Cases and authorities

CRIMINAL PROCEDURE - Admissibility of evidence - unavailability of witness to give evidence - exceptions to the hearsay rule – probative value substantially outweighed by risk evidence is misleading or confusing.

CIVIL PROCEDURE – implied undertakings – release – where documents the subject of release from implied undertaking are limited to use in settlement discussions with Commissioner of Taxation – whether leave should be granted releasing applicants from the implied undertaking. CORPORATIONS – winding up – liquidators – application for appointment of special purpose liquidators – where special purpose liquidators to be appointed for sole purpose of lodging objection under Pt IVC of Taxation Administration Act 1953 (Cth) – where no merits assessment as to whether objection should be lodged to be made by special purpose liquidators – where funding inadequate for proper merits assessment – whether special purpose liquidators should be appointed.

EVIDENCE – Expert opinion evidence – Admissibility – Whether opinions relevant – Whether reasoning process underlying the opinions was properly and sufficiently exposed

COSTS – departure from the usual rule – application for indemnity costs – Calderbank letters – “walk away” offers – whether the plaintiffs’ Calderbank offer represented a genuine compromise – whether it was unreasonable for the defendant not to accept offer – indemnity costs awarded

COSTS – party/party – exceptions to general rule that costs follow the event – Calderbank offer COSTS – party/party – orders when proceedings involve multiple parties – Sanderson order – whether reasonable in the circumstances for the plaintiff to have brought proceedings against the second to sixty-first defendants – where first defendant had pleaded a proportionate liability defence and joined the second to sixty-first defendants by its cross-claim

CORPORATIONS – application to set aside creditor’s statutory demand – where contract for sale of property entered into – where deed of rescission later entered into – where defendant claims deed not validly executed by company – where a signature on deed not witnessed – where second director did not sign deed – where plaintiff paid amounts to company pursuant to deed – where company accepted and retained payment – whether there is a genuine dispute. CORPORATIONS – application to set aside creditor’s statutory demand – identification of proper debtor – whether there is a defect giving rise to substantial injustice.

TORTS – negligence – application for approval of proposed settlement in favour of infant plaintiff – whether settlement is in the best interests of the plaintiff – approval refused

CRIMINAL LAW – Evidence – Witnesses – Application to the court to recall a witness - Power of the Court to order the Crown to call witnesses – Principles for recalling witnesses in The Queen v Apostilides – Court is not required to compel Crown to call witnesses - Court is not required to compel Crown to give reasons – Not “exceptional circumstances requiring court to order calling of witnesses

COSTS — party/party – general rule that costs follow the event – application of the rule and discretion – each party enjoys a measure of success – no issue of principle

COSTS — Where application under s 1303 of the Corporations Act to compel production under s 198F of that Act — Production sought in aid of separate proceedings — Production consented to on first return — Matter proceeded to final hearing as to whether production complete — consent to further production — whether proceedings settled — Whether defendant’s conduct unreasonable — Costs awarded on the ordinary basis.

CRIMINAL PROCEDURE – trial – jury – offences related to conspiracy to import border controlled drugs – Crown’s disclosure obligations – recordings tendered without complete transcripts – recordings tendered without transcripts – whether the accused would be prejudiced by the absence of transcripts – application to conditionally exclude evidence – application refused

PROCEDURE – motion seeking dismissal of appeal for want of due despatch or because no reasonable cause of action shown or because the appeal is an abuse of the process of the Court – no matter of principle

CRIMINAL LAW – Crown appeal on sentence – robbery armed with an offensive weapon – three matters to be taken into account on a Form 1 – two offences placed on a s 166 Certificate – non-parole period 41 per cent of head sentence – significant backdating of sentence – whether sentence unreasonable or plainly unjust – whether sentencing principles properly applied – failure to explain reasons for lenience – Crown appeal allowed.

CRIMINAL LAW – sentence appeal – 91 fraud related offences – whether disparity established – whether significant overlap exists in the criminality of the applicant – having regard to the money involved, the number of victims and the sheer number of offences disparity not established.

CRIME – appeals – appeal against convictions for two counts contrary to s 7(1) of the Firearms Act 1996 – whether plastic pistols were imitation firearms – construction of s 4D(4) of the Firearms Act – meaning of “identified as a children’s toy” – whether confined to matters intrinsic to the object – whether present use and intention may be taken into account – possession – consideration of Crown case at trial – whether verdicts on counts 1 and 2 were unreasonable – resentence – the ceiling principle – aggregate sentence for counts 3 and 4

BUILDING AND CONSTRUCTION – Contract – Builder reported asbestos contaminated material found on site; variations for removal of the contaminated fill, as well as other variations; owner claims that the person acting as superintendent on the job was not the person contractually agreed to be the superintendent and denies the efficacy of certification and approvals given by that person – Whether owner in breach of contract for failing to ensure the named superintendent acted in that role – Whether variations had to be in writing – Effect of instructions from the owner’s representative to the builder in the presence of the superintendent. BUILDING AND CONSTRUCTION ­­­– Quantum meruit – Where owner instructed builder to remove contaminated fill from the site and builder did so. ESTOPPEL – Estoppel by convention – Mutual assumption – Whether owner estopped from denying that the person acting as superintendent was the superintendent for the purposes of the contract. CONTRACT – Misleading conduct under statute — Misleading or deceptive conduct – claim under s 18 of the Australian Consumer Law – Where owner claims that the builder engaged in misleading or deceptive conduct in relation to the need to excavate and remove contaminated fill from site; the builder was instructed to remove the fill and to do so in accordance with the advice of an authorised subcontractor approved by the owner.

CIVIL PROCEDURE — pleadings — striking out — plaintiff limited to pre-filing statement under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — whether amended statement of claim was “materially different” to proposed statement of claim forming part of pre-filing statement

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content – Application seeking an adjournment of the argument on adequacy of proposed amended statement of claim

CRIMINAL PROCEDURE – application to vacate sentence hearing – fundamental issue associated with effect on third party being a young child of the offender and her co-accused – sentence initially set for a date after the trial of the co-accused for that reason – co-accused may be retried, but not before 2020 – issue of how best to balance justice in the sentencing of the offender – application to vacate refused

PRACTICE – subpoenas – claims for legal professional privilege by prosecuting and investigative bodies – consideration of inconsistency – whether opposition by Crown to accused’s application for permanent stay affects privilege of investigative bodies – whether waiver imputed LEGALITY – whether loss of privilege due to unlawful disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth); whether within exception for performance of officer’s duties PRACTICE AND PROCEDURE – construction of Uniform Civil Procedure Rules, r 1.9(4A) – whether objection taken by third party to production by recipient of subpoena governed by common law or Evidence Act 1995 (NSW) CRIMINAL LAW - parties – relationship between Director of Public Prosecutions, Crown, Australian Federal Police and Australian Taxation Officer – independent role of prosecutor – obligations of disclosure

BUILDING AND CONSTRUCTION – whether pursuit of statutory adjudication process under the Building and Construction Industry Security of Payment Act 1999 (NSW) and concurrent Supreme Court proceedings constitutes an abuse of process – whether conduct of concurrent processes caused insurmountable prejudice to plaintiff – whether prejudice caused unintentionally or by design – held no abuse of process CIVIL PROCEDURE – implied undertakings – whether implied undertaking applies to list response and particulars – release nunc pro tunc

CIVIL PROCEDURE – Court administration – Court powers – control of proceedings – young person under the parental responsibility of the Minister residing in the Sherwood House program – young person has already turned eighteen – Court’s parens patriae jurisdiction continues over the young person, not by reason of her age but by reason of her disability – full funding assessment through the National Disability Insurance Scheme (NDIS) for the young person to have support and independent living outside the Sherwood House program has been assessed but the full financial package has not yet been approved – Court adjourns the matter for a further short period to allow the NDIS issue to resolve – observations made concerning the need for early resolution of the young person’s situation.

APPEALS – Appeals as of right – compulsory voting – Local Government Act – council election – decision of magistrate – sufficient reason

CORPORATIONS – statutory demand – application to set aside statutory demand – service by express post – where dispute as to timing of delivery – whether application to set aside out of time – interaction of s 109X of Corporations Act 2001 (Cth), s 29 of Acts Interpretation Act 1901 (Cth), and s 160 of Evidence Act 1995 (NSW) – existence of a genuine dispute – debt based on alleged agreement – whether plausible contention that no concluded agreement

CIVIL PROCEDURE – Hearing – Adjournment – application by plaintiff during the hearing for adjournment to seek further medical evidence – consideration of principles in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 – consideration of the prejudice suffered to the parties and other litigants due to the delay – where there had already been multiple occasions for the plaintiff to obtain further medical evidence – application dismissed CONTRACTS – capacity – mental incapacity – whether settlement agreement reached at a mediation should be set aside – whether the plaintiff had the requisite capacity to enter into the agreement – whether the defendants were aware that the plaintiff lacked capacity to enter into the agreement – held that the defendants did not have actual or constructive knowledge of incapacity on the part of the plaintiff to provide proper instructions or to agree to a settlement of the proceeding

CONTRACTS — Construction — Put and call option agreements over land – exercise of put option conditional on fulfilment of conditions precedent comprising rezoning of land, surrender of certain rights under mining lease and construction of access ramp to nearby highway – satisfaction of conditions precedent and associated notice requirements – direct inconsistency between clauses concerning mechanism for rescission – repugnancy. ENERGY AND RESOURCES — MINING — Mining Act 1992 (NSW), s 126 – cancellation of rights under mining lease – notice sent indirectly to responsible officer effective under s 126(4). CONTRACTS — Termination — Repudiation of contract – Purported termination of put and call agreements – allegedly repudiatory conduct prior to and following commencement of proceedings which sought specific performance of option agreement – whether insistence on erroneous construction of agreement in context of commencement of proceedings repudiatory – entitlement to terminate. CONTRACTS — Remedies — Damages — Loss of bargain – call option fees which grantor would have received on rescission of option agreement.

TORTS – negligence – personal injury – where plaintiff injured in fall in horse race – whether duty of care owed by jockey to take reasonable care for safety of other riders – whether duty of care breached – no breach of duty – horse racing a “dangerous recreational activity” – whether risk of injury was an obvious risk – s 5L Civil Liability Act applies – judgment for defendant

CRIMINAL PROCEDURE – trial – judge alone – manslaughter by gross criminal negligence – alleged failure of adult sons to exercise reasonable care for elderly mother – duty of care owed by accused to dependent mother – mother’s refusal to accept medical attention – breach of duty not proved

SUCCESSION – claim for family provision – reliance on different categories of eligibility – upon his death in 2017, the deceased appoints the defendant, his wife, the executrix under his will and gives her the whole of his estate – the deceased and the defendant separated in 2010 – the deceased forms a personal relationship with the plaintiff in 2013 – whether the plaintiff was the de facto wife of the deceased at the time of his death – whether a de facto relationship between the deceased and the plaintiff had ceased shortly before the deceased’s death – whether the plaintiff is an "eligible person" under Succession Act, s 57(b) – whether the plaintiff is an eligible person under Succession Act, s 57(e) as someone dependent on the deceased and living in the deceased’s household – whether the plaintiff is an eligible person under Succession Act, 57(f), as a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death – in the event that the plaintiff is found to be an eligible person under s 57(e) or (f), whether there are “factors warranting” the making of the plaintiff's application – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - whether an order for provision should be made for the plaintiff’s proper maintenance, education and advancement in life, and if so in what amount and in what form – should a costs-inclusive order be made.

APPEALS – Appeals as of right – compulsory voting – Local Government Act – council election – decision of magistrate – ignorance of election date as sufficient reason – honest and reasonable mistake of fact

APPEAL – claim in promissory estoppel based on representations said to derive from two documents – whether primary judge erred in holding that one of the documents was not authentic – no error – no issue of principle CIVIL PROCEDURE – video link evidence – whether primary judge erred in refusing to permit video link evidence

CRIME – Bail – Appeal bail – Appeal against conviction and sentence – Release application – "special or exceptional circumstances" – Arguable merit in sentence appeal – Sentence will be largely served before determination of appeal – Crown concession as to no unacceptable risks

CRIME – appeals – appeal against sentence– knowingly take part in supply of a prohibited drug – offence not carrying standard non-parole period – whether sentencing judge entitled to increase objective seriousness by matter inferred from agreed facts – whether judge erred in failing to take into account community safety and in particular whether ICO or fulltime custody more likely to address risk of reoffending – whether disparity established – whether sentence manifestly excessive

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence – further offence of intimidation taken into account on sentence – head sentence of 6 years’ imprisonment – whether the sentencing judge erred in their treatment of the offending as aggravated – sufficient basis to make out aggravation – whether the sentencing judge failed to give proper regard to the applicant’s traumatic brain injury – where the applicant had previously sustained a diffuse axonal injury – whether the sentencing judge should have found special circumstances – where the applicant has significant rehabilitative needs in light of his brain injury – Court obliged to resentence – applicant resentenced to head sentence of 3 years and 9 months’ imprisonment

CRIMINAL LAW – application for an extension of time to seek leave to appeal – Judge alone trial – break and enter dwelling house and commit serious indictable offence – sexual intercourse without consent – whether trial Judge failed to give reasons – whether reasons expressed contradictory explanations – whether verdicts were unreasonable or could not be supported by the evidence – whether verdicts entered were inconsistent where finding of guilt entered on statutory alternative – whether sentence was manifestly excessive – no merit to any ground of appeal – application refused

CRIMINAL PROCEDURE – trial – whether prosecutor impermissibly cross-examined accused about parts of the accused’s evidence not having been put to the relevant complainant in cross-examination – by majority held that prosecutor’s questions were not prejudicial to accused – appeal dismissed MENTAL HEALTH – criminal proceedings – fitness to be tried – whether there was a miscarriage of justice by reason of an unresolved question as to the accused’s fitness to be tried at the time of his trial

CRIMINAL LAW – leave to appeal against sentence – two offences of sexual assault against stepdaughter – whether sentencing Judge erred by double counting statutory aggravating features when considering objective seriousness of one offence – no error demonstrated in approach taken by sentencing Judge – complaint of manifest excess – no useful range established by reference to previous cases – sentence was substantial but not unreasonable or plainly unjust – appeal dismissed

CRIME – appeals – appeal against sentence – manifest inadequacy – whether 3 years imprisonment served by way of intensive correction order was manifestly inadequate – sentence did not reflect overall gravity of offending and importance of general deterrence and accountability – manifestly inadequate – resentenced CRIME – federal offences – attempted exportation of regulated native specimens – importation and attempted importation of regulated live specimens – possession of non-native CITES-regulated specimens – dealing with proceeds of crime

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in the application of the principle of totality – where the applicant had been sentenced for similar offences previously

ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable – shared parenting arrangement

CIVIL PROCEDURE — Time — Extension of time

CIVIL PROCEDURE —consolidation of proceedings — whether to transfer to Equity Division — Real Property List

CIVIL PROCEDURE – Parties - Vexatious Litigants – Declaration of

CRIMINAL PROCEDURE – trial – jury – application by Crown for exclusion of co-conspirator from public gallery – co-conspirator appeared in “Who’s who document” – co-conspirator family member of accused – consideration of principles of open justice – reactions of jury members to co-conspirator – co-conspirator watching proceedings quietly and respectfully – application refused

SUCCESSION — family provision and maintenance — failure by testator to make sufficient provision for applicant — father leaves only adult son small pecuniary legacy with most of estate left to charities — Succession Act 2006 (NSW), ss 59, 60

CRIMINAL LAW – application for inquiry into sentence – Pt 7 of the Crimes (Appeal and Review) Act 2001 – Commonwealth drug importation offences – issue of appearance of doubt or question over mitigating circumstance – whether Xiao error

COSTS - Calderbank offer made by defendants pre-trial – offer not accepted by plaintiff – whether warrants a departure from the ordinary rule as to costs – held that the plaintiff’s failure to accept the offer was unreasonable – special costs order is warranted

CIVIL PROCEDURE — successful application for dismissal of proceedings – r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – held that declaratory relief as to criminal conduct should not be entertained COSTS — Party/Party — Bases of quantification — Ordinary basis – whether apportionment of costs is warranted

CIVIL PROCEDURE – leave to appeal – from interlocutory orders – where primary judgment did not involve any question of principle – where primary judge had discretion as to costs

Income tax (Cth) – Allowable deductions – Where taxpayer had received percentage of income derived from 18 gaming machines operated by authorised gaming operator under Gambling Regulation Act 2003 (Vic) at its hotel premises – Where Gambling Regulation Act amended to provide for gaming machine entitlements ("GMEs") to be allocated directly to gaming venue operators – Where taxpayer bid for and was allocated 18 GMEs permitting it to operate gaming machines at its premises for ten years – Where taxpayer paid purchase price by instalments – Whether purchase price was outgoing on revenue account deductible under s 8-1 of Income Tax Assessment Act 1997 (Cth) ("1997 Act") – Whether purchase price was expenditure incurred to preserve (but not enhance) value of goodwill in relation to legal or equitable right with value to taxpayer solely attributable to effect on goodwill deductible under s 40-880 of 1997 Act. Words and phrases – "asset of enduring value", "barrier to entry", "blackhole expenditure", "capital account", "capital asset", "CGT asset", "CGT cost base", "CGT event", "gaming machine entitlements", "goodwill", "motive", "objective purpose", "once-and-for-all outgoing", "practical and business point of view", "purchase price funded out of revenue", "revenue account", "statutory rights", "structural solution". Gambling Regulation Act 2003 (Vic), Ch 3, Pt 4A. Income Tax Assessment Act 1997 (Cth), ss 8-1, 40-880.