Cases and authorities

CIVIL PROCEDURE – Pleadings – whether proposed amended cross-claim meets the requirement for pleadings – whether the proposed amended cross-claim particularised the pleadings clearly and specifically – where serious allegations made such as allegations of threats – held that the proposed amended cross-claim had not been properly pleaded – cross-claim dismissed.

PRACTICE AND PROCEDURE – the Court’s first judgment directed the parties to bring in short minutes of order to give effect to the Court's reasons in the first judgment – short minutes of order were prepared and made by consent – plaintiffs/cross-defendants consented to the short minutes of order under a misapprehension as to the effect of the directions of the Court – orders made include declarations as to the liability of the second, third and fourth cross- defendants – Uniform Civil Procedure Rules 2005, rr 36.15 and 36.16(3) – whether the declaratory orders can and should be set aside – whether consequential relief can be claimed based on declaratory orders. DAMAGES – assessment of the quantum of various claims for damages for trespass or nuisance – no question of principle.

CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — No issue of principle CORPORATIONS — Voluntary administration — General matters — Whether administrators validly appointed

MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused unfit to be tried

CHILDREN AND YOUNG PERSONS – parens patriae jurisdiction – discharge of secure accommodation order – Court required to be satisfied that appropriate alternative transitional arrangements are in place –interaction of guardianship function of the Public Guardian and the Court’s parens patriae jurisdiction – observations on the progress of the young person in the Sherwood House program upon discharge of the secure accommodation order.

CRIMINAL LAW – sentence – aggravated dangerous driving occasioning death – plea of guilty – driving with high range blood alcohol concentration – collision with pedestrian – failed to stop or render assistance – driving over considerable distance

HIGH RISK OFFENDER – where Defendant does not oppose making of ESO – question as to duration of ESO – question as to conditions attaching to ESO – Defendant has previous convictions for five serious sex offences – offender intoxicated by alcohol or use of methamphetamine at time of offending – aggravated sexual assault index offence – consideration of factors under s.9(3) Crimes (High Risk Offenders) Act 2006 – expert assessments of risk provide cogent foundation for the making of an ESO –ESO made for period of five years subject to conditions as sought by Plaintiff

PRACTICE AND PROCEDURE – stay of proceedings under Civil Procedure Act 2005, s 67 – the plaintiffs and the defendant are registered proprietors as joint tenants of real estate held under Real Property Act 1900 – defendant concedes that he holds his interest as joint tenant on trust for the plaintiffs – plaintiffs seek transfer of the defendant’s interests as joint tenant to them – plaintiffs and defendant accept that the plaintiff must indemnify the defendant in respect of his holding of the trust property – transfer of the trust property by the defendant to the plaintiffs may cause the defendant to incur capital gains tax (“CGT”) liability – defendant seeks private binding ruling from Commissioner of Taxation and seeks a stay of proceedings until the ruling is available – plaintiffs say proceedings should continue and that trust property be transferred to them – whether or not the proceedings should be stayed pending receipt of the private binding ruling.

PRACTICE AND PROCEDURE — Application to vary asset preservation orders and orders restraining party dealing with proceeds of sale of property – variation sought to permit sale of property and use proceeds to fund legal representation in proceedings – whether party in breach by dealing with alleged traceable proceeds of property – “rule” against hearing a party where prima facie in contempt – whether “rule” discretionary – Civil Procedure Act 2005 (NSW), ss 55-64.

CIVIL PROCEDURE — Subpoenas — application by defendants for access to documents produced on subpoena by tenth cross-defendant’s former solicitors – legal professional privilege claimed – whether implied waiver of privilege – orders made for access to certain documents on basis that affidavits filed in the proceedings by tenth cross-defendant disclose communications giving rise to implied waiver

CIVIL PROCEDURE — Parties — Joinder — Of defendants – whether a third-party seeking to be joined as the fourth defendant is a necessary party to the proceedings – whether the third party had an interest potentially affected by the monetary judgment or declaratory relief that had been granted – application dismissed

COSTS — Security for costs — Relevant factors – application for security for costs of motion by judgment debtors to set aside consent orders made in October 2018 for the entry of judgment in favour of the plaintiffs and other relief – applications for payment into court or for security to be provided for the judgment debt and indemnity costs orders – jurisdiction to make orders sought – consideration of discretionary factors raised against the grant of security – security for the costs of the set aside motion ordered to be provided – otherwise applications in relation to judgment debt and security for costs orders deferred to the hearing of the set aside motion.

EVIDENCE — Privilege — Client legal privilege — Documents produced in answer to Notice to Produce shortly before hearing — Admissibility of affidavit evidence in support of privilege claim — Applicability of s 75 of the Evidence Act — Leave to adduce further evidence in support appropriate in circumstances — Whether Court should inspect documents — Whether issue waiver — Relevance of statutory requirement of good faith in s 237 of the Corporations Act — No issue waiver — Claim upheld.

ADMINISTRATIVE LAW – workers compensation – decision of Approved Medical Specialist – decision of Medical Appeal Panel of the Workers Compensation Commission – decision of Arbitrator of the Workers Compensation Commission – where Arbitrator found error but did not set aside Panel decision – 15 grounds of review – procedural fairness – whether error of law on the face of the record – whether jurisdictional error – whether an extension of time should be granted

SUCCESSION — Family Provision — Claim by adult child for provision from the deceased’s estate — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Principles upon which relief granted SUCCESSION — Wills and Estates ­— Notional estate — Restrictions on out of time or additional applications — Where property of the estate distributed — Whether order designating property as notional estate should be made

LIMITATION OF ACTIONS — Torts — Defamation — Whether proceedings should be struck out as out of time — Whether time should be extended

APPEAL AND REVIEW – application for leave to appeal – amount in issue below threshold – whether alleged error more than merely arguable – whether issue of principle or public importance – likely disproportion between the costs of an appeal and amount in issue GUARANTEE AND INDEMNITY — novation of uncompleted contract for sale of part of land when whole land sold to third party – third party required to indemnify vendor for claims arising “as a result” of the first contract – legal costs incurred by vendor because of his failure to execute deed of novation – whether indemnity covered vendor’s legal costs

CRIME — appeals — appeal against sentence — application for leave to appeal — manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — four co-offenders — where other co-offenders received shorter non-parole period than applicant — whether sentencing judge erred in not finding special circumstances for applicant — whether justifiable sense of grievance arising from a lack of parity between sentences of co-offenders — justifiable sense of grievance as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — resentence

CRIME – appeals – appeal against conviction – identification evidence – warnings – unreasonable verdict

CRIMINAL LAW – appeal against sentence – recklessly causing grievous bodily harm – whether sentencing judge erred in failing to find the applicant was remorseful – whether sentence manifestly excessive

CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL PROCEDURE – trial – jury of eleven – offences related to conspiracy to import border controlled drugs – application to discharge jury – substantial miscarriage of justice considered – no risk of a substantial miscarriage of justice found – trial to continue

CRIMINAL PROCEDURE – trial – jury of twelve – offences related to conspiracy to import border controlled drugs – ill and potentially incapacitated juror – juror discharged

EQUITY — Receivers and managers appointed by court over certain property — Application for approval of Deed of Settlement and Release providing certain aspects condition upon “approval from the Court” – where Receiver did not seek judicial advice or approval of Court in terms – principles governing directions to receivers, judicial advice and administration proceedings – proceedings resolved by agreement for direction that further deed be entered excluding requirement for approval by the Court. COSTS – payment of plaintiff’s costs sought out of companies’ assets – where cross-claim would not otherwise have been brought by company against directors – where claim largely stood on work underpinning primary claim in proceedings – costs accepted as appropriate by parties.

CIVIL PROCEDURE – Disclosure of documents – Freedom of information application – whether limitations should be placed on access by defendants to Centrelink records of the plaintiff – access permitted – third defendant not to disclose the documents obtained to the first and second defendants without further order of the Court – costs reserved.

CRIMINAL PROCEDURE – application for suppression, non-publication and take down orders – application opposed by a media outlet – present trial is retrial following a successful appeal – earlier trial subject to media publicity – whether orders necessary to prevent prejudice to proper administration of justice – whether orders would be futile – whether directions ordinarily given in jury trials are adequate – where law of contempt and provisions of the Jury Act 1977 operate – orders not necessary to prevent prejudice – application refused

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL PROCEDURE – Subpoena – Application for short service -

CRIMINAL LAW – proceeds of crime – restraining orders

CIVIL PROCEDURE – expert reports – late filing and service of expert reports – whether determination of admissibility of expert reports should be made prior to, or at, trial – not appropriate to give a ruling or make a finding about the admissibility of first report – plaintiff not entitled to use second report without obtaining leave from trial judge

CRIME – confiscation – forfeiture order – application to exclude interest in property from forfeiture order – application to exclude value of innocent interests from forfeiture order – whether plaintiff has “interest” in forfeited property – question of statutory construction – plaintiff’s “interest” in property has not been forfeited by forfeiture order – applications dismissed on the basis of incompetence CRIME – confiscation – forfeiture order – application for payment of amount from proceeds of sale of interest on basis of hardship – whether plaintiff is a dependent of the person whose interest has been forfeited – neither plaintiff nor children were dependents at the time that forfeiture orders first sought and made – hardship that can be ameliorated by payment not made out on the evidence

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – production of property tracking documents

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee – default on mortgage – whether mortgagee entitled to possession of land – leave granted to issue writ of execution CONTRACTS —cross-claim — general contractual principles — harsh, unconscionable or oppressive contracts and statutory remedies – whether higher interest rate under loan agreement amounted to a contractual penalty – whether contract unjust for purposes of s 9(1) of the Contracts Review Act– no relief granted

HIGH RISK OFFENDERS – application for interim supervision orders – where the defendant is a high risk terrorist offender – convicted NSW underlying terrorism offender – where the defendant has made threats of violence to advance cause of legalising prohibited drug use – no history of violence – where the defendant has failed to comply with conditional liberty – interim supervision order granted

CRIMINAL PROCEDURE – Trial – Case management – calling of witnesses – adjournment

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim parental responsibility order to the Minister – application to return child to parent’s care CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where imminent proceedings in specialist Court – where no seriously arguable error – leave refused

INSURANCE – double insurance – contribution between insurers – “other insurance” clauses – one policy contained an “excess” clause and the other an “escape” clause – whether there was double insurance on proper construction of policies – whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applied

CRIME – sentence appeal – where applicant pleaded guilty to reckless wounding – where applicant sentenced to imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months – where offence of stalk/intimidate on a Form 1 also taken into account on sentence – whether sentence manifestly excessive – appeal allowed – re-sentence

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

CIVIL PROCEDURE – Notice of Motion – Application by law firm seeking declaratory relief and claiming an equitable lien over a settlement sum that had been paid into court – where the applicant was the law firm acting for the plaintiff – where the applicant’s legal fees remain outstanding – where motion dealt with after determination of the substantive issue in the proceedings – whether the applicant had standing – whether an equitable lien had arisen in the present case – whether the applicant was instrumental in obtaining the settlement result – held there was a sufficient causal link between the applicant’s efforts and the settlement result – equitable lien established.

EQUITY – trusts and trustees – application by plaintiffs for an order that the trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) be directed to distribute proceeds of sale in a particular manner by making various adjustments – where the orders recording the terms of the statutory trust for sale required the trustees to distribute the proceeds of sale to the plaintiffs and the defendant in equal shares, subject to any adjustments that should be made in favour of either side – held that the orders should not be construed so as to require the trustees to make the adjustments sought by the plaintiffs – trustees not bound to decide that the adjustments should be made – proposed adjustments not adjustments between the plaintiffs and defendant in their capacity as co-owners – inappropriate to direct trustees to make distribution as sought by the plaintiffs EQUITY – trusts and trustees – judicial advice – application for judicial advice brought by trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiffs and defendant are beneficiaries under the statutory trust for sale – where the defendant previously entered into contract with trustees to purchase the property – where that contract was terminated by trustees – where property subsequently sold to third party – where defendant foreshadows potential claims against trustees in relation to the termination of the contract – whether trustees are justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to the potential claims – trustees justified in retaining some of the proceeds of sale – judicial advice given

CRIME – murder – applications for directed verdicts – six accused charged with murder – three accused make applications – circumstantial case – appropriate legal test – where cause of death stab wound to chest – where doubt over knowledge of the presence of a knife – distinction between rational inference and speculation

PRACTICE AND PROCEDURE – costs dispute – whether successful plaintiff entitled to costs where amount recovered did not exceed $500,000 – factors relevant to consideration – conclusion that commencement and continuation of proceedings in the Supreme Court was warranted – plaintiff entitled to an order for costs.

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court – application by the defendants for transfer of the proceedings to the Federal Court – in circumstances where the proceedings engage the jurisdiction in bankruptcy within the meaning of s 27 of the Bankruptcy Act 1966 (Cth) – whether there are “special reasons” under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) for the proceedings to be determined in the Supreme Court – held that the financial position of the plaintiff and her difficult financial circumstances constitute special reasons for the matter to be determined in the Supreme Court

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court. Words and phrases – "appropriate", "balancing", "facilitates or is likely to facilitate", "future risk", "institutional integrity", "judicial power", "Kable v Director of Public Prosecutions (NSW)", "open-textured", "preventing, restricting or disrupting", "preventive orders", "real or significant risk", "reasonable grounds to believe", "risk assessment", "serious crime related activities", "serious criminal offence". Constitution, Ch III. Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), ss 3, 5, 6.

CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 18 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given “post credits only” status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle