Cases and authorities

CRIME – appeals – appeal against conviction – identification – directions as to physical characteristics of accused – no error in directions – verdict not unreasonable

CRIME – appeal – application for extension of time in which to appeal – merits of proposed conviction and sentence appeals – whether conviction unreasonable or cannot be supported having regard to the evidence – open to jury to conclude beyond reasonable doubt that applicant intended to cause victim grievous bodily harm – whether sentence unreasonable or plainly unjust – sentence within range of those open to primary judge to impose – application refused

EVIDENCE — admissibility – trial on charge of murder – representations made by deceased to friends in text and Facebook messages – representations made by deceased contained in witness statements – no issue that representations are admissible under first-hand hearsay exceptions – objection to representations not proximate in time on basis of relevance – objection to some witness statements on basis of relevance due to remoteness, lack of specificity, and reliability – discretion to admit representations in relation to specific topics

EVIDENCE — admissibility – trial on charge of murder – transcript of conversation between accused and police – Objection on basis of s 122 LEPRA – whether statements improperly obtained and liable to be excluded pursuant to s 138 Evidence Act – doubt as to applicability of s 122 – discretion to admit in any event

COSTS – specified gross sum costs order – where proceedings resolved by consent – costs of proceedings referred for assessment – where parties incurred further costs which were not the subject of the previous costs assessment – whether specified gross sum costs order should be made in relation to the further costs – specified gross sum costs order made

REAL PROPERTY – farm debt – possession of land –default under farm mortgage – Farm Debt Mediation Act – MEDIATION – whether s 11 certificate valid – whether satisfactory mediation – construction of s 4(1A) – was mediation in good faith – did mediator provide summary of mediation at end of mediation – was notice provided by bank that it had agreed to a mediation – was bank required to mediate with farmer in personal capacity and in capacity as trustee – whether subsequent mediation invalid –ENFORCEMENT ACTION – whether proceedings void pursuant to s 6 of the Farm Debt Mediation Act – whether enforcement action prior to mediation – scope of enforcement action under the Farm Debt Mediation Act – was notice of cancellation of overdraft a farm mortgage – whether bank entitled to withdraw reliance on default notices – whether bank engaged in continuation of enforcement action – TRUST LAW – was property held by trust – is trust liable to pay the loans rather than individual – whether joint trustee – whether individual validly resigned as trustee – whether individual indemnified under trust deed – SERVICE – was cancellation notice required to be served – was cancellation notice served – was default notice served – CONSUMER LAW – misleading or deceptive conduct – whether representation made by bank that facilities would be extended – ADMINISTRATIVE LAW – judicial review – error of law – procedural fairness – application for extension of time to bring proceedings – application dismissed

CORPORATIONS – directors and officers – statutory and fiduciary duties – where plaintiffs claim that director of company formulated terms of and provided assistance to counterparty to supply agreement to cause counterparty to terminate and have supply agreement awarded to new company – where counterparty terminated contract – where new supply agreement entered into with new company – whether director’s acts were in breach of ss 181, 182 and 183 of the Corporations Act 2001 (Cth) – whether director’s acts were in breach of fiduciary duties. CORPORATIONS – accessorial liability for breach of statutory and fiduciary duties – where plaintiffs claim that shareholders of company and others caused director to divert supply agreement to another company – where those individuals had interest in the other company – where counterparty terminated supply agreement – where new supply agreement entered into with the other company – whether individuals involved in contravention of statutory duties by s 79 of the Corporations Act 2001 (Cth) – whether individuals liable for knowing assistance or knowing receipt for breach of fiduciary duties.

COSTS – defendant successful on notice of motion – plaintiff given opportunity to make submissions as to costs – no submissions received – costs order made in favour of the defendant

ADMINISTRATIVE LAW – judicial review of decision of Medical Assessor and Proper Officer of SIRA – where Insurer alleges that an unlawful direction was given to claimant by Medical Assessor concerning assessment of range of movement during clinical examination – whether decision of Proper Officer infected by error – whether any practical difference between “pain” and “discomfort” –– no error or illegality demonstrated – summons dismissed - claim for indemnity costs arising from offer of compromise - costs ordered on indemnity basis on and from 16 October 2019

ADMINISTRATIVE LAW – Judicial review – Failure to give reasons

CIVIL PROCEDURE – pleadings – striking out – tendency to cause prejudice, embarrassment or delay – statement of claim struck out

CRIMINAL LAW – appeal – appeal against sentence – where appellant convicted of nine offences against s 200A of the District Court Act – whether appellant denied procedural fairness by sentencing magistrate –– re-sentence – whether appellant should receive a s 10 order – appeal dismissed

COSTS – Offers of compromise – Where plaintiff brought proceedings against the defendant in negligence – Where the proceedings failed and a verdict and judgment were entered in favour of the defendant – Where the defendant sought special costs order on the basis of three offers of compromise served on the plaintiff – Where defendant had defaulted in respect of a number of earlier orders for the service of expert evidence – Where plaintiff asserted that she was not in a position to consider any of the offers in light of the repeated defaults on the part of the defendant – Where the issues were defined by the pleadings – Two of the three offers substantial – Nothing preventing the plaintiff from giving proper consideration to each offer – Orders sought by the defendant made

PERSONAL PROPERTY — Gifts — Whether amount transferred was a gift or was being held for the benefit of the alleged gifter

CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles - whether diminution of accused’s "right" to confront accusers amounts to a “Star Chamber” procedure – question of prejudice to an accused if counsel cannot see a witness and jurors simultaneously – practical disadvantages that might arise – need to balance the interests of the accused in seeing a witness with the need to protect an undercover police operative – direction to be given to the jury

PRACTICE AND PROCEDURE – subpoenas – claims for privilege – whether waiver imputed PRACTICE AND PROCEDURE – review of earlier ruling of court’s own motion

BANKING AND FINANCE – banks – liabilities – negligence – nature of joint accounts – joint account usually operated by husband – sale of shares and withdrawal of proceeds by wife – whether CommSec and bank obliged to prevent transaction – relationship governed by terms of contract – no duty of care imposed

CONTRACTS – formation – defendant the owner of site of former coal mine – land includes a railway corridor – proposal for separation of defendant’s railway activities from its museum activities – where plaintiffs were incorporated to take over the defendant’s railway operations – proposal to subdivide the defendant’s land so as to create a new lot with respect to the railway corridor and to convey that lot to the first plaintiff for nominal consideration – agreement in principle followed by co-operation over a lengthy period in obtaining approval for and effecting completion of subdivision – where defendant subsequently refused to convey railway corridor lot – whether binding agreement reached – binding agreement held to exist – defendant obliged to transfer rail corridor lot to first plaintiff – orders to be made for specific performance of agreement

CIVIL PROCEDURE — Funds in Court —Security for costs paid into Court in 2000 by plaintiffs — proceedings settled with releases and no costs order made — Plaintiff company deregistered — Liquidator of plaintiff no longer in practice, and cannot be contacted — Other shareholders of plaintiff company cannot be contacted — purpose for which monies paid into court did not extend to paying the monies to the defendants in the absence of a costs order — Unique circumstances — Appropriate for funds to be paid to first defendant where he is only person claiming to be entitled to the funds.

CORPORATIONS — Winding up — Directions to liquidator — Corporate trustee — Where company trustee of two family trusts identified by different ABNs — Company removed as trustee of second trust on winding up by ipso facto clause in deed — No deed of first trust — Property held by company, apparently as trustee of the first trust — Issue as to source of funds — Declaration that company remains trustee of first trust — Direction to enable liquidator to sell property.

CONTRACTS –– motion for determination of separate question – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) claim in respect of alleged childhood sexual abuse – where limitations period defeated claim without determination of its merits – where claimant signed deed of release releasing defendant from any liability in respect of his claims – where claimant received payment – where relevant limitations periods subsequently repealed – whether claim for damages maintainable following repeal of limitations periods notwithstanding deed releasing all liability – Contracts Review Act – unconscionability

CONTRACTS – extent to which defendant has been overpaid for work that had been completed before the Lump Sum Contract was terminated – whether the Lump Sum Contract was wrongly terminated by the plaintiffs or whether it was repudiated by the defendant. DAMAGES – quantification of damages to which the plaintiffs or defendant would be entitled – differences in opinion evidence of expert witnesses – resolving differences without detailed cross-examination.

CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act 2001 for inquiry into three convictions for murder – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal and made a previous application for a Part 7 inquiry – appropriateness of determining second application – applicant representing himself – misunderstanding of reasons given in respect of previous application – applicant believing judge found new exculpatory evidence – consideration of alleged prejudicial conduct of Crown prosecutor and alleged incompetence of defence counsel – no doubt or question as to applicant’s guilt

PRACTICE AND PROCEDURE – application to dismiss proceedings for want of prosecution – show cause hearing – lengthy and protracted history of litigation – where Plaintiffs failed to comply with previous orders for particulars and discovery – where Plaintiffs request further time to comply – consideration of guiding principles of civil litigation – extension of time granted to comply with orders

MENTAL HEALTH – forensic patient – application for extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – whether the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – Court not satisfied that defendant poses unacceptable risk – defendant’s risk can be managed under child protection legislation – summons dismissed

FAMILY LAW AND CHILD WELFARE – adoption- whether adoption clearly preferable to any other order for all children – whether adoption in best interests of all children - evidence admissible in adoption proceedings – whether proposed adoptive parents are fit and proper for the purposes of the act –health and financial circumstances of the proposed adoptive parents – age of proposed adoptive parents

COSTS – party/party costs – solicitors’ lien – substitute security ordered – plaintiff (client) seeks party/party costs, on the basis that the security ultimately ordered was offered prior to the commencement of proceedings – defendant (solicitors) opposes award of costs on various bases – what costs orders should be made – whether the urgency of the commencement of the proceedings was a result of the plaintiff’s unexplained delay – whether either party conducted itself unreasonably – whether the defendants’ failure initially to agree to the alternative security offered was reasonable – whether the plaintiff should have authorised some uncontested disbursements to be paid.

EQUITY – Trusts and trustees – Where former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – where parties seeking further orders in relation to implementation of those orders – whether further orders sought amounted to an application for judicial advice – whether there was power to give a former trustee judicial advice – whether relief sought precluded by the principles of res judicata, issue estoppel or Anshun estoppel – whether further orders amounted to “working out” orders CIVIL PROCEDURE — Subpoenas — Notices to Produce – Issued during hearing – Application to set aside subpoena and notice to produce — where subpoena/notice to produce sought production of transcripts of examination of the first defendant in other proceedings – whether a legitimate forensic purpose – held to amount to a fishing expedition CIVIL PROCEDURE – Notice of Motion – application temporary dispensation from orders – whether application should be finally determined at this stage – whether principles of Anshun estoppel apply

PRACTICE AND PROCEDURE - delay in progress of proceedings - necessity for parties to take steps to comply with duty under s.56 Civil Procedure Act 2005 - orders made

APPEAL – procedural fairness – absence of reasons to support critical finding of fact – absence of reasons to support rejection of account of critical issue by witnesses on both sides of the record – no basis in the evidence to support the finding in fact made or the critical issue – need for a retrial

CIVIL PROCEDURE – hearings – procedural fairness – primary judge denied applicants procedural fairness by precluding them from making submissions on identified topics – application for leave to appeal dismissed

CRIME – Appeals – appeal against conviction – where applicant convicted of four counts of indecent and sexual assault with a person under 16 years – where applicant is acquitted of four counts of assault and indecency – whether the verdicts were unreasonable – whether the whether the differential verdicts are irreconcilable – whether there was inconsistency in the jury’s verdict – where the complainant’s evidence at trial was uncorroborated – credibility of the witness

COSTS – costs of and incidental to a notice of motion filed by the plaintiff – where settlement reached between the plaintiff and the defendant and the notice of motion was not dealt with on its merits – where term of the settlement was that the plaintiff was to bear the burden of any order for costs made in favour of the respondent in relation to the plaintiff’s notice of motion – held appropriate to make a gross sum costs order.

CORPORATIONS – winding up – public examination of directors, officers and others – application for access to affidavit in support of examination summonses – where affidavit in support of examination summonses also includes detail supporting orders for production – whether access to affidavit should be ordered under r 11.3(7) of the Supreme Court (Corporations) Rules 1999 (NSW).

COSTS — Application for costs to be fixed in a gross sum — Quantification — No issue of principle — Costs fixed.

CORPORATIONS — Winding up — Statutory demand — Application to set aside demand because of genuine dispute — Dispute involving family companies — Prior proceedings settled by Deed of Settlement — Deed provided for payment of sum by sunset date to defendant from proceeds of sale of real property — “Best endeavours” clause — Property not sold — Demands served on eight family companies — Recovery proceedings simultaneously commenced against individual family members — Whether genuine dispute as to construction of Deed — Whether deed voidable or rescindable for misleading and deceptive conduct or misrepresentation — Genuine dispute made out — Demands set aside.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — r 13.4 – Self-represented litigant – Dispute over exclusion from PhD program at university – Initial proceeding filed 2015 – Three additional sets of proceedings commenced in 2017, 2018, and 2019 – No reasonable cause of action disclosed – Abuse of process CIVIL PROCEDURE — Application for orders preventing further proceedings – Orders made preventing plaintiff from making applications in existing proceedings – Whether to grant orders restraining plaintiff from commencing new proceedings in relation to same subject matter – Consideration of principles – Court has inherent power to prevent abuse of its processes – Orders made where abuse of process by relitigation – Whether orders available where abuse of process by multiplication of proceedings

CORPORATIONS – winding up – application for winding up – where receivers and managers were appointed under power contained in instrument relating to circulating security interest in property of company – where appointment occurred within three month period before day winding up application was made – where no evidence of solvency led – whether company should be wound up.

EQUITY — Equitable remedies — Relief against forfeiture — Leases

LIMITATION OF ACTIONS — Application for extension — Limitation Act 1969 (NSW) ss 60G, 60I — Where the plaintiff was unaware of the connection between the personal injury and the defendant’s act or omission — Whether the plaintiff “ought to have become aware” of the connection — Where the plaintiff police officer had been medically discharged from work in relation to his psychiatric injuries

PRACTICE AND PROCEDURE – motions – costs – plaintiff/cross-defendant seeks to strike out part of a cross claim – plaintiff/cross-defendant does not wish to proceed with her strike out motion – consensus as to outcome – argument as to costs – whether costs should lie where they fall – whether either party has conducted herself unreasonably, or whether one or other party was certain to succeed. PRACTICE AND PROCEDURE – amendment of pleadings – plaintiff brings motion for amendment to statement of claim – new allegations of oral defamation to be introduced by the proposed amendment – whether the proposed amendments sufficiently identify the defamatory words alleged to have been spoken and the occasions upon which the defamatory words were said and the persons responsible for them – whether the amendments should be allowed.

EVIDENCE – Expert evidence – Admissibility of evidence – Whether expert opinions exposed the reasoning process underlying them

EVIDENCE – Admissibility - Whether evidence expressed an expert opinion or whether it was properly viewed as an statement of fact – No point of principle

COSTS — Application for gross sum costs order — For compliance with subpoena, for application for security for costs of compliance and for application for costs — Where security previously ordered for costs of compliance with subpoena — Costs of compliance exceeded security — Whether appropriate to make gross sum costs order — Costs of compliance limited to the amount of security — Sum fixed for costs of applications.

CONSTITUTIONAL LAW – Kable principle – whether the Terrorism (High Risk Offenders) Act 2017 (NSW) undermines the institutional integrity of the New South Wales Supreme Court

ADMINISTRATIVE LAW — Appeal from Associate Judge to single Judge — Alleged denial of procedural fairness and practical justice, bad faith and bias — No point of principle — Appeal dismissed

PROCEDURE – Client sought leave to file an amended summons by way of appeal from decisions of the Costs Review Panel – Matter struck out or dismissed by primary judge – Primary judge refused to exercise discretion to set aside orders made by the Costs Appeal Panel JUDICIAL REVIEW – Whether primary judge’s refusal to exercise discretion to grant leave to file the amended appeal summons constitutes jurisdictional error

CRIME – Commonwealth drug offences – conviction appeal – Crown concedes appeal on one ground – whether verdicts unreasonable or not supported by evidence so that acquittals should follow – agreement to import border controlled precursor – whether open to jury to conclude that accused and co-accused believed substance they agreed to import was a border controlled precursor – whether open to jury to conclude that accused and co-accused intended to use the substance or believed that another person intended to use any of precursor to manufacture a controlled drug – Cranney v The Queen considered – by majority held that guilty verdict not unreasonable – conspiracy to import border controlled drug – guilty verdict on that count not unreasonable – retrial ordered on all counts

CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed against child aged between 10 and 14 years – victim had cognitive impairment – whether errors in assessment of the objective seriousness of offences – asserted errors of failing to take into account the victim’s consent, failing to find that cognitive impairment is a less serious type of aggravating circumstance, and finding that second offence was aggravated by planning – asserted errors rejected – sentencing findings reasonably open to be made – whether sentence is manifestly excessive – issue is whether sentence is proportionate to totality of criminality – substantial degree of accumulation of indicative sentences – subjective matters should not lose force in assessment of aggregate sentence – stern sentence required to respond to s 3A purposes of sentencing – inadequate allowance for favourable aspects of subjective case – sentence manifestly excessive

EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees – application for court approval of retirement of trustees and appointment of the Public Trustee of Queensland in place of the retiring trustees