Cases and authorities

CIVIL PROCEDURE – Court administration — Non-party access to court files – Exceptional circumstances established

CRIMINAL PROCEDURE — Trial — Closing address to jury by Crown Prosecutor - Directions to jury - Alternate basis for finding of guilt not available - Alternate basis based on Royall v The Queen - Whether deceased setting herself on fire an act of “self-preservation” - Whether alternate basis expressly addressed during closing address

CIVIL PROCEDURE – Offer of compromise – Orders to give effect to accepted offer EQUITY – Equitable remedies – Injunctions – Injunction to restrain proceedings in Philippines when Australian proceedings settled

CONTRACTS – Breach of contract – no issue of principle

CONTRACTS – formation – acceptance of offers – intention to be bound – lessor and lessee executed a lease with an option to renew exercisable within a defined period – where lessor made offer to lessee that if the lessee exercised the option to renew early the lessor would enter into a new lease on certain terms – where offer was accepted by solicitor acting on instructions of the CEO of the lessee – where no formal lease subsequently executed or exchanged – whether acceptance of offer constituted a concluded agreement for lease – concluded agreement reached CORPORATIONS – agent and principal – actual or implied authority – CEO acting on behalf of the lessee – where CEO not a director of lessee – where CEO instructed solicitor to accept offer for a new lease – where no evidence that board of lessee delegated authority to CEO to bind it to a new lease – delegation manual held not to confer authority on CEO to bind the lessee to a new lease – position of CEO does not ordinarily carry with it authority to make agreements for lease – no actual or implied authority established CORPORATIONS – agent and principal – ostensible authority – CEO acting on behalf of the lessee – where CEO not a director of lessee – where no holding out by lessee that CEO had authority to enter into new lease – statutory assumptions in Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 104-5 do not in the circumstances assist lessor in establishing existence of authority – no ostensible authority established ESTOPPEL – representation – reasonableness of reliance on representation – whether it was reasonable for the lessor to rely on acceptance by solicitor acting on instructions of the CEO of the lessee of offer of new lease – no reasonable reliance in circumstances where the lessor took a risk that the CEO may not have authority to bind lessee – estoppel claim not made out

ADMINISTRATIVE LAW – judicial review – workers compensation – medical dispute as to degree of whole person impairment – request by worker to be re-examined by Appeal Panel – whether Appeal Panel bound to examine worker – where certificate of determination entered before application for review of decision of Appeal Panel – decision of Arbitrator refusing to rescind certificate – whether Appeal Panel failed to engage with worker’s arguments

LAND LAW – co-ownership – statutory trust for sale – application by plaintiffs under Conveyancing Act 1919 (NSW) s 66G(1) – timeshare resort operated by company on property – where property is co-owned by hundreds of defendants – where almost all of the defendant co-owners are members of the company – where company passed resolutions to authorise certain co-owners to make application to the Court for the appointment of trustees for sale in respect of the property – whether it is appropriate to appoint trustees for sale – no reason to refuse relief – trustees for sale appointed LAND LAW – Torrens title – powers of Court – Real Property Act 1900 (NSW) s 138 – ancillary orders sought to cancel sub-folios and to create a new consolidated folio in respect of property – where co-owners have each been issued with a certificate of title in respect of their respective sub-folios – where plaintiffs sought orders for the production of the certificates of title – where only some of the certificates of title produced to the plaintiffs – where Court satisfied that certificates of title have not been, and are not likely to be, produced – orders made under s 138(2)

CIVIL PROCEDURE – issue of notice to produce documents recording communications with overseas medical practitioners – whether merely a fishing expedition PRIVATE INTERNATIONAL LAW – Application for leave to serve subpoenas and accompanying letters of request in Bermuda, Nevada, Florida and California for production of medical records – whether jurisdiction pursuant to the Hague Evidence Convention or inherent jurisdiction of the court

CRIMINAL LAW – application for leave to appeal against sentence – alleged failure to attribute sufficient weight to applicant’s disadvantaged background – alleged manifest excess

CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of “poor to moderate” prospects — objective seriousness

CORPORATIONS – application for winding up – whether appropriate to wind up company on the just and equitable ground – where irretrievable breakdown between directors and shareholders of the company and affairs of company are deadlocked – where absence of company directors residing in Australia – where solvency of company is doubtful

CIVIL PROCEDURE — application for summary judgment – consent judgment annexed to variation of settlement – judgment for plaintiff COSTS — UCPR 42.34 - where plaintiff recovers less than $500,000 – agreement between parties contemplating enforcement of consent judgment by proceedings in this Court – order for costs in favour of plaintiff made

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

CIVIL PROCEDURE – hearings – order that proceedings be heard together – two proceedings involving some common parties – where issues of credit of common witnesses likely to arise – where result in one case may be determinative of the result in the other

COSTS – party/party – costs orders in interlocutory proceedings – consent order that costs be assessable forthwith – whether order also payable forthwith

CIVIL PROCEDURE – representative proceedings – multiplicity of proceedings – competing proceedings brought in single forum by various plaintiffs against the same defendant – where the plaintiffs sought permanent stays of one another’s proceedings – where stay granted against all but the last-commenced proceeding – whether bringing subsequent proceedings constitutes an abuse of process

COSTS – Calderbank offer – offer made jointly to both respondents – whether unsuccessful respondent alone could have accepted offer – whether it would have been in a better position if it had accepted offer than it achieved on appeal

CIVIL PROCEDURE – orders by consent – whether orders have been satisfied – comparative urgency of matter involving burial of deceased – on the evidence satisfied orders have been complied with.

PRACTICE AND PROCEDURE – stay of writs of execution – on hardship grounds – no hardship established; HELD: stay refused

PRACTICE AND PROCEDURE – Application for cross-vesting – Where plaintiff sought to transfer matters to the Federal Court of Australia – Where defendant sought to transfer matters to the Supreme Court of Queensland – Allegations of negligence on the part of the defendant medical specialist in each case – Where causes of action arose in Queensland – All parties resident in Queensland – Post-operative treatment carried out in Queensland in each case – Interests of justice warranting the transfer of both proceedings to the Supreme Court of Queensland

CIVIL PROCEDURE – approval of settlement pursuant to s 76 of Civil Procedure Act 2005 (NSW) – substantial issues regarding causation – settlement found to be in plaintiff’s interests – orders made

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meetings are satisfied. CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

CIVIL PROCEDURE — Interlocutory injunctions — Where suit for oppression — Mandatory interlocutory injunction sought to continue weekly loan payments from company in dispute — Appropriate standard for mandatory interlocutory injunction — Prima facie case conceded by respondent — Company appears to have sufficient resources — Payments secured by shares in property-holding company soon to be liquidated — Balance of convenience favours applicant — Injunction granted.

Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants

Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants

CONTRACT – mortgage – construction – where Event of Default occurs if in the opinion of the Lender the Debtor suffers a material degradation in their ability to comply with the terms of the mortgage – whether opinion has to be reasonable or objectively available – whether the mortgagee held the necessary opinion – whether the opinion was held in good faith – default by Debtor in failing to pay an instalment of interest – whether mortgagee is precluded from relying on the default because it would constitute taking advantage of its own wrong – whether a provision that interest is payable at a Higher Rate but that a Lower Rate will be accepted if payment is made on time is an unenforceable penalty; HELD: opinion not required to be held reasonably or be objectively available, but in any event it was – opinion was held in good faith – mortgagee not precluded from relying on failure to pay interest – interest provision not an unenforceable penalty

CORPORATIONS – application to set aside a creditor’s statutory demand – where statutory demand issued pursuant to adjudication determination registered as judgment in Local Court – where statutory demand included interest and filing fee not subject of adjudication determination – where no affidavit accompanying statutory demand – whether whole amount claimed in statutory demand is subject of “judgment debt”. CORPORATIONS – application to set aside a creditor’s statutory demand – where affidavit accompanying application to register adjudication determination as judgment in Local Court not compliant with Building and Construction Industry Security of Payment Act 1999 (NSW) s 25 – whether other reason to set aside statutory demand. CORPORATIONS – application to set aside a creditor’s statutory demand – whether offsetting claim established.

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where proceedings dismissed under Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – summons dismissed JUDGMENTS – setting aside for fraud – summary dismissal – where relitigation an abuse of process

ADMINISTRATIVE LAW – judicial review – jurisdictional error – where applicant convicted of knowingly contravening apprehended personal violence order – where applicant appealed against conviction to District Court – whether District Court exceeded jurisdiction in dismissing conviction appeal – no question of principle

CRIME – Terrorism offences – Aid, abet, counsel or procure the commission of terrorist act - CRIME – Appeals – Appeal against sentence – Whether error in sentencing applicant on basis that prospects of rehabilitation were poor – Assessed prospects of rehabilitation on basis of evidence at the time CRIME – Appeals – Appeal against sentence – Whether strong element of general or personal deterrence required SENTENCING – Relevant factors on sentence – Deterrence – General deterrence SENTENCING – Relevant factors on sentence – Deterrence – Personal deterrence CRIME – Appeals – Appeal against sentence – Whether error in giving primacy to deterrence, incapacitation and retribution over rehabilitation and youth – Applicant 18 years of age – Terrorism Offence SENTENCING – Relevant factors on sentencing – Relevance of Youth – Terrorism Offences CRIME – Appeals – Appeal against sentence –Whether error in failing to take into account existence of continuing detention scheme for high risk terrorist offenders HIGH RISK OFFENDERS – Continuing detention orders –High risk terrorist offenders – Relevance to sentencing CRIME – Appeals – Appeal against sentence – Manifest excess CRIME – Appeals – Appeal against sentence – Section 19AG Crimes Act (1914) (Cth) – Whether error in failing to determine an appropriate non-parole period – Whether error in fixing the non-parole period – Whether section 19AG Crimes Act (1914) (Cth) invalid – Statutory minimum non-parole period CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative Power – Validity of section 19AG Crimes Act (1914) (Cth) – Whether incompatible with the exercise of judicial power – Statutory minimum non-parole period

CRIMINAL PROCEDURE – Jury request for transcript of opening and closing addresses and summing-up – discussion of Jury Act provisions and implied powers – each counsel submitted that the summing-up should not go before the jury, but closing addresses should – Court did not provide opening addresses, nor summing-up, but provided closing addresses of each counsel

PROCEEDS OF CRIME – variation of restraining order and order that net proceeds of sale of motor boat be paid to NSW Trustee and Guardian – orders made by consent

PROCEEDS OF CRIME – proceedings finalised by consent

PROCEEDS OF CRIME – variation of order by consent to allow sale of real property and order that net proceeds be paid to NSW Trustee and Guardian – orders made

PROCEEDS OF CRIME – variation of restraining order so that it does not apply to the interest in property of the defendant in certain bank accounts – order made by consent

PROCEEDS OF CRIME – order sought that net proceeds of sale of real properties be paid to New South Wales Trustee and Guardian – order made by consent

PRACTICE AND PROCEDURE – winding up order – where company in deadlock – application for a stay pending a foreshadowed appeal – where it is clear that parties will not reach agreement on matters necessary for the company to survive and operate – where liquidator says company insolvent and has formed the unchallenged opinion that the relationship between the principal protagonists has reached such a level of dysfunctionality to the point where the ability of the company to make decisions is effectively paralysed – where the first defendant conceded that winding up was inevitable unless the parties reached agreement – stay neither desirable nor justified in the circumstances – turns on its own facts – where factual circumstances will give the first defendant the practical opportunity to approach the Court of Appeal for a stay should he be advised; HELD: stay refused

CIVIL PROCEDURE – plaintiff failed to give adequate notice of application to have first defendant’s defence struck out for repeated non-compliance with directions – motion resolved except as to costs – appropriate order that there be no order as to costs

PRACTICE AND PROCEDURE – appeal from Local Court resolved by consent – whether open to this Court to make orders under s 41 of Local Court Act 2007 (NSW) to finally dispose of proceedings in this Court and in Local Court – orders made

CORPORATIONS – winding up – priorities – determination as to enforceability of charge –where charge expressed to cease to have effect “on the bankruptcy of the person” – whether charge over company’s interests in property ceased to have effect when company placed in liquidation. WORDS AND PHRASES – “bankruptcy” – Criminal Assets Recovery Act 1990 (NSW) s 31(2)(c).

VOLUNTARY ASSOCIATIONS — Unincorporated and incorporated associations — Effect of incorporation — Whether unincorporated association survives incorporation — Relationship between unincorporated and incorporated associations — Complex federation or affiliation with unincorporated associations on local, state and national level —Meaning of “unincorporated association” in rules of incorporated association — Office-holders of incorporated association identified by reference to rules of unincorporated associations. VOLUNTARY ASSOCIATIONS — Membership — Construction of rules of incorporated association — Original rules provided for transfer of members from previously unincorporated association — Separate pathway for new members — Subsequent amendments obscure this distinction — “Unincorporated association” came to refer to other bodies in federation of unincorporated associations — Where one path provided for voting rights only after end of financial year — Whether second pathway to membership exists independent of this requirement — Where large number of new members allowed to vote immediately — Held that second pathway to membership valid and conferred immediate voting rights. CORPORATIONS — Constitution and replaceable rules — Construction of incorporated association’s constitution — Meaning of term “unincorporated association” changed over time — Approach to construing constitutional document of long standing — Relevance of practice of association — Use of extrinsic material. CORPORATIONS — General meeting — Irregularities — Corporations Act s 1322 as applied to incorporated association — Where proceedings on foot to determine disputed memberships — No notice of meeting sent to disputed members — Some attended and voted with differentiated ballot papers — Membership subsequently accepted — Insufficient notice of special resolution not otherwise complained of — Informal notice by email not complained of — Exclusion of members is substantive irregularity — No substantive injustice where presence of remainder of disputed members could not have altered outcome — Appropriate to validate under s 1322(4). CORPORATIONS — Directors’ duties — Duty of disclosure — As applied to committee of incorporated association — Proposal put to general meeting for major development with significant costs — No evidence that information withheld — Any further evaluation could not be paid for absent consent of general meeting — Level of disclosure reasonable — No breach of duty.

DAMAGES – assessment of damages – general and aggravated damages – sexual assaults – Civil Liability Act 2002 (NSW) not applicable by operation of s 3B(1)(a) – psychiatric damage arising from defendant’s torts – loss of earning capacity – where treatment of psychiatric conditions has created debilitating physical health issues – noneconomic loss – medical care expenses – no award for exemplary damages

EQUITY – General principles – Equitable estates and interests – Nature of equitable interests and ownership – Beneficial ownership – Property purchased in the name of the plaintiff alone – Whether the defendant has no right or interest in the property REAL PROPERTY – General principles – Ownership – Beneficial ownership

CONTRACT – breach of contract – plaintiff desires to purchase a new motor vehicle – plaintiff pays the first defendant a deposit and leaves with the first defendant an older motor vehicle for sale to a third party – plaintiff claims that his arrangement with the first defendant was that the deposit and the proceeds of sale of the older vehicle were to be applied only to the purchase of the new vehicle – the first defendant disputes elements of this arrangement and says that these monies became part of the working capital of two companies that the first defendant controlled, namely the second and third defendants – the first defendant says that the plaintiff contracted with one of these companies, not with the first defendant – the deposit and the proceeds of sale of the older vehicle were not applied to the purchase of the new vehicle but were used to meet the cash flow requirements of the two companies, the second and third defendants – the defendants are unable to acquire the new vehicle for the plaintiff, who is now out of pocket and seeks to recover his loss – whether the plaintiff contracted with the first defendant or with the second and third defendants to procure the new vehicle – whether any defendant breached that contract by failing to procure the new vehicle – what are the damages for any breach of contract that is found . TORT OF INDUCING BREACH OF CONTRACT – if a contract was made between the plaintiff and the second or third defendants, whether the first defendant directed or procured the second and third defendants to breach that contract in failing to procure the new vehicle for the plaintiff – whether the tort of inducing breach of contract is available where the first defendant is the sole director of the two companies, the second and third defendants, who are sued for breach of contract and not in tort – whether the plaintiff has otherwise made out the elements of the tort of inducing breach of contract. TRUST – special-purpose trust – constitution of special-purpose trust – breach of trust – plaintiff contends the arrangements made with the first defendant included the constitution of a special-purpose trust between the plaintiff and the second defendant in which the second defendant was required to apply the deposit and sale proceeds of the older vehicle for the purchase of the new vehicle – whether such a special-purpose trust was constituted – whether there was a breach of such a special-purpose trust. AGENCY – plaintiff alleges the first defendant acted as the plaintiff’s agent in the transaction to acquire the new vehicle and breached a fiduciary duty that he owed as an agent to the plaintiff by causing or procuring the second defendant to disburse the deposit and the proceeds of sale of the older vehicle and not to acquire the new vehicle – whether the first defendant acted as the plaintiff’s agent and owed a fiduciary duty to the plaintiff or whether the parties were operating at arm’s length.

COSTS – ‘order contrary’ pursuant to Section 88K(5) of Conveyancing Act - discretionary considerations INDEMNITY COSTS – application of UCPR Pt 42 r 42.14

CIVIL PROCEDURE – plaintiff no longer under legal incapacity – timetabling orders made

COSTS – party/party – exceptions to general rule that costs follow the event – unsuccessful application for a freezing order – whether successful defendant engaged in disentitling conduct

APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed

CRIME – Appeals – appeal against sentence – wounding with intent to commit grievous bodily harm – whether sentencing judge erred in finding the objective seriousness of the offence was in the mid-range – whether lack of motive is to be taken into account in determining objective seriousness – whether absence of specific aggravating factors prevented sentencing judge’s assessment – whether sentencing judge erred by failing to properly address the applicant’s mental state – whether planning is required for the specific intention for an offence contrary to s 33(1)(a) – whether sentencing judge gave insufficient weight to ameliorating factors – whether sentence manifestly excessive – whether undiscounted starting point of sentence was about 10 years

CRIME – Appeals – Appeal against convictions – sexual assault – rule 4 of the Criminal Appeal Rules applies to grounds of appeal – whether error by judge in admitting appellant’s answers in an ERISP where no objection taken at trial – forensic choice by appellant’s counsel – appellant gives evidence at trial – admissible as prior inconsistent statements – admissible as admissions – no miscarriage of justice – whether error by judge in giving direction on lies or on consciousness of guilt – forensic choice by appellant’s counsel that no direction be given – Crown’s closing address creates risk of consciousness of guilt reasoning – whether appellant bound by forensic choice made by trial counsel – whether fairness to appellant required a direction on lies notwithstanding trial counsel’s request – whether miscarriage of justice was occasioned