Cases and authorities

EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – whether events in representations too remote in time to be relevant – whether evidence has probative value – whether probative value outweighed by prejudice to the accused

CIVIL PROCEDURE – Subpoenas – Application to set aside

EQUITY – Equitable remedies – Alleged oral arrangement under which plaintiffs provided funds to the defendants as contribution to the purchase price of real property and later its renovation – Defendants later sold property – Declarations sought on the basis of existence of express or resulting trust – Declarations alternatively sought that defendants bound by an estoppel or contract

CRIMINAL PROCEDURE – fifth adjournment application by the accused – application made orally on the morning of re-commencement of the trial – not in the interests of justice for the trial to be further adjourned – application refused

ORDERS – Determination as to form of orders.

COSTS – where proceedings are set down to be heard quickly because of the nature of the underlying commercial dispute – where a change in commercial circumstances intervenes rendering the primary relief otiose and the case is to proceed as one for different relief but concerns the same dispute – where the trial date is vacated and the plaintiff is ordered to pay the defendant’s costs thrown away by the vacation – the defendant seeks the costs of the entire proceedings to date on an indemnity basis and a gross lump sum order; HELD no further costs order beyond that already made is appropriate

EVIDENCE – Evidence Act 1995 (NSW) – s 128 –whether under s 128(1), s 128 is to apply where objection is purported to be taken to evidence which has earlier been given; HELD s 128 does not apply

SUCCESSION – family provision – claim by second wife – no general rule that widow’s claim is paramount FAMILY PROVISION – indexed annuity for widow – adequate for proper maintenance FAMILY PROVISION – respect for judgment of capable testator – freedom of testamentary disposition

CORPORATIONS LAW – OPPRESSION – Corporations Act 2001 (Cth) ss 232-234 – whether the conduct of the affairs of a company, owned as to 43% by the plaintiffs and 57% by the defendants, was contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity – directors appointed by the majority excluded participation of the director appointed by the minority – director appointed by the majority requested and accepted payments contrary to the provisions of a Shareholders’ Agreement that directors not receive any remuneration – where there was unjustified delay in accrediting a new surgeon to conduct surgery at the hospital – directors appointed by the majority appointed a voluntary administrator at a time in which the company was not insolvent or likely to become insolvent in the near future; HELD that the affairs of the company were conducted contrary to the interests of the company as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity; RELIEF – plaintiffs’ claim compensation on the basis that they were induced to sell their shares to the majority at an undervalued price – appropriate approach to valuation; HELD not established that the shares were sold at an undervalue – entitlement to relief not established.

APPEALS – Summons seeking leave to appeal from summary dismissal of proceedings – Where proceedings commenced 20 years after expiry of limitation period – Where summons seeking leave to appeal filed over three years after orders made – Where applicant pleads that they have suffered psychological trauma and severe trauma after witnessing engine explosion – Warsaw Convention and Hague Protocol applied – No adequate explanation for delay – Proposed appeal would have no prospects of success - Summons dismissed - No question of principle

CRIMINAL LAW – appeal – conviction – whether the elements of offence of assault were contained in offence of aggravated break and enter – whether conviction for assault resulted in double punishment – whether criminality of assault wholly encompassed in break and enter offence CRIMINAL LAW – appeal – sentence – whether sentence imposed is double punishment – whether distinct criminality in relation to two offences CRIMINAL LAW – appeal – sentence – where offence a serious instance of domestic violence – where significant subjective factors – where starting point of sentence was six years – whether sentence manifestly excessive

SENTENCING APPEAL – leave to appeal –convictions for large commercial supply of ecstasy and cocaine and proceeds of crime – error in maximum penalty taken into account for proceeds of crime offence –error in maximum penalty vitiated the exercise of sentencing discretion –resentencing required – whether error to find applicant was “well above lowest rung” of drug trafficking hierarchy – evaluation of objective seriousness and offenders role – onus where full nature of criminal enterprise not known – role of offender inferred from quantity of drugs – no error in discretionary sentencing judgment regarding evaluation of offender’s role – parity ground not presently available – reliance on comparable sentences and JIRS statistics – resentencing

CRIMINAL LAW – Sentence – Appeal – Sexual offending – Where applicant was the father of the victim – Where the offending occurred in home environment where victim entitled to feel safe – Multiplicity of offences – Offending accompanied by reassurances on the part of the applicant to the victim that the acts constituting the offending were appropriate – Limited significance of short duration of offending – Necessity for general deterrence – Necessity to balance an offender’s subjective case against the objective seriousness of the offending – Sentence not manifestly excessive

LAND LAW – possession of land – executors seeking to get in property of estate – defendant in occupation of land – no defence establishing any right to possession by the defendant – defences struck out

CIVIL PROCEDURE – application for disclosure orders ancillary to freezing orders already made – plaintiffs seek to ascertain source of funds used for legal payments – making orders will allow plaintiffs to elicit “information relating to assets relevant to the freezing order” – consistent with the just, quick and cheap resolution of the dispute – application granted.

CIVIL PROCEDURE - urgent ex parte application made to Common Law Duty Judge - undertaking given to Court by solicitors for Plaintiff to pay filing fees - Summons and supporting affidavit filed in Court upon basis of that undertaking - urgent orders made by Court - solicitor not comply with undertaking to pay filing fee - Court draws attention to continuing failure five months after undertaking given - importance of compliance with undertakings to Court made by legal practitioners - opportunity allowed for immediate compliance with undertaking

CRIMINAL PROCEDURE – various interlocutory orders sought – documents produced by NSW Police on subpoena sought in unredacted form – fourth adjournment application by the accused – further notice of Crown case sought – Criminal Procedure Act 1986, s 142 – orders made

CRIMINAL PROCEDURE – trial involving serious indictable offences including four counts of murder – application by accused to appear in court via audio visual link rather than in person for the duration of his trial – power to give such a direction under the Evidence (Audio and Audio Visual Links) Act 1998, s 5BA – consent of the accused and the Crown – where trial is estimated to last for six months – where health issues experienced by the accused have previously been exacerbated by transport from custody to court – consideration of principles relating to an accused’s right to be present at trial

CIVIL PROCEDURE – security for costs – discretionary considerations – where party resisting order not acting purely defensively in main proceedings – relevance of the strength of a party’s claim CIVIL PROCEDURE – security for costs order – quantum of security – ascertaining quantum where neither party is acting purely defensively in main proceedings – difficulty in ascertaining quantum where claims and cross-claims are interconnected CIVIL PROCEDURE – interlocutory application – freezing order – risk of removing assets out of jurisdiction – where party has little to no connection with jurisdiction – where party has commercial incentive to remove assets from jurisdiction

CRIMINAL LAW – sentence – special hearing – judge alone – guilty of manslaughter on the limited evidence available – where term of imprisonment would have been imposed – limiting term nominated – Mental Health (Forensic Provisions) Act 1990 (NSW) s 23 – general and specific deterrence – aggravating and mitigating matters – personal circumstances – victim impact statement – length of limiting term – orders under s 24(1)(b) of the Mental Health (Forensic Provisions Act 1990 (NSW) – release from custody on conditions to continue STATUTORY CONSTRUCTION – proper construction of s 24(1)(b) of the Mental Health (Forensic Provisions Act 1990 (NSW) – whether Court can order continuing release from custody on conditions, if considered appropriate

CRIMINAL LAW – SENTENCE – murder – assessment of objective seriousness – analysis of facts, following judge-alone trial – sentence imposed

REAL PROPERTY – possession of land – plaintiffs are the registered proprietors of Torrens title land as the result of Court orders made against the defendants – but defendants remain in possession of the land – plaintiffs seek orders for possession by notice of motion – defendants contend notice of motion not served on all occupants of the land – whether service effected on occupants in accordance with Uniform Civil Procedure Rule (“UCPR”), r 6.8 – whether compliance with UCPR, r 6.8 is a pre-condition to making an order for possession – occupants of land alleged to be tenants of previous registered proprietor – whether order for possession can be made whilst tenants are in occupation. SECURITY FOR COSTS – UCPR, r 42.21 - cross-claimant company brings proceedings claiming a declaration that it holds an equitable interest by way of charge over Torrens title land – the registered proprietors, the cross-defendants, apply by motion for an order for security for their costs of the cross-claim – cross-claimant company is without demonstrable assets available to satisfy any costs order against it – no guarantee offered by any natural person to satisfy costs orders that may be made against the cross-claimant – cross-claimant relies upon monies in Court as a potential fund from which an order for the payment of costs can be secured by the cross-claimant company – whether in the circumstances an order for security for costs should be made.

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – applicant in custody – applicant intends to bring proceedings in High Court where filed documents must be typed – decision affecting conditions of applicant’s incarceration –refused access to laptop with write and edit functionality in cell – decision not so unreasonable that no repository of the power could have made it - application dismissed JURISDICTION – Supreme Court – scope of supervisory jurisdiction – decision did not deny applicant access to the High Court – Supreme Court Act 1970 (NSW) ss 23 and 69 – scope of judicial review jurisdiction CRIME – administration of prisons – New South Wales – ordinary managerial powers exercised by prison authorities are reviewable only for bad faith, improper purpose or legal unreasonableness

APPEAL – Local Court – leave to appeal – Strata Schemes Management Act 1996 (NSW), Schedule 2, ss 32, 33, 34, 34A and 35 – meaning of “must” – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 – whether legislative intention can be discerned that Annual General Meetings are invalid for breach of Strata Schemes Management Act provisions – language, subject matter and objects of the Act – consequences of holding every act in breach void –disclosure of costs agreement – whether disclosure occurred – authority of agent – whether agent had authority to carry out owners corporation’s functions – reasonableness of bringing proceedings – unreasonable costs

CIVIL PROCEDURE – separate determination of questions – where appropriate – where insurer denied indemnity to defendants - order sought by defendants and insurer cross-defendant but resisted by plaintiff - where facts and issues agreed by defendants and cross-defendant – where no duplication of issues at separate hearing and final hearing – separate determination ordered

CIVIL PROCEDURE – representative proceedings – personal injury claim – settlement approval – Civil Procedure Act 2005, s 173 – claim unlikely to succeed – no opposition by group members – satisfied that the settlement is in the plaintiff’s interests – settlement approved

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – plaintiff alleged that solicitor negligently conducted the defence of previous proceedings arising from his default under a mortgage – extended estoppel – abuse of process – where findings made against plaintiff in previous proceedings - whether solicitor immune from suit – no reasonable cause of action disclosed in respect of claims involving earlier findings – UCPR r 13.4 CIVIL PROCEDURE – pleadings – form and content of pleading – defective particulars of negligence – all pleadings struck out – plaintiff granted leave to re-plead solicitor’s failure to lodge a caveat on the land – UCPR r 14.28 ESTOPPEL – extended estoppel – finality – abuse of process - whether solicitor failed to plead the undervalue sale by receivers of land owned by plaintiff – whether failure to plead caused plaintiff’s loss – issue fundamental to previous proceedings issue determined adversely to plaintiff in earlier proceedings

ADMINISTRATIVE LAW – Judicial review – Application for judicial review of decision of Liquor and Gaming Authority to increase gaming machine threshold in hotel premises – Whether hotel premises were situated in the immediate vicinity of a school – Where Authority determined that the hotel premises were not so situated – Where Authority took into account the neighbourhood as a whole – Whether the Authority erred in doing so – Whether the Authority asked itself the wrong question(s) – Whether the reasons of the Authority were inadequate – Whether the decision of the Authority was unreasonable – No error established – Proceedings dismissed WORDS AND PHRASES – “Immediate vicinity”

CIVIL PROCEDURE – Court of Appeal – leave to appeal – whether primary judge erred in finding respondent did not elect to affirm contract – whether primary judge erred in finding applicant repudiated contract – whether appeal has any prospects of success

CONSUMER LAW – misleading or deceptive conduct – whether the appellant contravened s 18(1) of the Australian Consumer Law by issuing sea-carriage documents in respect of goods as agent for certain carriers despite having no authority and whilst other sea-carriage documents issued by carriers as principal in respect of the same goods were also in circulation – whether such conduct caused the respondent loss AGENCY – warranty of authority – whether the appellant’s breach of warranty of authority caused the respondent loss – whether primary judgment could be supported on the basis that, if the documents had been issued with authority, the respondent would have obtained rights as pledgee

COSTS – whether Chorley exception applies to barristers – whether applicant, a barrister litigant who retained solicitors and senior counsel in proceedings, was self-represented – whether Chorley exception applied to applicant in circumstances where applicant retained legal representatives but also undertook legal work herself

CORPORATIONS – Winding up – Voidable transactions – unfair preference – Corporations Act 2001 (Cth) s 588FA(1) – third party paid creditor of debtor in response to industrial pressure – whether payment was a “transaction” to which the debtor was a party – whether the payment was received “from” the debtor CORPORATIONS – Winding up – Voidable transactions – statutory defence – Corporations Act 2001 (Cth) – s 588FG(2) – creditor received payment from debtor during relation-back period – whether creditor had reasonable grounds for suspecting that debtor was insolvent

CRIMINAL LAW – appeal against sentence - aggravated break and enter and commit serious indictable offence contrary to s.112(2) Crimes Act 1900 – identical sentences imposed on Applicant and two co-offenders by same sentencing Judge - Applicant sentenced after two co-offenders - Applicant’s counsel accepted in District Court that his client should receive same sentence as co-offenders - argued on appeal that Applicant should have received lesser sentence - approach of appellate court where submission in support of appeal ground is contrary to submission made at first instance - parity principle - serious injustice or miscarriage of justice not established - sentence imposed on Applicant was reasonably open - leave to appeal refused

EQUITY – Equitable remedies – Injunctions – Application for injunction restraining the applicants in certain Federal Court proceedings from making an application in those proceedings in relation to the conduct of these Supreme Court proceedings and from taking any further step in relation to the conduct of those Federal Court proceedings – Notice of motion dismissed by consent with no order as to costs

EVIDENCE – criminal law – relationship evidence – hearsay evidence from deceased – whether events in representations too remote in time to be relevant – whether evidence has probative value

EVIDENCE – opinion evidence – exceptions – expert opinion – application by notice of motion for directions before calling expert witnesses – Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20 – proceedings for wrongful arrest, false imprisonment and malicious prosecution – leave sought to adduce opinion evidence of retired Detective Chief Inspector –where application made after proceedings on foot for 20 months – whether application for directions should be made at early stage of proceedings – whether reasonable explanation for delay in application – opinion on whether officer in charge of investigation had reasonable and probable cause to arrest and charge, whether arrest was lawful and whether charges maintained out of malice – whether such opinion evidence admissible – evidence inadmissible – directions refused

ADMINISTRATIVE LAW – judicial review – appeal from Local Court– application to quash orders made by Magistrate – jurisdiction of Local Court – whether prosecution in Local Court authorised – whether delegate authorised under Fair Trading Act 1987(NSW) required to bring prosecution under s 192E and s 192 G of the Crimes Act 1900 (NSW) – proper construction of s 14 and s 173 of the Criminal Procedure Act1986 (NSW) – consideration of the interaction between Criminal Procedure Act, Crimes Act and Fair Trading Act – application dismissed COSTS –departure from usual costs order sought – no basis – costs as agreed or assessed

LAND LAW — Conveyancing — Options — Call options – Whether option expired by effluxion of time – Call option period to run for 30 days from a grant of subdivision approval – No approval granted – Where parties agreed in a subsequent deed of variation that there was a six month window in which to obtain approval – Subsequent deed incorporated the operative clauses of the first agreement – Option expired six months from date of the latter deed.

TAXATION – outstanding tax debts – summary judgment sought – adjournment sought – adjournment not granted – summary judgment ordered – costs PROCEDURE – notice of motion – stay sought pending the finalisation of the foreshadowed proceedings in the Administrative Appeals Tribunal – hardship - motion dismissed

Costs – security for costs – power to order – no point in principle

COSTS – application for indemnity costs – whether the Plaintiff’s offers were genuine offers of compromise

CRIMINAL PROCEDURE – third application by accused for further adjournment of criminal trial – accused charged with a number of serious historical offences – allegations of inadequate disclosure by the Crown and police – where voluminous material had been produced by parties subpoenaed by the accused – delay in defence obtaining expert witnesses – where order of Crown witnesses had been amended after discussions with lawyers for the accused – not satisfied that an adjournment would be in the interests of justice to adjourn application – application dismissed

WORKERS COMPENSATION – death of worker – disease injury – pre-existing medical condition – where deceased suffered severe asthma attack leading to anoxia and fatal cardiac arrest – whether employment a substantial contributing factor to aggravation, acceleration, exacerbation or deterioration of asthma condition – Workers Compensation Act 1987 (NSW), s 4(b)(ii), s 9A, s 25 WORKERS COMPENSATION – appeal from Arbitrator to Acting Deputy President pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – death of worker – disease injury – where Arbitrator found cause of deceased’s injury a pre-existing medical condition not aggravated by her employment – failure to make a finding not sought at first instance or on appeal – whether error in point of law

TORTS – assault and false imprisonment – where respondent forcibly removed from licensed premises by police – whether respondent’s licence to remain on the premises could be revoked at any time and without cause, entitling the occupier to remove him using reasonable force – whether premises a “common inn” – whether licence revoked by security guards acting on behalf of hotelier – whether security guards requested police to assist in respondent’s removal from premises LICENSING – where Liquor Act 2007 (NSW), s 77(2)(a) provides that an authorised person may turn out a person from licensed premises where that person is “at the time intoxicated, violent, quarrelsome or disorderly” – whether authorised person, here a police officer, must have a belief as to specific characteristic relied on to justify exercise of power – whether respondent was “intoxicated” or “quarrelsome” within meaning of those terms

CORPORATIONS – winding up – conduct of liquidation – application for approval under ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth) to enter into relevant agreements nunc pro tunc – whether entry into transaction is a proper exercise of the liquidators’ powers – application for direction under s 90-15 of the Insolvency Practice Schedule (Corporations) – whether liquidators would be justified in performing obligations under agreement.

MORTGAGES AND SECURITIES – Personal property securities – Registration of security interests – Whether Court should extend time for registration – Appropriate form of order – Personal Property Securities Act 2009 (Cth), s 293

PRACTICE AND PROCEDURE – where defendant obtained summary judgment against plaintiffs in Local Court - appeal from that decision - consent order that appeal be allowed and proceedings be remitted to Local Court - whether defendant should have payment from Suitors’ Fund

COSTS – costs following personal injury claim – number of undisputed draft orders – three remaining areas of dispute – whether plaintiff should pay costs of successful second defendant, after representation shared with unsuccessful third defendant – whether unsuccessful third defendant should pay costs of plaintiff – whether plaintiff or unsuccessful third defendant should pay costs of successful first defendant – orders made

CORPORATIONS – external administration – winding up – where expenses were incurred as liquidator of the company which functioned only as trustee of the trust and has no assets of its own – where remuneration of liquidator has been approved by resolutions of the creditors – where remuneration of liquidator is not excessive and is proportionate to the recoveries made – whether to grant leave to the liquidator to distribute trust assets towards payment of expenses and remuneration.