Cases and authorities

NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous

EVIDENCE – CRIMINAL LAW – admissions made to police – unrecorded - s 281 Criminal Procedure Act 1986 – whether made by an accused at a time when could reasonably have been suspected of having committed an offence.

CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute CIVIL PROCEDURE — Interrogatories — Application for — Necessity

BAIL – Applicant charged with doing acts in preparation for a terrorist act or acts – Where applicant arrested in 2016 aged 16 – Where jury at the applicant’s first trial in 2018 could not reach a unanimous verdict – Where jury in the applicant’s second trial was discharged due to disharmony – Where applicant will have spent between 3½ and 4 years in custody awaiting trial – Whether such circumstances should be regarded as exceptional – Exceptional circumstances made out BAIL – Evidence of the applicant having repeatedly engaged in breaching the rules of his custody – Evidence of the applicant’s father having approached important Crown witness prior to the applicant’s second trial – Where bail proposal involved the applicant being released to reside with his father and mother – Evidence of previously fractured relationship between the applicant and his parents – Evidence given by the applicant’s father on a previous application for release which established that he was unable to control the applicant’s conduct in the period leading up to his arrest – Evidence that the applicant had been found to have religious texts in his possession in custody which espoused violent ideology – Risks of flight and the commission of further offences if released – Where risks could not be mitigated by the imposition of conditions – Application for release refused.

CONTRACTS – formation – intention to create legal relations – alleged oral agreement to pay interest on loans from family company at specified rate – where some interest payments were made – where evidence of conversations with deceased party to alleged oral agreement was unsatisfactory – whether legally binding obligation to pay interest at specified rate established. CORPORATIONS – claim for overpayment of director’s remuneration – family company – where informal arrangements for remuneration of directors –where no challenge to earlier informal arrangements in respect of another director – where director made payments from company funds to third parties – whether remuneration paid to director and payments to third parties should be validated under s 1322 of the Corporations Act 2001 (Cth). CORPORATIONS – application for winding up – solvent company – where original purpose of company no longer implemented – where failure of personal relationships between shareholders – whether company should be wound up under ss 461(1)(c) or 461(1)(k) of the Corporations Act 2001 (Cth).

HIGH RISK OFFENDER – preliminary hearing – where defendant convicted of sex offences – whether specialists should be appointed to examine the defendant – where defendant consents to the appointment of specialists

CRIMINAL LAW – appeals – appeal against sentence – manifest excess – s 112(2) Crimes Act – aggravated break and enter and commit serious indictable offence – assault occasioning actual bodily harm – s 59(1) Crimes Act – difficulty placing objective seriousness on a scale for the offence under s 112(2) – appeal allowed

CORPORATIONS – voluntary administration – application to validate appointment of administrator – where administrator purported to be appointed by sole director – where sole director at time was undischarged bankrupt by order of foreign court – whether validation of appointment would promote objects of Pt 5.3A of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – meeting of creditors – application to extend convening period for second meeting of creditors – where business subject to potential sale – whether extension would be in best interests of creditors.

CORPORATIONS – winding up – proceedings against company – application for leave to continue proceedings already commenced – where liquidator does not oppose grant of leave – where commenced proceedings concern personal injury claim – where arguable that defendant insured and indemnified by insurer – where insurer opposes grant of leave – whether seriously arguable claim against defendant.

Forensic patient – Application for extension order – Whether defendant posed an unacceptable risk of occasioning serious harm to others – Psychiatric opinion supporting such conclusion – Orders made

CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order confirming parental responsibility of the Minister – application by the mother to discharge interim orders made in related care proceedings and for parental responsibility to be restored to her – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction.

HIGH RISK OFFENDER – repeat child sex offender also convicted of manslaughter – primary application for one year continuing detention order (CDO), followed by five year extended supervision order (ESO) – alternative application for five year ESO – implicit concession of plaintiff within orders sought – concomitant concern of futility of CDO except with regard to incapacitation – consideration of past offending – consideration of rigour of conditions – consideration of unanimous expert evidence that the defendant can be managed in the community – discussion of adverse aspects of the matter – defendant’s approach to anti-libidinal medication – consideration of paramountcy of safety of community and unacceptable risk test – alternative order of five year ESO made

CIVIL PROCEDURE – Originating Process - Amendment

ADMINISTRATIVE LAW – judicial review – motor accident – decision of claims assessor under Motor Accidents Compensation Act 1999 (NSW) – late claim – delay in providing explanation – decision that claimant’s explanation for delay was full and satisfactory – whether decision affected legal rights or interests – whether assessor failed to consider explanation of conduct up to date explanation provided

TORTS – damages – damage to chattel – motor vehicle accident – damaged vehicle unavailable while undergoing repairs – damages for inconvenience – owner’s need for replacement vehicle – rental charges incurred for vehicle of equivalent value and prestige to damaged vehicle – whether charges recoverable – whether charges reasonably necessary to meet need

ADMINISTRATIVE LAW – review of decision of Civil and Administrative Tribunal (NCAT) – disciplinary action against local councillor for breaches of Code of Conduct – validity of statutory powers of Council – validity of referral to NCAT – jurisdictional error in disciplining for breach of invalid provision of Code – jurisdiction to inquire into underlying conduct LOCAL GOVERNMENT – powers of local council to discipline councillor – power to censure conferred by statute – validity of further powers contained in Code made under Regulation – whether additional powers consistent with scheme of legislation – Council required councillor to acknowledge breach, apologise, undertake not to repeat conduct and undertake training – councillor referred to Chief Executive for failing to comply – matter referred to NCAT for consideration – powers of NCAT STATUTORY INTERPRETATION – conferral of limited power to take disciplinary action – further powers conferred by code made under regulation – whether code consistent with scheme of legislation

CIVIL PROCEDURE – appeal – appeal without leave on question of law – no appeal from findings of fact – availability of appeal with leave on questions of “mixed law and fact” TORTS – damages – damage to chattel – motor vehicle accident – damaged vehicle unavailable while undergoing repairs – damages for inconvenience – owner’s need for replacement vehicle – rental charges incurred for vehicle of equivalent value and prestige to damaged vehicle – whether charges recoverable – whether charges reasonably necessary to meet need

TORTS – damages – damage to chattel – motor vehicle accident – damaged vehicle unavailable while undergoing repairs – damages for inconvenience – owner’s need for replacement vehicle – rental charges incurred for vehicle of equivalent value and prestige to damaged vehicle – whether charges recoverable – whether charges reasonably necessary to meet need

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Jurisdictional error – Review of a certificate of a medical assessor – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff had a history of impairment in in the same location as the subject injury

ADMINISTRATIVE LAW – jurisdictional facts – whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker’s powers ADMINISTRATIVE LAW – unreasonableness – whether decision-maker’s satisfaction with a mining strategy was legally unreasonable – whether decision-maker’s view was at least arguable CIVIL PROCEDURE – Court of Appeal – whether leave to appeal required against costs order where there is an appeal as of right against the substantive orders made at first instance - s 58(3)(c) Land and Environment Court Act 1979 (NSW) COSTS – administrative law – whether decision-maker entitled to costs when appears to advance arguments in proceedings between two well-represented litigants – Hardiman (1981) 144 CLR 13; [1980] HCA 13 considered

CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes

LOCAL GOVERNMENT — powers, functions and duties — power of mayor and council to expel councillor for “act of disorder” — whether describing mayor as “clown” during meeting an “act of disorder” — whether power of expulsion validly exercised — whether dispute suitable for adjudication by Land and Environment Court WORDS AND PHRASES — “act of disorder” — Local Government (General) Regulation 2005, r 256

CORPORATIONS – winding up – application for termination of winding up – where no remaining unsecured creditors – where secured creditor supports termination of winding up – where solvency is established – whether winding up should be terminated.

EQUITY – trusts and trustees – Judicial advice – Residuary beneficiaries misdescribed in will

CRIMINAL LAW – sentence – murder – victim impact statement – objective features – objective seriousness – intention to cause grievous bodily harm – no premeditation – aggravating factors – deceased’s home – violent attack – pain and anxiety – offence whilst conditional liberty – subjective features – deprived background – plea of guilty – criminal history – protection of community – personal deterrence – remorse – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders

CIVIL LAW – application to stay execution of writ of possession – where pending application to set aside default judgment for possession – typically curt correspondence between lawyers – where application listed before Sheriff issued notice to vacate – whether defendant’s case unmeritorious – prejudice to plaintiff in delaying sale of property – interests of justice – sensible, just and practical world

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW) – forensic patient – application for extension order – whether defendant posed unacceptable risk of causing serious harm to others if ceased being a forensic patient – whether risk could be adequately managed by admission as involuntary patient under the Mental Health Act 2007 – extension order made for 5 years

PRACTICE AND PROCEDURE – notice of discontinuance – a legally unrepresented plaintiff appears to consent to defendants’ notice of discontinuance of the proceedings – proceedings were brought by summons in the plaintiff’s name by a person claiming to be her attorney – the proceedings seek the recovery of a deposit on terminated contracts – attorney commencing the proceedings is the plaintiff’s estranged husband – the proceedings were started after the husband’s separation from her – the plaintiff was apparently unaware of the existence of the proceedings – the defendants gave the plaintiff short notice of the first return date of the summons – the plaintiff apparently communicates with the defendants consenting to their notice of discontinuance – all the plaintiff’s communications with the Court are via persons with adverse interests to her – Court not confident that plaintiff has consented to the notice of discontinuance – what is the appropriate procedural course to ensure that the plaintiff has consented to the notice of discontinuance.

JUDGMENTS AND ORDERS – Amending, varying and setting aside – defendants propose variations to the Court’s orders of 31 May 2019 – plaintiffs submit that the Court has no jurisdiction to make certain variations to the orders – plaintiffs also argue that variations sought are not specifically mentioned in the Court’s reasons in primary decision as subject matters that the Court reserves for further consideration – what variations should be made. EASEMENTS – costs of compliance with orders for supervision of traffic on an easement – what party should bear costs of complying with the supervisory aspects of the Court’s previous orders. COSTS – who should bear the costs of the proceedings apart from the cross-claim – plaintiffs seek indemnity costs. CIVIL PROCEDURE – Pleadings – Amendment – defendants seek amendments to cross-claim after judgment – whether amendments should be allowed at this stage in the proceedings – amendments disallowed.

PRACTICE AND PROCEDURE – parties – joinder – application by third party to become a defendant – proceedings for specific performance of a contract for sale of land – where third party claims to be entitled to a lease of the land by way of proprietary estoppel – where third party lodged caveat on the title of the land – whether third party ought to have been joined as a necessary party to the proceedings – whether joinder is necessary for the determination of all matters in dispute in the proceedings – third party’s joinder not necessary – application dismissed

SUCCESSION — Wills, probate and administration — Intestate estate — Grant of administration — Applicant residing outside of New South Wales — Administration granted to attorney

CIVIL PROCEDURE – appeal from determination of separate questions – where concession in agreed facts as to causation of loss suffered by claimant against the insureds – whether primary judge erred in attaching significance to appellant’s concession when deciding construction of contract of insurance CONTRACTS – construction – proper construction of a contract of insurance – professional indemnity policy for property valuer – contract comprised in standard policy wording, schedule and endorsements – where exclusion clause in endorsement for valuations undertaken for specified category of lenders – where literal or grammatical meaning must be evaluated against the text, context and purpose of the contract – whether ambiguity arising from requisite causal nexus between subject matter of the exclusion clause and the loss – business commonsense approach to construction – exclusion clause to be interpreted according to its natural and ordinary meaning – where absence of ambiguity precludes recourse to the contra proferentem rule – whether insurer entitled to deny indemnity and refuse to pay defence costs JUDGMENTS AND ORDERS – court’s powers – hypothetical questions – utility of declaration as to insurer’s liability to indemnify in absence of determination of insured’s liability to claimant – form of declaration – whether too wide – whether negative declaration appropriate

CIVIL LAW – habeas corpus – urgent application – where plaintiff subject to orders under Mental Health Act – involuntary patient – whether appropriate to hear application ex-parte – where plaintiff a barrister – Court constituted on a Saturday evening – other parties not present – application heard by telephone link – technical difficulties – plaintiff present at hospital in presence of nurses – no documentation before court – urgency arising due to threats of harm to plaintiff – extensive history provided – one side of story – irresponsible to make orders – directions made for urgent hearing

CIVIL PROCEDURE – Jurisdiction – Where the defendants sought by notice of motion to invoke the Court’s jurisdiction to determine, pursuant to s 73 of the Civil Procedure Act 2005 (NSW), the terms of an agreement to settle proceedings in this Court concerning the sale of a business – Where no document was prepared to reflect the terms of the settlement and neither party made a contemporaneous record of what was agreed. CONTRACTS – Construction – Context – Whether the oral agreement to settle the proceedings on payment of $65,000 by the defendants was inclusive of the $20,000 deposit – Where, in negotiating the final settlement amount of $65,000, the plaintiff explicitly referred to its earlier Offer of Compromise in which the settlement amount included the deposit, such that it was clear from the context that the later offer of $65,000 was made on the same terms with respect to the deposit as the earlier Offer of Compromise.

SUCCESSION – Family Provision – Approval sought of inter vivos release made by the Defendant in respect of his rights to make an application for a family provision order in respect of the estate of his wife, the Plaintiff, in the event she shall become a deceased person – No proceedings extant between the parties and no other familial dispute between them – Section 95 Succession Act 2006 (NSW) – Extent of circumstances considered on approval of inter vivos release – Importance of the parties’ right to enter into agreement – Whether inter vivos release made should be approved by Court – Amended release made by the Defendant – Amended release approved

CIVIL PROCEDURE – extension of time – application to serve and rely on affidavit out of time – expert evidence – compliance with expert witness code of conduct – where affidavit seeks to remedy expert report’s non-compliance with expert witness code of conduct – where incurable defects in expert report – whether there is utility in granting leave to serve and rely on affidavit out of time.

SENTENCING – remarks on sentence – wounding with intent to inflict grievous bodily harm– joint criminal enterprise – offence of being armed with a weapon, namely, three knives with intent to commit an indictable offence, namely, assault – plea of not guilty – self-defence – retaliatory offence following violent assault – objective seriousness – mitigating factors – where offender has good prospects of rehabilitation – parity – whether Intensive Correction Order appropriate

CORPORATIONS — Winding up — Statutory demand — Application to set aside statutory demand on the basis of genuine dispute — Where dispute as to construction of crane hire agreement — Meaning of night works “stand down rates” — Issuer of demand sought to rely on pre-contractual negotiations, post-contractual conduct and industry practice — Inappropriate to determine construction on s 459G application — Demand set aside.

HIGH RISK OFFENDER – final hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk –extended supervision order imposed

CORPORATIONS — Voluntary administration — Administrator — Right to indemnity – whether Administrators’ remuneration and disbursements takes priority over secured and unsecured creditors – Corporations Act 2001 (Cth), ss 443D, 443E(3)(c) – whether Administrators otherwise entitled to equitable lien – no determination sought on quantum. EQUITY — Equitable charges and liens — Lender’s lien – Whether deposit of certificates of title in context of debtor-creditor relationship gives rise to equitable security over mortgagor’s rights – priority between mortgagor’s equitable security interest and earlier grant of security over funds advanced – postponing conduct – later equitable security prevails over earlier legal charge. CORPORATIONS — Debentures, charges and mortgages — defectively drafted and incomplete loan documentation – no distinct security interest created where deed drafted “in aid” of separate mortgage instrument.

NEGLIGENCE – Employment – Coal miner – Workplace injury – Liability determined in accordance with common law principles – No breach of duty established – If breach established contributory negligence 30% – Later injury result of earlier injury, not separate unrelated injury

APPEAL – appeal from Local Court – leave to appeal – whether appeal grounds raise questions of law – leave refused APPEAL – appeal from Local Court – repayment of loan – operation of Limitation Act – whether repayments and/or acknowledgements of debt restarted the limitation period

COSTS – whether an order should be made under s 93 of the Trustee Act 1925 (NSW) for the costs of the motions to be paid out of the fund – whether the applicant should pay the respondent’s costs of responding to the motion on an indemnity basis

PARTNERSHIP – dissolution and winding up – uncollected WIP of insolvency firm distributed among partners in non-final way – form of orders for receivership and account – reference procedure inappropriate.

CORPORATIONS – Receivers and managers – Powers – Managing assets of company – receiver appointed as receiver of all property of three corporate defendants – plaintiffs are companies and individuals who have prominent roles in the wheat industry – undertaking and operations of the three defendants arose to facilitate research into the quality and production of bread – allegations made as to acts of misconduct contrary to an alleged charitable trust over the property of the defendants – charitable trust proceedings not finalised – risk of a fall in the market value of real estate assets – offers to purchase real estate assets received by the receiver – sale of assets may result in partial destruction of the subject matter of the claimed charitable trust – defendants have undertaken to the Court not to sell the assets – receiver seeks the Court’s direction as to whether he would be justified in not selling the assets pending final hearing.

SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – handwritten annotations to existing will – s 8 of Succession Act 2006 (NSW)

ADMINISTRATIVE LAW – Judicial review – motor accident - whether determination of proper officer accords with law – extent of the referral discretion of the proper officer – reasonable cause to suspect material error - causal connection between impairment, injury and motor accident – relevant principles

EQUITY – fiduciary duties – whether fiduciary duties owed by a solicitor during negotiations for and steps taken to establish a solicitor/client relationship – breach – whether client gave fully informed consent to enter into agreements with solicitor – whether advice “independent” and “meaningful” CIVIL LIABILITY – Civil Liability Act 2002 – defences of contributory negligence and proportionate liability not available in answer to claim for breach of fiduciary duties – claim arising “from a failure to take reasonable care” requires absence of reasonable care to be an element of the cause of action

LEASES AND TENANCIES – whether the parties entered into a binding and enforceable agreement for lease of the Premises in the terms of the 15 June Document – significance to be attached to the Heads of Agreement as constituting a binding document – whether language used in correspondence of 27 and 31 May 2016 signifies that a reasonable person in the position of the parties would understand the communication as giving rise to a binding and enforceable contract – significance of marking correspondence as “without prejudice”. APPEAL – whether it was unnecessary to determine whether the Heads of Agreement were binding – whether the parties did not intended to replace the Heads of Agreement and be bound by the 15 June Document until execution and exchange of a formal lease document – whether the law of part performance applied to the question of whether the parties intended to be bound by the 15 June Document – whether the parties conducted themselves in a manner consistent with the 15 June Document, a monthly tenancy or a statutory lease under the Retail Leases Act 1994 (NSW).