Cases and authorities

ADMINISTRATIVE LAW – statutory interpretation Guardianship Act 1987 (NSW) – whether s 25N has the effect that if the Tribunal does not begin a required review within the specified time the financial management order would cease to have effect – whether the Tribunal discharged the duty imposed upon it by s 25N(3) to begin the review within the time specified in the order ADMINISTRATIVE LAW – whether s 25N(6) of the Guardianship Act 1987 (NSW) was complied with – whether the Tribunal failed to cause a notice specifying the details of the review to be served on each party to the proceedings

PRACTICE AND PROCEDURE – matter in Defamation List – judgment entered after final hearing – only costs outstanding – whether leave should be granted to defendant to file motion raising contempt of court issues – leave refused and motion dismissed.

PRACTICE AND PROCEDURE – Notice to Produce documents – whether document or thing referred to in pleadings or affidavits – whether document sought is relevant to fact in issue in the proceeding

PRACTICE AND PROCEDURE – recusal application based on apprehended bias – leave sought to rely on motion raising contempt – leave refused – application to strike out Defence – whether a reasonable defence was disclosed – whether parts of Defence had a tendency to cause prejudice, embarrassment or delay in the proceedings – failure to comply with UCPR – parts of Defence struck out – leave granted to file an Amended Defence.

STATUTORY INTERPRETATION – definition – whether “fault” is synonymous with liability or means, in the context of the tort of negligence, breach of duty – whether fault includes causation ADMINISTRATIVE LAW – judicial review – application for mandatory and discretionary exemption from CARS assessment – no reasons required when discretionary exemption refused – reasons of claims assessor to be read fairly as a whole – no error established

CIVIL PROCEDURE — Parties — Representative order — What can and should the Court do, where a plaintiff with a proper claim is prevented from proceeding by the death of a defendant, and the failure of persons interested in the estate to obtain a formal grant of representation, or to consent to an order that they represent the estate CIVIL PROCEDURE — Parties — Representative order — Effect of UCPR r 7.10(2) – Appointing representative to a deceased estate or continuing proceedings against deceased without a representative under this statute CIVIL PROCEDURE — Parties — Representative order — Whether judgment can only be entered against a living party — Does it matter whether in rem or in personam orders are sought

TORTS – Negligence – Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Claim for damages for psychiatric injury against the occupier of the premises, the provider of security services and the plaintiff’s employer – Evidence of training undertaken by the plaintiff – Clear instructions as to what to do in the event of an intruder coming on to the premises – Where those instructions directed the plaintiff not to pursue any intruder but to call the police – Where plaintiff understood those instructions and acted completely contrary to them TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Extent to which occupier, service provider and plaintiff’s employer should be held liable for the criminal acts of a third party TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Where plaintiff suffered Post Traumatic Stress Disorder – Liability for mental harm – Whether first and/or second defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken – No duty of care owed by first or second defendant TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Whether obvious risk – Whether inherent risk TORTS – Negligence - Where plaintiff employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Whether plaintiff’s employer breached non-delegable duty to provide a safe system of work – Where plaintiff was trained in procedures to be adopted in the event of an intruder coming on to the premises – Where the plaintiff had been instructed to call the police if an intruder came on to the premises – Where the plaintiff was instructed not to intervene – Where those instructions were ignored by the plaintiff

EQUITY – Fiduciary relationships – Promoters –whether fiduciary relationship existed on basis of being promoter of commercial transaction – indicia of fiduciary relationships – whether relationship exhibited characteristics of fiduciary relationship EQUITY – Fiduciary duties – duty of utmost candour and honesty – whether existence of duty consistent with current authority – duty to avoid position of conflict or undisclosed profits – whether obligation to disclose potential conflicts and profits – whether disclosure was means of negating consequences of position of conflict – whether entitled to be relieved of consequences of any breaches by relevant clauses of agreements – whether relevant clauses void under s 12EB of ASIC Act 2001 (Cth) – application of Trident General Insurance Co Ltd v McNiece Bros Pty Ltd – whether entitled to relief under s 1318 of Corporations Act 2001 (Cth) EQUITY– Remedies – equitable compensation – for breach of fiduciary duty – whether loss caused by breach – whether knowledge of particular facts negates causation – whether knowledge of particular facts said to give rise to breach can be inferred EQUITY – Contribution – whether claim for contribution arises in respect of breach of fiduciary duty – whether claim for contribution time-barred – whether common obligation or co-ordinate liability to make good same loss – whether not liable for contribution because of release of other party from whom contribution is sought CONTRACT – release – whether release applied to other defendants – whether jointly or jointly and severally liable MISLEADING AND DECEPTIVE CONDUCT – s 1041H of the Corporations Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth) – representation – whether approval of investment constituted representation as to commerciality of investment – whether misleading and deceptive – whether representation constituted representation concerning a future matter – s 769C of Corporations Act 2001 (Cth) and s 12BB of ASIC Act 2001 (Cth) – whether there were reasonable grounds for making representation – evidential burden for establishing reasonable grounds – on whose behalf was representation made MISLEADING AND DECEPTIVE CONDUCT – s 1041H of the Corporations Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth) – silence – whether failure to disclose information constituted misleading and deceptive conduct – whether reasonable expectation that information would be disclosed MISLEADING AND DECEPTIVE CONDUCT - s 1041H of the Corporations Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth) – quantification of loss – Potts v Miller – time at which loss should be assessed – whether to account for subsequent events MISLEADING AND DECEPTIVE CONDUCT - s 1041H of the Corporations Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth) – defences – whether liability is excluded by agreements – whether contrary to public policy – whether void under s 12ED of ASIC Act 2001 (Cth) – whether to excuse under s 1318 of the Corporations Act 2001 (Cth) – whether relevant defendants are concurrent wrongdoers and as a consequence whether claims apportionable – discretion of court under statute to apportion based on responsibility for damage or loss – contributory negligence TORT – negligent misstatement – whether duty of care owed – whether existence of duty of care inconsistent with contract – features of relationship – scope of duty CONTRACT – Implied terms – statute – whether warranties under s 12ED of ASIC Act 2001 (Cth) are implied – definition and characteristics of ‘small business’ – whether liability excluded by relevant agreements – whether clauses of relevant agreements void under s 12EB of ASIC Act 2001 (Cth) – whether conduct of relevant defendants constituted breach of express terms of agreement – meaning of ‘gross negligence’ INSURANCE – Liability insurance – professional indemnity insurance – notification – whether evidence of knowledge of facts or circumstances from which it might reasonably be concluded that claim would be made – application of s 54 of Insurance Contracts Act 1984 (Cth) – other express exclusions in policy INSURANCE – directors and officers – notification – whether claims made arise out of circumstances notified during policy period – s 54 of Insurance Contracts Act 1984 (Cth) – other express exclusions in policy

CRIME – subpoenas to obtain material not disclosed by prosecuting authority – legitimate forensic purpose demonstrated – purpose to obtain evidence to prove non-compliance or illegality – notices of motion to set aside subpoenas dismissed

CRIMINAL PROCEDURE – trial – case management – listing for resumption of trial – change of solicitors and counsel – consideration of the accused’s right not to be tried unfairly l and the proper administration of justice

COSTS – courts powers as to costs – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – discretion as to costs – particular issues as to resolution of an appeal – further proceedings by proposed notice of motion – no order as to costs

PRACTICE AND PROCEDURE – application for leave to further amend the amended statement of claim –proposed further amended statement of claim – pleadings and particulars – directions

CIVIL PROCEDURE – No appearance – Service – Absent parties REAL PROPERTY – Caveat – Removal of caveat – Property held by discretionary trust – Removal of trustee – Appointment of new trustee – Vesting of property in new trustee – Registrable mortgage in the property

MENTAL HEALTH — Where person charged unfit to stand trial — Where person found guilty of charges on limited evidence in special hearing and limiting term nominated — Where person found to suffer from a mental illness for which treatment is not available in a mental health facility — Where the Court must order a person “be detained in a place other than a mental health facility” — Whether person required to be detained in a correctional facility — Whether person can be detained in locked aged care facility or medical ward — Mental Health (Forensic Provisions) Act 1990 (NSW), s 27 WORDS AND PHRASES — “detained”, “a place other than a mental health facility” — Mental Health (Forensic Provisions) Act 1990 (NSW), s 27

CIVIL PROCEDURE – summary dismissal – application to summarily dismiss proceedings – where statement of claim does not disclose facts, matters or circumstances on which plaintiff’s claim is based – where no reasonable cause of action against defendants disclosed – whether proceedings should be summarily dismissed. CIVIL PROCEDURE – pleadings – application to strike out statement of claim – where statement of claim does not conform to court rules – where statement of claim does not particularise the claim – where plaintiff seeks to file and rely on alternative forms of pleading – whether statement of claim should be struck out – whether leave should be granted to plaintiff to reformulate statement of claim.

ADMINISTRATIVE LAW – Judicial Review – decision of an Assessor in the Local Court - motor vehicle accident – question of quantum of damages – how quantum is assessed – question of proof of quantum of damages

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings

EQUITY – Subrogation – Ghana Bank principle – Mortgages of Torrens title land – First mortgage paid out by second mortgagee pursuant to statutory right – Conveyancing Act 1919 NSW, sections 94-95 – Registration of transfer of mortgage – Real Property Act 1900 NSW, sections 51-52 – Second Mortgagee claimed to be subrogated to rights of first mortgagee under securities collateral to first mortgage – No formal assignment of rights under collateral securities – No subrogation MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Power of sale – Sale by second registered mortgagee after acquisition by transfer of first mortgage – Appropriation of sale proceeds exclusively towards payment of second mortgage debt – First mortgage discharged – Second mortgagee not entitled to disregard first mortgage debt in claim to be subrogated to rights under securities collateral to first mortgagee – Any entitlement to subrogation lost on receipt of sale proceeds in excess of first mortgage debt and discharge of first mortgage

CRIME — appeals — appeal against conviction and sentence in Local Court — application for leave to appeal – where application made following out of time appeal to District Court – appeal of decision of Local Court incompetent – appeal dismissed – registration, reporting and like matters — child protection register — application for permission for registered person to leave Australia — competent authority to permit person to leave Australia — definition of “competent authority” ADMINISTRATIVE LAW — Judicial review — Reviewable decisions — Decisions to which judicial review legislation applies — decisions under an enactment — application for permission for a person on a child protection offender register to leave Australia — whether Supreme Court has jurisdiction to hear proceedings for judicial review of decision relating to permission — Criminal Code (Cth), s 271A.1(3) WORDS AND PHRASES – “competent authority” – Australian Passports Act 2005 (Cth) s 12 and Criminal Code Act 1995 (Cth) s 271A.1(3)(a) – competent authority in NSW is NSW Commissioner for Police

APPEAL – leave to appeal – whether arguable error of primary judge – unsuccessful application to set aside costs order at first instance – where applicant did not make submissions on costs at first instance – whether applicant denied procedural fairness – content of obligation of procedural fairness in court proceedings

CRIME – Proceeds of Crime Act 2002 (Cth), ss 180, 266A and 319 – where appellants suspected of involvement in conspiracy to defraud the Australian Taxation Office – stay of examination orders made pursuant to s 180 – application of s 319 – prejudice due to extant criminal proceedings – risk of disclosure of information that would prejudice the appellants in criminal proceedings – effect of protocol put in place by the Australian Federal Police to protect against disclosure – prejudice to appellants to be balanced against potential prejudice to Commissioner CONSTITUTIONAL LAW – application of state laws to Commonwealth statutory scheme – whether state law was a law governing the exercise of federal jurisdiction – application to set aside orders made ex parte under the Proceeds of Crime Act 2002 (Cth) – whether orders may be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16 CRIME – Proceeds of Crime Act 2002 (Cth), s 39 –orders made for appellants to provide sworn statements in relation to interests in property – whether orders could extend to include interests of companies of which the appellants were directors – whether orders should be set aside

CRIMINAL LAW – sentence appeal – one count of cultivating a prohibited plant greater than the applicable commercial quantity – whether factual findings open to the sentencing judge – whether finding of special circumstances should have been made – whether applicant’s deprived upbringing relevant – whether sentence was manifestly excessive – grounds of appeal not made out – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to the offence of aggravated enter dwelling with intent to commit a serious indictable offence – circumstance of aggravation that applicant entered knowing a person was present in the dwelling - further offences taken into account on a Form 1 – whether the sentencing judge gave full weight to the applicant’s deprived background – where the applicant had failed to make the most of opportunities for rehabilitation – application of principles in Bugmy v the Queen – whether the sentencing judge double counted the aggravating factor of the presence of the victim in the dwelling at the time of the break and enter – where the presence of a person in the dwelling was an element of the offence - need to re-sentence – lesser sentence warranted in law

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to five aggravated sexual offences committed against his biological daughter – further sexual offences taken into account on a Form 1 – whether the sentencing judge erred in fixing the indicative sentence for one offence resulting in the sentencing discretion miscarrying – where the sentencing judge wrongly described one of the offences when identifying its indicative sentence in the Remarks on Sentence – where a reading of the Remarks as a whole indicated that the sentencing judge correctly understood the applicable legislative guideposts for sentencing the relevant offence – indicative sentence reflected the sentencing judge’s finding of objective seriousness – appeal dismissed

CRIMINAL PROCEDURE – pre-trial directions hearing – estimate of timing – mental illness defence – application by the defendant to appear via AVL

CIVIL PROCEDURE – whether to make another order pursuant r 7.36 of the Uniform Civil Procedure Rules 2005, for legal assistance after assistance was not offered initially – whether to grant leave to amend statement of claim to include provisions of the Limitation Act 1969 – whether to grant leave to amend statement of claim to include the cause of action relied upon is for damages when the defendant is already on notice

CORPORATIONS – external administration – liquidators – supervisory jurisdiction – application for inquiry into conduct of liquidations – where ASIC conducted investigation into conduct of liquidations – whether sufficient case of misconduct to warrant inquiry – whether liquidators should have declined appointment on account of apparent conflicts, or disclosed those conflicts – whether liquidators ought to have reported possibilities of shadow directors and unlawful phoenixing – where administrations without assets – discretionary considerations – strength and nature of allegations – delay – utility – availability of alternative remedies – role of “second appointee” in joint and several appointment – subsequent practice – financial circumstances

CHURCHES AND RELIGIOUS ASSOCIATIONS – church property and trusts – identification of terms of trust – church property held on trust – change in denominational affiliation of church congregation EQUITY – charitable trust for religious purposes – circumstances in which trust created – alteration of denominational affiliation of church congregation – church property held pursuant to charitable trust TRUSTS – charitable trust for religious purposes – identification of terms of trust – replacement of trustee following change of denominational affiliation of church congregation

CIVIL PROCEDURE – where plaintiff made application that judge should disqualify himself because of apprehended bias – where plaintiff argued that the judge’s apprehended bias is based on the alleged political views of the judge’s tipstaff – whether the alleged political views of the tipstaff would cause an independent observer to believe that the judge could not or might not bring an independent mind to the task of deciding the case – application dismissed

CIVIL PROCEDURE – Court of Appeal – procedural ruling – directions hearing reconvened

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assaults that occurred in 1973 or 1974 – no applicable limitation period – relevant principles – whether proceedings should be stayed on the basis that defendant, who has dementia, would not receive a fair trial – relevance of delay or passage of time – whether need for explanation for delay – relevance of defendant’s fitness to stand trial and R v Presser [1958] VR 45 LIMITATION OF ACTIONS – civil claim for damages for sexual assaults alleged to have occurred in 1973 or 1974 – no applicable limitation period – whether proceedings should be permanently stayed TORTS – claim for compensation for historical sexual assault – alleged assaults occurred in 1973 or 1974 – no applicable limitation period – application for a permanent stay of proceedings – defendant suffers from dementia – defendant unable to give instructions or participate in trial

EVIDENCE – cross-examination of unfavourable witness – cross-examination based on assertion that prior police statement inconsistent not permitted as prior police statement not inconsistent

EVIDENCE – exclusion of evidence – exception to hearsay rule – where maker unavailable

CIVIL PROCEDURE – interest on costs under Civil Procedure Act 2005, s 101 – calculation of interest on costs incurred over a three year period – calculation worked out on the basis of an assumption that the same amount of costs was incurred in the first half of each calendar year as in the second half of each calendar year – no evidence available to support such an assumption – whether the use of such an assumption may work unfairly – correct methodology for calculation of interest on costs.

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Family and domestic relationships FAMILY LAW — Property — De facto relationship — Adjustment of property interests — Property (Relationships) Act 1984 (NSW)

CRIME — Judge alone trial — Conviction of murder — No issue murder established — Partial Defence — Substantial impairment by abnormality of mind — Section 23A Crimes Act 1900 (NSW) — No issue accused suffered an abnormality of mind as the result of an underlying condition — Conflicting expert opinions — Accused capacity to control himself found to not have been substantially impaired — Application of current community standards would not permit liability to be reduced to manslaughter

NEGLIGENCE – Employers liability – content of duty of care – no issue of principle NEGLIGENCE – Duty of care – non-delegable duty – whether principal has duty to independent contractor – whether common law imposes duty of care on principals for benefit of independent contractors – accepted if plaintiff’s case made out it would have been caught by the entrepreneur’s duty arising from the creation of risk – plaintiff’s case not made out. CIVIL LIABILITY – Risk – materialisation of inherent risk – whether risk of injury to plaintiff was an inherent risk as defined in the Act – found that risk of person falling from staircase cannot be avoided by the exercise of reasonable care and skill on the part of person responsible for its construction. EVIDENCE – Admissions – hearsay evidence - lack of contemporaneous records in support of plaintiff’s case – evidence of confrontation inconsistent with established facts – plaintiff’s account on factual issues generally unreliable.

JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against conviction – where appellant failed to appear and appeal summarily dismissed – whether jurisdictional error JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against sentence – where judge correctly understood extent of available evidence – where evidence from trial voluminous – where parties directed to put material relied on before the Court – where parties had sufficient opportunity to do so – whether jurisdictional error CIVIL PROCEDURE – recusal application – apprehended bias – where judge expressed preliminary view as to prospects of success of judicial review proceeding in interlocutory application to vacate hearing date – no basis for reasonable apprehension of bias – no question of principle STATUTORY INTERPRETATION – statute assumes existence of power – necessary implication – power impliedly conferred

CRIMINAL LAW - application for leave to appeal against sentence - aggregate sentence - domestic violence offences, offences of threatening or attempting to influence complainant not to give evidence - whether sentence manifestly excessive - complaints of length of non-parole period, extent of notional accumulation

CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant’s youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant’s deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence.

CIVIL PROCEDURE – subpoenas – objection to terms – motion to strike out in part – “fishing” – adjectivally relevant – use of the term “evidencing” – motion dismissed – some alterations effected

CIVIL PROCEDURE — Discontinuance of personal injury claim — Leave of court — personal injury sustained during tandem skydiving event — no prospects of success

CIVIL PROCEDURE - cross-claims - right of set-off - application to amend defence and cross-claim - one defendant seeking to plead a cross-claim for the first time - proceedings on foot for 6 years - amended pleadings not disclosing any viable or particularised claims - no particularisation of damage - leave sought on basis that directions could be made for affidavits further particularising claims - length of proceedings renders onus to particularise triable issues in cross-claim - procedurally unfair to plaintiff to allow vague and incomplete amendments - contrary to s 56(2) and s 57(1) of Civil Procedure Act 2005 (NSW) to allow - leave refused with costs

JUDGMENTS AND ORDERS — Effect of — Whether orders should be made to set aside agreement and/or transfer share in company despite such orders having prima facie limited utility CIVIL PROCEDURE — Parties — Joinder — Of defendants — Requirement to join additional defendant, without which certain proposed orders will not be effective COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs, including whether claims have been abandoned COSTS — Costs assessment — Costs assessors — Directions to costs assessors

CIVIL PROCEDURE — Time — Extension of time — leave sought under s 151D of the Workers Compensation Act 1987 (NSW) — leave sought granted nunc pro tunc — costs CIVIL PROCEDURE — Pleadings — Striking out — Order seeking to strike out the statement of claim and in the alternative order seeking a permanent stay — Motion dismissed

PRACTICE AND PROCEDURE — Discovery — Statutory prohibition on disclosure — Whether the documents contain “privileged information” — Whether the documents disclose the contents of a draft report — Whether the documents contain “restricted information” — Whether the documents contain “protected confidences” — Transport Safety Investigation Act 2003 (Cth) — Evidence Act 1995 (NSW)

CRIME – sentencing – offence of being a member of a terrorist organisation – where offender spent over two years travelling with PKK and HPG guerrillas in the mountains of Iraq and Turkey wearing the uniform and carrying the accoutrements of those organisations including weaponry – characterisation of offending as that of a sympathetic chronicler of the events of the struggle – consideration of the nature of the PKK – Bugmy considerations – whether a sentence of full-time custodial imprisonment required

CIVIL PROCEDURE – appeal – request for court to amend consent orders of own motion – application of slip rule – whether order remitting matter for rehearing unclear – meaning of “rehearing” in relation to trial – whether implied restraint on powers of court conducting retrial

CRIME – conviction appeal – jury misconduct – where jury members made inquiries about trial matters and failed to disclose conduct – no question of principle

CORPORATIONS – winding up – appointment of liquidators as administrators – where liquidators seek leave to appoint themselves administrators – where matters to be addressed to implement deed of company arrangement proposal – where no conflict of interest or duty – whether leave should be granted to liquidators for their additional appointment as administrators. CORPORATIONS – administration – application to dispense with first meeting of creditors and to abridge time for convening of second meeting of creditors – where creditors already well-informed of matters – whether such order should be made. CORPORATIONS – administration – application to dispense with convening meeting of eligible employee creditors – where return under deed of company arrangement proposal is same or better than likely outcome under a liquidation – where proposal will likely facilitate more prompt payment – where proposal maximises prospect of continued operation of organisation and employees’ continued employment – whether requirement to convene meeting of eligible employee creditors should be dispensed with.