Cases and authorities

CORPORATIONS – external administration – administrators – remuneration approval – where former administrator and liquidator agree on the remuneration to be paid to the former administrator for their services – where agreement allows for the cost of the proceedings to be paid out of the company’s funds – whether such agreement may displace or vary the priority of payments of debts under the Corporations Act 2001 (Cth), s 556

CIVIL PROCEDURE – interim preservation – freezing order – whether danger that existing and prospective judgment will be unsatisfied by reason of assets of debtor being deliberately diminished in value

CIVIL PROCEDURE — Pleadings — Amendment — Proposed amended defence — Whether lacking in particulars — “Business judgment rule” defence —Specificity of pleadings against alleged concurrent wrongdoers — whether to allow particulars to be provided after other party’s evidence and disclosure — leave to amend but not for paragraphs impugned. CIVIL PROCEDURE — Pleadings — Particulars —Plaintiff’s statement of claim — Whether further particulars required to properly plead defence — No order for further particulars.

CRIMINAL LAW – count of murder – issue of fitness of accused to be tried – inquiry held – diagnosis of chronic schizophrenia and substance use disorder – resistant to medication over several years – unanimous evidence of psychiatrists – evidence from two defence solicitors – discussion of aspects of question of fitness – finding of unfitness

OCCUPATIONS – health professionals – dental practitioners – appeal by practitioner against decision of Civil and Administrative Tribunal dismissing appeals against decisions of the Dental Council of New South Wales affecting practitioner’s registration – challenge to imposition of conditions on registration of practitioner where no finding of incompetence – relevance of professional boundaries in assessment of practitioner conduct ADMINISTRATIVE LAW – natural justice – apprehended bias – bias through conflicting interest as proponent of administrative action potentially affecting practitioner’s registration – such bias distinct from pre-judgment bias – apprehension that mind might be closed is the governing factor in each case – whether the “double might” test in Ebner v Official Trustee in Bankruptcy was satisfied in the particular circumstances ADMINISTRATIVE LAW – power to compel production of documents or attendance in connection with proceedings potentially affecting practitioner’s registration – whether proceedings not lawfully constituted or conducted unless such compulsion exerted on the affected practitioner – whether statute shows an intention to displace privilege against self-exposure to penalty or forfeiture

SUCCESSION — Wills, probate and administration — Probate and letters of administration — Construction and effect of testamentary dispositions — Contending wills — Whether a grant of probate of the deceased’s 1997 will should be revoked and administration should be granted to an appropriate administrator with a draft will of the deceased prepared on 15 August 2008 annexed — Application of s 8 Succession Act 2006 (NSW) — Alternatively, application of principles concerning lost wills — Where deceased had the intention to make a new will in terms of a draft will — Where no signed will in those terms has been found after the deceased’s death — Where the deceased made statements to the effect that she had made a new will in the terms of the draft will — Where the evidence was inadequate to establish the particular reasons why the deceased understood that she had made a new will in the terms of the draft will — Where it is not possible to identify the particular document of a number of identical versions of the draft will that the deceased intended to operate as her will — Where the deceased may not have seen the final version of the draft will although it was prepared in accordance with her instructions — Where it is possible that the deceased did execute a version of the draft will but the will has been lost — The plaintiffs are entitled to orders revoking the grant of probate of the 1997 will and an order that a grant of administration be made with the draft 2008 will annexed.

APPEAL - Local Court civil claim and judgment –judgment in favour of party in proceedings to recover money after settlement of proceedings - appeal on question of law – no error of law demonstrated – appeal dismissed with costs

ADMINISTRATIVE LAW – judicial review – motor accident – whether decision of Medical Assessors Review Panel ought be set aside on the basis of error of law on the face of the record or jurisdictional error – proper construction of s 63 of the Motor Accidents Compensation Act 1999 (NSW) and applicable Guidelines – whether examination conducted by two of the three assessors who comprised the Review Panel invalid under s 63 of the Act – whether reasons given were inadequate – whether conclusions of Review Panel were legally unreasonable – Summons dismissed

CIVIL PROCEDURE – Court of Appeal – stay of proceedings – stay pending appeal – stay pending determination of Family Court proceedings

FAMILY LAW & CHILD WELFARE – application for parentage order under Surrogacy Act 2010 (NSW) – applicant not resident in NSW contrary s 32 – substitute parentage order not available in Victoria as child was not conceived in Victoria – whether s 32 not mandatory precondition and whether exceptional circumstances justify making parentage order – not mandatory and exceptional circumstances found

EVIDENCE – relevance – bundle of police running sheets – non-hearsay purpose – relevant for purpose other than as opinion evidence – not excluded pursuant to ss 135 or 137 of the Evidence Act 1995 – evidence admitted subject to a limitation on use

PRIVATE INTERNATIONAL LAW - husband and father of Plaintiffs killed in collision between vessels offshore from international resort in Fiji - Plaintiffs commence proceedings in New South Wales - claim for damages against owner of resort and resort employee in charge of vessel involved in collision - Defendants apply for stay of proceedings in New South Wales - application of clearly inappropriate forum test - whether Defendants discharged onus - Defendants failed to establish New South Wales was clearly inappropriate forum - stay refused

CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – where non-exclusive jurisdiction clause

COSTS – party/party – whether appropriate to make order for specified gross sum instead of assessed costs – application by defendant after appeal from Local Court dismissed – Civil Procedure Act 2005 (NSW) s 98(4)(c) – where costs of both proceedings were disproportionate to amount in issue – where unnecessary costs were incurred due to conduct of plaintiff – where costs owed by plaintiff to defendant and defendants’ solicitors pursuant to previous orders were unpaid – where plaintiff impecunious – factors relevant to court’s discretion when quantifying discount on established costs – order made

CIVIL PROCEDURE – summary disposal – dismissal of notice of motion seeking stay of orders – non-appearance of applicant

PRACTICE AND PROCEDURE – application for adjournment of proceedings to seek legal advice – application refused

MENTAL HEALTH – Legal proceedings by and against protected persons – Approval of settlement of multiple sets of proceedings – Proceedings in Supreme Court and Family Court of Australia – Nature of Court’s jurisdiction to approve settlement – Protected estate manager may be directed in the management of protected estate – Whether settlement in best interests of protected person – Settlement approved

TAXES AND DUTIES – plaintiff issued notice of assessment – conclusive evidence of debt due to Commonwealth – challenges to assessment no impediment to recovery of amount in notice – judgment ordered

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion

CONTRACTS – construction – context – plaintiff lender to company over which defendant was director – where contract included personal guarantee by defendant – where contract also included undertakings by company to procure unregistered mortgages over properties owned by defendant’s wife and daughter-in-law – where defendant’s wife and daughter-in-law not parties to loan agreement – whether procurement of unregistered mortgages condition precedent to personal guarantee – no condition precedent in contract as construed – judgment for plaintiff GUARANTEE AND INDEMNITY – contract of guarantee – co-guarantors – where loan agreement included undertakings by debtor company to procure unregistered mortgages over properties owned by director defendant’s wife and daughter-in-law – whether wife and daughter-in-law co-guarantors – whether liability of defendant as personal guarantor excluded by non-signature of alleged co-guarantors to loan agreement and/or failure to procure unregistered mortgages over alleged co-guarantors’ property

CIVIL PROCEDURE – representative proceedings –negligence – misleading or deceptive conduct and misrepresentations – where plaintiffs and group members suffered complications after cosmetic surgery – whether discontinuance of representative proceedings should be ordered – Civil Procedure Act 2005, s 166 – interests of justice – whether costs of representative proceedings likely to exceed costs of separate proceedings – whether all relief can be obtained by other means – whether representative proceedings will provide an efficient and effective means of dealing with the claims – premature timing of the Motions before defences filed – significant common questions between the claims – no relevant prejudice to the defendants – applications dismissed

FINAL RELIEF – claim in proprietary estoppel over land upheld when the first defendant was alive – continuing contest between parties as to the form of final relief – in a subsequent judgment declaratory relief to give effect to the promise to the plaintiff declined due to the hardship that it would occasion to her – Court decided that an alternative remedy was appropriate but that remedy has not been quantified – first defendant has since died – what relief is now appropriate. COSTS – outstanding issue of the appropriate costs orders as between the parties – parties each successful on separate contests at different hearings – whether a global costs order should be made to cover all hearings – if so, what overall costs order should be made in the circumstances. CALDERBANK LETTER – plaintiff makes offer of settlement by way of Calderbank letter – whether it was not unreasonable of the defendants not to have accepted the offer – whether sufficient time allowed for acceptance of the offer – whether it has been demonstrated that the defendants would have been better off by accepting the offer – whether the offer adequately dealt with the position of the second defendant.

SUCCESSION – Family provision and maintenance – Extension of time for making an application – Plaintiff is an incapable person in need of a tutor – Defendant was for some time financial manager of the plaintiff – No prejudice flowing from extension of time – Extension granted SUCCESSION – Family provision and maintenance – Application by adult child under legal incapacity – Circumstances of the plaintiff require additional provision – Plaintiff currently entitled to an indeterminate fund held on trust – Testamentary trust replaced by provision paid to plaintiff’s financial manager – Present provision for maintenance insufficient – Provision granted

APPEAL – costs – application for leave to appeal – costs order in proceedings otherwise disposed of by consent – no issue of principle

CIVIL PROCEDURE – leave to appeal –application for leave to appeal lodged three months out of time – no explanation provided for lateness – no prejudice suffered by respondent – respondent contended appeal without merit – whether to refuse extension of time JUDICIAL REVIEW – leave to appeal – authority to operate commercial bus service revoked by Roads and Maritime Services – decision confirmed by Administrative Decisions Tribunal – extension of time for internal appeal refused – application for judicial review refused – application to appeal out of time –whether issue of principle – whether proposed appeal had realistic prospects of success

LIMITATION OF ACTIONS – when limitation period commenced – fraud and deceit – purchase of land by defendant – payment of 10% of purchase price deferred pending completion of building work and issue of occupation certificate – agreement that moneys be held in trust account by agent of defendant – defendant directed agent to repay funds – defendant refused to pay balance of purchase price – dispute as to completion of building work – whether vendor’s cause of action based on fraud or deceit – elements of common law fraud – whether fraud only discovered less than 6 years before proceedings commenced – Limitation Act 1969 (NSW), ss 14, 55

CRIMINAL LAW – appeal against conviction – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty returned on seven counts and verdicts of not guilty on three counts – significance of acquittals when considering reasonableness of guilty verdicts – significance of jury’s rejection of complainant’s evidence on one count on the assessment of reliability in respect of other counts – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – whether verdicts unreasonable – whether rational basis existed for the difference in the verdicts returned

CORPORATIONS – winding up – application for direction that liquidator is justified in paying a dividend to creditors in accordance with a notice of intention to declare a dividend to creditors – where liquidator has lodged notice of intention to declare a dividend to creditors – where creditor has indicated that it reserves its rights to bring a future claim but has not lodged formal proof of debt by date specified in notice – whether direction sought is of advantage to the liquidation.

CIVIL LAW – contract dispute – where loans formalised by deeds – interest on judgment debt – appropriate interest rate after judgment – where deeds specified interest rate – where parties co-operate for the first and only time – whether failure to make submission at hearing disentitled plaintiff from subsequently seeking interest in accordance with contract – presumptuous and precipitous

CIVIL PROCEDURE – claim by minor – settlement – court approval – claim in negligence against Commonwealth for time in detention centres – substantial issues of breach and causation – settlement in interests of minors – settlements approved

JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiffs successful in proceedings for judicial review of decision of SIRA MAS Review Panel - application by first defendant to set aside order that he pay the plaintiffs’ costs – UCPR r 36.16 COSTS – party/party – exceptions to general rule that costs follow the event – nature of the proceedings - where only one of two interrelated medical issues were referred to Review Panel – where proceedings taken in relation to Review Panel’s decision on referred decision – where success by plaintiffs was moot until other issue determined – whether an exception to the general rule - where plaintiff obtained relief but not by way of certiorari – whether plaintiffs obtained relief other than relief sought in summons – relevant enquiry into conduct of litigation not conduct of antecedent matters – where first defendant submits that proceedings were inutile but did not exercise right to seek stay of proceedings COSTS – Suitors’ Fund – where plaintiffs successful because of error of law of administrative body - no certificate granted to first defendant in circumstances where proceedings were by way of judicial review not an appeal against the decision of a court

CRIME – appeal against conviction – appellant convicted of three offences of participating as a client with a child under 18 years in an act of prostitution – appellant self-represented – 24 grounds of appeal, including whether appellant’s convictions should be set aside on the basis that they are “unreasonable, or cannot be supported, having regard to the evidence” – appeal dismissed

CRIME – appeal against sentence – applicant convicted and sentenced for six sexual assault offences against his step-daughters – whether sentencing judge erred in assessment of objective seriousness of particular offences – whether sentencing judge erred when partially accumulating each sentence by failing to consider question of totality – whether head sentence imposed for one offence was manifestly excessive – whether error in sentencing process should be inferred – whether attachment of a Form 1 offence to sentence for one count was capable of explaining difference in head sentence from that for earlier count – appeal dismissed

CIVIL PROCEDURE – pleadings – plaintiff unrepresented – statement of claim previously held to be liable to be struck out as embarrassing – where plaintiff sought an opportunity to amend – proposed amended pleading disclosing no discernible cause of action

PROCEEDS OF CRIME – application for restraining orders

DEFAMATION – publication – comments posted on Facebook – where pleading served more than one year after date of posting comments – plaintiff unable to identify any person who read the posts within the one year period before pleading served – requirement to identify one such person for each matter complained of

CIVIL PROCEDURE – application by defendants for leave to file cross-claim – where defendants had failed in several earlier applications to plead claim in proper form – complexity of issues raised

TORT LAW – amended cross-claim for breach of contract, fraud, misfeasance in public office – equitable claims – claims for damages – application for strike-out of portions of claim - adequacy of pleading – adequacy of particulars – latitude to a self-represented litigant – pleadings incomprehensible – particulars insufficient to establish cause of action – no point of principle

DEFAMATION – damages – assessment after trial by jury – imputations of indecent exposure in a change room by a well-known sportsman – multiple publications by multiple defendants conveying the same imputations – importance of avoiding double-counting DEFAMATION – defences – defence of qualified privilege under s 30 of the Defamation Act – requirement of proof that the conduct of the defendants in publishing the matter complained of was reasonable in the circumstances – whether that is a question for the jury or the judge – consideration of s 22 of the Defamation Act JURIES – application to have jury discharged after plaintiff’s closing address – submission to the jury as to the credibility of a key defence witness – submission based on inconsistencies between matters put to the plaintiff’s witnesses by counsel for the defendant and the subsequent evidence of the defence witness – reasonable but mistaken inference by plaintiff’s counsel as to the source of one matter put – fairness of keeping the defendants bound by their conduct of the case – submission to the jury as to malice – where counsel's closing address extended beyond the matters particularised in the reply – whether defendants had fair notice of the additional matters raised – submission to the jury as to the key defence witness's mental state – submission suggesting connection between mental illness and reliability of evidence not put to the witness

CIVIL PROCEDURE – application for security for costs – whether jurisdiction to order security enlivened – where plaintiff’s sole asset is a right of indemnity out of the assets of a trust – whether enlivened discretion should be exercised to order security – where ordering security would have limited practical effect due to the existence of cross-claims – application dismissed.

CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – plaintiff having poor prognosis – expedition not disputed subject to need to afford defendant an adequate opportunity to prepare

CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – where plaintiff’s condition is extremely poor – third defendant joined recently – whether third defendant would have a fair opportunity to prepare defence if proceedings expedited – appointment of public guardian – need for medicolegal experts to obtain access to the plaintiff

CIVIL LIABILITY – proceedings brought by a person under legal incapacity – consideration whether to approve settlement

LEASES AND TENANCIES – Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of the Retail Leases Act – appropriate time for determination of inconsistency

SUCCESSION – application for release of rights pursuant concerning succession – orders made in accordance with application

CORPORATIONS – insolvent trading – claim by liquidators against director under s 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading – whether companies were insolvent or became insolvent by incurring the debts – whether there were reasonable grounds to suspect that company was insolvent or may become insolvent by incurring the debt – whether director was aware that there were reasonable grounds to suspect insolvency or a reasonable person would have been aware – whether “loss or damage” in s 588M of the Corporations Act is reduced by other recoveries by the liquidators that will allow distribution to creditors. CORPORATIONS – voidable transactions – claim by liquidators for relief under s 588FF of the Corporations Act in respect of certain payments – whether payments constituted uncommercial transactions under s 588FB of the Corporations Act – whether payments constituted insolvent transactions under s 588FC of the Corporations Act – whether payments constituted unreasonable director-related transactions under s 588FDA of the Corporations Act – whether payments are voidable transactions under s 588FE of the Corporations Act.

PRACTICE AND PROCEDURE – application to re‑open – further expert modelling – no question of principle

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where court dismissed two previous equity and defamation proceedings in which plaintiff sought injunctions and damages for personal injury by reason of publication of alleged defamatory material – where plaintiff sought identical relief in respect of same publication by way of two further proceedings and naming parent company of defendant – UCPR r 13.4 DEFAMATION –remedies – compensatory damages – injury to health – whether damages for personal injury available – standing to sue - bankrupts ESTOPPEL – res judicata – whether plaintiff’s further claim determined by previous judgment – issue estoppel – where previous judgement given on basis that only first defendant was publisher – Anshun estoppel – complaint about breach of privacy – whether cause of action recognised for breach of privacy – if claim available it should have been brought in earlier proceedings COSTS – indemnity costs – circumstances where indemnity costs will be awarded - gross sum basis – circumstances where appropriate – multiple proceedings claiming same relief – unnecessary interlocutory applications – whether plaintiff’s bankruptcy prevented costs order being made CIVIL PROCEDURE – stay of proceedings – inherent power – abuse of process – whether plaintiff should be restrained from commencing further proceedings arising from same or similar facts until defendants’ costs paid

CRIME - sentencing - murder of woman and child -offender sexually assaulted woman and inserted objects into vagina and anus around time of death -photographed sexual assault and body of deceased -attempted to sexually assault woman's 2 year old child then suffocated her - disposed of child's body in suitcase on side of highway - sent text messages to deceased's family to allay suspicion - stole $72,000 from deceased's bank account - guilty plea - no expression of remorse - offender with dysfunctional and abusive childhood - offender with substance abuse disorder - lengthy criminal antecedents including sexual assault of 9-year-old child - not established how offender's childhood beared upon his commission of murders - both murders in top range of objective seriousness - worst case category -culpability so extreme that interests of community protection, retribution, punishment and deterrence can only be met by imposition of life sentences