Cases and authorities

CIVIL PROCEDURE — Appearance — Withdrawal of appearance — Leave of court – further application to withdraw – client unable or unwilling to provide meaningful instructions – whether client fit to attend trial – appointment of tutor pursuant to Court’s parens patriae jurisdiction.

COSTS – security for costs – procedure and discretion – further security sought from the defendant – whether cross-claim defensive in nature – further security ordered

CIVIL PROCEDURE – cross-vesting – special federal matter – leave sought to continue proceedings in the Supreme Court of NSW after defendant declared bankrupt – leave granted

CONTRACTS – construction – interpretation – shareholder agreement – where agreement stated that it was the intention of the parties to achieve an exit that maximises shareholder value – whether an obligation thereby imposed on exiting party to maximise shareholder value

APPEALS – stay of proceedings – stay pending application for special leave to appeal to High Court – no prospects of success – stay refused

CIVIL PROCEDURE – representation – unrepresented litigant – referral to a barrister or solicitor on the Pro Bono Panel under r 7.36 of UCPR – no issue of principle

Crime — appeals — appeal against sentence — application for leave to appeal — recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) — whether sentencing judge erred in assessment of objective seriousness of the offence — no principle that the nature of injuries sustained necessarily determines the assessment of objective seriousness — where offender was correctional officer in position of trust and authority over the victim who was an inmate — whether sentence imposed was manifestly excessive — not demonstrated that sentence was unreasonable or plainly unjust

Crime — appeals — appeal against sentence — application for leave to appeal — two counts of aggravated kidnapping in company contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) — whether sentencing judge failed to have regard to community safety as paramount consideration in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether to make an Intensive Correction Order — where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) precluded the making of an Intensive Correction Order — whether sentencing judge misapplied the principle of parity — whether sentencing judge failed to properly account for applicant's mental health — whether sentencing judge failed to give adequate reasons

CRIME – Appeal – Appeal against conviction – Inconsistency of verdicts – Unreasonable verdict – Whether inconsistency as a result of acquittal on 7 counts and conviction on 2 counts – Whether inconsistency between acquittal on a particular count and conviction on count of persuading a witness to withhold “true evidence” – Identification of the “true evidence” withheld CRIME – Appeal – Application for leave to appeal against sentence – Manifest excess – Whether aggregate sentence was unreasonable or plainly unjust

CORPORATIONS – application to set aside creditor’s statutory demand – where debt purported to be due and payable to beneficiary of trust – where evidence of debt appears to be sourced from financial accounts that have not been prepared – whether debt is due and payable – whether there is a genuine dispute – whether demand should be set aside.

COSTS – indemnity costs – offers of compromise – requirement for discount in “walk away” offers – Uniform Civil Procedural Rules, rr 42.14, 42.15A.

PRACTICE AND PROCEDURE – application to dismiss proceedings for want of prosecution – lengthy and tortuous history of litigation – where Plaintiffs failed to comply with orders for particulars and discovery after being granted several extensions of time - documents ultimately provided by Plaintiffs which do not comply with requirements for discovery and particulars – consideration of guiding principles under Civil Procedure Act 2005 - obligations of litigants in civil proceedings – where Plaintiffs have demonstrated unwillingness to comply with obligations – where foundation exists for grant of exceptional remedy of dismissal – application for dismissal for want of due despatch granted

CONTRACTS — Formation — Agreement – Deed of Settlement – whether binding agreement reached between parties in relation to the payment of legal costs through acceptance of a counter-offer in a telephone conversation or through a combination of the acceptance of counter-offer, the forwarding of an email attaching an executed deed of settlement and release, and the receipt of that document – alternatively whether provision of a draft of the deed of settlement amounted to offer capable on acceptance of giving rise to binding agreement – held that there was no common intention, objectively ascertainable, on the part of the parties to be bound unless and until the agreement was documented in writing and signed – summons dismissed with costs and orders made for parties to attend a court-annexed mediation.

HIGH RISK OFFENDER – final hearing – application for extended supervision order – defendant subject to an interim supervision order – defendant does not contest application – whether Court satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious offence if not kept under supervision

CONTEMPT – criminal contempt – breach of undertaking – construction of undertaking – whether ambiguous – meaning of “works in the nature of excavation” – whether digging of previously excavated material constitutes excavation – whether statement of charges against first defendant properly particularised – insufficient evidence that first defendant “arranged” for works to be carried out in breach of undertaking – whether second defendant carried out works in breach of undertaking as charged – whether contumacy is necessary to find guilty of criminal contempt CIVIL PROCEDURE – stay of proceedings – abuse of process – whether plaintiffs' bringing of contempt proceedings constitutes abuse of process

Income tax (Cth) – Appeal against objection decision – Where Commissioner of Taxation ("Commissioner") issued amended assessments of taxable income following commencement of audit – Where taxpayer objected to amended assessments – Where objection decision made in respect of taxpayer's objection ("Objection Decision") – Where further amended assessments made consequent upon Objection Decision – Where taxpayer appealed against Objection Decision under Pt IVC of Taxation Administration Act 1953 (Cth) ("Act") but not against further amended assessments – Where Commissioner conceded certain amounts incorrectly assessed as income ("Conceded Amounts") – Whether appeal under Pt IVC of Act was against Objection Decision or against further amendment assessments – Whether Commissioner's assessment excessive to extent of Conceded Amounts. Administrative law – Judicial review – Jurisdictional error – Where primary judge determined appeal against Objection Decision under Pt IVC of Act – Where Full Court of Federal Court of Australia determined appeal against decision of primary judge – Where taxpayer sought writs of certiorari in respect of decisions of primary judge and Full Court – Whether primary judge and Full Court each misconstrued jurisdiction – Whether primary judge and Full Court committed jurisdictional error – Whether taxpayer's application for judicial review, after expiration of time in which to seek special leave to appeal, sufficient basis to dismiss application. Words and phrases – "amended assessment", "disallowance of objection", "excessive assessment", "falsa demonstratio non nocet", "grounds of objection", "jurisdictional error", "misconceive jurisdiction", "non-jurisdictional error", "objection decision", "objection to assessment", "refusal of relief", "taxable income", "taxation decision", "taxation objection", "taxpayer's burden of proof", "wide survey and exact scrutiny". Taxation Administration Act 1953 (Cth), Pt IVC. Income Tax Assessment Act 1936 (Cth), ss 166, 167.

TORTS – false imprisonment – wrongful arrest – assault and battery – arrest pursuant to a warrant – whether primary judge erred in preferring the evidence of police officers to the evidence of the plaintiff – whether primary judge erred in finding that the plaintiff was lawfully arrested whether primary judge required to consider all submissions made during hearing – whether police required to consider alternatives to arrest – whether police required to give reasons for arrest – whether primary judge erred in failing to award exemplary damages – false imprisonment found to be unintentional

CRIME – appeals – leave to appeal against conviction – Drug Misuse and Trafficking Act 1985, s 25(1) – deemed supply of traffickable quantity of a prohibited drug methylamphetamine – unreasonable verdict – issue of possession – whether open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – miscarriage of justice – complaints about Crown’s conduct at trial and closing address – where no complaint made at trial – whether applicant should be bound by forensic decisions

CRIMINAL PROCEDURE – appeal against conviction – sole ground that verdict was unreasonable or unsupportable on the evidence – challenges to fairness of trial, improper limit on cross-examination and content of prosecutor’s address went beyond the sole pleaded ground – challenges dealt with as separate grounds of appeal CRIMINAL LAW – appeal against conviction – supply of commercial quantity of drugs – supply by one co-accused to the other – whether verdict unreasonable – inferences of prior arrangement based on video surveillance – no evidence of prior relationship CRIMINAL LAW – appeal against conviction – unfair trial – change in the prosecution case – prosecutor using rhetorical questions in address to jury – failure to put defence case in summing up EVIDENCE – powers of trial judge to limit cross-examination – application to limit scope of re-examination if prosecution witness cross-examined about drug dealing with third party – risk of questioning causing unfair trial

EVIDENCE – criminal proceedings – suggestion that witnesses whose names are suppressed should be protected further by AVL evidence – exercise of discretion discussed – possible unfairness – application refused

EVIDENCE – criminal proceedings – video recording of witness statement – witness unavailable – analysis of discretion

CORPORATIONS – winding up – costs – where winding up of company ordered pursuant to a fact agreed between the parties – where company wound up on the just and equitable ground – where plaintiff originally sought relief in the form of purchase of his shares in company – where that relief not obtained – whether the court should otherwise order for the purposes of s 466(2) of the Corporations Act 2001 (Cth).

ADMINISTRATIVE LAW - application for leave to appeal from decision of NSW Civil and Administrative Tribunal Appeal Panel – residential tenancy agreement – no question of law raised – error not demonstrated – leave to appeal declined – appeal dismissed

CIVIL PROCEDURE — Appearance — Withdrawal of appearance — Leave of court – application one week prior to allocated hearing date – client neglected to advance disbursements for counsel’s fees – client likely to be self-represented if application succeeds.

LAND LAW – Torrens title – Indefeasibility of title – registered proprietor entitled to possession LAND LAW – Conveyancing – Requirements of writing – Creation or disposition of interest in land – defendant a bare licensee

REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) pt 10 – where duplicate sets of representative proceedings (class actions) are commenced in the Court against the same defendants with different solicitors on the record – whether the Court should relax the one solicitor for plaintiffs rule and permit joint solicitors on the record – procedure to be adopted for determining the question which solicitor should be on the record – HELD – the rule should not be relaxed – HELD FURTHER – If the question which solicitor should be on the record cannot be agreed between the parties, an expeditious abbreviated procedure of the type used to resolve forum non conveniens disputes should be adopted to resolve the question.

CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – jury rejected partial defence – diminution for culpability for murder by reason of mental state still available – discussion of objective and subjective features – sentence imposed

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person convicted or sentenced on a question of law alone – alleged failure to apply rule of statutory construction regarding immunity in respect of words used in judicial proceedings – validity of conviction under s 192G of Crimes Act 1900 (NSW) for false statements to Local Court that statements of claim were served – statements made to obtain default judgment CRIME — Fraud — intention to defraud by false or misleading statement – whether applies to statements in judicial proceedings CRIMINAL PROCEDURE – unsuitability of injunctive relief to restrain laying of further charges

PRACTICE AND PROCEDURE — Applications — Summary dismissal — Abuse of process — Where the plaintiff has filed three notices of motion seeking summary judgment

ADMINISTRATIVE LAW – Judicial review – Civil and Administrative Tribunal of NSW – Decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from the decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal as to costs – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Where the decision of the Senior Member does not involve an “external or internal appeal” – Inappropriate exercise of discretion – Failure to provide adequate reasons – Failure to afford procedural fairness

PROCEDURE – judgments and orders – application for stay of orders pending appeal – no matter of principle

CONTRACTS – termination – whether building contract validly terminated – whether in the circumstances, 10 business days notice giving opportunity to remedy default needed to be given prior to termination – alternative bases for termination – Shepherd v Felt & Textiles of Australia Ltd

CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge’s discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial

CRIME – accused application for view of alleged murder location – murder in prison – availability of video evidence – view of some utility – application granted

CRIMINAL PROCEDURE – joint application by accused to discharge jury – present trial is retrial following successful appeal – where witness volunteered that the accused had been previously sentenced – whether prejudice incurable – whether jury can bring fair and untainted minds to issues in the trial – whether direction capable of curing prejudice – prejudice not incurable – concerns raised by accused met by appropriate directions to jury – application refused

EVIDENCE - witness evidence - refreshing memory - in court

HIGH RISK OFFENDER – final hearing – application for extended supervision order – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant conceded the order should be made – parties agreed on form of conditions – Court satisfied that conditions are appropriate to manage the defendant’s risk – extended supervision order of five years duration made

CRIME — murder — trial by judge alone — no dispute that elements of the offence established MENTAL HEALTH — criminal proceedings — defence of mental illness — special verdict of not guilty by reason of mental illness

COSTS — Security for costs — Relevant factors – r 42.21(1A) of the Uniform Civil Procedure Rules 2005 (NSW) – consideration of prospects of success or merits of the proceedings (r 42.21(1A)(a)) and whether the cross-claim is defensive in nature (r 42.21(1A)(e)) – security for costs ordered by way of an unconditional bank guarantee or payment into court.

CIVIL PROCEDURE — Parties — Joinder — Of cross-defendant – application for joinder of Lawcover by cross-claimants – where Lawcover is the insurer of a law firm under a “run-off” professional indemnity insurance policy – where the law firm was instructed by the applicant to draft the relevant trust deed and to act on the conveyance of the relevant property – whether the solicitors allegedly failed to give certain advice to the applicants including to lodge with the Land Titles Office a copy of the relevant trust deed or to lodge a caveat over the relevant property – whether discretion under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) enlivened to permit the joinder of Lawcover – held that the proposed third cross-claim does not adequately establish the existence of a reasonably arguable cause of action against Lawcover – notice of motion dismissed

COSTS – security for costs – where cross-claim is primarily defensive in nature – no security for costs to be ordered COSTS – security for costs – procedure and discretion – further security sought from the plaintiff for future costs – broad brush approach – further security ordered

ADMINISTRATIVE LAW – jurisdictional error – judicial review of Determinations of Compensation issued by the Valuer-General under s 47 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether the Determinations with respect to underlying zoning and development standards lacked probative evidence and were legally unreasonable – whether the Determinations with respect to the comparable sales method of valuation were legally unreasonable – not legally unreasonable – impermissible merits review – no jurisdictional error ADMINISTRATIVE LAW – jurisdictional error – whether there was power to award certain disturbance costs under s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – where the Valuer-General misdirected himself to the date from which disturbance costs were claimable in accordance with Hoy v Coffs Harbour City Council [2016] NSWCA 257 – whether the legal error made by the Valuer-General in making the Determinations has the consequence that the Determinations are liable to be set aside for jurisdictional error – jurisdictional error – Determinations set aside – declaration made CIVIL PROCEDURE – stay – orders made by consent staying the legal effect of the Valuer-General’s Determinations until the final disposition of the proceedings – whether the Court can stay the operation of an Act COSTS – party/party – issues severable – first and second defendants successful on 70 per cent of issues in the case – plaintiff to pay 30 per cent of the first and second defendants’ costs

CONTRACTS – Construction and interpretation – general principles – ambiguity – surrounding circumstances and commercial objects of contract – interpretation in context of contract as a whole – redundancy of terms – whether redundancy appropriate in these circumstances – whether alternative construction of words inconsistent with other provisions or commercial purpose of contract – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency

HIGH RISK OFFENDER – preliminary hearing – application for appointment of two psychiatrists – application for interim supervision order – orders made – conditions imposed

CRIME - sentence appeal – where applicant pleaded guilty to supply prohibited drug on an ongoing basis – where applicant sentenced to imprisonment for 4 years with a non-parole period of 1 year and 8 months – where further offence of supply prohibited drug on an ongoing basis also taken into account on sentence – whether sentence manifestly excessive - appeal allowed - resentence

CIVIL PROCEDURE – summary dismissal – application to summarily dismiss proceedings – where statement of claim discloses minimal facts, matters or circumstances on which plaintiffs’ claim against second defendant is based – whether proceedings should be summarily dismissed. CIVIL PROCEDURE – pleadings – application to strike out statement of claim – where statement of claim does not particularise claim against second defendant – whether statement of claim should be struck out – whether leave should be granted to plaintiffs to reformulate statement of claim.

CORPORATIONS — Shareholders’ rights and remedies — Access to books and records — Shareholder sought access to completed proxy forms in advance of AGM — Sought to influence votes to assist the election of their candidate — Whether “books and records of the company” for the purposes of s 247A — Section does not apply to books in the company’s possession but not belonging to it — Proxy forms are not books “of the company” — Whether common law right of access to proxy forms — Application of Edman v Ross (1922) 22 SR (NSW) 351 — Whether “necessary with reference to some specific dispute or question in which the shareholder is interested” — Inspection unnecessary having regard to the rights granted by the Corporations Act — Judgment for the defendant.

CORPORATIONS – winding up – public examination of directors, officers and others – where shareholders propose to examine former director of company – where shareholders investigating potential class action – whether proposed examination is to be conducted for an improper purpose – whether proposed examination is an abuse of process. COSTS – security for costs – order for production – where liquidators and creditors of company would bear costs of production – where significant difference in costs estimates – whether production should be ordered on condition that persons seeking disclosure fund costs of such disclosure.

CRIME – application for inquiry into conviction – Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – where applicant has already appealed conviction to the District Court – no doubt or question as to the applicant’s guilt – application dismissed

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity