Cases and authorities

PRACTICE AND PROCEDURE – Law Reform (Vicarious Liability) Act 1983 (NSW) – initial determination – vicarious liability of the Crown – whether initial determination impracticable in the circumstances TORTS – intentional torts – assault – battery – vicarious liability of the Crown – police officer – whether alleged tortious acts were committed in the course of service to the Crown

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – verdict of guilty of conspiracy to import a commercial quantity of a border controlled drug – matter not ready to proceed to sentence – matter adjourned for sentence – whether the applicant ought be permitted to remain on bail – maximum penalty of life imprisonment – division 1A Bail Act – show cause offence – previous compliance with bail conditions as feature to show cause as to why accused should not be detained – s16A Bail Act

CRIMINAL LAW – sentence – manslaughter – victim impact statements – objective features – objective seriousness – aggravating factors – mitigating features – subjective features – significant and lengthy history of criminal convictions – protection of community – personal deterrence – remorse – prospects of rehabilitation – general deterrence – specific deterrence – maximum penalty – non-parole period – special circumstances – orders

APPEALS – leave to appeal under Supreme Court Act 1970 (NSW) s 101(2)(r) - appeal against primary judge’s refusal to grant leave to appeal against decision of NSW Civil and Administrative Tribunal – primary judge refused leave for failure to identify questions of law on appeal as required by Civil and Administrative Tribunal Act 2013 (NSW) s 83(1) – no error in primary judge’s reasons for refusing leave – application for leave to appeal dismissed

APPEAL — whether primary judge failed to properly consider all objective evidence EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Obligation to return monies when purpose for which trust was set up has failed

CRIME – appeals – appeal against conviction – multiple grounds of appeal including unreasonable verdict, alleged incompetence of counsel, asserted miscarriages of justice, argued errors in directions and comments to the jury, argued error in admitting tendency evidence, argued error in finding complainant competent witness – appeal dismissed EVIDENCE – tendency evidence – criminal proceedings – evidence relied on to prove tendency to have a sexual interest in pre teenage girls – whether significant probative value – where part of defence was that the allegedly intentional conduct was innocent or accidental – whether probative value substantially outweighed prejudicial effect – where prejudicial effect ameliorated by directions and omission of certain material from tender – no error in admission of tendency evidence

CRIMINAL LAW – leave to appeal against sentence – whether sentencing judge incorrectly assessed the role of the applicant – whether sentencing judge failed to have regard to the principle of parity – parity – whether sentencing judge erred in determining objective criminality without taking into account indicia – whether sentencing judge erred by mischaracterising level of responsibility of the applicant’s position as an employee – dishonestly obtain financial advantage by deception – defrauding of employer – role of co-offender in commission of the offence CRIMINAL PROCEDURE – appeals to the Court of Criminal Appeal – leave to appeal

APPEAL – sentence appeal – whether failure to consider remorse – where delay between arrest and sentence – whether failure to consider delay – whether error in finding of objective seriousness – where challenge to sentencing discretion – whether sentence manifestly excessive – whether no judge could reasonably have imposed the sentence

COSTS – Party/Party – Exception to general rule that costs follow the event – Offer of compromise/ Calderbank offers – unreasonable rejection – plaintiffs not prepared to agree to settlement which did not give right to live in property

JUDGMENTS AND ORDERS – self-executing order – self-executing order allowing for consent judgment if non-compliance with another order – where time has expired MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of a mortgagor – possession – default notice – where plaintiff defaulted on interest payments – condition of mortgage whereby plaintiff could take possession of, and eject, any occupants from the property CIVIL PROCEDURE – representation – unrepresented litigants

CRIMINAL LAW – fitness to stand trial – accused charged with murder – intellectual disability – where accused previously found unfit to be tried – where Mental Health Review Tribunal finds accused to be fit with “considerable reservations” – change in accused’s condition – change in medication – revised opinions of experts – substantial impairment in delayed memory recall – Presser criteria – need for trial to be conducted to take into account accused’s condition – accused’s ability to exercise peremptory challenges – extent to which criterion relevant – selection of jury – forensic choices and wild guesses – compassionate and empathetic solicitor

SHIPPING – carriage of goods by sea – bills of lading – where bills of lading provided “freight payable per charter party” – where time charterer took assignment from vessel owner of rights under the bills of lading – whether assignee from vessel owner entitled to recover freight from shipper – where bill of lading cancelled and fresh bills issued

BUILDING AND CONSTRUCTION – contracts – performance bond – condition precedent to beneficiary’s entitlement to call on bond – whether security recourse event has occurred CONTRACTS – remedies – application for injunction to restrain a breach of contract – whether damages an adequate remedy

PRACTICE & PROCEDURE – discovery – aircraft accident – where plaintiff alleges that the first defendant failed to perform statutory duties, among others, with respect to the maintenance and enforcement of appropriate testing procedures and airworthiness certification of certain aircraft – whether plaintiff entitled to discovery in nominated categories – whether categories relevant to the production of documents related to proof of a fact in issue

JUDGMENTS AND ORDERS – question of discretionary relief remitted by Court of Appeal to single Judge of Appeal – whether open to appellants to contend that respondents should not be permitted to vary interlocutory regime so as to grant access for purpose of being heard as to discretionary relief – effect of orders and reasons of Court of Appeal POLICE – search warrant – computer seized by police pursuant to warrant – interlocutory injunctive relief granted preventing police from accessing computer – warrant later held to be invalid – owner sought return of computer and delivery up or destruction of image of its hard drive – whether representatives of police should be permitted to access computer for purpose of adducing evidence going on discretion

CRIME – offences against police in execution of duty – whether police in execution of duty when alleged offences committed – accused arrested without warrant – whether arrest lawful – whether there was evidence on which the court could find, as required by s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), that the arresting officer was “satisfied” that arrest without warrant was “reasonably necessary” for a reason stated in that section – meaning of “reasonably necessary” – need for police officer to engage in a process of comparison and to make an evaluative judgment regarding proportionate response to risk. ADMINISTRATIVE LAW – judicial review of decision of the District Court dismissing appeal from the Local Court against conviction – review not available unless jurisdictional error established – where function of the District Court was to conduct appeal by way of rehearing “on the basis of” the evidence in the Local Court – where the District Court made a central finding of fact for which there was no basis in the Local Court evidence – whether error of law – whether jurisdictional error. ADMINISTRATIVE LAW – judicial review of decision of the District Court refusing to submit a question for determination by the Court of Criminal Appeal – whether refusal on erroneous basis that the question was obviously baseless was constructive refusal to exercise jurisdiction – whether jurisdictional error.

SUCCESSION – trust and trustee – judicial advice, Trustee Act 1925 (NSW), s 63 – whether plaintiff should have taken advantage of procedure of Probate and Administration Act 1898 (NSW), s 93 COSTS – payment of costs of judicial advice application out of estate – where beneficiaries not represented – application refused

COSTS — No issue of principle

LAND LAW – possession of land – default under mortgage – whether Defence discloses any defence to the claim

CIVIL PROCEDURE – adjournment – to obtain legal aid or pro bono assistance – where no admissible evidence of impecuniosity – where repeated failures to abide by case management directions – where applicant sought to be joined to the proceedings

CORPORATIONS – creditors voluntary winding up – threats of bad publicity including liquidator’s examinations as pressure to pay claim – appointment of voluntary liquidator for sole purpose of conducting such examinations – confected insolvency – not proper purpose to place corporation into external administration so that liquidator or litigation funder can avail themselves of forensic advantage conferred by public examinations – abuse of process CORPORATIONS – examinations – power to issue examination summons – eligible applicants – role of ASIC – onus – relevant purpose to consider is that of applicant for summons – use of examinations to obtain forensic advantage not available in ordinary pre-trial procedures – proceedings contemplated – litigation funding – plausible claim – negotiating pressure – need for liquidators to independently consider whether examination summons appropriate and for a proper purpose – importance of getting in books and records – left decisions and review of records to those who appointed the liquidator – inherited improper purpose of appointors – predominant purpose to exert pressure to enter into settlement – abuse of process CORPORATIONS – examinations – whether satisfied examinees may be able to give information CORPORATIONS – examinations – whether dress rehearsal for cross-examination – no proceedings commenced – no decision to litigate – where suggested claim does not turn on oral representations CORPORATIONS – examinations – lack of disclosure in affidavit to registrar – extent of liquidator’s knowledge – failure to review books and records – material non-disclosure CORPORATIONS – winding up – termination of winding up – lack of notice – relevant party not joined – ASIC not notified – commercial morality EVIDENCE – rule in Browne v Dunn (1893) 6 R 67 – whether findings available in the absence of cross-examination – where allegations addressed in affidavits – where credibility not in issue

HIGH RISK OFFENDER – application for interim detention order pending final hearing – application for examination by medical professionals – defendant on parole for aggravated sexual offending – limited rehabilitative progress made in custody – interim detention order and order for medical examinations made

CRIMINAL PROCEDURE – fitness to be tried – Mental Health Forensic Provisions Act 1990 s 8(1) fitness inquiry – whether the accused meets the Presser criteria – whether persecutory delusions and a schizoaffective disorder render the accused unfit to stand trial – accused fit to be tried

EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights CONTRACTS – Remedies – Penalty – Doctrine extends beyond payment of a stipulated sum of money to deprivation of contractual rights – Application to deprivation of the benefit of restraint clause and warranties CONTRACTS – Construction – Interpretation – Dependent and independent obligations – Whether ‘clear words’ are required to find a relation of independency between obligations

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether leave to appeal be granted where applicant denied an adjournment before the primary judge leading to the matter proceeding to determination in the applicant’s absence – the applicant did not establish a case which goes beyond merely arguable – no issue of principle or question of public importance – leave refused

TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 – Obligation to remit amounts withheld from wages and salaries paid to employee – Requirements of director penalty notice – Where amount claimed by Commissioner changed after giving director penalty notice – No requirement to give further notice before commencing recovery proceedings - No requirement to commence proceedings within a reasonable time after expiry of notice TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 s 269-20 –Defence of justifiable non-participation in management under (CTH) Taxation Administration Act 1953 s 269-35 – What constitutes participation in management for the purposes of the defence – The defence must be established for the entire period from the “due day” until at least the expiry of the director penalty notice

APPEAL – application to seek leave to appeal against sentence – offence of assault with intent to rob whilst armed with an offensive weapon – applicant threatened service station attendant with butter knife and demanded money and then asked victim to call police – whether error in assessment of objective seriousness of the offence – where applicant had a mental illness and his motivation was to be arrested – where sentencing Judge delivered ex tempore remarks on sentence – where no conclusion expressed with regard to objective seriousness and no reference to moral culpability – error established – whether error in failure to consider the role of the applicant’s mental health – error established – whether new evidence of DVD depicting the offence was admissible on appeal in light of Crown concession clarifying ambiguous factual issue - DVD not admitted – lesser sentence warranted – applicant resentenced

CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether the Court failed to consider a ground of appeal — bound by conduct of counsel CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether error adopted by the Court from Crown submissions is material — leave refused

CRIMINAL LAW – appeal – appeal against conviction – offence of kidnapping contrary to s 86(3) of the Crimes Act 1900 – offence of breaking, entering and stealing contrary to s 112(1)(a) of the Crimes Act 1990 – whether trial judge erred in allowing Crown to call further witnesses after commencement of final address – whether trial judge erred in failing to redact or limit use that could be made of evidence admitted without objection – witness called following change of position by counsel for accused – leave to appeal granted – appeal dismissed – whether trial judge erred in failing to decide application for discharge of the jury – application not pressed – leave to appeal refused

Mental Health (Forensic Provisions) Act – extension of status as forensic patient – no question of principle

CORPORATIONS – winding up – company in creditors’ voluntary liquidation – where business of company conducted in capacity of trustee – where company removed as trustee upon winding up by ipso facto clause in trust deed – liquidators seek to be appointed receivers and managers of assets and undertaking of the trust – Supreme Court Act 1970 (NSW) s 67 and Court’s inherent jurisdiction – ex parte application – where urgent circumstances justifying appointment – whether Court should make appointment nunc pro tunc

CIVIL PROCEDURE — Separate determination of questions — Where appropriate COSTS — Security for costs — Relevant factors

FAMILY LAW — Property — Exclusive occupation FAMILY LAW — Property — Marriage — Maintenance

CIVIL LAW – high risk offender proceedings – riddled with acronyms – media application to access file – where documents tendered in open court – where order made restricting access – exercise of discretion – reports of experts and risk assessment reports – where offender obliged to attend appointments – desirability of high risk offenders providing honest history – where reports and evidence not subject to challenge or scrutiny – written submissions of parties – comprehensive summary of material – past media coverage – click-bait – open justice – highfalutin observations – exceptional case – middle course steered

HIGH RISK OFFENDERS – preliminary hearing – application for interim extension order – where defendant a forensic patient under the Mental Health (Forensic Provisions) Act – whether defendant poses risk of serious harm to others – whether less restrictive conditions available than extending status as forensic patient

CRIME - bail - variation application – application to vary reporting and curfew conditions – variations not opposed, and granted - further application to dispense with electronic monitoring – applicant charged with being an accessory after the fact to murder, pervert the course of justice, giving false evidence to the Crime Commission – where applicant had previously offered to wear electronic monitoring – where further cost alleged to be beyond applicant’s means – application refused

DEFAMATION – defences – common law qualified privilege – whether privileged occasion correctly identified – relevance of privileged occasion – malice DEFAMATION – remedies – damages – whether manifestly excessive DEFAMATION – remedies – damages – aggravated damages – where conduct not improper, unjustifiable or lacking in bona fides

CORPORATIONS — Receivers and managers —liquidator of corporate trustee seeking appointment as receiver and manager – no ipso facto clause – no requirement in trust deed to notify trustee of its removal – attempt by sole shareholder of corporate trustee to replace trust deed – attempt by sole shareholder to replace trustee – attempt by sole shareholder to circumvent court’s earlier refusal to terminate liquidation including by reason of concerns as to commercial morality – appointment of liquidator as receiver and manager of trust property

LAND LAW — caveats — removal of caveat — order that caveats be withdrawn pursuant to s 74MA of the Real Property Act 1900 (NSW) – where there is an order for judicial sale of the property – where no appearance by a caveator – where plaintiffs undertake to hold net proceeds of the sale on trust

HIGH RISK OFFENDERS – Application pursuant to the Crimes (High Risk Offenders) Act 2006 – Final hearing – Whether defendant is a high risk violent offender – continuing detention order – extended supervision order – no order made – summons dismissed

COSTS – proceedings to challenge validity of Notices to Complete – proceedings commenced after defendants failed to withdraw notices – interlocutory injunction obtained by plaintiffs – defendants subsequently accept that notices were invalid and acquiesce in the making of a declaration to that effect – no substantive hearing on the merits – conduct of defendants held to be unreasonable in the circumstances – defendants ordered to pay plaintiffs’ costs

CORPORATIONS – external administration – whether appropriate to wind up company on the just and equitable ground – Corporations Act 2001 (Cth) s 461(1)(k) – where acknowledgment that irretrievable breakdown of relationship between members – company wound up.

APPEAL – NSW Civil and Administrative Tribunal – Residential Tenancies Act 2010 (NSW) – Termination order – Plaintiff’s residential tenancy agreement terminated under s 91 for supplying cannabis from her premises – Whether the Tribunal unduly narrowed the scope of s 154E(1)(a) – Whether the Tribunal used a Neighbourhood Impact Statement which did not comply with s 154F(1) – Appeal allowed

CRIMINAL LAW – jury deliberation – Black direction given – making inquiries of the jury

Motor accidents – pleading in negligence and “blameless accident” provisions – made 9 years after accident – no full and satisfactory explanation – whether required for blameless accident– whether claim must be lodged – whether failure of insurer to invoke s 73(4) affects operation of s 109

COSTS — party/party — orders when proceedings involve multiple parties — Bullock and Sanderson orders — conduct of unsuccessful defendant

CIVIL PROCEDURE – application to rely on further submissions – where lengthy submissions already provided – where additional submissions contain disputed matters of fact

MENTAL HEALTH – forensic patient – intellectual disability – statutory interpretation – objects clause – unacceptable risk of causing serious harm – less restrictive means – line of sight condition – guardianship order – Child Protection Register – extension order granted

APPEAL– civil – application for leave to appeal from decision of NCAT Appeal Panel – s 83 Civil and Administrative Tribunal Act 2013 (NSW) limited to appeal on a question of law by leave – competence and leave to appeal – whether questions of law – no questions of law raised –leave to appeal refused