Cases and authorities

CIVIL PROCEDURE – access to former solicitor’s file - costs

EQUITY — Interlocutory injunction – seeking access to sub-leased premises – where conflicting evidence as to the circumstances in which sub-lease was signed – whether plaintiff has established prima facie case that the first defendant has interfered with rights of quiet enjoyment – whether balance of convenience warrants the grant of an injunction – whether damages are an adequate remedy – delay in seeking relief – limited injunctive relief granted

PRACTICE AND PROCEDURE – security for costs – residence of plaintiff – New Zealand citizen – itinerant worker – prospects of success – delay in seeking security – enforceability of costs order in New Zealand – undertaking to meet costs orders of corporate plaintiff

PROCEDURE – payment out of court – a fund being the proceeds of sale of certain real property held in Court – claim against the funds by each of four co-owners – three of the co-owners of the plaintiffs and one is the first defendant – the first defendant has since become bankrupt – any estate of the bankrupt co-owner not held by that co-owners trustee in bankruptcy is subject to an order for financial management under the NSW Trustee and Guardian Act 2009 – various claims made by and against the bankrupt co-owner’s share of the fund are compromised by that co-owner’s trustee in bankruptcy to reach agreed sums for payment out to each of the co-owners – whether the funds in Court can be paid out of Court by proposed consent orders – whether a tutor should be appointed for the bankrupt co-owner before orders are made for the payment of the fund out of court.

HIGH RISK OFFENDERS - high risk terrorist offender – preliminary hearing – whether defendant is a convicted NSW terrorism activity offender – where offender displays images and symbols of organisation – whether organisation supports terrorist acts or violent extremism – where organisation not proscribed by the Commonwealth – whether the matters alleged would if proved justify extended supervision order – whether offender poses an unacceptable risk of committing a serious terrorism offence

COSTS

CONSUMER LAW – misleading or deceptive conduct – where parties engaged in joint venture – where subsequently parties entered deed of settlement to resolve disputes – where one party misunderstood financial position of an entity being acquired under deed – where that party did not make inquiries to verify position – where other party participated in causing the misunderstanding, was aware of it and failed to correct it – whether conduct misleading or deceptive TAXES AND DUTIES – GST – input tax credits – entitlement to refunds

CRIME — Appeals — Appeal against conviction — High Court allowed appeal and remitted matter for determination of unreasonable verdict ground on proper construction of s 45(1)(a) of Crimes Act 1900 — appellants abandoned unreasonable verdict ground — New trial ordered

CONTEMPT — Criminal contempt — Penalties — Fines — Indemnity costs order

CIVIL PROCEDURE – hearings – adjournment – inadequate time estimates – late retention of legal solicitors and counsel – costs CIVIL PROCEDURE – pleadings – amendment

CORPORATIONS – scheme of arrangement – transfer scheme – approval of scheme under Corporations Act 2001 (Cth) s 411(4)(b) – where ordinary scheme agreed to but preference scheme not agreed to – where ordinary scheme not conditional on court approval of preference scheme – whether court approval of ordinary scheme affects preference shareholders in general sense – scheme approved

CIVIL PROCEDURE – Court of Appeal – application for stay pending appeal – no issue of principle – where limited evidence – conditional stay granted

CRIMINAL LAW – appeals – Appeal against convictions – sexual assault – tendency evidence – whether error by judge in directing jury that the criminal standard of proof was required before the jury could use tendency evidence – where trial judge’s direction given before Bauer – multiple complainants – whether criminal standard elevated the tendency evidence to an essential intermediate fact – whether criminal standard gave rise to an unacceptable risk of compromise by the jury – whether tendency evidence was inadmissible – leave to appeal granted – appeal dismissed.

CRIMINAL LAW – sentence appeal – two episodes of drug supply each involving the supply of different kinds of drugs – whether sentence manifestly excessive – whether parity principle should apply – limitations on use of statistics – sentences not excessive – no application of the parity principle – offending and personal characteristics different for each offender – no justifiable sense of grievance.

APPEAL – SENTENCE – application for extension of time to seek leave to appeal against sentence – offences of cause grievous bodily harm with intent to murder and wounding with intent to cause grievous bodily harm – offender attacked his wife with a knife and his vehicle and her co-worker with a knife – sentencing Judge imposed aggregate sentences and indicated sentences which would have been imposed for individual offences – whether sentencing Judge erred in the notional accumulation of the indicative sentences – no claim that indicative sentences or aggregate sentence were manifestly excessive – consideration of provisions for aggregate sentencing – claim of error based on misconception concerning aggregate sentencing – ground of appeal rejected – extension of time refused

CRIMINAL LAW – conviction appeal – judge alone trial – twelve counts of sexual offending against four victims – applicant convicted of seven and acquitted on five counts – victims aged between 5 and 15 – tendency evidence – a single ground of appeal – whether verdicts of guilt were unreasonable having regard to the evidence – applicant’s case that evidence had been concocted – complainants found by judge to be honest – evidence established physical abnormality in applicant – failure of complainants to give evidence of physical abnormality – whether this failure rendered guilty verdicts unreasonable – evidence of three complainants found to be reliable – verdicts of guilt not unreasonable – conviction appeal dismissed.

Customs and excise – Customs tariff – Tariff classification – Where no duty owed if goods classifiable as medicaments under heading 3004 of Sch 3 to Customs Tariff Act 1995 (Cth) – Where Administrative Appeals Tribunal found vitamin preparations and garcinia preparations classifiable under heading 3004 – Where Comptroller-General of Customs contended vitamin preparations and garcinia preparations classifiable under heading 1704 ("sugar confectionery") or heading 2106 ("food preparations") so that duty owed – Whether vitamin preparations and garcinia preparations excluded from heading 3004 by Note 1(a) to Ch 30 of Sch 3 to Customs Tariff Act – Whether Administrative Appeals Tribunal erred in classifying vitamin preparations and garcinia preparations under heading 3004. Words and phrases – "duties of customs", "error of law", "essential character", "food preparations", "food supplements", "foods", "French language", "Harmonized System", "Harmonized System Convention", "medicament", "most akin", "ordinary meaning", "products for therapeutic or prophylactic uses", "tariff classification", "Vienna Convention", "vitamin". Administrative Appeals Tribunal Act 1975 (Cth), s 44. Customs Act 1901 (Cth), s 273GA. Customs Tariff Act 1995 (Cth), Schs 2, 3. International Convention on the Harmonized Commodity Description and Coding System (1983). Vienna Convention on the Law of Treaties (1969), Art 33.

Kadir v The Queen Grech v The Queen Evidence – Admissibility – Evidence obtained improperly or in contravention of Australian law – Evidence Act 1995 (NSW), s 138 – Where appellants jointly charged on indictment with acts of serious animal cruelty – Where prosecution proposes to tender video-recordings obtained in contravention of Australian law – Where prosecution proposes to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible. Words and phrases – "balancing test", "Bunning v Cross discretion", "causal link", "competing public interests", "deliberate contravention of the law", "desirability of admitting evidence", "difficulty of lawfully obtaining evidence", "ease of compliance", "evidence that was obtained improperly or in contravention of an Australian law", "false statement", "illegality", "improperly or illegally obtained", "impropriety", "in consequence of", "misconduct", "probative value", "public interest", "undesirability of admitting evidence", "vigilantism", "way in which the evidence was obtained". Criminal Appeal Act 1912 (NSW), s 5F(3A). Evidence Act 1995 (NSW), s 138.

CRIMINAL PROCEDURE – discharge of jury – suitors fund certificate

COSTS – both parties seeking costs – the event was mixed with both parties partially successful – not unreasonable for plaintiff to commence appeal – defendant made offer of compromise – not unreasonable for plaintiff not to accept offer of compromise – defendant to pay half the plaintiff’s costs

CRIMINAL PROCEDURE – application to discharge jury – juror connected to accused’s mother – apprehended bias and apparent impairment of impartiality – application of the test in Ebner v Official Trustee in Bankruptcy as adapted to jury – interest of justice – whether whole jury infected by apprehension of bias – whole jury discharged.

CORPORATIONS – Scheme of arrangement – transfer scheme – approval of scheme under Corporations Act 2001 (Cth) s 411(4)(b) – whether direct evidence of conditions precedent relating to regulatory approval is appropriate – Scheme approved

CORPORATIONS – where company subject to creditors’ voluntary winding up – where creditor seeks court ordered winding up – where little practical difference between the forms of administration – whether benefit to the administration if court ordered winding up under s 459A of the Corporations Act 2001 (Cth)

CRIMINAL PROCEDURE – subpoenas – application to set aside - whether a subpoena constitutes a “fishing expedition” – held that subpoena had no legitimate forensic purpose– subpoena set aside in whole

COSTS – departure from the usual rule – where first plaintiff successful in obtaining orders for specific performance of a contract for the sale of land – where defendant maintained in correspondence that the claim was hopeless – where parties engaged in settlement negotiations – where the defendant filed a submitting appearance – no reason to depart from the usual rule – defendant ordered to pay the first plaintiff’s costs of the proceedings on the ordinary basis

CRIMINAL LAW – second application for evidence to be given by Ms Tairi from New Zealand by audio visual link – first application rejected - evidence given from location outside Australia – compellability of witness located outside Australia – critical eye witness – credibility issues – multiple versions given – witness relevant to self-defence issue and thus potential acquittal

FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – consent –change of name

CORPORATIONS — Winding up — Conduct of liquidation — Costs, charges and expenses

CRIMINAL LAW – Non-Publication Order – prejudice to the proper administration of justice – proper administration of justice – public interest in open justice – key eye witness – witness not located in Australia – witness giving evidence by audio visual link

CRIMINAL PROCEDURE – application to vacate trial date – where accused unrepresented due to withdrawal of instructions two weeks before trial

VOLUNTARY ADMINISTRATORS – where dispute between majority creditor and administrator as to conduct of first meeting of creditors – application for removal of administrator and appointment of replacement administrators – whether appropriate to make consent orders under s 90-15 of the Insolvency Practice Schedule (Corporations) – exercise of discretion – Court must be satisfied that removal will facilitate the better conduct of the administration

COSTS – joint venture agreement for construction of outlet shopping centre – where offer of settlement – indemnity costs – whether appropriate to make a gross sum costs order

COSTS – indemnity costs – summary dismissal – judicial review and tortious claim – where Independent Commission Against Corruption made findings plaintiff acted corruptly – where findings were referred to Director of Public Prosecutions but no charges laid – whether plaintiff, properly advised, should have known that proceedings had no prospects of success – self-represented litigant – whether allegations of maliciousness – whether plaintiff unreasonably rejected an offer – whether ulterior motive for continuing litigation

APPEAL – NSW Civil and Administrative Tribunal (Occupational Division) – Health Practitioner Regulation National Law (NSW) – refusal to reinstate as psychologist – six grounds of appeal – breaches of Medical Practice Act 1992 (NSW) – false representations or declarations – convictions of fraud in the United Kingdom – character test for reinstatement – costs

CRIMINAL PROCEDURE – witnesses – application to recall witness for further cross-examination – whether evidence tendered in re-examination warrants further cross-examination of witness – motion dismissed

EVIDENCE – cross examination – whether question falls outside scope of leave for recall of witness – question disallowed

DEFAMATION — capacity to convey pleaded imputations — where defendants published articles concerning evidence given by a Rabbi during the Royal Commission into Institutional Responses to Child Sexual Abuse — where articles allege reprehensible ignorance of the criminality of touching a child for sexual gratification — where majority of imputations conceded — whether articles conveyed additional imputations including to the effect that the plaintiff was ignorant of the moral wrongfulness of touching a child for sexual gratification DEFAMATION — defences — justification — consideration of plaintiff’s evidence given to Royal Commission and a 2011 email exchange where plaintiff expressed views that instances of child sexual abuse ought not be reported to secular authorities in the first instance DEFAMATION — defences — protected report under statute — whether articles report the substance of proceedings

CIVIL PROCEDURE – notices to produce – client legal privilege – whether documents privileged under s 119 Evidence Act 1995 (NSW) – communications between plaintiff and witness where witness is also defendant in contingent proceedings – implied obligation of confidentiality where dominant purpose of communications is obtaining evidence

EQUITY – alternative claim – constructive trusts – equitable damages – threshold issues – pleadings – notice – prospects for success – expert evidence – common intention constructive trust – joint endeavour constructive trust – equitable lien or charge – consistency with Awad No 1 – evidentiary basis for constructive trusts – leave to call further evidence refused – observations re continuance of alternative claim – directions

SUCCESSION – burial rights – where mother and father have equal ranking at common law – whether mother or father should have carriage of the funeral and custody of the deceased's body – burial or cremation – consideration of deceased’s identification as Aboriginal man of Wiradjuri culture – mother granted relief sought.

CRIMINAL LAW – evidence given by audio visual link – evidence given from location outside Australia – compellability of witness located outside Australia – critical eye witness – credibility issues – multiple versions given – witness relevant to self-defence issue

PRACTICE AND PROCEDURE – Application for trial by judge alone – issues of self-defence – trial issues involve partial defence of substantial impairment – whether in the interests of justice to make order for judge alone trial – application refused

SUCCESSION — Contested probate — Testamentary capacity – whether deceased’s statement that she kept her will under the cats’ bed sufficient to raise a doubt as to testamentary capacity — Lack of knowledge and approval — Suspicious circumstances – where beneficiary present at meetings for instructions and execution of will – where will read by deceased – affirmative evidence that deceased knew and approved of will.

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – whether valid application under s 459G of Corporations Act 2001 (Cth) – whether affidavit supported the application on ground of an offsetting demand – challenge to primary judge’s factual finding that affidavit did not answer that description – no injustice demonstrated CORPORATIONS – winding up – whether valid application under s 459G of Corporations Act 2001 (Cth) – where period for compliance with statutory demand has expired – where no extension of period for compliance sought or obtained – no utility in attempting to have statutory demand set aside

CIVIL PROCEDURE – possession proceedings –possession of land – failure of persons to vacate property – expression of “wish” in Will not binding –payment of occupation rent

ADMINISTRATION OF ESTATES - specific devise – an administrator decides to satisfy some of an estate’s substantial debts by selling certain real estate, which had been specifically gifted to named beneficiaries – the administrator and the specific devisees of the real estate propose the substitution in the gift to the devisees of a particular estate property, namely the George Street property, for the property that had been sold – other beneficiaries propose the substitution of a different property, or alternatively that the estate acquire a new property, as a substitute for the sold property – how should the rights of all beneficiaries among one another be adjusted, so that the specific devisees of the real estate that has been sold should now “be put into the same position [they] would have been if the property the subject of the specific legacy had not in fact been sold”.

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — where sentence comparatively long — appeal dismissed

EQUITY — RESTRAINT OF TRADE — Employment – interlocutory injunction application against former Senior Property Manager at real estate agency - where former employee seeks to commence employment in competitor real estate agent - where employment agreement included post-employment restraints on solicitation and dealing with clients of employer and from working with competitor - where employment agreement entered two and a half years into employee’s tenure – where some undertakings given by employee – whether serious question to be tried as to the validity and reasonableness of the non-compete restraint and duration of non-solicitation restraint – serious question to be tried found – balance of convenience – adequacy of damages – discretionary factors.

CRIMINAL PROCEDURE – subpoenas – no documents to produce in answer to subpoenas – whether reasonable enquiries and searches were undertaken - application to cross-examine on searches undertaken as set out in affidavit – application refused

PRACTICE AND PROCEDURE – Review of Registrar’s decision – whether proceedings ought to be transferred from the District Court of New South Wales to Supreme Court– whether damages arising from claim for personal injury likely to exceed jurisdictional limit of District Court – where defendant belatedly opposed extended jurisdictional limit.