Cases and authorities

CORPORATIONS – schemes of arrangement – creditors schemes – second court hearing – approval under Corporations Act 2001 (Cth) s 411(4)(b) – where schemes involve restructure of secured lending facilities – where governing law of one facility changed shortly prior to creditors vote – use of conditions subsequent in complex restructuring arrangements – where one scheme objected to by two shareholders – whether guarantees given by scheme company contravene Corporations Act s 208 – schemes approved

BUILDING AND CONSTRUCTION – whether service of payment claim an abuse of process by reason of an Anshun estoppel in earlier proceedings BUILDING AND CONSTRUCTION – adjudication – review of an adjudicator’s determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator wrongly concluded that payment claim not served within 12 months after commencement of works to which it related – whether such decision reviewable

CORPORATIONS – deregistration by ASIC – reinstatement – where reinstatement will enable creditors to bring claim against company – whether reinstatement should be ordered under s 601AH(2) of Corporations Act 2001 (Cth) – company reinstated

CORPORATIONS – winding up – based on statutory demand – where orders made in absence of the company – where creditor’s debt and costs now paid – where evidence company solvent – whether Court should terminate winding up

COMMERCIAL ARBITRATION – arbitration agreement – application for referral to arbitration pursuant to commercial arbitration legislation and for stay of proceeding – alternative applications for stay based on case management principles and as abuse of process – held proceeding involved matters under the arbitration agreement and parties must be referred to arbitration – whether application for access to books and records of company under s 247A Corporations Act was matter under arbitration agreement and was arbitrable – held s 247A application not a matter under arbitration agreement but should be stayed – stay of other motions including unconscionability motion in which anti-arbitration injunction sought – intention of Court to refer parties to mediation

LAND LAW – conveyancing – voidable dispositions – whether sale of properties made with intent to defraud creditors – where transferor entered submitting appearance and taken to admit such intent in response to notices to admit LAND LAW – conveyancing – whether plaintiff a person thereby prejudiced LAND LAW – conveyancing – whether various documents executed by transferor in favour of director and controlling mind of transferee were shams – whether transferee a purchaser in good faith without notice of intent to defraud creditors

APPEALS – appeal on question of law alone – leave to appeal on mixed question of law and fact – whether ruling on admissibility of evidence raises question of law alone – whether grounds of appeal based on reasoning process or inadequate reasons raise questions of law alone – claim in contract – factual dispute – Local Court magistrate does not accept evidence of either party – onus of proof – plaintiffs fail to discharge onus – appeal dismissed with costs

SENTENCING – manslaughter – unlawful and dangerous act - self-induced intoxication – underlying mental illness – prisoner killed by offender in deceased’s cell – offender with long history of violent offending – Bugmy factors – totality – offence committed while offender serving out revoked parole period – offender subsequently sentenced for violent offences – institutionalisation of offender

POLICE – Search warrant – police officers completed terms of draft warrant and particulars relied upon by issuing officer before application was made – issuing officer signed and dated warrant and issued it in terms sought – issuing officer failed to complete certain parts of warrant – one aspect of warrant supported only by unsubstantiated statement of reasonable suspicion by police – whether issuing officer complied with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether warrant invalid – whether other relief should issue

ASSOCIATIONS AND CLUBS – particular bodies – racing clubs – power of Stewards to use information – where information obtained in exercise of a power under rules of racing – where exercise of power expressed to be for a specific stated purpose – whether use of information limited to that purpose

BAIL - application for bail pending determination by High Court of application for special leave to appeal - sentence appeal dismissed by Court of Criminal Appeal - no appeal “pending in High Court” under s.67(1)(d) Bail Act 2013 as no grant of special leave to appeal - bail application dismissed - alternative application for stay - stay refused

SENTENCING – Appeal against sentence – objective seriousness – aggravating factors – whether sentencing judge failed to distinguish between objective seriousness and aggravating factors – alleged manifest excess SENTENCING – Appeal against sentence – severity – sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal – appeal against sentence – application for leave to appeal – attempt to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1) – utilitarian value of plea of guilty for Commonwealth offence – Xiao error established – whether applicant to be resentenced – consideration of parity principle to sentence imposed by differently constituted Court of Criminal Appeal – applicant resentenced afresh – leave granted – appeal allowed

CRIMINAL LAW – appeal - appeal against sentence – offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in referring to sexual act constituting sexual intercourse “in this country” – whether sentencing judge erred in approach to specific deterrence – whether sentence imposed was manifestly excessive – consideration of sentences imposed for comparable offences – leave granted – appeal dismissed

CRIME – Appeals – Appeal against sentence – Manifest excess – Whether aggregate sentence of 46 years is manifestly excessive – Whether sentence disproportionate to offences committed – Principle of totality – Lack of remorse – Very high criminality. CRIME - Murder – Kidnapping – Acts of indecency – Form 1 offences – Further 21 offences taken into account when sentenced for murder - Pleas of guilty – Murder and kidnapping most serious crimes.

WORKERS COMPENSATION – s 151D(2) Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after the injury – whether it was fair and just to grant leave – adequacy of explanation for delay – no evidence of prejudice –leave granted to commence proceedings – costs pertaining to the motion to be paid by the plaintiff

ADMINISTRATIVE LAW – judicial review – decision under the Motor Accidents Compensation Act 1999 – whether medical assessor’s decision affected by error of law on the face of the record or jurisdictional error – failure to provide adequate reasons for assessment of impairment – certificate set aside and matter remitted for reassessment by different assessor.

APPEAL – Crimes (Appeal and Review) Act 2001 s 53(3)(b) – application for leave to appeal from Local Court to Supreme Court against interlocutory order – meaning of “interlocutory order” – Magistrate’s ruling on a preliminary point not interlocutory order – no jurisdiction to hear and determine application – in any event, leave to appeal should be refused

CRIMINAL LAW – Part 7 of the Crimes (Appeal and Review) Act 2001 – application for inquiry into sentence imposed by the District Court – applicant convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug – whether sentencing judge erred in comparison of roles of applicant and co-offender – whether erroneous disparity in outcome – appearance of doubt or question as to mitigating circumstances not demonstrated – application dismissed

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of admissibility of evidence of conversation concerning a gun – s 137 Evidence Act – whether evidence of reference to gun showed accused’s knowledge of the true purpose of the voyage – whether evidence of weaponry would lead jurors to stereotype the accused as a drug dealer – whether evidence would lead jurors to conclude that the accused had been involved in drug activity before – probative value is not outweighed by the danger of unfair prejudice – such prejudice as may arise capable of being addressed by direction

CORPORATIONS LAW – CONSUMER LAW – Corporations Act 2001 (NSW) ss 1041D-1041F and 1041H, Australian Securities and Investments Commission Act 2001 (Cth) s 12DA – United States “activist short sellers” circulate and disseminate statements and information about registered management investment schemes in Australia units in which are listed on the Australian Stock Exchange likely to induce persons to dispose of units – where the statements and information are false in material particulars, materially misleading, and deceptive or likely to mislead or deceive – whether requirements of s 1041D are met – whether requirements of ss 1041E, 1041F and 1041H and s 12DA of the ASIC Act are met – requirement under s 1041D for dissemination to the effect that the price will fall because of a transaction or other thing done in relation to financial products in contravention of other provisions and disseminator to have done the transaction or other thing – HELD – such requirement not met here – the dissemination itself cannot be the transaction or thing done – requirements of other sections met – HELD – defendants contravened ss 1041E, 1041F and 1041H and s 12DA of the ASIC Act.

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient APPEALS – appeal from refusal to make an interim extension order under the Mental Health (Forensic Provisions) Act 1990 (NSW) – source of right to appeal – whether subject to leave – limited grant of leave STATUTORY INTERPRETATION – principle of legality – fundamental rights and freedoms – intention to confer power to infringe liberty – application to extension orders under the Mental Health (Forensic Provisions) Act 1990 STATUTORY INTERPRETATION – use of defined term – whether used as label – whether context and subject matter show intention that definition not apply – application of Interpretation Act 1987 (NSW), s 6 WORDS & PHRASES – “may” – power conferred on Supreme Court to make interim extension order with respect to forensic patient – whether coupled with duty to make order where pre-conditions satisfied – Mental Health (Forensic Provisions) Act 1990, Sch 1, cl 10

CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether primary judge in summing-up failed to balance adequately the defence and Crown cases – primary judge entitled to remind the jury of evidence given in the course of the trial which impacts on the defence or Crown case – primary judge entitled to suggest to the jury that if they accept certain evidence it would be highly supportive of other evidence unfavourable to the defence – whether primary judge undermined the defence case through raising matters of speculative possibility rather than addressing the evidence – no miscarriage of justice shown in light of the summing-up as a whole CRIME — Appeals — Leave to adduce evidence on appeal — Fresh evidence – whether evidence fresh evidence or new evidence where witness was a co-accused who pleaded guilty and agreed to a statement of facts unfavourable to the appellant which was later recanted – no knowledge of the unfavourable statement of facts at time decision made not to call or to ask the Crown not to call – evidence not fresh evidence as a conscious forensic decision made not to call the witness at the time of the trial CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether verdict to convict unreasonable in light of new evidence – whether verdict to convict unreasonable in light of contradictory evidence ventilated at trial – where new evidence is of low probative value and raises significant reliability issues due to intoxication and inconsistency – where all of the relevant discrepancies in the evidence identifying the appellant were put to the jury and capable of resolution – no reasonable doubt raised

CRIME – APPEALS – application for leave to appeal against sentence – two counts of supplying a prohibited drug – whether sentencing judge found aggravating factor of personal gain contrary to evidence – whether cumulation of sentences unavailable – whether subjective factors inadequately reflected in sentences of full-time custody – whether sentences manifestly excessive – whether erroneous disparity demonstrated – consideration of effect of erroneously generous backdate – parity ground upheld – applicant resentenced – sentences to be served by way of intensive correction orders

Love v Commonwealth of Australia Thoms v Commonwealth of Australia Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of "aliens" – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs' visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co-terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test. Words and phrases – "Aboriginal Australian", "alienage", "aliens", "allegiance", "body politic", "citizen", "connection to country", "essential meaning", "foreign citizen", "indicia of alienage", "nationality", "non-alien", "non-alienage", "non-citizen", "obligation of protection", "political community", "polity", "sovereignty", "spiritual connection", "subject", "territory", "traditional laws and customs", "tripartite test", "unlawful non-citizen". Constitution, s 51(xix), (xxvii). Australian Citizenship Act 2007 (Cth), ss 12, 13, 14, 15, 16. Migration Act 1958 (Cth), ss 5, 14, 189, 196, 198, 200, 501.

CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity

CIVIL PROCEDURE – where an application for legal aid by way of appeal has been made – application for adjournment – whether there are special circumstances

LAND LAW – possession of land – unpaid rates and charges – local council’s right of sale – contract of sale with vacant possession – failure of occupiers to vacate land in response to statutory notice – proceedings commenced by Council – defences previously struck out – no appearance by defendants – right of council to possession – where sale price exceeded outstanding rates and charges – whether legal costs of the proceedings amounted to expenses in connection with the sale – s 718 Local Government Act 1993 (NSW)

STATUTORY INTERPRETATION – Summons to produce documents to statutory inquiry – claim of privilege – whether abrogated – Casino Control Act 1992 (NSW), s 143A

REAL PROPERTY – Torrens system – claim for compensation from Torrens Assurance Fund – area of parcel of land erroneously overstated in deposited plan – whether compensation excluded by s 129(2)(e) of the Real Property Act 1900 (NSW) – whether loss arose because of an error or miscalculation “in the measurement of land” – real question to be determined – claim not clearly untenable or manifestly groundless – summary dismissal not appropriate PRACTICE AND PROCEDURE – summary dismissal – claim for compensation from Torrens Assurance Fund – whether claim excluded by s 129(2)(e) of Real Property Act 1900 (NSW) – whether loss arose because of an error or miscalculation “in the measurement of land” – real question to be determined – claim not clearly untenable or manifestly groundless – summary dismissal not appropriate

CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Evidence of religious publications found in his possession following the alleged commission of the offence – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Whether expert evidence in relation to the publications admissible - Evidence excluded

CIVIL PROCEDURE – leave to appeal – summary dismissal of proceedings in Division – proposed amended statement of claim not referred to by primary judge in reasons – primary claim dismissed as legally misconceived – whether alleged factual errors in primary judgment material – whether procedural unfairness

APPEAL – application for leave to appeal from a refusal of leave to appeal from a discretionary decision of the Local Court – no issue of principle

EVIDENCE – admissibility of evidence – exceptions to the hearsay rule – s 69(2)(b) Evidence Act 1995 – business records exception – second-hand hearsay - application of s69(3)(b) – whether a document used in an investigation that does not lead to an immediate charge falls within s69(3)(b) – held that s69(3)(b) applies – tender of evidence rejected

EVIDENCE – expert evidence – admissibility of expert report - whether inference can be drawn from expert report as to capacity of Accused – no relevant context in report to support inference – inference not within requested remit of expert report – tender of expert report rejected.

COSTS – litigation concerning administration of deceased estate - Calderbank letter – based on ultimate distribution of estate – whether effective

COSTS – proceedings to enforce obligation to register new lease – proceedings resolved without a determination on the merits – first defendant under a clear obligation to ensure that new lease to plaintiffs was registered – first defendant failed over a number of months to discharge obligation – plaintiffs would almost certainly have succeeded if matter had needed to go to final hearing – conduct of first defendant unreasonable – first defendant ordered to pay plaintiffs’ costs

JUDGMENTS AND ORDERS – default judgment – two defendants – cross-claim by second defendant against first defendant – contractual claim for indemnity - where no defence filed to a cross-claim – where proceedings settled with plaintiff obliging each defendant to pay a share of the agreed damages – judgment on the cross-claim for sum quantified in the settlement – whether a liquidated sum

CORPORATIONS – winding up – examination under Corporations Act 2001 (Cth) s 596B – where examinee subject of pending criminal trial – whether examination should be held in private – whether special circumstances – Corporations Act s 597(4) – whether authenticated transcript of examination for purposes of Corporations Act s 597(14) should be kept confidential

SUCCESSION — Family provision — Appeals — appeal from orders made in chambers approving s 95 Succession Act releases — whether primary judge failed to consider each of the matters listed in s 95(4) Succession Act — appeal dismissed — application for leave to amend grounds of appeal denied — cross-appeal — change of position/ estoppel defence to restitution of moneys paid pursuant to impugned orders

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of “misconduct” – Whether particular transfer a “non-disciplinary transfer” – Meaning of “non-disciplinary transfer”.

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

CRIMINAL LAW – interlocutory appeal from refusal to adjourn or stay trial – accused said to be effectively unrepresented through no fault of his own – accused’s barrister returned brief close to trial – prosecution case involved overseas witness in custody – principles in Dietrich – necessary for counsel to run trial – adjournment or stay required – leave granted – appeal allowed.

CRIME – bail – release application – show cause requirement s 16B(1)(h) Bail Act 2013 (NSW) –proceeds of crime and dishonesty offences – extensive criminal history – non-compliance with bail and parole obligations – witnesses not credible – connections and resources to assist leaving the country – cause not shown and application refused – charges subsequently reformulated and bail granted in court below

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – defendant consents to making of interim supervision order – whether certain conditions proposed appropriate – debate over conditions regarding accommodation, education and employment, search and seizure, and access to pornographic material – orders made – conditions imposed

CIVIL PROCEDURE – jurisdiction –inappropriate forum – termination of contract on grounds of “fairness and reasonableness” under the Dutch Civil Code

PRACTICE AND PROCEDURE – application to vacate hearing date – application granted – no question of principle

HIGH RISK OFFENDER – interim hearing – application for interim detention order – interim supervision order made – conditions