Cases and authorities

HIGH RISK OFFENDER – terrorism activity offender – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 (NSW), Pt 2 – offender on remand for breaches of interim supervision order – offender suffering from chronic schizophrenia – statements by offender in custody expressing intolerance of non-Muslims and wish to travel to fight in Syria – criminal record of repeated dishonesty and property offences and non-compliance with authorities – history of violence against law enforcement officers – whether offender engaged in conduct “involving advocating support for any terrorist acts” – whether “unacceptable risk of committing a serious terrorism offence” if released – Terrorism (High Risk Offenders) Act, ss 10(c)(i), 20(d) – summons dismissed and interim supervision order discharged

CRIMINAL LAW – appeal against sentence – Crown conceded errors by sentencing judge – consideration of re-sentence – whether sentencing judge erred when considering the applicant’s moral culpability for each offence – question of mitigatory duress – no lesser finding of moral culpability warranted – no lesser sentence warranted in law – appeal dismissed

DEFAMATION – imputations – objections as to form and capacity

ADMINISTRATIVE LAW – judicial review – NSW Ministers for Health and for Finance – application for review of decisions to abridge notice period for compulsory acquisition of land from 90 to 30 days – Land Acquisition (Just Terms Compensation Act 1991 (NSW), s 13 – proposed acquisition notice with abridged notice period served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – whether triable issue as to jurisdictional error LAND LAW – compulsory acquisition of land – procedure for acquisition – notice to owners – review of administrative decisions to abridge notice period – notice served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – land proposed to be compulsorily acquired by Health Administration Corporation for construction of hospital – where bona fide negotiations with owners continued for at least eight months – where negotiations unsuccessful – where perceived urgency for construction of new hospital facilities for provisions of healthcare to locality – whether triable issues – whether balance of convenience favours interlocutory relief – application refused COSTS – party/party – costs orders in interlocutory proceedings – costs of notice of motion sought on indemnity basis – whether balance of convenience overwhelmingly in favour of refusing application – whether interlocutory injunction application was doomed to fail – whether offers previously made would have given plaintiffs substantially the benefit sought through injunction – indemnity costs ordered

COSTS – application for indemnity costs – whether offer of compromise valid in accordance with UCPR provisions – whether bank guarantees should be returned – no question of principle.

PRACTICE AND PROCEDURE – applications – security for costs order – Corporations Act 2001 (Cth), s 1335(1) – whether reason to believe company will be unable to pay costs – company in liquidation – relevance of indemnity agreement to the threshold jurisdictional question of whether “the corporation will be unable to pay the costs of the defendant” – evidentiary onus on party resisting security for costs order to show indemnity agreement is sufficient to meet adverse cost order PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – whether defendant caused the plaintiff’s impecuniosity – cause of impecuniosity where claim is based on loss of profits PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – delay – effect of delay in bringing a security for costs application where the proceedings are funded under a litigation funding agreement EVIDENCE – opinion evidence – expert opinion evidence – solicitor’s estimate of future costs to be incurred in proceedings – admissibility PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – estimating costs where there is uncertainty in the conduct of proceedings – discretion of the Court to order security be furnished in tranches – discretion of Court to make an order granting leave to apply to adjust quantum of security to reflect the actual level of expenditure on costs

ADMINISTRATIVE LAW – judicial review – workers compensation – error of law on the face of the record – decision of Medical Appeal Panel – beneficial construction of reasons of administrative decision maker – maximum medical improvement – whether plaintiff’s injury unlikely to improve – long term injury to cervical spine – where surgery proposed by neurologist – whether Appeal Panel failed to take into account – where medical specialist asked to reconsider WPI in light of proposed surgery – pithy response – where different conclusions open on the evidence – need to explain conclusion reached

LAND LAW – possessory title – registered proprietor of land died intestate in 1947 – no grant of administration – defendant takes possession of property in 1998 – defendant has since acted as landlord of the land – in 2017 defendant makes application to Registrar-General to become registered proprietor – descendants of registered proprietor seek declaration that defendant is not entitled to obtain possessory title to land – title of registered proprietor would be extinguished by the Limitation Act 1969 (NSW) if it applied to the land – defendant entitled to obtain possessory title

ADMINISTRATIVE LAW – judicial review of assessment of permanent psychiatric impairment by Motor Accidents Medical Assessment Service Review Panel – purported error of law and denial of procedural fairness in application of principles of causation – where impairment caused by accident was exacerbated by a subsequent non-indemnified event – Motor Accident Permanent Impairment Guidelines cl 1.36 - whether the subsequent event was an ‘unrelated injury’ – whether the assessed impairment from the unrelated injury should be deducted from the whole person impairment assessed – whether Panel required to call for submissions on matter disclosed by injured person

CIVIL PROCEDURE – client legal privilege – waiver

CORPORATIONS – winding up – application under s 1322 of the Corporations Act 2001 (Cth) to validate appointment of liquidator – where former shareholder may not have had capacity to transfer shares in company to purported current shareholder – where voluntary winding up of the company by special resolution of its members may have been invalid – where it is just and equitable that an order validating liquidator’s appointment be made – whether the power under s 1322(4)(a) of the Corporations Act should be exercised.

APPEAL – leave to appeal against interlocutory decision refusing to adjourn proceedings – no issue of principle

TORTS – negligence – where appellant fell while descending a ladder – where appellant suffered serious injury – where ladder manufactured and supplied by the respondent – whether ladder had safety defect when supplied by the respondent – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138 – whether safety defect to blame for appellant’s injury – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138(1)(c) – whether appellant contributorily negligent – Competition and Consumer Act 2010 (Cth), s 137A – whether primary judge erred in assessment of appellant’s credit – whether primary judge erred in assessment of damages

CRIMINAL LAW – appeal against conviction – unreasonable verdict – appellant charged with seven counts of sexual offences – jury returned verdicts of guilty on two counts and not guilty on remaining five – whether jury’s verdicts were inconsistent – whether rational explanation for acquittals – whether complainant’s evidence incapable of sustaining convictions – appeal dismissed

COSTS – where defendants offered undertakings which substantially resolved the dispute – whether plaintiffs should have their costs to date – reluctance to order costs where proceedings discontinued at interlocutory stage – nothing in the present case to suggest otherwise – no order as to costs.

COSTS – Party/Party – costs orders in interlocutory proceedings – subpoena served on third party – costs of motion to set aside subpoena and alternatively be excused from compliance with subpoena - costs of compliance with subpoena

REAL PROPERTY – application to remove caveat – where caveat bad in law – where caveat lodged at the eleventh hour – where caveator is incarcerated – whether order should be made dispensing with service – whether caveat should be withdrawn – where no prejudice because net proceeds of sale to be held in trust pending further order – no question of principle.

COSTS – application for indemnity costs – Calderbank letter – whether letter offered a genuine element of compromise – whether unreasonable to reject offer – whether indemnity costs should be payable from date of letter or date of rejection – no question of principle.

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence –application for a further extended supervision order – whether the defendant is a supervised offender –whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – directions

REAL PROPERTY – co-ownership as joint tenants – one party contributed nothing to purchase of property – property sold by mortgagee and monies paid into court – appropriate relief to recognise equity of applicant – declaration that proceeds held on trust for the sole benefit of the applicant – order for payment out of court made

CORPORATIONS – winding up – winding up in insolvency – winding up on the basis of non-compliance with statutory demand – opposition to winding up – Corporations Act 2001 (Cth), s 459S – “material to proving that the company is solvent” – broad and narrow interpretations of s 459S CORPORATIONS – winding up – winding up in insolvency – winding up on the basis of non-compliance with statutory demand – opposition to winding up – Corporations Act 2001 (Cth), s 459S – exercise of discretion – exercise of discretion where application to set aside statutory demand not served within time due to a mistake or lack of understanding of legal procedures relating to companies – exercise of discretion where applicant’s mistake caused no prejudice to party seeking to wind up company

CIVIL PROCEDURE — Stay of proceedings — Application by defendant for a stay of execution or enforcement of order 1 until the determination of an appeal the defendant has commenced against the orders made in the primary judgment — Defendant’s application for a stay of enforcement is rejected with leave granted to offer to provide security to the plaintiff — Leave granted to the defendant to renew its application for a stay of execution limited to the provision of a reasonable level of security to the plaintiff to protect the plaintiff against the consequences of the stay being granted COSTS — Party/Party — Bases of quantification — Indemnity basis — Ordinary basis — Offers of compromise/Calderbank offers — Defendant to pay costs on the indemnity basis after the date of service of the valid offer of compromise by the plaintiff — Defendant to pay costs on the ordinary basis up to and including the date of service of the valid offer of compromise by the plaintiff

SUCCESSION - wills, probate and administration - making of orders to implement earlier judgment – no point of principle SUCCESSION - wills, probate and administration - invitation to parties to make submissions as to whether any special costs order should be made because the deceased’s conduct had created the need for the proceedings, or it was reasonable for the defendants to contest the plaintiff’s probate claim SUCCESSION - family provision and maintenance - consideration of issues requiring determination before final orders can be made – significance of costs orders for the terms of available family provision orders – case management orders to be made COSTS - Reasonableness of costs incurred - division of costs incurred between probate and family provision claims - Parties to be ordered to provide further information to the Court concerning the legal costs that they have incurred

ADMINISTRATIVE LAW – judicial review – application for judicial review of decisions of Council of Law Society of New South Wales determining complaints against a solicitor pursuant to s 537(2) of the Legal Profession Act 2004 (NSW) – where Council resolved it was satisfied there was a reasonable likelihood of Civil and Administrative Tribunal concluding solicitor guilty of professional misconduct – whether requirement to consider s 540 as condition precedent to operation of s 537(2) of the Legal Profession Act 2004 (NSW) ADMINISTRATIVE LAW – judicial review – application for judicial review of decisions of Council of Law Society of New South Wales determining complaints against a solicitor – construction of ss 537(2) and 540 of the Legal Profession Act 2004 (NSW) – whether conclusion by Council it was satisfied there was a reasonable likelihood of Civil and Administrative Tribunal concluding solicitor was guilty of professional misconduct precluded it also being satisfied of finding of reasonable likelihood of Tribunal concluding solicitor was guilty of unsatisfactory professional conduct STATUTORY INTERPRETATION – where Council resolved it was satisfied there was a reasonable likelihood of Tribunal concluding solicitor was guilty of professional misconduct – whether s 537(2) of the Legal Profession Act (NSW) requires Council also to consider whether there is a reasonable likelihood of a finding of unsatisfactory professional conduct WORDS AND PHRASES – “unless” – “reasonable likelihood” – Legal Profession Act 2004 (NSW), s 537, s 540

CIVIL PROCEDURE – application for leave to appeal – reopening application – actual bias alleged – reliance on conduct of leave hearing and reasons for judgment – reliance on dismissal of prior applications in other matters

JUDICIAL REVIEW – decision of Land and Environment Court Commissioner – decision to grant consent to development application for residential flat building that contravened height development standard – decision in accordance with parties’ agreement reached at conciliation conference – whether Commissioner lacked jurisdiction to make decision – development partly on neighbouring owner’s land – whether neighbouring owner’s consent was required to development application – whether Commissioner formed the requisite opinions of satisfaction to justify contravention of development standard – whether decision to grant development consent was legally unreasonable – whether conciliation conference was validly constituted CIVIL PROCEDURE – power to amend orders – “slip rule” – Commissioner’s decision to amend orders under slip rule – amendments to conditions of consent and approved plans – whether order valid – Uniform Civil Procedure Rules 2005, r 36.17

CONTRACTS – Interpretation – Design and construction contract – Where clause provided contractor entitled to reimbursement of loss or expense at specified daily rate if progress of works was delayed or disrupted by “a Variation” – Whether primary judge should have held clause not applicable because there was no actual delay to works where an extension of time had been approved or because there was already agreement as to the cost consequences of the variation – Held there was no error in primary judge’s interpretation – Appeal dismissed CIVIL PROCEDURE – Originating process – Application for leave to amend defence – Leave refused – No question of principle CIVIL PROCEDURE – Court of Appeal – Application for leave to cross-appeal – Leave refused – No question of principle

APPEAL – application to set aside previous Court of Criminal Appeal judgment – application refused – no issue of principle

SENTENCING – Crown appeal against inadequacy of sentence – offender with strong subjective case committed two armed robbery offences while on parole for previous robbery offences – sentencing judge imposed concurrent sentences backdated to the date of revocation of parole – whether sentence imposed manifestly inadequate

CRIME – murder – conviction appeal – whether verdict unreasonable – whether direct evidence establishing cause of death necessary to prove that alleged cause of death in fact caused death of deceased – deceased allegedly injected by accused with dose of insulin – not fatal to prosecution that there was no direct evidence that death occurred as result of administration of insulin – well open to trial judge to infer that applicant caused death of deceased – whether trial judge erred by not directing himself regarding applicant’s loss of forensic opportunity – issue for trial judge was whether elements of Crown's circumstantial case were capable of proving offence beyond reasonable doubt – no occasion for judge to give himself a warning

SUCCESSION — FAMILY PROVISION — Settlement of Proceedings — Agreement in principle reached between Plaintiffs and Defendant at private mediation — Application made by four beneficiaries under the Will of the deceased who oppose settlement upon basis that they are to bear substantial portion of the burden of the Plaintiffs’ additional provision — Applicants are step-grandchildren of the deceased — Plaintiffs under legal incapacity — Whether applicant beneficiaries should be permitted to be heard on application to approve compromise — Whether Court should make orders approving proposed settlement

CIVIL PROCEDURE – expert reports – late filing and service of expert report – where no exceptional circumstances – leave not granted

CRIMINAL LAW – murder – trial by judge alone – defence of mental illness – relevance of evidence of planning – special verdict

JURISDICTION OF COURTS – Local Court refused to hear plaintiff’s application for an order to quash an habitual traffic offender declaration – jurisdictional error established – Local Court has such jurisdiction – plaintiff entitled to apply to have declaration quashed – matter remitted to Local Court to be determined according to law – relief granted pursuant to s 69 of the Supreme Court Act 1970 (NSW)

CRIMINAL LAW – application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – application to vary orders already made – where no change of circumstances since original orders – where defendant omitted to seek exception to restrictions to enable him to pursue lawful employment – further application made by police where satisfied that variation was legitimate

HIGH RISK OFFENDER – serious sex offender – application for emergency detention order – whether because of altered circumstances, the offender poses an unacceptable and imminent risk of committing a serious offence if the emergency detention order is not made – where offender currently subject to an extended supervision order – where offender ejected from the Integration Support Centre – where no similar suitable accommodation available – where offender residing at motel – where offender has not committed a serious offence for 17.5 years – where no unacceptable or imminent risk of committing a serious offence – application dismissed

COSTS – costs should follow the event – ordinary basis as agreed or assessed POSSESSION – defence struck out – default judgment be entered for the plaintiff on its claim for possession of the land – leave to issue a Writ for Possession of Land – final orders

CIVIL PROCEDURE – statement of claim dismissed – costs of the notice of motion – directions

CIVIL PROCEDURE – amended statement of claim dismissed – costs of the notice of motion – directions

POSSESSION OF LAND – rental arrears – mesne profits – interest payable – money judgment in favour of the plaintiff COSTS – Calderbank offer – application for indemnity costs against a self-represented litigant – no evidence of whether self-represented litigant’s non-acceptance of offer was unreasonable – costs awarded on an ordinary basis.

EQUITY – adoption – whether adoption proposed will promote the best interests of the children – whether dispensing with birth parent consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action – whether court should order the surname change

CORPORATIONS – application for rectification of register maintained by ASIC – Corporations Act 2001 (Cth), s 1322(4)(b) – application to remove reference to company being wound up from ASIC database – whether records of particulars for each company forms part of a “register kept by ASIC” – whether documents lodged with ASIC form part of a “register kept by ASIC” CORPORATIONS – application for rectification of register maintained by ASIC – Corporations Act 2001 (Cth), s 1322(4)(b) – application to remove reference to company being wound up from ASIC database – discretion of the Court to rectify ASIC register – application brought in circumstances where company did not apply to set aside statutory demand and subsequent winding up proceedings were settled – discretion not exercised

COSTS – Security for costs – Defamation proceedings – Whether special circumstances exist – Where appellants are impecunious – Whether appeal grounds are reasonably arguable – Whether arguable that the primary judge’s statement to witness at the conclusion of the witness’ evidence in the presence of the jury created procedural unfairness – Where question of public interest arises in relation to the defence of honest opinion under s 31 of the Defamation Act 2005 (NSW) – Application dismissed

INSURANCE – Construction of policy – Whether deductible or limit should be indexed in accordance with Primary Limit Stability Clause – where deductible if indexed would exceed amount claimed under policy – Consideration of extrinsic circumstances – Appeal dismissed

APPEALS – appeal on a question of law – Local Court Act 2007, ss 39, 41 – whether findings of fact can be made on appeal – Supreme Court Act 1970, s 75A APPEALS – application for leave to appeal - amount in dispute under statutory threshold – no appeal as of right - Supreme Court Act 1970, s 101 – application refused – no issue of principle, question of general importance or a reasonably clear injustice COSTS – appeals – legal costs disproportionate to potential outcome – Civil Procedure Act 2005, s 60

CONTRACT – Agistment for cattle – Where rate of agistment was agreed in 1986 – Where new rate was proposed in 2010 by email – Where response to proposal did not clearly accept new rate – Where cattle remained on property – Whether subsequent email correspondence admitted a quantum of debt owing at the new rate – Whether subsequent email correspondence revived debts that were otherwise statute-barred – ESTOPPEL – Whether email gave rise to promissory estoppel – Whether any clear and unequivocal representation arose – Where primary judge held that there was no reliance or detriment – Appeal dismissed

LIMITATION OF ACTION – claim against school for damages arising from sexual abuse by teacher on student – student/plaintiff abused otherwise than on school grounds – abuse occurred over 40 years ago – no limitation period for such claim – school claimed prejudice because of inability to locate files and death of certain witnesses PRACTICE AND PROCEDURE – application to strike out or to stay proceedings permanently – abuse of process – inability to conduct fair trial – irreversible prejudice claimed – motion dismissed

LAND LAW — Conveyancing — Options — Call options — Construction — Notice of exercise of option able to be given to grantor’s conveyancer — Whether option validly exercised by notice given to conveyancer no longer retained by grantor at time of purported exercise EQUITY — Equitable remedies — Specific performance — Set off — Court’s power to order legal costs owing by vendor to be set off against purchase price

EQUITY – application for interlocutory injunctive relief – plaintiff alleges that defendant is obstructing access to the premises which it has leased – where defendant has a number of answers to that allegation – whether there is a serious question to be tried – consideration of balance of convenience – application granted – no issue of principle.

APPEAL – appeal from Local Court – whether question of law or mixed fact and law – whether leave required – whether amendment to summons ought be permitted to seek extension of time and leave – interests of justice require matters to be determined together at the final hearing of the matter