Cases and authorities

CIVIL LAW – claim for possession of houseboat by the plaintiff – Registrar refusal of postponement of notice of motion filing fee due to minimal prospects of success – exercise of judicial discretion to permit proceedings to continue expeditiously and effectively – refusal of postponement varied

CRIME – SENTENCE – robbery whilst armed with a dangerous weapon – home invasion whilst co-offender armed with a shortened rifle – offender believed rifle to be unloaded – rifle discharged and occupant of the home killed – co-offender sentenced for murder – question of the liability of offender for the wounding of the deceased – parity with co-offender – offender serving sentences for other armed robberies - significant issue of totality

GUARDIANSHIP - protected person - financial management - change of manager - order for discharge of private manager - Order for appointment of NSW Trustee and Guardian as manager. MENTAL HEALTH - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian. PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian.

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion

REAL PROPERTY – consequential orders permitting recession by the vendor of off the plan contracts under s 66ZL of the Conveyancing Act 1999 (NSW) subject to an undertaking including an offer of a new contract at an adjusted purchase price COSTS – Party/Party – where proceedings heard together – where party successful in one proceeding – whether party should pay a fix proportion of the costs across both proceedings COSTS – Party/Party — where proceedings involve multiple parties — parties with same interests - whether party entitled to costs where separately represented – where other parties were jointly represented – where there are multiple parties with similar or identical issues- where there was no conflict between the parties – whether separate issue should be provided for in assessing costs

COSTS – proceedings for specific performance of contract of sale against company in liquidation - where costs orders sought against company and liquidators personally – where liquidators entered into a settlement deed with creditors – where terms of the deed allowed one creditor to stand in the shoes of the company and defend the claim for specific performance – where liquidators had filled a submitting appearance in relation to the creditors claim – where liquidators did not file a submitting appearance in relation to the claim for specific performance – where liquidators did not seek judicial advice - whether conduct of the liquidators un reasonable COSTS— Exceptions to general rule that costs follow the event — Offers of compromise / Calderbank offers - whether failure to accept offer of compromise unreasonable

INSURANCE – general – total and permanent disablement – plaintiff was an undercover policeman with the NSW Police Force – as a result of an incident in 1997 in the course of undercover work the plaintiff claims to suffer post-traumatic stress disorder – first defendant is a trustee of the Police Superannuation Fund – first defendant takes out a policy of insurance for the benefit of members of the fund with the second defendant insurer – plaintiff claims he is totally and permanently disabled after being off work for six months from September 2010 to March 2011 and that he is entitled to a benefit under the policy – the second defendant declines the plaintiff’s claim on various grounds in December 2014 (“the first decision”) – more material supplied to second defendant, which is requested to re-consider the first decision – second defendant makes another decision to the same effect in June 2017 (“the second decision”) – identification of the duties applicable to the second defendant in making the decisions to decline the plaintiff’s claim – separate question for determination – whether the second defendant insurer acted with the utmost good faith in dealing with the plaintiff’s claim and reasonably in forming an opinion as to whether the plaintiff qualified as totally and permanently disabled under the policy – separate question ordered to be determined as to whether the defendants’ respective decisions involved a breach of duty and therefore whether they can be set aside – if the decisions are set aside, what should now be directed in relation to the determination of whether the plaintiff is totally and permanently disabled under the policy at the second stage.

COSTS – whether offer of compromise warranted special order as to costs – whether gross sum costs order appropriate

COSTS – partial success on appeal – Calderbank letters sent shortly before appeal heard – settlement offer amounted to, or came close to, capitulation – whether security for costs should be retained pending possible application for special leave JUDGMENTS AND ORDERS – scope of liberty to make further submissions – whether liberty extended to varying substantive orders made on appeal – whether unsuccessful respondents entitled to reduction in judgment or alternatively inquiry as to damages – whether successful appellants entitled to pre-judgment interest.

DEFAMATION – defences – defence of honest opinion – publication of articles concerning evidence given by a rabbi to the Royal Commission into Institutional Responses to Child Sexual Abuse – articles attributing rabbi with reprehensible ignorance of the fact that to touch a child for sexual gratification on the genitals was a crime – whether conveyed as opinion or fact – whether any opinion was based on proper material – defence of justification – consideration of effect of rabbi’s evidence to the Royal Commission – defence of contextual truth – where defence required to be determined only in case of appeal – whether necessary to determine the truth of serious contextual imputations – appropriateness of determining defence on alternative assumptions – defence of fair report – consideration of principle that report does not have to be a complete account of the proceedings of public concern – whether report must nonetheless be a complete account of the evidence on the topic reported – defence of statutory qualified privilege – publication of articles concerning hearings before the Royal Commission – consideration of requirement that the conduct of the defendants in publishing the information was reasonable in the circumstances JUDGMENTS – where defendants pleaded multiple defences – success on two defences obviating the need to determine remaining defences – consideration of requirement that the judge should ordinarily determine all factual questions in the proceedings

COURTS – jurisdiction – parens patriae – power of court to consent to medical treatment of child – best interest of child – application in advance of the birth of unborn baby – unborn baby diagnosed in utero with serious cardiovascular condition – proposed treatment involves use of donor blood or donor blood products – parents subscribe to tenets of Jehovah’s Witnesses religion

REAL PROPERTY – possession of land – application to stay execution of writ for possession – stay refused

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Multiple proceedings commenced in relation to the same dispute – Plaintiff restrained from commencing any other proceedings without leave –Case management to enable the real issues in dispute between the parties to be determined by appropriately constituted proceedings

CRIMINAL LAW – appeal – appeal against conviction – appeal adjourned – leave to appear sought by solicitor with restricted practising certificate – s 49 of the Legal Profession Uniform Law (NSW) – leave refused

INTERLOCUTORY APPEAL – s 5F Criminal Appeal Act – accused found not to have standing to make submissions about objection to giving evidence at trial under s18 Evidence Act made by accused’s father – whether denial of procedural fairness EVIDENCE — witness evidence — compellability —parents – whether witness should be excused from giving evidence – s 18 Evidence Act – whether the trial judge denied the accused procedural fairness by finding she had no standing – whether the trial judge had failed to take into account a material consideration – whether the trial judge’s finding about co-accused was plainly unreasonable

EVIDENCE – Public interest immunity claims – Issues of disclosure – Exclusion of evidence of matters of state – Accused charged with committing acts in preparation for a terrorist act or acts – Where disclosure would be of little forensic value to the accused – Where balancing exercise tended against disclosure – Claims for public interest immunity upheld.

CRIMINAL LAW – bail – applicant charged with drug and firearms offences – police surveillance – police facts – police views – applicant observed driving vehicle displaying fake number plates – medical requirements of close relatives – strong prosecution case

POSSESSION OF LAND – trespass – trespass to land – declaration sought that plaintiff has no right to enter, occupy, or remain on land – orders made – costs

PROCEEDS OF CRIME – ex parte application – restraining orders – orders made

CIVIL LAW – ex parte application – examination orders – application under s 35A Crime Commission Act 2012 (NSW) – orders made on conditions – pseudonym and other orders made under 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW)

COSTS – application for costs on the indemnity basis – where two Calderbank letters were sent – whether letters involved a real and genuine compromise – where plaintiff replied “NUTS!” to first offer – whether affirmative or negative response – whether appropriate to use historical analogy – in any event first letter did not offer a real element of compromise – where second letter offered a substantial proportion of the success plaintiff was seeking – unreasonable for plaintiff to reject second offer – indemnity costs ordered from date of rejection.

SUCCESSION – Probate – Testamentary instruments – Whether either of two informal documents prepared by a solicitor acting for the deceased, one initialled and one signed (the one signed being witnessed), constituted a valid and intentional testamentary disposition; Issue of whether the deceased was coerced or pressured by the Defendant into signing or initialling the documents; Issue as to the date the signed document was signed (being either 24 October 2014 or 17 January 2015); HELD: Both documents were signed or initialled by the deceased on 24 October 2014; testamentary intention established, and coercion or lack of volition not established. SUCCESSION – Probate – Testamentary instruments – Informal document purporting to operate as a codicil – Whether purported codicil initialled on 14 January 2015 was effective to revoke any testamentary disposition by the deceased on 24 October 2014; HELD: Document not a codicil pursuant to s 15 of the Wills Act 2012 (Norfolk Island), and not effective to revoke the testamentary disposition of the deceased on 24 October 2014. COSTS – Probate litigation – Departure from rule that costs follow the event – Where Plaintiff sought costs out of the estate and Defendant seeks order that Plaintiff pay his costs and on an indemnity basis – Shorter v Hodges (1988) 14 NSWLR 698 applied – Where circumstances led reasonably to an investigation in regard to the document propounded by the successful party – Where investigation caused by neither the testator nor a party to the proceedings; HELD: Exception to the usual rule applies; Each party to pay his or her own costs of the proceedings.

PROCEDURE – subpoena - notice of motion – setting aside subpoenas – documents sought not in the person’s custody, care or control – subpoena seeking information not documents – orders made – costs

COSTS – some departure from the usual costs order – general rule that costs follow the event – proceeds of crime – where adjournments necessitate by ill health – orders made

LAND LAW – possession of land – defendant failed to appear on prior occasion – matter relisted – no defence to claim articulated – previous orders affirmed

COSTS – appropriate principles and considerations – exceptions to general rule that costs follow the event – whether estate should bear costs of the defendant – whether executor and trustee should have costs borne from the estate – where defendant played adversarial role in litigation

PRACTICE AND PROCEDURE- Preliminary discovery- whether plaintiff has confined orders sought for disclosure, discovery and production to a defined time period - whether plaintiff has defined the specific category of documents required - respondents not required to provide preliminary discovery

CORPORATIONS – Directors and officers – Directors’ duties – Duty of care and diligence – Business judgment rule – Relief from liability under ss 1317S, 1318, 1322(4) of the Corporations Act 2001 (Cth) CORPORATIONS – Directors and officers – Directors’ duties – Duty to act in good faith in the best interests of company and for proper purpose – Relief from liability under ss 1317S, 1318, 1322(4) of the Corporations Act 2001 (Cth) CORPORATIONS – Directors and officers – Directors’ duties – Duty not to use position as director or officer improperly – Relief from liability under ss 1317S, 1318, 1322(4) of the Corporations Act 2001 (Cth) EQUITY – Fiduciary duties – Unauthorised profit – Informed consent EQUITY – Defences – Unclean hands – Nexus between claim and claimant’s disentitling conduct EQUITY – General principles and maxims – Those who seek equity must do equity – Nexus between claim and claimant’s purported failure to do equity CORPORATIONS – Members’ rights and remedies – Oppression – Whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member EQUITY – Defences – Statutes of limitation – Application by analogy – Application by analogy of exception for fraud and deceit pursuant to s 55 of the Limitation Act 1969 (NSW) EQUITY – Defences – Laches and acquiescence – Where a substantial part of the plaintiffs’ delay is justified or attributable to the defendant’s conduct – Whether the disadvantage or prejudice was caused by the plaintiffs’ delay EQUITY – Trusts and trustees – Breaches of trust – Misappropriation of trust property – Whether money held on trust for family members EQUITY – Fiduciary duties – Unauthorised profit – Remedial trust construed in favour of beneficiaries of fiduciary duties CORPORATIONS – Winding up – Grounds for winding up – Whether it would be just and equitable to wind up company under s 461(1)(k) of the Corporations Act 2001 (Cth)

CIVIL PROCEDURE — subpoenas — application to set aside – whether subpoena requiring public sector agency to disclose personal information should be set aside – Privacy and Personal Information Protection Act 1998 (NSW), ss 18, 23(6) HUMAN RIGHTS – legislation – Privacy and Personal Information Protection Act 1998 (NSW) – meaning of “personal information” – whether recorded conversations “information… about an individual” HUMAN RIGHTS – legislation – Privacy and Personal Information Protection Act 1998 (NSW) – whether subpoena should be set aside on basis that it required disclosure of personal information by public sector agency WORDS AND PHRASES – “information or an opinion… about an individual” – Privacy and Personal Information Protection Act 1998 (NSW), s 4

CRIME – where respondent convicted of historic sexual offences – where Court of Criminal Appeal set aside orders of District Court under Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to identity of respondent – application under Criminal Appeal Rules (NSW), r 50C to set aside orders on appeal – whether Court misapprehended facts – whether respondent denied opportunity to address particular issue – whether Court overlooked evidence and submissions regarding respondent’s psychological safety – no ground for re-opening appeal made out CRIME – application for stay of orders pending determination of application for special leave to appeal – assessment no realistic prospects special leave be granted – fact of application for special leave alone not warrant stay, notwithstanding refusal will result in application being of no utility CRIME – application for stay of orders pending fresh application to the District Court under the Court Suppression and Non-publication Orders Act – stay not reasonably required for, or incidental and necessary to, exercise of appellate powers under that Act or to preserve efficacy of the Court’s judgments – no power to grant stay CRIME – application for indemnity certificate under the Suitors Fund Act 1951 (NSW) – whether appeal under Court Suppression and Non-publication Orders Act, s 14 one to which Suitors Fund Act, s 6 can apply – power to issue certificate enlivened but not exercised

CRIMINAL LAW – sentence appeal – Crown appeal – wound with intent – failure to aggravate sentence because of use of weapon – use of weapon considered by sentencing judge in assessing objective seriousness – use of weapon is aggravating factor, but no error because taken into account – impermissible to double count – manifest inadequacy – seemingly insufficient or no regard to maximum sentence and standard non-parole period – outside range for this offence and this offender – residual discretion – significant rehabilitation – Crown did not persuade the Court to intervene – residual discretion exercised APPEAL – Crown appeal against sentence – purpose of Crown appeal – residual discretion not to intervene exercised

CRIMINAL LAW – Sentence – Appeal – principle of totality – regard for sentence imposed in another State – appeal granted

COSTS – application for costs order entered be varied – application for gross sum costs order – where defendant rejected the plaintiff’s offer of payment and sought assessment of costs – where plaintiff previously sought assessment of costs and opposed any lump sum quantification - whether plaintiff’s position should be characterised as a capitulation

CRIMINAL LAW – procedure – restraining orders sought – ex-parte – orders made

ADMINISTRATIVE LAW – judicial review – Civil and Administrative Tribunal (NSW) – appeal against costs order – where defendant nurse found guilty of unsatisfactory professional conduct and professional misconduct and deregistered – where some particulars of alleged conduct not made out – where plaintiff made application for costs – where parties ordered to bear their own costs – whether sufficient reasons given – whether Tribunal applied incorrect principles – whether procedural fairness denied – whether decision unreasonable or affected by latent error – leave to appeal granted and appeal upheld COSTS – party/party – exceptions to general rule that costs follow the event – administrative tribunals – Civil and Administrative Tribunal (NSW) – where parties ordered to bear their own costs – where plaintiff successful in proceedings for unsatisfactory professional conduct and professional misconduct – where some particulars not established – certain submissions as to costs not made before Tribunal – whether deviation from general rule unreasonable – defendant ordered to pay half of plaintiff’s costs

SENTENCING — Relevant factors on sentence —Availability of disposal without imposition of any other penalty where significant period spent on remand SENTENCING – Relevance of jurisdictional maximum penalty in Local Court where index offence only dealt with on indictment because of associated strictly indictable offence of manslaughter

COSTS – proceedings transferred to Commercial List – ninth and tenth defendants raised objections to draft list statement – recoverability of the costs of those objections and appearance in court – no question of principle.

CONSUMER LAW – misleading or deceptive conduct – whether lessor induced to enter into lease by representations as to lessee’s financial capacity – representations held to be as to future intentions not representations as to financial capacity – whether lessor induced to enter into deed of surrender of lease by misrepresentations as to expenditure by lessee and as to existence of potential assignees of lease – some representations found to be misleading or deceptive – misleading or deceptive conduct held not to be a cause of entry into deed

ADMINISTRATIVE LAW – judicial review – State Insurance Regulatory Authority – appeal against decision of proper officer of Authority refusing referral of medical assessment to review panel – where primary medical assessment certificate issued for nil whole person impairment following motor accident – where assessor did not apply methodology in MAA Permanent Impairment Guidelines – whether reasonable cause to suspect that medical assessment “incorrect in a material respect” – Motor Accidents Compensation Act 1999 (NSW), s 63 – whether decision of proper officer unreasonable – whether lack of “evident and intelligible justification” – summons dismissed

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining orders – interaction of ss 29, 31 and 330(4)(a) – property purchased with alleged “gift” from aunt in China – unnecessary to resolve – loan moneys obtained by dishonest deception – real property is both proceeds of crime and instrument of serious crime – motion dismissed

COURTS – orders – reconciliation of differences between forms of orders entered on JusticeLink and pronounced in court and recorded in document placed on file signed by judge JUDICIAL REVIEW – jurisdictional error by District Court – appeal against sentence imposed by Local Court – whether District Court decision quashing conviction, re-convicting and imposing new sentence vitiated by jurisdictional error TRAFFIC LAW – statutory disqualification upon conviction for driving while disqualified – where statutory regime altered after conviction and before hearing of appeal against sentence in District Court – whether District Court could apply new regime when no appeal was brought against conviction – consideration of provisions relating to automatic stay of execution pending appeal and counting time for the purposes of periods of disqualification – Road Transport Act 2013 ss 54 and 207 – Crimes (Appeal and Review) Act 2001, s 63

EVIDENCE – criminal law – character evidence – where accused raises character in a particular respect – s 110 Evidence Act - evidence adduced that accused has no criminal record – whether Crown can cross-examine on uncharged acts

CRIMINAL LAW – interim hearing – whether an interim supervision order should be made – whether matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order

SPECIFIC PERFORMANCE – consequential orders – what further orders by way of specific performance are required to give effect to the Court’s judgment of 31 May 2018 – whether the making of further orders should be stayed pending appeal, and if so for what period.

COSTS – whether costs should follow the event – Uniform Civil Procedure Rules, rr 20.26 and 42.14 – whether two offers of compromise found a basis for awarding indemnity costs in the plaintiff’s favour – whether the plaintiff should be deprived of the whole or part of his costs by reason of his conduct of the litigation – what costs order should be made in the circumstances.

SUCCESSION — FAMILY PROVISION — Application by two children of deceased, one of whom is a minor – Deceased died intestate – Estate small – The whole estate passes to his widow – Short marriage – Separation for several years before death when widow moves overseas – Appointment of solicitor as administrator ad litem – Widow unable to be located – Orders made for service of documents by electronic means – No response to numerous emails and Facebook messages and otherwise non-responsive to communications – Agreement in principle reached between parties after judicial settlement conference – Widow sent information regarding proposed settlement – Whether orders in favour of each child with effect that whole estate passes to them and not to the widow should be made

COMMERCE – misleading or deceptive conduct – plaintiff and related entities proposed to enter into a series of options contracts – whether representations as to associated capital gains tax liability were made – necessary to consider the alleged representations in context – where communications containing the alleged representations were expressed to be provisional and dependent on external specialist advice – no representations made as to CGT liability – whether, if made, representations would be misleading or deceptive – where subsequent external specialist advice confirmed contents of original communications – initial representations had no capacity to lead plaintiff into error – proceedings dismissed.

COSTS – indemnity costs – Calderbank letter issued before trial – whether it was unreasonable of the offerees not to accept the Calderbank letter – whether the offeror under the Calderbank letter achieved a more favourable result than the Calderbank offer made – whether the conditional nature of the Calderbank offer made it less favourable than the outcome of the proceedings – whether without the benefit of hindsight, given disputed evidence adduced in the proceedings, it was not unreasonable for the offerees to have rejected the Calderbank offer at the time.

EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – representation made by the deceased said to be inconsistent with other undoubted evidence – whether evidence of representation has probative value – whether probative value outweighed by prejudice to the accused