Cases and authorities

PRACTICE AND PROCEDURE – pleadings – admissions – withdrawal of admissions – Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 12.6 – plaintiffs commenced proceedings seeking relief under Conveyancing Act 1919 (NSW) s 66G in respect of various properties – defendants filed a Statement of Cross-Claim containing an assertion that some of the properties were held in a partnership at will – where Defence asserts general reliance upon the Statement of Cross-Claim – where first plaintiff gave notice of dissolution of partnership in reliance on the assertion of a partnership at will – where defendants subsequently sought leave to amend pleadings to allege partnerships other than at will – whether the assertion of a partnership at will is an admission – whether the assertion of a partnership at will is a matter which operates for the benefit of another party – assertion held not to be an admission or other matter that operates for the benefit of another party within UCPR r 12.6(2) – leave to withdraw not required – leave to amend granted

CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – where offender acquitted by jury of murder – where offender’s plea of guilty to manslaughter rejected by Crown – where deceased killed by single stab wound to chest – where offender an indigenous man from disadvantaged background – where offender remorseful – where offence lies well towards bottom range of objective seriousness – discount for guilty plea – application of Bugmy principles – whether specific and general deterrence required

CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process –– subpoena issued for the production of working papers and supporting documents used to prepare tax returns of defendants –– whether a legitimate forensic purpose for production –– whether merely a fishing expedition –– whether the issuing of the subpoena subverts the operation of Practice Note SC Eq 11

COSTS — Security for costs — Relevant factors – whether the jurisdiction to make an order for security for costs pursuant to r 42.21(1)(a) of the UCPR is enlivened –whether as a matter of fact the plaintiff is not ordinarily resident in Australia COSTS — Security for costs — Relevant factors – whether in the exercise of the Court’s inherent jurisdiction or pursuant to r 42.21(1)(e) of the UCPR the discretion to award security of costs should be exercised in favour of the defendants – consideration of the plaintiff’s impecuniosity, delay and costs

DISCOVERY – equitable discovery – production of documents and information sought in proceedings in Australia to aid the prosecution of civil proceedings in Malaysia – the Malaysian proceedings seek the recovery of large sums of money alleged to have been misappropriated from the plaintiffs in a fraudulent conspiracy and then distributed from Malaysia to a number of other countries including Australia – the defendant bank in Australia agrees to orders for equitable discovery and will consent to the production of the documents and information sought – once the documents are produced by the defendant bank the plaintiff seeks release from its obligations under Harman v Secretary of State for the Home Department [1983] 1 AC 280 not to use the documents and information for purposes unrelated to these proceedings and specifically to enable their use in the Malaysian proceedings – not all the documents and information produced on equitable discovery relates to or identifies alleged conspirators in the fraud alleged in the Malaysian proceedings – on what terms should the Harman undertaking be released in the circumstances – what steps should be taken to protect the identity and confidential information of potentially innocent third parties.

DEFAMATION – plaintiff ringside doctor at Green v Mundine boxing contest – imputation that doctor incompetently allowed boxer to continue fighting despite the fact that he suffered bleeding on the brain – imputation that doctor negligently endangered boxer’s life by allowing him to continue fighting when he obviously had brain damage – imputation that plaintiff was such a reckless ringside doctor that he failed to stop a fight despite the fact that one of the boxers obviously had concussion – whether imputations conveyed DEFAMATION – defences – honest opinion – section 31, Defamation Act 2005 (NSW) – whether defamation conveyed as fact or opinion of the author – whether based on proper material DEFAMATION – defences – justification – section 25, Defamation Act 2005 (NSW) – whether imputations substantially true DEFAMATION – damages – aggravated damages – where newspaper had previously admitted that the reference in the article to bleeding on the brain was incorrect but maintained truth defence in response to that imputation – mitigation – whether permissible to have regard to articles published by other media outlets

APPEAL – civil – challenge to findings of fact – whether trial judge erred in accepting evidence of defendant – resolution of inconsistencies – absence of independent witnesses – plaintiff bore onus of proof – judge entitled to have regard to inherent implausibility of plaintiff’s case TORTS – negligence – liability for motor accident – vehicles travelling in adjoining lanes – liability dependent on whether defendant travelling straight ahead from right turn only lane

CRIMINAL PROCEDURE – Application to discharge jury – Non-disclosure of additional report of expert – report helpful to accused – whether non-disclosure vitiated pretrial ruling concerning admissibility of “bomb-making material” – innocent but unsatisfactory explanation for non-disclosure – no question of principle – no real risk of miscarriage by reason of non-disclosure

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – No reasonable cause of action disclosed – Non-appearance of plaintiff – Want of due despatch COSTS – Party/Party

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether adoption plan should be approved

CONTRACTS – breach of contract – consequences of breach – right to damages – contract for sale of goods – goods never delivered – total failure of consideration – defendant vendor defrauded by third party supplier – defendant vendor nonetheless liable to plaintiff purchaser CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – defendant falsely represented it had a present ability to supply beef omasum – plaintiff paid contract sum in reliance – containers of packing salt delivered EQUITY – trusts and trustees – resulting trusts – Quistclose trusts – no Quistclose trust established where no mutual intention that plaintiff’s money would not become part of the first defendant’s assets

COSTS – departure from the usual rule – public interest litigation – where plaintiffs were unsuccessful in contending that a certain road that connected several isolated properties in the Burragorang State Conservation Area became a public road at common law in about the mid-nineteenth century – whether object of the proceedings was to vindicate public rather than private rights – proceedings held to vindicate private rights – no reason to depart from the general rule COSTS – departure from the usual rule – whether indemnity costs should be paid by the plaintiffs to the second defendant – whether the plaintiffs’ conduct of the proceedings was relevantly delinquent – where the evidence in support of the plaintiffs’ case was weak – where plaintiffs ought to have known their case was almost certainly doomed to fail following the service of evidence from a specialist searcher of land titles which showed the land on which the road was located was at all times Crown land – part of the second defendant’s costs awarded on an indemnity basis

COSTS – costs order on a percentage basis – where plaintiffs have had limited success against one defendant – where plaintiffs have had no success against other defendants. COSTS – application for costs on an indemnity basis – where plaintiffs did not act unreasonably in not accepting Calderbank offers – whether an indemnity costs order should be made.

SUCCESSION – family provision claim – approval of settlement and release of rights to bring further claim – where estate is most likely insolvent – Probate and Administration Act 1898 (NSW), s 46C

COSTS – Security for costs – Relevant factors and discretion – multiple plaintiffs – whether risk of different costs orders being made with respect to different plaintiffs – quantum

CIVIL PROCEDURE – Costs of notice of motion – Amendment to pleadings – where mixed success – Plaintiff to pay the defendants’ costs in circumstances where the defendants successfully resisted significant amendments that went beyond “tidying up” CIVIL PROCEDURE – Costs of notice of motion – Access to documents produced under subpoena – Plaintiff to pay the defendants’ cost in circumstances where the defendant was successful in arguing that subpoena should partly be set aside

CIVIL PROCEDURE – time – extension of time – whether extension should be granted in proceedings for judicial review commenced out of time COSTS – security for costs – whether exceptional circumstances established

CRIME – conviction appeal – whether an alternative verdict of manslaughter based on a joint criminal enterprise to inflict injury falling short of grievous bodily harm should have been left to jury CRIME – conviction appeal – directions – failure to give proper direction on consciousness of guilt evidence – failure to give proper direction where accused did not give evidence – failure to give proper direction on meaning of “in company” CRIMES – conviction appeal – unreasonable verdict – whether verdict on one count was unreasonable in light of acquittal on another count

Plaintiff suffers from schizophrenia – Mental Health Review Tribunal authorises the plaintiff to undergo a course of electroconvulsive therapy – plaintiff has undergone nine of 12 authorised therapy sessions – plaintiff complains that the treatment is causing her bruising and other uncomfortable side-effects – plaintiff obtains a short term ex parte injunction to suspend the therapy – plaintiff does not bring an appeal against the decision of the Mental Health Review Tribunal – whether the injunction should be extended or whether the therapy should be allowed to continue in accordance with the decision of the Mental Health Review Tribunal.

HIGH RISK OFFENDER – preliminary hearing – application for interim detention order – whether findings of facts in other proceedings admissible – material in previous relevant judgments and remarks on sentence taken into account – whether ISO or an IDO should be made – extensive criminal history – previous breach of ISO conditions – refusal to consider medication or therapy while in custody – high density of criminogenic needs – possible manipulation in relation to rehabilitation – community protection and rehabilitation better served by IDO for 28 days

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether adoption order clearly preferable to any other order that could be made with respect to care of child — Where no realistic prospect of restoration FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether consent of birth parents should be dispensed with FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether the child’s name should be changed

ADMINISTRATIVE LAW – judicial review – whether the Magistrate misconstrued ss 214(1)(b) and 214(1)(d) of the Criminal Procedure Act (1986) (NSW) and thereby misconceived the nature of his function – whether the Magistrate erred on the face of the record by assuming the proceedings had been initiated by an unidentified “prosecution” – whether the Magistrate’s decision should be quashed under s 69 of the Supreme Court Act 1970 (NSW). COSTS – whether the second defendant should pay the plaintiff’s professional costs –- whether exclusion of police evidence under s 138 of the Evidence Act 1995 (NSW) demonstrated proceedings were initiated without reasonable cause under s 214(1) of the Criminal Procedure Act (1986) (NSW). CIVIL PROCEDURE – whether an extension of time should be granted for the commencement of the proceedings.

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – application for adjournment – application refused

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – judgment or order of the Court in a Division for the winding up of a corporation – where debt alleged to have been paid prior to appointment of liquidator – application dismissed

CRIME – conviction appeal – where applicant convicted of six counts of aggravated indecent assault but acquitted on two counts – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence

CRIMINAL LAW – Juries – Practice and procedure – Where accused charged with doing acts in preparation for, or planning, a terrorist act or acts – Where Crown sought to provide jury with a Chronology in the nature of a “road map” of the evidence – Where objection was taken by counsel for the accused on the basis that to provide the jury with the Chronology would be prejudicial – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Chronology provided

ADMISSIBILITY OF EVIDENCE – subjective evidence – representation as to state of mind – threatening physical gestures – whether admissible – held inadmissible under section 66A – requirement of direct evidence of a person who actually perceived admission – objection held – probative value outweighed by danger of unfair prejudice.

CIVIL PROCEDURE — Pleadings — Leave to file Amended Statement of Claim – requirements for adequate pleadings of a cause of action in negligence – s5B and s5D of the Civil Liability Act –where proposed pleading is not proper

SUCCESSION – judicial advice application – Trustee Act 1925 (NSW) s 63 – administration of trust property – Benjamin order

COSTS – Costs orders – costs of the principal hearing – costs of the re-opened hearing – claim for party/party costs – claim for indemnity costs on the basis of the principles in Calderbank v Calderbank – claim for interest on a party’s costs – claim for costs on a gross sum basis – whether disentitling conduct of the kind that would warrant departure from the general rule that costs follow the event

SUCCESSION – Family provision orders – Applications by adult children and sister of deceased – Whether adequate provision for proper maintenance, education and advancement in life made for the applicants by the deceased in his Will EQUITY – Trusts and trustees – Express trusts – Constructive trusts – Resulting trusts EQUITY – Equitable remedies – Equitable compensation

EVIDENCE – expert evidence – use of psychometric testing – methodology experimental – lack of explanation justifying acceptance of methodology – plaintiff’s medical evidence discounted on basis of tests indicating plaintiff was disingenuous in answering test questions TORTS – battery – plaintiff punched in the face – whether intentional act intended to cause injury – Civil Liability Act 2002 (NSW), s 3B(1)(a) – whether plaintiff grabbing the back of her assailant’s shirt unlawful – whether assailant acted in self-defence under Civil Liability Act, ss 52-53 TORTS – battery – damages – non-economic loss – causation – whether plaintiff suffered psychological injury – pre-attack psychological history – aggravated damages TORTS – battery – damages – exemplary damages – effect of criminal conviction and sentence TORTS – negligence – liability of licensee for battery by third party – whether duty of care owed to patrons outside licensed premises – obligations of licensee under Liquor Act 2007 (NSW) – breach

CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion CIVIL PROCEDURE – appeal – procedural unfairness – determination of motion to remove caveat did not require final determination of existence of life interest – whether appellant denied opportunity to prove existence of agreement to confer life interest EVIDENCE – further evidence on appeal – need to show possibility of different outcome – application of Supreme Court Act 1970 (NSW), s 75A to evidence of procedural unfairness

CIVIL PROCEDURE – discontinuance of proceedings – leave of court – terms on which proceedings discontinued – where plaintiff seeks leave to discontinue COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –proceedings not commenced with authority of members of body corporate – recent resolution not to ratify commencement of proceedings – whether costs should be payable on indemnity basis – whether gross sum costs order should be made – whether order should be made that costs not be payable by defendants as lot owners

HIGH RISK OFFENDER – final hearing – application for continuing detention order and/or extended supervision order – history of disturbing pattern of armed, violent behaviour – defendant very recently diagnosed with significant psychiatric illness – Court satisfied to a “high degree of probability” that defendant posed an “unacceptable risk” of committing another serious offence if not kept in detention while psychiatric illness treated in a secure and safe facility – continuing detention order made pending admission to secure psychiatric facility - extended supervision order made for three years to operate on expiration or revocation of continuing detention disorder – extended supervision order suspended while defendant in lawful custody order under Mental Health Act 2007

EQUITY — Trusts and trustees — Court-appointed trustee — Trust powers — Orders facilitating trustee being able to sell properties as per previous orders made by the Court in these proceedings JUDGMENTS AND ORDERS — Delay in relation to final orders — Effect of new evidence inconsistent with findings in principal judgment on issues relevant to relief before final orders made –– Matter not brought to the attention of the Court by applicants for family provision orders –– Matters that the Court requires the parties to address prior to final family provision and costs orders being made

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Adoption plan — Whether the arrangements in the maternal adoption plan are in the child’s best interests and are proper in the circumstances

EQUITY — Equitable remedies — Equitable compensation — Assessment of appropriate amount of equitable compensation payable in lieu of beneficial interest in property — In circumstances where the available valuation evidence does not permit the Court to determine the value of the subject property with an adequate level of confidence

CIVIL PROCEDURE – subpoenas – application to set aside – documents produced without objection by subpoenaed parties – whether party causing subpoenas to be issued has demonstrated a legitimate forensic purpose

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee —repayment – possession – whether mortgage sufficiently specifies mortgagee’s interest in the land –mortgage adequately specified interest – consideration given for promise to repay loan earlier advanced – plaintiff entitled to possession of land – leave granted to issue writ of execution CONTRACTS — formation — consideration — adequacy of consideration – whether contract unjust for purposes of s 9(1) of the Contracts Review Act – whether representations gave rise to promissory estoppel – defendant not induced by representations or conduct and suffered no detriment by reliance – no relief granted – litigated with exhaustive attention to wide range of factual and legal questions – view formed on sufficient issues to permit disposition – wasteful of court resources for further analysis of plaintiff’s alternative case

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppressions of material fact – whether to set aside judgment by consent – whether misleading and deceptive conduct by plaintiff – discretionary considerations – whether defendant has arguable defence – delay – whether delay in advancing case of misleading and deceptive conduct disentitles defendant to relief MISLEADING AND DECEPTIVE CONDUCT – Australian Consumer Law – silence – whether reasonable expectation of being informed of information concerning activities of receivers – whether disclosure required by terms of guarantee – whether reasonable expectation of disclosure of other matters – reliance – whether defendant relied on absence of that information – whether knowledge of that information would have led defendant to not accept judgment by consent CORPORATIONS – Receivers and managers – duties – s 420A of Corporations Act 2001 (Cth) – whether arguable defence based on this provision – scope and function of s 420A – rights of guarantors – standard imposed on receivers – exclusion by contract

DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff DEFAMATION — defences — substantial truth — contextual truth — justification of some imputations only — relevance of imputations found to be substantially true — discussion of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174

APPEAL – practice and procedure – appeal from judgement on a review reversing interlocutory decision of Registrar – application of principle of restraint in review of discretionary decision as to practice and procedure PROCEDURE – interrogatories – personal injury claim – defendant’s application to administer interrogatories to plaintiff – rule requiring “special reasons” to make order – defendant seeking information as to possible limitation defence – information wholly within the plaintiff’s knowledge

HIGH RISK OFFENDER – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – interim detention order – whether offender must be in lawful custody when interim detention order made – whether offender must be in lawful custody when an interim detention order is renewed STATUTORY INTERPRETATION – implied limitation on powers of superior court – purposive interpretation not supportive of limitation – effect of earlier precedent inconsistent with implied limitation – subsequent amendments leaving unchanged provisions the subject of earlier judicial determination

CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse with a child under 10 years (and related offences) – whether the sentencing judge properly had regard to the applicant’s deprived background – whether special circumstances should have been found – whether sentence unreasonable or plainly unjust

BAIL – release application – special or exceptional circumstances – strength of appeal – bail refused

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE – sexual assault – indecent assault – aggravated sexual assault – aggravated indecent assault – pleas of guilty entered in the District Court – further offences taken into account – question of whether the pleas were entered as a consequence of incorrect legal advice – question of consciousness of guilt – “fresh evidence” – whether credible or persuasive – question of integrity of plea – appeal out of time – question of leave – sentence appeal – no grounds or submissions filed

CONTRACTS – construction – defendant operates a resort on land near Uluru in the Northern Territory – plaintiff proposed to establish a “Sky Ship” business involving the provision of rides in a gondola of a tethered helium balloon – parties entered into three interrelated agreements being an Operator Agreement and two leases – where the tethered helium balloon was subsequently destroyed by high cross winds – plaintiff unable to continue to operate the balloon – where the defendant issued notices of breach and notices to terminate the three agreements – whether the plaintiff was in breach of cl 4.1 of the Operator Agreement by failing to conduct the Business in accordance with the terms of the Operator Agreement during Normal Business Hours throughout the Term – plaintiff held to be in breach of the Operator Agreement – defendant entitled to terminate the Operator Agreement and the two leases – defendant entitled to declarations that the three agreements have been terminated EQUITY – equitable remedies – relief against forfeiture – special heads of fraud, accident, mistake or surprise – whether the doctrine of relief against forfeiture applies to the Operator Agreement – whether the destruction of the tethered helium balloon was an “accident” in the relevant sense – where the destruction of the tethered helium balloon was an event within the reasonable contemplation of the parties – where the defendant did not cause or contribute to the breach giving rise to the right to terminate the Operator Agreement – not unconscientious for the defendant to insist upon its strict legal rights

APPLICATION TO DISCHARGE JURY – Existence of media reports concerning trial – depiction of accused in custody – whether a real risk exists that a fair trial can be had – whether in viewing the news report jury members will be prejudiced in their decision making process – held directions to jury obviate the risk of an unfair trial – application to discharge jury refused.

CRIMINAL LAW – whether partial defence of extreme provocation is raised – murder – s 23 Crimes Act 1900 – whether the alleged conduct of the deceased was capable of constituting a serious indictable offence – s 13 Crimes (Domestic and Personal Violence) Act 2007