant’s trial counsel had withdrawn – error established – importance of counsel to fair trial

Administrative Law — Judicial Review— Error of law on the face of the record – Motor Accidents Compensation Act 1999 (NSW) – Whether claims assessor failed to sufficiently disclose reasons for assessment of buffers for future treatment expenses and future care - whether the disputed conclusions were legally unreasonable - Appeal allowed

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings COSTS — Party/Party — Court’s discretion – Remitter from the Court of Appeal

CIVIL PROCEDURE - stay of judgment pending appeal - where parties agree stay is appropriate - where undertaking proffered not to deal with assets pending appeal - where writs recorded on title to some property - whether recording of writs should be cancelled

CORPORATIONS – winding up – liquidators – release under section 480 – prerequisites under rule 7.5 of the Supreme Court (Corporations) Rules 1999 (NSW) – service by email – whether to dispense with requirement for service by prepaid post under rule 7.5(6)

COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time – whether assessment under Legal Profession Uniform Law Application Act 2015 (NSW) or Legal Profession Act 2004 (NSW) – error by Manager as to applicable law – whether error material – whether applicant demonstrated available grounds for review CIVIL PROCEDURE – application to review decision of Manager, Costs Assessment – whether proceedings for judicial review or review under Uniform Civil Procedure Rules 2005 (NSW), r 49.19, 49.20 – nature of review WORDS AND PHRASES – “proceeding” – whether appeal is a different proceeding from trial – transitional provision – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59 WORDS AND PHRASES – “review” – Uniform Civil Procedure Rules 2005 (NSW), cl 49.19 – distinguished from judicial review under Supreme Court Act 1970 (NSW), s 69

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 131.1(1) of the Criminal Code Act 1995 (Cth) – whether fit and proper person – appropriateness of making of declarations as to fitness and propriety – order removing name from roll

JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1987 (NSW), s 30 COSTS – appeal to District Court – indemnity costs ordered – incorrect law relied on by successful party – correct law resulted in same substantive order – costs of successful party WORDS AND PHRASES – “proceeding” – “proceedings to which the costs relate commenced” – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59

ADMINISTRATIVE LAW – denial of procedural fairness – whether common law right to procedural fairness excluded by statute – Environmental Planning and Assessment Act 1979 (NSW) Sch 5 – legislative intent plain ENVIRONMENT AND PLANNING – statutory interpretation – whether carving into cement render of wall constitutes “development” – Environmental Planning and Assessment Act 1979 (NSW) s 4.2 – whether development consent obtained

DEFAMATION – defences – offer to make amends – concerns notice – whether statement of claim a concerns notice – offer to be made within 28 days of receiving concerns notice – no valid offer where made after 28 days – Defamation Act 2005 (NSW), s 14(1) DEFAMATION – defences – offer to make amends – whether made as soon as reasonably practicable after defendant aware that matter might be defamatory –offer made one year after action commenced – Defamation Act 2005 (NSW), s 18(1) JUDGMENT – findings at trial that elements of claims made out – defence relied on by trial judge not available – other pleaded defences not pursued – defendant forwent opportunity to appear at trial – plaintiff entitled to judgment on liability PRACTICE AND PROCEDURE – procedural fairness – bias – actual or apprehended – other proceedings affected – other parties not heard – whether allegations should be resolved

CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether unreasonable verdict having regard to the evidence – whether complainant’s evidence implausible – whether complainant’s evidence contradicted by other evidence – whether complainant’s memories reliable – complainant’s evidence found to be reliable – jury’s verdicts reasonable – leave to appeal granted – appeal dismissed CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether miscarriage of justice – whether onus of proof was reversed – whether applicant’s bad character was implied – matters not raised with trial judge – matters dealt with in applicant’s address to the jury – leave to appeal not granted

Misleading affidavits by solicitor – unhappy judge – lengthy adjournment sought by reason of COVID-19 pandemic – looking past the solicitor to the client and giving one more chance

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion

COSTS – Indemnity costs – No point of principle

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — where defendant contracted to provide guarantee and security for loan facility agreement — whether contracts unjust BANKING AND FINANCE — Loan facility agreements — Australian Securities and Investments Commission Act 2001 (Cth) s 12CB — whether creditor’s conduct unconscionable

PRACTICE AND PROCEDURE – leave to amend Commercial List Statement CONSUMER LAW – misleading or deceptive conduct – whether directors were knowingly involved COSTS – security for costs – where plaintiff undertakes to notify defendants if assets fall below specified value

CORPORATIONS — leave to sue Court appointed liquidator — principles at [81]-[89] – unfunded liquidators – directors initially uncooperative – directors said companies had no assets and dormant – directors through other corporate entities apply to register trade marks of companies in liquidation – director signs letter on behalf of company in liquidation consenting to new corporate entity acquiring trade mark rights – director accused of ‘phoenixing’ – director does not inform liquidator that companies in liquidation abandoned trade mark rights and other corporate entities acquired those rights through usage and oral assignment – liquidator assigns trade mark rights to petitioning creditor and plaintiffs’ competitor – international trade mark war – plaintiffs application for trade mark initially unsuccessful – liquidation ends – plaintiffs later establish abandonment in other proceedings - complaint made years after completion of liquidation and deregistration of companies – leave refused INTELLECTUAL PROPERTY – trade marks – abandonment – principles at [45]-[47] NEGLIGENCE – liquidator’s duty to third parties – principles at [97]-[103] – vulnerability – no vulnerability here AUSTRALIAN CONSUMER LAW – whether liquidator engaged ‘in trade or commerce’ – principles at [113]-[118] – reliance by third party – poor prospects

TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – question of what constitutes “supporting documentation” – question of what constitutes “matters alleged” – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence

EVIDENCE — Hearsay — Exceptions — Admissions — transcript of compulsory interview with Australian Taxation Office EVIDENCE — Witness evidence — Cross-examination — Prior inconsistent statements EVIDENCE — Discretions — Exclusion of evidence — Admissions — s 135 discretion

JUDGMENTS AND ORDERS — application to vary orders – directions given – no issue of principle

APPEAL – Leave to appeal – whether matter at issue amounting to or of the value or involving $100,000 or more – need for party seeking to appeal to demonstrate that jurisdictional threshold satisfied CONSTITUTIONAL LAW – whether Part 3A of Civil and Administrative Tribunal Act 2013 (NSW) unconstitutional – whether, notwithstanding Part 3A, NCAT invested with federal jurisdiction – whether Part 3A entails discrimination contrary to s 117 of the Commonwealth Constitution COURTS AND TRIBUNALS – whether Local Court of New South Wales has jurisdiction to entertain a diversity suit involving publication on the internet of matters alleged to contravene s 49ZS of the Anti-Discrimination Act 1977 (NSW) DISCRIMINATION LAW – whether complaint by a resident of New South Wales against a resident of Queensland referred by President of Anti-Discrimination Board to NCAT could be heard by Local Court of New South Wales