Cases and authorities

PRACTICE AND PROCEDURE – prima facie evidence and proceedings open to public – application for closed court – confidential affidavit – no significant prejudice to accused – application granted

LEGAL PRACTITIONERS – stay of proceedings – two brothers were directors of a company and also trustees of a trust – company commenced proceedings against Sydney Water – security for costs ordered and provided – proceedings ultimately dismissed –separate proceedings brought by one brother against other for breach of trust – cross-summons seeking removal of plaintiff brother as trustee – counsel retained by company in Sydney Water proceedings took instructions from both directors in relation to security for costs and financial circumstances of company and the brothers – security for costs ultimately satisfied by funds lent by brothers’ parents – distribution to repay parents challenged in pending proceedings – circumstances in which company provided other amounts to trustees in issue in pending proceedings – counsel formerly retained by company appeared for plaintiff brother – evidence unclear as to extent of his involvement in the litigation – whether counsel had received confidential information from defendant brother – whether proceedings should be stayed in exercise of inherent jurisdiction – whether any or all of counsel and solicitors for plaintiff could continue to act – evidence did not establish confidential information imparted to counsel – proceedings stayed pending counsel ceasing to act – no basis presently established for preventing other counsel and solicitors from acting for plaintiff

PRIVATE INTERNATIONAL LAW – foreign judgments and orders – stay application pending determination of appeal in US – stay refused COSTS – security for costs – plaintiff ordinarily resident in California – security ordered

CONTRACTS – formation – agreement – whether shareholders agreed to vary the shareholders agreement CONTRACTS – construction – interpretation – purported “binding” term sheet – what the term sheet was binding to do CONTRACTS – construction – interpretation shareholders agreement – decisions “in relation to” subject matters which required special majority shareholder approval – what “in relation to” means in this context CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – representations as to authority of company to enter transaction CORPORATIONS – contracts – formalities – statutory assumptions – persons entitled to assume document duly executed – whether person knew or suspected that assumption was incorrect

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order

SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice

EVIDENCE – criminal proceedings – presumptive test for blood – not relevant except to explain stains on shoes – no evidence that stains were blood

CRIMINAL PROCEDURE – Trial – application by the accused for adjournment of two Notices of Motion by NSW Commissioner of Police – whether subpoenas objected to have a legitimate forensic purpose - not satisfied that adjournment of Notices of Motion is justified - application dismissed

CORPORATIONS — Members’ rights and remedies — Statutory right of access to books and records — Where company subject to Deed of Company Arrangement — Small shareholder sought access to vast range of documents — Leave granted under s 444E where deed administrators did not oppose — Deed administrators held concerns as to expense and confidentiality — Deed administrator had limited funding — Production in reduced scope ordered after “sunset date” of DOCA to avoid the administrators being distracted from their task of recapitalising the company — Production subject to provision of confidentiality undertakings and pre-payment of estimated costs of production.

CRIMINAL LAW – murder – fitness to stand trial – treatment resistant schizophrenia – Presser test – relevant criteria – delusional thoughts – disordered speech – whimsicalised – sexual genome castrated – where accused’s fitness changed over time – unanimous opinion of experts – inability to focus on evidence – inability to instruct counsel – inability to present defence

CORPORATIONS — Winding up — Statutory demand — Payment under agreement to sell units in trust — Trust holds property with flammable cladding — Alter egos of vendor and purchaser of units also directors of builder of property — “Lightweight construction” certificate alleged to be false — Occupation certificate said to be liable to be set aside — Proceedings commenced in District Court for damages for rectification works — Whether implied term in Agreement — Whether misleading and deceptive conduct by silence — No basis to set demand aside — Application dismissed with costs.

COSTS – proceedings resolved without a determination on the merits – where plaintiff and defendant registered proprietors and mortgagors of property – plaintiff and defendant enter into agreement whereby the defendant agreed to pay a sum to the plaintiff in return for a transfer of the plaintiff’s interest in the property – dispute as to whether the defendant paid all of the amount owing to the plaintiff under the agreement – where plaintiff commenced proceedings seeking appointment of trustees for sale in respect of the property – where proceedings resolved – whether plaintiff or defendant acted unreasonably in the commencement and maintenance of proceedings – neither party held to have acted unreasonably – orders made that each party pay its own costs

APPEAL FROM LOCAL COURT — Local Court Act 2007 (NSW) — Assessment by Magistrate of economic loss — Whether Magistrate erred in determining award for loss of profits — Whether Magistrate gave sufficient reasons — Where the plaintiff’s shipment of BBQ smokers was delayed and damaged

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – inaudible

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – Electronically Recorded Interview of a Suspected Person – answers to questions – relevance – probative value – unfairness to the accused

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – admissions – s 90 Evidence Act – discretion to exclude admission – recording of conversation between accused and wife at police station – whether impropriety – whether unfairness to the accused

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient PROCEDURE – interim extension order – whether risk of futility in appeal if not extended

HIGH RISK OFFENDER – appeal from making of continuing detention order – whether conviction for manslaughter on the basis of excessive self-defence was a “serious violence offence” – whether error in not specifying commencement date for continuing detention order – alleged errors in criminal record – alleged errors in submissions to primary judge and summaries provided to experts – whether error in assessing risk – appeal dismissed

APPEAL – application for leave to appeal – no arguable grounds of appeal – no issue of principle

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – no arguable grounds identified – application dismissed

CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier. LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed.

CRIME – appeals – leave to appeal against conviction – unreasonable verdict – two counts of sexual intercourse without consent and two counts of indecent assault – Crimes Act 1900 (NSW), ss 61I & 61L – assessment of the nature and quality of evidence – asserted implausibility of complainant’s account – whether inconsistencies in evidence and inadequate explanation for delay in report to police – leave granted and appeal dismissed CRIME – appeals – where applicant granted conditional bail pending appeal – time on bail not counted towards sentence – Criminal Appeal Act 1912 (NSW), ss 18(2) & 28A – commencement date of sentence adjusted

CRIMINAL LAW – appeal against sentence – parity – two offenders manufactured large commercial quantity of methylamphetamine – applicant found guilty and sentenced on basis of manufacturing some 2.6 kg of the drug – co-offender pleaded guilty to manufacturing 12.84 kg of the drug – section 4 of Drug Misuse and Trafficking Act 1985 (NSW) provided that references to a prohibited drug included reference to any admixture containing any proportion of the drug – offenders charged on different bases but sentenced on basis that both had manufactured the same mixture from which 2.6 kg of methylamphetamine could be extracted – no error in having regard to purity of admixture – no justifiable sense of grievance by applicant when all relevant facts considered – appeal dismissed

Immigration – Representative proceedings – Where plaintiff brought representative proceeding in High Court for damages for false imprisonment – Where claimed that Group Members purportedly detained under ss 189 and 196 of Migration Act 1958 (Cth) – Where claimed that detention for purpose of receiving, investigating or determining application for visa, or determining whether to permit valid application for visa to be made, or of removing relevant Group Member from Australia to regional processing country – Where claimed that detention lawful only for period during which purposes pursued and carried into effect as soon as reasonably practicable and capable of fulfilment – Where claimed that detention unlawful because purposes not carried into effect as soon as reasonably practicable or because detention continued at times during which purposes not capable of fulfilment – Where plaintiff applied for order remitting proceeding to Federal Court of Australia pursuant to s 44(2A) of Judiciary Act 1903 (Cth) – Where s 476B(1) of Migration Act provided that High Court must not remit matter "that relates to a migration decision" to court other than Federal Circuit Court – Where s 468B(1) and (2) provided that representative proceeding not permitted where proceeding would "raise an issue in connection with visas ... or removal of unlawful non-citizens" – Whether proceeding related to migration decision – Whether proceeding raised issue in connection with visas or removal of unlawful non-citizens. Words and phrases – "class actions", "in relation to", "migration decision", "raises an issue in connection with", "relates to", "representative proceeding". Judiciary Act 1903 (Cth), s 44. Migration Act 1958 (Cth), ss 476A, 476B, 486A, 486B, 486

PRIVATE INTERNATIONAL LAW — foreign judgments and orders — statutory registration of judgments — setting aside registration of foreign judgments

COSTS –variation to a costs orders sought by the plaintiff – held no special reason warranting departure from the general rule that costs should follow the event – costs order not varied.

Crime – Sentencing – affray – no question of principle

CIVIL PROCEDURE – Court administration – Court powers – Control of proceedings – young person under the parental responsibility of the Minister residing in the Sherwood House program – young person has already turned eighteen – Court’s parens patriae jurisdiction continues over the young person, not by reason of her age but by reason of her disability – full funding assessment through the National Disability Insurance Scheme for the young person to have supported independent living (“SIL”) outside the Sherwood House program has been approved and SIL arrangements made, enabling her to move out of Sherwood House into her own accommodation.

BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether email and attached schedule sent by project manager a payment claim under s 13(1) – whether defendant was person who sent documents it asserts was a payment claim – whether multiple payment claims served in respect of one reference date

CRIMINAL LAW — Sentencing — Accessory after the fact to murder — Plea of guilty — No relevant criminal antecedents — Objective seriousness at the low end of the range — Bugmy considerations applicable — Mental illness — Parity with other offender — Special circumstances found — Victim impact statements not allowed to be read as offence not one which “results in the death of, or actual physical bodily harm to, any person”

TORTS – negligence – medical negligence - application for approval of proposed settlement in favour of infant plaintiff – whether settlement is in the best interests of the plaintiff – where immediate needs of plaintiff are to be assessed by reference to life expectancy and longevity of the settled fund

ADMINISTRATIVE LAW – judicial review – procedural fairness – duty to obtain documents – motor accident – medical dispute – determination of Review Panel under Motor Accidents Compensation Act 1999 (NSW) – parties requested to supply further documents in four categories – no documents provided in three categories – other documents not available to parties – whether reviewable error in Panel determining dispute without further material –whether procedure unfair to insurer – whether non-compliance with Medical Assessment Guidelines – legal status of Guidelines PROCEDURE – civil – judicial review – adequacy of pleading – specifying grounds – Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c)

APPEAL — Appeal from Local Court to Supreme Court — Local Court Act 2007 (NSW) ss 39(1) and 40(1) — Whether question of law or question of mixed fact and law raised — Concession judgment at first instance was erroneous — Inadequate reasons — Court unable to make factual findings on appeal — Opportunity for parties to reach agreement on amount of judgment following from findings CONTRACTS — Formation — Formation of contract inferred from conduct

HEALTH – Public hospitals — Local Health Districts – Health services provided in public hospitals to persons ineligible under Medicare arrangements – Liability of ineligible persons to pay for health services provided at public hospitals — Guarantees procured by Local Health Districts from third parties in respect of health services provided to ineligible persons — Whether policy directives required guarantees to be procured — Whether procuring guarantees inconsistent with, or repugnant to, Health Services Act 1997 (NSW), sections 70 and 71 – Whether guarantees otherwise void or unenforceable

CIVIL PROCEDURE — Summary disposal —Dismissal of proceedings — Frivolous or vexatious proceedings – Attempt to re-litigate lost cause

PERSONAL PROPERTY – Title – Particular kinds of personalty – Prize money won by race horse – Ownership of horse – Entitlement to prize money FUNDS IN COURT – Payment out – Competing claims – Identification and determination

APPEALS – Judicial review – Application for leave to appeal from a decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Home Building Act 1987 (NSW) – Whether the Appeal Panel erred in reversing the onus of proof of the date of practical completion of the works under s 3B – Whether the alleged defects were “major defects” under s 18E(4) – Relevance of expert evidence to a determination of whether a defect “causes, or is likely to cause” the consequences in s 18E(4)(a)(i)-(iii)

CIVIL PROCEDURE — interim preservation — freezing orders — requirements to be met before order made — no evidence of likely attempt by defendant to dispose of assets in order to defeat any potential judgment — summons dismissed

CIVIL PROCEDURE — parties — persons under legal incapacity — tutors — application for removal of tutor — whether plaintiff remains a person under a legal incapacity under s 3 of the Civil Procedure Act 2005 (NSW) — declaration sought that plaintiff is capable of managing his own affairs

APPEAL – Whether the Judicial Registrar of the District Court erred in dismissing the proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) – Whether the amended statement of claim discloses a cause of action against the named defendants.

CIVIL PROCEDURE – leave to make further submissions as to the proper construction of some provisions of a shareholders agreement – both parties have made all the submissions they would otherwise make – leave granted to make submissions CIVIL PROCEDURE – leave to re-open to make further submissions and to make alternative response to further cross-claim – leave sought after closing submissions – delay not explained – further response not able to be met – evidence goes to responding to an alternative

PRACTICE AND PROCEDURE – the plaintiff, an elderly person, appointed the first defendant as his attorney under an enduring Power of Attorney – the plaintiff commenced proceedings for the recovery of land and money said to have been transferred by the first defendant to herself and to the second defendant, the first defendant’s daughter, contrary to the terms of the Power of Attorney and in alleged breach of fiduciary duty – proceedings were fixed for hearing in February 2020 – the plaintiff dies in early November 2019 – a son applies successfully under Uniform Civil Procedure Rules 2005, r 7.10 to represent the plaintiff’s estate and for the proceedings to continue to be heard on the appointed hearing date – the first defendant applies by motion to remove the son as a representative of the plaintiff’s estate, to stay the proceedings until the resolution of probate proceedings, and to appoint another son of the plaintiff to represent the estate – the estate opposes all the relief sought on the motion.

CONTEMPT – criminal contempt – contumacious breach of orders – refusal to vacate premises owned by plaintiff scheduled for demolition CONTEMPT – criminal contempt – penalties – imprisonment – no other penalty appropriate in the circumstances

COSTS – party/party – general rule that costs follow the event – where mixed outcome in proceedings – plaintiffs’ contempt motion and first defendant’s abuse of process motion both unsuccessful – whether abuse of process motion should be treated as part of a successful defence to contempt motion – where criminal contempt charges against second defendant not upheld but finding of breach of undertaking – held that the general rule should apply on each motion – costs assessed and payable forthwith pursuant to Practice Note SC Eq 3

COSTS

CORONERS – Coroners Act 2009 (NSW) – meaning of “reportable death” in s 6(1)(b) and/or s 6(1)(c) – jurisdiction of coroner under s 21 – application to Supreme Court under s 84 – scope of "the interests of justice"

LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiffs entered into a contract to purchase a proposed lot in an unregistered plan of subdivision – where contract promised that the lot would contain an outdoor area covered by lawn – where defendant changed the location of the on-site stormwater detention tank – tank now built under outdoor area in such a way as to preclude a lawn – all access grates for tank located on the lot – whether material and substantial discrepancy between the subject matter of the contract and the property available to be conveyed – material and substantial discrepancy established – plaintiffs establish entitlement to rescind

HIGH RISK OFFENDER – application for continuing detention or extended supervision order – preliminary hearing – interim detention order not opposed

CRIMINAL PROCEDURE – stay of proceedings – permanent – where accused argues trial should be stayed because he cannot freely communicate with his lawyers – where accused also argues that trial should be stayed because translator has not been provided to enable him to instruct lawyers – stay application dismissed

HIGH RISK OFFENDER – preliminary hearing – where the State seeks an order that the defendant be subject to an extended supervision order – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of extended supervision order – summons dismissed