Cases and authorities

ADMINISTRATIVE LAW – prohibition order sought against Crown Solicitor appearing for NSW Health Care Complaints Commission in the ACT Supreme Court – previous proceedings seeking substantially the same order dismissed as an abuse of process – these proceedings an abuse of process – no constitutional issues arising – summons dismissed with costs

APPEAL – application for leave to appeal – appeal from interlocutory decision – whether extension of time should be granted – whether appeal involves issue of principle, question of public importance or injustice – where court book prepared by respondent on behalf of applicant contained omissions and illegibilities – limited grant of leave made

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth) CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of co-accused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of co-accused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

CRIMINAL LAW – Appeal – Application for leave to appeal against conviction and sentence – Assault occasioning actual bodily harm – Sexual assault – Influencing a witness – Judge alone trial – Where primary judge accepted evidence of complainant – Application for leave refused

CRIMINAL LAW – sentence appeal – five offences of knowingly taking part in cultivation by enhanced indoor means of the large commercial quantity of cannabis plants and one offence of knowingly taking part in cultivation by enhanced indoor means of the commercial quantity of cannabis plants – six commercial premises in Sydney metropolitan area with sophisticated hydroponic cannabis cultivation systems – applicant responsible for negotiation and arrangement of leases of the commercial premises with knowledge they would be used for purpose of cultivating cannabis by enhanced indoor means – additional Form 1 offences concerning cultivation by enhanced indoor means of commercial quantity of cannabis plants which exposed children to the cultivation process at the applicant’s residential premises – aggregate sentence of imprisonment of 13 years and 4 months with a non–parole period of 10 years – whether denial of procedural fairness in sentencing Judge findings of applicant’s role – whether error in assessment of objective criminality – whether sentencing Judge gave sufficient weight to the applicant’s subjective circumstances – whether error in declining to make finding of special circumstances – whether sentence manifestly excessive – held (by majority) no error demonstrated – leave to appeal granted but appeal dismissed

CRIME – sentence appeal – aggravated break, enter and commit assault occasioning actual bodily harm – sentence not excessive – no point of principle

CIVIL PROCEDURE — Protective jurisdiction — Powers of court — Purported appeal from decision of Public Guardian — Whether legislative framework for review of decision should be circumvented — No exceptional circumstances to justify exercise of parens patriae jurisdiction CIVIL PROCEDURE — Protective jurisdiction — Procedure — No general rule that costs orders should not be made

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offences – claim for damages for mental harm from physical and sexual abuse suffered in custodial institutions – leave sought subsequent to commencement of proceedings – whether prima facie case demonstrated – leave granted nunc pro tunc

LAND LAW – restricted premises – application for rescission of declaration that premises are restricted premises – Restricted Premises Act 1948 (NSW) – whether rescission can be ordered by consent – need for applicant to show satisfaction with requirements of the Act – rescission of declaration made

CRIMINAL LAW - murder trial - Accused charged with murder of partner - Crown application to adduce tendency evidence and relationship evidence - defence application to adduce tendency evidence - trial issues include self-defence (and defence of another), extreme provocation and substantial impairment - Crown application to adduce relationship evidence allowed - Crown application to rely upon evidence concerning two incidents for tendency purposes allowed - defence application to rely on evidence for tendency purposes declined

CIVIL PROCEDURE – Jurisdiction – Jurisdiction of the District Court – claim arising out of a commercial transaction – amount claimed within monetary limit of District Court – District Court has no jurisdiction in matters arising out of a commercial transaction or in which there is an issue that has importance in trade or commerce COSTS – Party/party – General rule that costs follow the event – where plaintiff recovered less than amount claimed – whether costs should follow the event – whether letter containing offer was a Calderbank offer – whether indemnity costs should be awarded from date of letter

HIGH RISK OFFENDER – Interim Order Sought and obtained – No issues of principle – Question of whether risk is “unacceptable” – Question whether Court should, in its discretions, make orders – Orders made.

CRIMINAL LAW – Appeal – Magistrate dismissed charges brought against the Defendant for failing to vote at the 2016 federal election on the basis that a devout (but non-religious) objection to voting was permitted by s 245(14) of the Commonwealth Electoral Act 1918 (Cth) – Whether the religious exemption from voting in s 245(14) extends the meaning of “valid and sufficient” reason in s 245(15B) to include a devout (but non-religious) objection to voting – Statutory construction of s 245(14)

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – General principles – Where the parties agree to pay costs on a different basis

COSTS – security for costs – relevant factors – impecuniosity – where plaintiff company has ceased trading – plaintiff company registered to manage portfolio of loans for calendar year 2015 only – whether plaintiff company would be unable to pay defendant’s costs if ordered – other factors – whether delay in applying for security – orders for security for costs in amount of $80,000 COSTS – security for costs – quantum and form – quantum – where payment by plaintiff to credit of defendant’s loan account with bank – alleged mistake of plaintiff as to whether payment authorised as part of a loan advance – security for costs offset by liability in restitution

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – application for statement of claim to be struck out as against second defendant – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – second defendant a bank to which first defendant was indebted – statement of claim dismissed as against second defendant RESTITUTION – nature of restitutionary liability – unjust enrichment – enrichment – payment by plaintiff to credit of first defendant’s loan account with bank – alleged mistake of plaintiff as to whether payment authorised as part of a loan advance – whether funds recoverable from bank by way of restitution – whether bank enriched by reduction of loan account of its customer (first defendant)

TRUSTS – scheme established by three interrelated instruments to compensate victims of asbestos-related diseases – instruments comprise the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW) (Winding Up Act), a Trust Deed and a Final Funding Agreement – application by Trustee for judicial advice under s 55 of the Winding Up Act – victim of mesothelioma exposed to asbestos both in Australia and overseas – victim claims damages against a “liable entity” based solely on exposure to asbestos in Australia – whether Trustee is justified under the scheme in paying only the proportion of the damages award attributable to exposure to asbestos in Australia – whether Trustee is obliged to pay the victim’s estate the whole of the damages award – whether the definition of “payable liability” in the instruments is satisfied if the victim’s claim relates solely to exposure to asbestos in Australia. PRACTICE AND PROCEDURE – appeal purportedly lodged as of right from judicial advice sought by the Trustee – appeal lodged by a non-party – leave required – whether appropriate to substitute different advice on an appeal from judicial advice given under s 55 of the Winding Up Act.

PRACTICE AND PROCEDURE – interest – where previously ordered that defendant would purchase plaintiff’s shareholding at a specified price – where payment was not made within 28 days after the date on which judgment took effect – whether order for the purchase of shares for a specified price constitutes an order for the payment of money – whether interest payable on shareholding purchase price.

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – criminal proceedings committed for trial in District Court – summons challenging search warrant on alleged irregularity – challenge brought a year after warrant issued – whether question of irregularity of warrant determinable by District Court – whether review application amounts to fragmentation of criminal court proceedings – whether abuse of process – summons dismissed CRIMINAL LAW – procedure – warrants, arrest, search, seizure and incidental powers – warrants – alleged irregularities in application for search warrant and in warrant as issued – alleged failure to specify power under which warrant sought, items to be seized, and offence charged – whether warrant irregularly issued and invalid – issues not determined

INSURANCE – construction of policy – income protection insurance – whether sum given in settlement of a claim for damages for psychological injury constituted Other Disability Income for purposes of policy – where Other Disability Income was deducted from monthly benefits – whether settlement sum was income or capital – whether settlement sum was a benefit under workers’ compensation legislation

CIVIL PROCEDURE – Date of issue of writ of possession – No point of principle

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CIVIL PROCEDURE — pleadings — amendment — late application for amendment — whether amendment in the interests of justice — whether the party seeking the amendment is at fault — whether any prejudice to the other parties

LAND LAW – Torrens system – claim for compensation from Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleges that loss was suffered as a result of dealings because claimant forced to sell another property – claimant fails to establish that dealings were a cause of need to sell property – no entitlement to compensation under s 129 of Real Property Act 1900 (NSW)

CIVIL PROCEDURE – Interim preservation – Freezing orders – No prima facie case that defendant knowingly assisted in a fraudulent design – Where no risk that assets will be dissipated – Delay in bringing proceedings – Inadequate undertaking as to damages – Application dismissed

INSURANCE — TPD insurance — Plaintiff was member of superannuation fund — Trustee of fund (first Defendant) effected Group policy insurance — Insurance policy with Insurer (second Defendant) — Insurance providing benefits upon total and permanent disablement of member — Plaintiff claims she is totally and permanently disabled after being off work for six months — Trustee declined the Plaintiff's claim — Duty on a trustee of a superannuation fund in determining a claim for a total and permanent disablement benefit — Whether Trustee breached obligations to Insured — Plaintiff not pursuing claim against Trustee by end of the hearing, accepting claim against Trustee to be dismissed INSURANCE — Where contract of insurance — Where Plaintiff claimed that she had suffered total and permanent disablement — Whether totally and permanently disabled benefit payable if Insured proved to the satisfaction of Insurer that she was so incapacitated as to be “unable ever again to work for reward in any business, occupation, or regular duties for which she is reasonably qualified by education, training or experience” — Where insurer denied claim on the basis the claim did not satisfy the definition of TPD — Whether Insurer acted reasonably in considering the claim — Utmost good faith — Whether Insurer breached duty of utmost good faith and fair dealing — Whether Plaintiff totally and permanently disabled within the meaning of the relevant insurance policy — Plaintiff challenges decisions of the Insurer INSURANCE — Standard of review adopted by Court — Whether Insurer could reasonably have reached the conclusions it did on the evidence available to it — Whether opinion open to Insurer acting reasonably and fairly on the material before it — Whether Plaintiff was totally and permanently disabled at the assessment date

ADOPTIONS – Adoption Act 2000, s 67(1)(a) – application to dispense with the consent of the birth father of the child proposed for adoption – whether such an order should be made in the circumstances – whether an order for adoption is the clearly preferable course in the best interests of the child – whether the proposed name change is in the best interests of the child – whether the Adoption Plan is in the best interests of the child

PROCEDURE – civil – application for leave to appeal – order dismissing proceedings – want of due despatch – whether delay adequately explained – changes of legal representation – cross claim to proceed – prejudice to defendant

Criminal law – Appeal against conviction – Circumstantial case – DNA evidence – Appellant’s DNA recovered from vulval swabs and the child’s clothing – Whether presence of the appellant’s DNA could have been the subject of secondary or indirect transfer – Whether the jury’s verdict was unreasonable – Whether the jury ought to have had a reasonable doubt about the appellant’s guilt Evidence – Admissions – Assessment of probative value – Where probative value is outweighed by danger of unfair prejudice – Exclusion of evidence under s 137 of the Evidence Act

CRIMINAL LAW - murder trial - application for witnesses resident in the Republic of Ireland to give evidence by audio-visual link - application granted

CORPORATIONS – winding up – application by creditor to wind up company – where company unable to pay remuneration and disbursements to a creditor who was formerly the administrator of the company CORPORATIONS – winding up – liquidators – appointment, resignation or removal of liquidator – independence of liquidator – suitability of appointment where there is an actual or perceived conflict between the liquidator’s duty to creditors and their personal interests – whether a conflict exists in circumstances where the proposed liquidator disputes fees and costs owing to them from discharging their responsibilities as a former administrator of the company

EVIDENCE – Directions for expert evidence –Whether scope of expert evidence supported by pleadings – Claim for equitable compensation – Plaintiff’s directions made.

CORPORATIONS – public examination – examination conducted by deed administrators and company authorised by ASIC – applications to allow creditors to access documents produced by compulsion at examination and to use those documents for certain purposes – factors relevant to the justification of access – whether Court should allow access to records of the examination – benefit to creditors of direct claims by lenders against former directors and officers – public interest

CIVIL PROCEDURE – claim for damages for psychiatric injury due to alleged sexual assault – application seeking that plaintiff be required to submit to neuropsychological assessment by a psychiatrist – UCPR r 23.4 – where plaintiff has already submitted to psychiatric examination at the request of the second defendant – evidence of pre-existing psychiatric conditions before alleged abuse – risk of re-traumatisation – order made – limitation on examination imposed to minimise risk of re-traumatisation

CORPORATIONS – creditor’s statutory demand – where company represented in proceedings by director – whether a director who represents a company can commence and carry on proceedings to set aside statutory demand – leave of the Court required PRACTICE AND PROCEDURE – general principles and guidelines – exercise of the Court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – transfer of commercial proceedings from District Court to Supreme Court – related proceedings in Supreme Court of Victoria – interests of justice to transfer proceedings to Supreme Court of Victoria

SUCCESSION — Wills, probate and administration — Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of an aged person lacking testamentary capacity under Succession Act 2006 (NSW) — Person’s only Will leaving whole estate to her husband who predeceased her — Defendants would take under operation of the rules of intestacy as nephews of the incapacitated person — Relationship between the incapacitated person and Defendants — Long period of no contact between them — Proposed Will would leave biggest share of the estate to the Plaintiff who is Attorney under enduring Power of Attorney and cousin of person lacking testamentary capacity — Balance to other cousins and to charities in different proportions — Whether a number of possibilities as to the contents of the proposed Will the person lacking testamentary capacity would, or would be likely to, make, exist — Whether possibility is "reasonably likely"

COSTS – where defendant ordered to pay plaintiff’s costs – whether order should be varied to indemnity basis – where Calderbank offer made – where outcome more favourable to unsuccessful defendant than judgment but one which court would not have imposed – where case on which plaintiff succeeded emerged at trial – where plaintiff failed on not insignificant issue – held, justice of case did not warrant indemnity costs order

AUDIT of a self-managed superannuation fund – Superannuation Industry (Supervision) Act 1993 (SIS Act) – auditing standards framework – construction of audit contracts – parties to the audit contracts EVIDENCE – expert witness – weight attached to expert opinion BREACH OF DUTY AND CONTRACT– admitted breach of contract and duty – non-admitted breaches of contract and duty – failure to enquire into and report on compliance with investment strategy – reg 4.09 – failure to bring serious misdescriptions, misstatements and other factors (including conflict of interest of accountant) to the plaintiff’s attention – failure to form and express certain opinions – failure to exercise reasonable care and skill – the defendants breached retainers and common law duties owed to the plaintiff SIS ACT – contravention of the SIS Act – obligations under the Act – whether damages available under the Act MISLEADING AND DECEPTIVE CONDUCT – representations – s 42 of the Fair Trading Act (NSW) – s 52 of the Trade Practices Act – representations within audit reports – representations by silence – representations by auditor constituted misleading and deceptive conduct CAUSATION – causation as a result of admitted breaches, non-admitted breaches and misleading and deceptive conduct – LOSS AND DAMAGES – loss of the chance or opportunity – additional recoveries – exercise of rights under facility agreement – claims against insured parties – exclusion clauses within insurance policies – conflict of interest exclusion clauses – dishonesty and fraud exclusion clauses – insurance policy would have responded to one of plaintiff’s claims – partial recovery of some investments not proved – loss of the chance or opportunity to make recoveries earlier in time – defendant failed to adduce evidence that parties from whom recoveries were made had inferior financial capacity in 2008 than at time recoveries were made – damages – plaintiff entitled to damages for loss of a chance or opportunity to make recoveries beyond recoveries actually made – plaintiff entitled to lost interest on amounts already recovered AFFIRMATIVE DEFENCES – professional standards legislation and professional standards scheme – limitation on damages – federal jurisdiction exercised by the Supreme Court – choice of law in tort – plaintiff’s claim in negligence governed by the law of Victoria – choice of law in contract – contract governed by law of Victoria – choice of law rules for tort apply to contravention of s 52 of the Trade Practices Act – no jurisdiction of a court exercising federal jurisdiction in NSW to award damages under the Fair Trading Act (Vic) AFFIRMATIVE DEFENCES– contributory negligence – plaintiff lacked financial sophistication – auditor was engaged to prevent kind of loss that occurred – plaintiff’s damages reduced for contributory negligence AFFIRMATIVE DEFENCES – proportionate liability – concurrent liability of accounting firm which prepared financial reports – auditor had higher culpability than accounting firm (MBS) – plaintiff’s loss apportioned to MBS – previous auditor not concurrently liable – plaintiff’s damages not reduced by reason of sole director’s concurrent liability to the plaintiff – same acts of sole director resulted in reduction of damages for contributory negligence

CRIMINAL LAW – proceeds of crime – restraining orders

CIVIL PROCEDURE — Service — By agreement — proceedings to void, invalidate or terminate Deed of Company arrangement — service agreement contained in Deed — service on foreign party to Deed — service in accordance with agreement constitutes sufficient service

GUARANTEE AND INDEMNITY – Discharge of guarantor – Creditor releases co-guarantor – Effect of one co-guarantor’s consent to release of another co-guarantor CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Whether contracts for a guarantee and mortgage on ordinary commercial terms were unjust – Relevance of independent legal advice – Whether the contracts conferred a benefit CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law – Whether conduct was in trade and commerce – Whether any loss or damage was suffered CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law – Circumstances in which silence may be misleading or deceptive – Whether impugned conduct caused loss or damage TORTS – Miscellaneous torts – Interference with contractual and other relations – Inducement of breach of contract – Knowledge that conduct would constitute a breach of contract – Intention to persuade or induce breach of contract TORTS – Miscellaneous torts – Conspiring to injure – Conspiring to injure by unlawful means – Intention to injure – Whether unlawful means include torts and breaches of contract CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law ­­­– Involvement in a contravention under s 236 of the Australian Consumer Law – Need for causative conduct and actual knowledge – Whether any loss or damage suffered – Contributory negligence – Limitation of liability under s 87CD of the Competition and Consumer Act 2010 (Cth) CONTRACTS – Unconscionable conduct – s 21 of the Australian Consumer Law – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth)

CIVIL PROCEDURE – personal injury litigation –declaration sought by defendant that it is permitted to interview medical practitioner at its hospital – resisted by plaintiff on basis of doctor-patient confidentiality – where no relationship of confidentiality between the doctor and the plaintiff existed at the relevant time – defendant entitled to prepare for hearing – declaration made COSTS – unreasonable position adopted by legal representatives for the plaintiff – necessary for defendant to bring application – defendant awarded costs of and incidental to the motion

CIVIL PROCEDURE – referral to referee – adoption of referee report – no question of principle

APPEALS – from Local Court – interlocutory orders – where default judgment and garnishee orders entered for plaintiff on basis of false affidavit evidence – garnisheed sum debited by defendant’s bank from defendant’s account pursuant to garnishee orders – where interlocutory Local Court orders setting aside default judgment – where orders for setting aside of garnishee orders, repayment of garnisheed sum and stay of proceedings refused – whether error – appeal allowed RESTITUTION – compulsion – judgments reversed or set aside – where Local Court default judgment set aside – where garnishee orders pursuant to default judgment not set aside – whether error – orders for reinstatement and stay of proceedings pending payment

COSTS - Security for costs - Related company to the plaintiff gave undertaking to be responsible for defendant’s costs to $300,000 – Related company now said to be financially unable to honour undertaking – nomination of that related company said to be an oversight – undertaking of alternative related company proffered – imminent hearing date - whether the alternative related company should now pay $300,000 into Court

BAIL - detention application - show cause - application refused

CIVIL PROCEDURE — Discovery — Classes or categories of documents – Whether a proper forensic purpose has been identified – Discovery limited by nature of proceedings and considerations of reasonableness – Discovery granted SUCCESSION - Family provision and maintenance – Practice – Adequacy of disclosure by executor – Application for further discovery

LIMITATION OF ACTIONS – personal injury – claims against estate of alleged perpetrator for damages for alleged sexual assaults – delay in commencing claims – no limitation period – Limitation Act 1969, s 6A – whether proceedings should be stayed as an abuse of process CIVIL PROCEDURE – application for permanent stay – abuse of process – categories of abuse of process not closed – claim brought in respect of events alleged to have occurred up to 40 years ago – whether it would be manifestly unfair to defendant or would otherwise bring administration of justice into disrepute if claim proceeded – public interest – where a number of avenues of enquiry remain available to the executors to defend the matter – permanent stay refused CIVIL PROCEDURE – admissibility of transcripts of telephone conversation – lawful intercept warrant – where transcript tendered on a confidential basis – unnecessary to determine question of admissibility