Cases and authorities

COSTS - party/party - bases of quantification -indemnity basis – defectively pleaded statement of claim – multiple defective iterations of the statement of claim

CRIMINAL LAW – proceeds of crime – restraining order – application for exclusion of property from restraining orders – when property becomes, remains and ceases to be proceeds or an instrument under s 330(4)(a) Proceeds of Crime Act 2002 (Cth) – third parties – sufficient consideration – issue of knowledge or reasonable suspicion in circumstances that loan funds were proceeds of crime – applicants’ case that acquisition of funds for purchase of residential property made pursuant to a loan not accepted – alternative basis for discretionary exclusion based on undertaking to repay pursuant to s 44 – strong subjective case presented – bank funds to repay obtained on wrongful basis – applicants’ onus not discharged – application for exclusion of property from restraining order refused

CHILD WELFARE — Inherent parens patriae jurisdiction of the NSW Supreme Court — Involvement of the Court in the making of end-of-life decisions for a child

COSTS — Party/Party — Whether costs should be awarded when the Court has made consent orders which have the effect that the parties have settled the proceedings — Costs order in such circumstances only to be made based on the unreasonableness of a party’s conduct, where that judgment is manifest by reference to known circumstances not in dispute — Insufficient evidence to establish capitulation by the defendant in the circumstances

TORT - Negligence - Liability - Vicarious liability - Whether the defendant carer failed to properly support the plaintiff while transferring him between chairs in a respite home - Whether the defendant provided the plaintiff with a recliner chair which was not fit for purpose Damages - Personal injury - Assessment of quantum - Costs of past and future care - Where the plaintiff has already been compensated for full-time care in a previous settlement - Where the plaintiff has moved overseas indefinitely

CRIME – appeals – appeal against conviction –aggravated break and enter dwelling-house and commit serious indictable offence – Crimes Act 1900 (NSW) s 112 – relationship of s 112 with burglary at common law – meaning of “break” – whether “constructive breaking” to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house CRIME – appeals – appeal against conviction – miscarriage of justice – whether to allow withdrawal of guilty plea – where alleged that the agreed facts do not support the charge CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration –gambling disorder – substance use disorder CRIME – appeals – appeal against sentence – manifest excess – whether guideline judgment in R v Henry should have been considered

CRIME – sentence appeal – where applicant convicted of supplying a prohibited drug – where applicant sentenced to imprisonment for 5 years, with a non-parole period of 3 years – whether sentencing judge was provided with incorrect information in pre-sentence report – whether mention of gun by prosecutor and sentencing judge during sentencing proceedings was misleading – whether sentencing judge erred by not backdating sentence to date applicant entered custody – whether sentencing judge was provided with incorrect information about location of applicant’s property and co-offender’s property – whether sentence manifestly excessive – whether Blackberry phone pictures were misleading – appeal dismissed

CIVIL LAW – stay of orders made in Local Court – orders to return personal property seized during police investigation – society that places great stock in private property interests – pending criminal proceedings – procedural fairness

CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors - Application to transfer proceedings from the Supreme Court to the Family Court where applicant had already filed a cross claim in the Supreme Court – consideration of “the interests of justice” in s 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – respondent’s claim (as plaintiff in the Supreme Court) based on seeking to enforce an alleged settlement agreement following earlier litigation concerning a property – applicant’s cross claim concerned claims over other assets – whether “interests of justice” to retain the proceedings in the Supreme Court; FAMILY LAW — Matrimonial cause — Jurisdiction – applicant and respondent separated, awaiting finalisation of divorce – whether Supreme Court has jurisdiction to hear matrimonial causes by reason of s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) - whether a claim to recover the amount owing under a settlement agreement following earlier litigation over matrimonial property would itself be considered a matrimonial cause – whether the property the subject of the dispute can be said to have arisen “out of the marital relationship” as per the definition of “matrimonial cause” in Family Law Act 1975 (Cth) s 4; COSTS — Security for costs — respondent a natural person - whether respondent resident in the jurisdiction; held: respondent resident in the jurisdiction.

CIVIL PROCEDURE — pseudonym orders and suppression orders – where in the interests of Australia’s national security and defence to use pseudonyms in a statement of claim for a person’s name and other material facts – where in the interests of Australia’s national security and defence to prohibit or restrict the disclosure of certain information

EQUITY - ADOPTION - Whether adoption proposed will promote the best interests of the children

CIVIL PROCEDURE – Stay of proceedings – Concurrent Supreme Court and District Court civil proceedings

CRIME – murder – assault occasioning actual bodily harm – Form 1 – domestic violence offences - plea of guilty

CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – discussion of objective and subjective features – intention to kill – offender experiencing alcohol withdrawal syndrome – complete absence of prior violence, including against the deceased – offence grossly out of character – balancing of objective gravity with substantial reduction in moral culpability – sentence imposed

REAL PROPERTY – easements – land owned by the fourth plaintiff and land owned by first defendant share a common boundary - a shared driveway runs along the common boundary with each adjoining owner having an easement over the other’s land – vehicles and people accessing the first defendant’s land are claimed to be causing substantial interference with the easement benefiting the fourth plaintiff and excessive user of the easement benefiting the first defendant – whether substantial interference with the easement benefiting the fourth plaintiff and excessive user of the easement benefiting the first defendant has occurred – if so, what relief is appropriate.

SENTENCING – remarks on sentence – 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 – no prior convictions – Crimes Act 1900 (NSW) s114(1)(a)(b) not commonly dealt with in Supreme Court

CRIMINAL LAW – applications for directed verdicts – joint criminal enterprise – where offenders charged with “being armed with a weapon, namely, three knives with intent to commit an indictable offence, namely, assault” – whether evidence capable of supporting verdict of guilty – whether competing inferences available

MORTGAGES AND SECURITIES – personal property security interests – Personal Property Securities Act 2009 (Cth) (“PPSA”) – amendment demands – judicial process for considering amendment demand under PPSA s 182 – nature of the Court’s enquiry – whether the Court can finally determine the parties’ rights in an application under s 182 – onus of proof – consideration of jurisdiction to restrain threatened registration of further financing statements under s 182(4)(c). EQUITY – equitable remedies – injunctions – injunctions in the Court’s inherent jurisdiction – injunctive relief in aid of the determination of title to property – where injunction sought to restrain further registration of a financing statement of the Personal Property Securities Register – injunction refused in circumstances where no declaratory relief sought to clarify existence of security interest. CONTRACTS – construction – five agreements entered into between individual shareholders / directors of a company and a third party lender – where agreements written in Mandarin and translated into English – whether the company was a party to the agreements – whether the five agreements create “security interests” arising under the Personal Property Securities Act 2009 (Cth). CORPORATIONS – capacity to contract by corporation – whether corporation became party to agreement by stamping its corporate seal to a pre-existing agreement – corporate state of mind – stamping of corporate seal not intended to signify accession to agreement but merely to comply with Chinese custom.

PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – whether plaintiff should be granted leave to tender statement previously rejected – whether statement is relevant to a fact in issue – whether tender of statement would cause unfair prejudice to defendant – where plaintiff also seeks leave to tender series of tax invoices – whether tax invoices qualify as evidence in reply – whether tender of tax invoices would cause unfair prejudice to defendant – tender of statement and tax invoices rejected PROCEDURE – civil procedure – where defendant seeks to set aside plaintiff’s notices to produce – whether notices to produce have legitimate forensic purpose – notices to produce set aside

COSTS — Security for costs — Where action brought by liquidator to recover monies said to be improperly paid in anticipation of winding up — Relevant factors — Cause of impecuniosity — Merits of claim — Public importance — Delay in bringing application for security — litigation funding — No order for security.

EQUITY- oral contract- post contractual conduct- constructive trust- restitution – proprietary estoppel

CIVIL PROCEDURE – Court of Appeal – leave to appeal from consent orders – no reason to grant leave established

APPEALS – application for leave to appeal from decisions of practice and procedure – no error of principle identified in primary judge’s exercise of discretion

APPEALS – application for leave to appeal – well-established grounds for leave to appeal not satisfied –no inadequacy of reasons for primary judgment CIVIL PROCEDURE – proceedings dismissed by primary judge – applicants failed to exercise liberty they had been afforded to file further amended statement of claim – applicants admitted to being unable to formulate their claim

ADMINISTRATIVE LAW – fettering of executive discretion – whether a contract which had the potential to fetter future exercise of executive discretion was ultra vires – ambit of doctrine against fettering of executive discretion – consideration of Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71 APPEALS – further evidence sought to be led on appeal – whether special grounds established – consideration of Akins v National Australia Bank (1994) 34 NSWLR 155 CONTRACT – government contracts – power to enter into contracts – contracts which fetter future exercise of executive discretion – whether ultra vires – whether void as contrary to public policy – whether enforceable by decree of specific performance – whether possibility of award of contractual damages itself a fetter on discretion – importance of upholding contractual bargains CONTRACT – consideration – whether enlisted serviceman subject to naval command supplies consideration when entering into a training contract CONTRACT – remedies – whether contract should be specifically enforced if it would fetter future exercise of executive discretion – whether award of damages would itself fetter executive discretion CONTRACT – damages – loss of a chance of securing better paid employment with particular qualification – approach to assessment of loss –sufficiency of reasoning process – sufficiency of evidence DEFENCE – power of naval command – power to enter into contracts – whether training contract entered into with enlisted serviceman was ultra vires because it fettered future exercise of discretion of naval command PRACTICE AND PROCEDURE – representative proceedings – effect of discontinuance of claims by representative party – whether judge has discretion not to answer common questions

CORPORATIONS — Managed investment schemes — Meetings of members — Validity — Where meeting called by members under Corporations Act 2001 (Cth), s 252D — Where members sought to replace responsible entity of scheme — Responsible entity refused to provide register — Whether insufficient notice — Whether unreasonable time and place — Where notice did not identify members calling meeting — Whether notice and explanatory memorandum misleading — Procedural and substantive irregularities — Declarations of invalidity made.

CRIMINAL LAW – sentencing – murder – judge alone trial – objective seriousness above mid-range – moral culpability – personal circumstances – aggravating and mitigating matters – deterrence – no special circumstances – comparable cases – victim impact statement – sentence imposed

SUCCESSION – Management of estate – Declaration first defendant possesses a right to reside in property – Orders for property to be sold by plaintiff – Plaintiff trustee unable to effect sale of subject property due to first defendant’s right of residence and dispute over liability for outgoings – whether first defendant liable for outgoings – whether property can be sold otherwise than by public auction

COSTS – costs in criminal cases – acquittal of applicant by directed verdict – court discretion exercised to disallow particular evidence of guilt – use of that evidence under s 3A of the Costs in Criminal Proceedings Act 1967 (NSW) – able to be used – not unreasonable to prosecute given all the evidence

BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether adjudicator simply allowed claim in full in default of any valid submission against it – whether adjudicator engaged in process of evaluation – no requirement for legally correct language – fine-tooth comb approach not appropriate – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9, 10, 22(1), 22(2), 22(3) ADMINISTRATIVE LAW – judicial review – whether adjudicator exercised statutory function to determine value of construction work – where adjudication may not be set aside for error of fact or law – jurisdictional error – no requirement for legally correct language – determination not to be examined with fine-tooth comb

CIVIL LAW – urgent application for stay – procedural fairness – return of property to be used as evidence in criminal proceedings – ex parte hearing – short stay granted

COSTS – application for costs on an indemnity basis – whether indemnity costs should be ordered. COSTS – application for a gross sum costs order – whether a gross sum costs order should be made. CIVIL PROCEDURE – application to restrain plaintiff from commencing certain proceedings without paying in full the costs of these proceedings – where plaintiff has indicated he will commence proceedings in another court on same or similar facts – whether a restraining order against plaintiff should be made.

PRACTICE AND PROCEDURE – judicial review – review of orders of District Court in its criminal jurisdiction on appeal from Local Court – offender subject to custodial sentence – effect of stay – date of commencement of sentences – amendment of warrants of commitment – Supreme Court Act 1970 (NSW), ss 69A, 69C, 69D

TORTS – negligence – medical negligence – breach of duty of care – whether test results warranted referral to a specialist – finding of breach of duty unsupported by the evidence – causation – no evidence that referral to a specialist would have changed the course of treatment – no occasion to order new trial – Court in position to resolve the evidentiary conflict CIVIL PROCEDURE – summary disposal – dismissal of proceedings – consideration of inappropriateness of bringing a summary judgment application based on agreement between experts in conclave

CRIMINAL LAW – Appeals – appeal by applicant against aggregate sentence – trial judge’s misstatement of statutory threshold for large commercial quantity of methylamphetamine – trial judge overemphasised role of weight as factor in sentencing – appeal allowed – resentence applicant – lesser sentence warranted CRIMINAL LAW – Parity principle – issue of equality before the law – comparison of seriousness of criminality of applicant against co-offenders – like cases be treated alike – different cases be treated differently according to circumstances of the case – no error as to application of parity principle

CIVIL PROCEDURE — Summary disposal — dismissal of proceedings — want of due despatch - just, quick and cheap resolution of proceedings

ADMINISTRATIVE LAW – judicial review – decision of State Parole Authority - allegation that parole was revoked on the basis of false, misleading or irrelevant information – extremely circumscribed power of the Court to review decision – sad and compelling features of case already considered by State Parole Authority

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Where plaintiff company is deregistered — Whether to do nothing — Whether to do something — Case without merit — Case attempting to re-litigate matters determined in earlier proceedings

CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Group members – parties who cannot demonstrate that a failure to register to become a group member happened through no fault of their own cannot later complain that they cannot participate in a subsequent settlement – further member may be admitted where no appreciable effect on distributions to registered group members and no opposition to order brought. CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Group members — Sub-groups – where foreign investor purchased shares through foreign bank and confirmed he was a group member but did not receive notification of the proceedings as his shares were held on CHESS system by Australian nominee company – whether order allowing foreign investor to participate in the settlement independently of nominee company should be made – order inappropriate as could lead to double recovery – those administering proceeds of representative proceedings should not be required to deal directly with persons holding shares through nominee companies. CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Group members – Whether group member had realistic ability to assess the reasonableness of the settlement – where settlement terms confidential pursuant to Court order – where group member was refused access to unredacted settlement deed online and did not seek to view unredacted deed at offices of solicitors for the defendant but had benefit of Court’s independent review of it – no justification for allowing member access to settlement deed where they have borne no financial responsibility for legal advice on the reasonableness of the settlement terms and sum – importance of the secrecy of the settlement process and importance of the confidentiality of the settlement sum to integrity of the settlement process and to facilitation of future settlements. CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — approval of terms of settlement where proper consideration given to merits of the claim and decision to accept amount offered responsible. CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — approval of costs of the proceedings and remuneration of the funder adjourned to a later date.

COSTS – basis for assessment – Court’s discretion – whether it was unreasonable for the defendants to have subjected the plaintiff to the expenditure of costs in the proceedings – where defendants made concession as to jurisdictional error shortly before hearing and after strongly-contested interlocutory steps – defendants’ behaviour towards plaintiff in proceedings characterised as unhandsome

HIGH RISK OFFENDER – serious violent offender - extended supervision order - preliminary hearing – agreed between the parties that the court should make an interim supervision order – debate about nature of the conditions in the interim supervision order

JUDGMENTS AND ORDERS – effect of – abuse of process – issue estoppel – whether arises from assessment of notional damages in proceedings brought by workers compensation insurer against compulsory third party insurer on statutory indemnity under s 151Z of the Workers Compensation Act 1987 (NSW) – no issue estoppel as distinct causes of action JUDGMENTS AND ORDERS – effect of – relationship between s 151Z action by worker’s insurer against wrongdoer for indemnity for payments of compensation made and tort claim by worker for damages against wrongdoer ADMINISTRATIVE LAW – requirement for CARS assessor to consider submissions of parties and address in reasons MOTOR ACCIDENTS COMPENSATION – damages – challenge to awards for past and future economic loss – level of particularity required

COSTS – party/party – general rule that costs follow the event – building dispute – allegedly defective building work – whole dispute referred to referee – referee’s report adopted – agreement that defendants pay plaintiff’s costs unless defendants can show it was unreasonable for plaintiff not to allow defendants to effect repairs BUILDING AND CONSTRUCTION – costs – whether it was unreasonable for plaintiff not to allow defendant back in to effect repairs

HIGH RISK OFFENDER – application for interim detention order – where offender opposes interim detention order – jurisdiction or power to make or continue an interim detention order - proper approach to determination of interim orders

HIGH RISK OFFENDER – application for interim detention order – where offender opposes interim detention order – jurisdiction or power to make or continue an interim detention order - proper approach to determination of interim orders

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for stay of enforcement of judgment entered in favour of the plaintiff – application opposed and orders sought for payment of monies previously paid into court pending determination of claim for judgment – where owner or head contractor is liable to contractor but has an offsetting claim against that contractor under the Building and Construction Industry Security of Payment Act 1999 (NSW) – principles for the grant of a stay of payment pending determination of claim – orders for stay of enforcement of judgment conceptually distinct from orders for release of monies paid into court - interim nature of entitlements under the Act relevant to application for stay where evidence establishes that payment will be final for practical purposes – evidence of $1 company does not itself establish that monies paid into court could not be later recovered from owner or head contractor – application for stay sought on further basis of prior agreement by consent that plaintiff’s application for summary judgment be dismissed in return for monies to be paid into court – prior agreement compromised immediate application for summary judgment but did not prevent determination of contractor’s claim and payment of judgment sum.

CIVIL PROCEDURE – Application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel for legal assistance for appeal – Application previously dismissed – Where leave to appeal against part of first instance decision subsequently granted – Whether grant of leave materially alters circumstances such as to warrant making of referral

APPEAL – extension of time – two-year delay unexplained – where appeal more than merely fairly arguable – both parties entitled to determination that is just and timely – entitlement to justice not unconditional – need to balance interests of the parties – where prejudice to the respondent caused by the delay