Cases and authorities

APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims

EVIDENCE — Privilege — Client legal privilege — Claim of privilege by directors of a company against its liquidator — Solicitors initially proposed to be retained by company — Retainer later in name of directors personally — Subject-matter of advice relevant to company’s affairs — Fees paid by company in part — Solicitors in fact retained by company, either alone or jointly with directors — Privilege not maintainable against liquidator.

CORPORATIONS – deregistration – application to reinstate company under Corporations Act (2001) Cth s 601AH(2) – whether plaintiff is a person aggrieved by deregistration of company – whether just to reinstate the registration of company.

CORPORATIONS — Administrators — Appointment – whether appointment of two administrators was valid – where resolution pursuant to which the first and second plaintiffs were appointed as voluntary administrators was valid despite there only being two directors of the company per s 201A of the Corporations Act 2001 (Cth) – whether exception contained in the company’s constitution for a lesser number of directors to act for certain purposes including emergencies applied – held that the administrators had been validly appointed.

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice – whether the plaintiff was justified in terminating the employment contract of the defendant (its former managing director) – whether the plaintiff would have been justified in terminating summarily the defendant’s employment contract on the ground of serious misconduct – where information regarding unauthorised directions and payments made by the defendant were discovered after the termination – whether the contract was for a fixed term – held that the contract was not for a fixed term and the plaintiff was justified in terminating the employment contract and would have been justified in terminating summarily the defendant. EQUITY — Equitable remedies — Restitution – Unjust enrichment – whether the plaintiff could recover the notice payment paid to the defendant – whether there was a factor rendering retention of the notice payment unjust – held that the payment was made voluntarily in circumstances where the plaintiff chose not to investigate further but to bring the employment to an end immediately. CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Silence – whether necessary to establish reasonable expectation of disclosure, EQUITY —Trusts and trustees — Resulting trusts –moneys misappropriated by the defendant held on presumed or resulting trust by the defendant for the benefit of the plaintiff – unauthorised profits in breach of the defendant’s fiduciary duties held by the defendant subject to a constructive trust in the plaintiff’s favour. EMPLOYMENT AND INDUSTRIAL LAW — Leave — Long service leave – s 4(2)(a)(ii) of the Long Service Leave Act 1955 (NSW) – whether the defendant had been wrongly denied long service leave accruals on termination of his employment – held that the defendant was entitled to long service leave on the basis that his employment was terminated in lieu of notice and not for misconduct.

ADMINISTRATIVE LAW – procedural fairness – notice not given by Registrar General when primary application made by neighbour to bring land under Real Property Act 1900 (NSW) – relief granted

EVIDENCE – privilege – client legal privilege – where documents previously produced to liquidators of former trustee under s 530B of the Corporations Act 2001 (Cth) – whether current trustee can claim privilege. CORPORATIONS – winding up – public examination of directors, officers and others – where solicitor acting for major creditor also acts for liquidators – where liquidators will retain independent solicitor to instruct counsel for purposes of conducting examinations – whether examination summonses should be set aside.

COSTS – multiple defendants and cross-claims – unsuccessful cross-claims by defendants – whether costs of cross-claims should be borne by unsuccessful plaintiffs – whether plaintiffs’ claim was catalyst for cross-claims – whether reasonable for defendants to have joined cross-defendants – whether cross-claims raised issues private to the parties to them

APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Where the defendant sent the plaintiff a Calderbank letter on 9 August 2017 (approximately two years before the case was finally determined) offering to drop its cross claim (valued at approximately $24,000) in return for the plaintiff agreeing to settle the proceedings and pay the defendant’s costs – Held: plaintiff, acting reasonably, should have accepted the defendant’s offer. COSTS – Party/Party – Interest on costs – Where the case began in 2016 and was finally determined in 2019 – Defendant sought, and was granted, an order for interest on costs in the form used in Lahoud v Lahoud and Leda Pty Ltd v Weerden (No 2).

CRIMINAL PROCEDURE – application for certificate under Suitors’ Fund Act 1951 – application following discharge of jury – where discharge was not attributable to disagreement of jury or act, neglect or default of the accused or accused’s solicitor or counsel – application allowed

CIVIL PROCEDURE — Originating process — Amendment – Whether proposed amendment statute barred CIVIL PROCEDURE — Parties — Addition of defendant — Date when addition takes effect – Civil Procedure Act 2005 (NSW), s 65(2)(c), s 65(3) LIMITATION OF ACTIONS — Operation of bar — Joinder of defendant out of time

ASSOCIATIONS AND CLUBS — Racing clubs and associations — Validity of appointment of an administrator under s 24(1)(j) of the Greyhound Racing Act 2017 (NSW) — Powers of administrator appointed pursuant to same – Interlocutory regime pending determination of validity of appointment

HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 – application for an interim supervision order – interim supervision order granted

CIVIL PROCEDURE – jurisdiction – Commissioner of Police – power to cause medically unfit police officer to be retired – whether decision “dismissal” – whether decision subject to review in Industrial Relations Commission – whether contrariety between Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review in Industrial Relations Commission incompatible with provisions of Police Act – Industrial Relations Commission’s power to deal with industrial matters covering police officers – whether Police Act evinces a legislative intention to exclude the jurisdiction of the Industrial Relations Commission

CIVIL PROCEDURE – Costs – cross-claim – general rule that costs follow the event – claim for contribution – no question of principle

CIVIL PROCEDURE – Statutory indemnity – claim for interest – costs - Workers Compensation Act – whether s 100 Civil Procedure Act permits judgment for interest alone – whether Act requires principal judgment which may “include” interest

CRIMINAL LAW – SENTENCE – MURDER – offender found guilty following trial by jury – victim shot six times in the head and once in chest – victim and offender’s wife involved in a relationship – where offender’s motive related to his outrage at the relationship between the victim and the offender’s wife and his sense of cultural dishonour – planned offence committed with intent to kill – whether offender provoked by victim attracting operation of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999 – characterisation as an “honour killing” unhelpful to offender – no “honour” in murder – offence fell markedly above mid-range of objective seriousness – general and specific deterrence important factors on sentence – absence of remorse – consideration of totality arising from accumulation of sentence on pre-existing sentence – limited finding of special circumstances – offender sentenced to imprisonment for 32 years with a non-parole period of 23 years.

COSTS – contract dispute – indemnity costs – Calderbank letters – whether genuine offer of compromise – whether proceedings conducted unreasonably – continued requests to clarify case – passage of two and a half years – relevance of delay

TORTS – injurious falsehood – application for interlocutory injunction to prevent further publications pending final hearing where the first defendant is a media company and the second defendant is an employee and radio broadcaster for the first defendant – where the second defendant made a number of representations about the plaintiff’s business on his radio show – representations were also made in articles published on the first defendant’s website – whether there is a prima facie case that the representations were made maliciously – where the defendants made allegations about the plaintiff with reckless indifference to the truth of the allegations or without any belief in the truth of the allegations – absence of evidence to support a number of statements made by the defendants – prima facie case made out – balance of convenience strongly favours the plaintiff

CIVIL PROCEDURE – Security for costs – capacity to pay adverse costs order – whether moving party is in substance defendant or plaintiff – financial position of plaintiff

APPEAL – security for costs – appeal from NCAT to Supreme Court – 106 grounds of appeal – decision of an Associate Justice – 30 grounds of appeal – whether appeal or judicial review – whether error of law – House v The King error

COSTS – indemnity costs – summary dismissal – claim statute-barred – whether should have been apparent to plaintiff that proceedings had no real prospects of success – whether delinquency or unreasonableness on behalf of plaintiff – whether proceedings an abuse of process

CRIME – appeals – appeal by accused against interlocutory order dismissing his application for a trial separate from his co-accused – where admissions made by his co-accused to an informer witness ruled inadmissible against the accused – where the nature of those admissions inadmissible against the accused supports the evidence of admissions made by the accused to other informer witnesses and are consistent with the Crown case – whether unacceptable risk those admissions inadmissible against the accused will be used by the jury to assess the reliability of the informer witnesses’ evidence – real prospect of positive injustice to the accused – prejudice cannot be adequately addressed by jury directions – separate trial ordered

CRIME – summary offences – custody of knife in public place or school – SENTENCING – no question of principle

DAMAGES – General principles – Incidence of taxation as affecting damages – Whether interest on award of mesne profits should be grossed up for taxation

ADMINISTRATIVE LAW — Judicial Review — Motor Accidents Compensation Act 1999 (NSW) s 92(1)(b) — Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable due to the first defendant’s false and misleading statements — Whether there was error of law or jurisdictional error on the part of the assessor — Whether the assessor asked the correct question — Errors established — Matter remitted for determination according to law

CORPORATIONS - statutory demand - offsetting claim - whether debtor confined to legal formulation of claim - where application included all material facts relied on, and quantified the claim - statutory demand set aside - Graywinter principle, considered.

LIMITATION OF ACTIONS – debt – payable immediately or on demand – usual rule of construction that time runs from date of advance for loan repayable on demand – whether displaced by clear language APPEALS – failure by magistrate to address limitation defence – whether Supreme Court can determine proceedings or whether remitter required

SUCCESSION – Family Provision – Claim by adult child of the deceased for provision from the deceased’s estate under Ch 3 of Succession Act 2006 (NSW) – Small estate – No notional estate – Competing claim of sole beneficiary named in Will – Clause in deceased’s Will setting out reasons for no provision being made for adult child – Whether facts asserted in the Will as to Plaintiff’s conduct are accurate – Whether adequate and proper provision not made for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff

UNCONSCIONABLE CONDUCT – causation of loss –findings in principal judgment that the defendant/first cross-claimant deprived of the opportunity to purchase three of six properties by the first cross-defendant’s misleading, deceptive and unconscionable conduct – wrongdoer deters an associate of the defendant/cross-claimants from sharing in the purchase of two of the six properties – on what basis should damages be assessed against the cross-defendants: on the basis that the cross-claimants would have purchased a single additional property or an additional three properties. TRUSTS AND TRUSTEES – reimbursement and indemnity under Trust Deeds for trustees’ trust-related expenditure – principal judgment makes a finding that the defendants/cross-claimants are trustees for the cross-defendants in the acquisition and development of certain properties – defendants/cross-claimants seek to set aside the Trust Deeds – defendants/cross claimants claim reimbursement and indemnity under the Trust Deeds for trustees’ trust-related expenditure – whether their expenditure is recoverable.

CRIME – sentence appeal – where applicant pleaded guilty to importing a marketable quantity of cocaine – where applicant sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months – where Crown concedes sentencing judge erred – re-sentence – whether applicant tricked into importing cocaine by on-line suitor whom she had not met – whether applicant’s offending motivated by financial greed – sentence quashed – new sentence imposed

CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive

CIVIL – forensic patients – Mental Health (Forensic Provisions) Act 1990 – professionals appointed to examine defendant – Court satisfied to high degree of probability at preliminary stage that evidence if proved establishes the existence of unacceptable risk – risk cannot be adequately managed by less restrictive means at present time – interim extension order made

Lordianto v Commissioner of the Australian Federal Police Kalimuthu v Commissioner of the Australian Federal Police Criminal practice – Forfeiture of tainted property – Where appellants remitted money to Australia using money remitters or money changers in foreign country – Where large number of cash deposits, usually each less than $10,000, made into appellants' bank accounts in Australia in process known as "cuckoo smurfing" – Where deposits proceeds or instrument of structuring offence under s 142 of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Where Commissioner of Australian Federal Police successfully applied for restraining orders over appellants' bank accounts under s 19 of Proceeds of Crime Act 2002 (Cth) ("POCA") – Where appellants applied under ss 29 and 31 of POCA to have property excluded from orders – Whether property "ceased" to be proceeds or instrument of offence under s 330(4) of POCA – Whether property acquired by third party for sufficient consideration without third party knowing, and in circumstances that would not arouse reasonable suspicion, that property proceeds or instrument under s 330(4)(a) of POCA. Words and phrases – "acquisition of property", "cuckoo smurfing", "for sufficient consideration", "in circumstances that would not have aroused a reasonable suspicion", "instrument of a serious offence", "money changers", "money laundering", "money remitters", "proceeds of an indictable offence", "proceeds of crime", "reporting threshold", "structuring offence", "third party", "volunteer". Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 5, 142. Proceeds of Crime Act 2002 (Cth), ss 19, 29, 31, 317, 329, 330, 338.

Administrative law – Judicial review – Jurisdictional error – s 477 of Migration Act 1958 (Cth) – Where plaintiff applied to Federal Circuit Court of Australia for judicial review of decision of Administrative Appeals Tribunal – Where plaintiff required extension of time – Where extension of time was refused under s 477(2) – Where Federal Circuit Court ordered that application be dismissed – Whether Federal Circuit Court had jurisdiction to dismiss application – Whether impermissible for Federal Circuit Court to assess full merits of application – Nature of prohibition imposed by s 477(1). Words and phrases – "assessment of the merits", "authority to dismiss an application", "exercise of jurisdiction", "extension of time", "interests of the administration of justice", "judicial review", "jurisdiction", "prohibition in s 477(1)", "scope of jurisdiction". Constitution, s 75(v). Federal Circuit Court of Australia Act 1999 (Cth), s 8(3). Migration Act 1958 (Cth), ss 476, 477.

REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016

DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence

EVIDENCE – hearsay exceptions – criminal trial – maker of representations deceased – whether representations made in circumstances that made it unlikely that they were fabrications – s 65(2)(b) Evidence Act – representations made soon after alleged events to persons in authority, with maker exhibiting injuries consistent with representations CRIME – appeals – whether misdirection to jury as to mental element of consent in relation to sexual assault offence resulted in any substantial miscarriage of justice – misdirection in written and oral directions – whether erroneous direction could have affected jury’s verdict – no substantial miscarriage of justice – Kalbasi v Western Australia (2018) 264 CLR 62 considered CRIME – appeals – whether trial miscarried because of irregularities in the Crown’s address to the jury CRIME – appeals – whether trial miscarried because of incompetence of accused’s trial counsel – appeal ground rejected CRIME – appeal against sentence – whether sentencing judge failed to take into account accused’s deprived upbringing in relation to moral culpability – leave to appeal against sentence refused

CRIMINAL PROCEDURE – joint application to discharge juror – where juror belatedly raises mental health issues following empanelment of jury – application allowed – balance of jury discharged

Practice and procedure — Proceedings — Transfer of proceedings — Forum – application for summary dismissal or stay of proceedings – application for disclosure of details recorded on strata roll per Strata Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – whether appropriate proceedings be transferred to NCAT – jurisdiction of Tribunal. LAND LAW — Strata title — Owners corporation —Strata roll – application for production from building manager of contact details of owners recorded on strata roll – Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – jurisdiction of Tribunal.

CIVIL PROCEDURE – amendment – application to amend defence where notice given in June 2019 and hearing date set for June 2020 – whether Court should exercise discretion to grant leave to amend – whether amendments are important – whether there was a delay in making amendments – whether there is prejudicial effect on the plaintiffs if the Court grants leave to amend – amendments important – amendments not futile – amendments do not compromise hearing date

CRIMINAL PROCEDURE - trial - opening address to jury by Crown Prosecutor – whether Prosecutor should be permitted to pen case to jury on alternative basis of joint criminal enterprise – whether there is evidence of involvement of another person EVIDENCE – circumstantial Crown case – allegation that accused injured in attack on the deceased -whether evidence of medical consultation by accused later on the day of the murder was relevant and admissible

CIVIL PROCEDURE – pleadings – application for leave to file amended statement of claim – where a proposed amendment introduces further claims – where proposed amendment introducing further claims is sought very late – where another proposed amendment adding a reference to an entity is not opposed – whether leave to file amended statement of claim should be granted.

CRIMINAL LAW – guilty plea – sentence – murder – victim impact statement – objective features – objective seriousness – intention to kill – short period of premeditation and planning – subjective features – criminal history – protection of community – remorse – moral culpability and mental disorder – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders

CRIMINAL LAW – Trial – Evidence – Witnesses – leave to re-call witnesses after close of Crown case – adjournment – the duty of disclosure

SUCCESSION – Application for family provision orders under Ch 3 of the Succession Act 2006 (NSW) – Factors warranting the making of the applications – Whether sufficient cause has been shown under s 58(2) of the Succession Act 2006 (NSW) – Whether there are special circumstances that justify the making of a notional estate order under s 79 of the Act.

APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused

CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed