Cases and authorities

CONTEMPT – finding of guilt – charges of non-compliance with a breach of Court orders – deliberate defiance of Court orders freezing assets and enjoining second defendant/contemnor from maintaining or publishing certain defamatory imputations – discussion of civil and criminal contempt – four charges treated as civil contempt – seven charges held to be both civil and criminal contempt – finding of guilt made – penalty to be subject to further submissions COSTS – indemnity costs ordered

EVIDENCE ON COMMISSION – Ex parte application before Court seeking orders under s 33(1) of the Evidence of Commissioner Act 1995 (NSW) – Letter of request from United States District Court for the Western District of Michigan

CIVIL PROCEDURE – application by cross-defendant for security for costs – cross-claimant resident outside Australia – whether sufficient assets available in Australia to meet any costs order – failure of cross-claimant to provide meaningful information regarding its Australian net financial position – whether delay in bringing application operates as a discretionary bar to the granting of the application – where acceptable explanation for delay and no substantial prejudice to the cross-claimant – security for costs to be ordered – no serious dispute as to the quantum of security – application granted.

ADMINISTRATIVE LAW – plaintiff sought to challenge decisions which were no longer operative – question of public interest in the context of firearms legislation – whether Tribunal influenced by material filed although not tendered – course taken by counsel appearing for plaintiff in Tribunal – alleged unreasonableness of revocation – no question of law – leave refused

EVIDENCE – Privileges – Client legal privilege – Loss of privilege pursuant to s 122(2) of the Evidence Act 1995 (NSW) – Inconsistency of the client’s conduct with the maintenance of the confidentiality – Whether a claim for privilege inconsistent with a pleading of reliance – Whether a forensic advantage attaching to disclosure of a privileged document is relevant to determining inconsistency

CRIMINAL LAW – sentence – plea of guilty – murder of offender’s mother – spontaneous offence – background of troubled upbringing of offender in his mother’s care – offender 19 years old – no prior convictions or history of violence – history of mental health issues – substance abuse

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – First and second Defendants are also adult children of the deceased and the executors and principal beneficiaries named in the Will –– Small estate in value – No provision made for Plaintiff in the deceased’s Will – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – No order for provision made Deceased’s estate reduced partly because of severance of joint tenancy in which the Plaintiff is said to have played a part –– As a result, provision of the one half interest in that property received by Plaintiff from her father’s estate – Relevance of benefit received out of the father’s estate COSTS – Offer of Compromise served about 2.5 months prior to the hearing – Defendants obtained order no less favourable than offer made – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and the sole executor and principal beneficiary named in the Will –– Reasonably large estate in value principally comprising real property – Legacy of $50,000 made for Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – Order for provision made

JUDICIAL REVIEW – judicial review sought in respect of three convictions for offences contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) – application to adjourn hearing refused – 31 grounds of appeal – no jurisdictional error

CRIMINAL PROCEDURE – application for adjournment – where unrepresented accused – where accused is the author of his own predicament – application refused EVIDENCE – exclusion of evidence – whether probative value of evidence is substantially outweighed by the danger of unfair prejudice – where Crown intends to call accused’s former barrister – where accused unable to retain preferred barrister – no unfair prejudice – application refused

HIGH RISK OFFENDER – serious sex offender – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – no controversy about making of order – dispute limited to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders

MENTAL HEALTH – application for extension of defendant’s status as forensic patient – Mental Health (Forensic Provisions) Act 1990 – whether patient posed unacceptable risk of causing serious harm to others – where defendant had unresolved history of violence in custody and the community related to schizophrenia and substance abuse – whether risk could be adequately managed by less restrictive means – whether risk could be adequately managed by status as involuntary civil patient under Mental Health Act 2007 – where time required for defendant to stabilise and adjust to less restrictive environments – where variability of management as civil patient had contributed to defendant’s risk – order granted to extend forensic status for period of 18 months

CONTRACTS – fixed term “service kill agreement” between abattoir and customer – various issues of construction thereof – whether abattoir had right to terminate upon customer’s failure to perform – whether the customer’s failure to perform caused the abattoir to lose the benefit of the contract for the balance of its term. CONTRACTS – frustration – whether fixed term “service kill agreement” frustrated by failure of a stranger to the contract to buy the total output from the customer. FORMS OF ACTION – action in debt – action for unliquidated damages. DAMAGES – damages for breach of contract – assessment of loss of profit damages.

PRACTICE AND PROCEDURE – slip rule – variation of orders

CRIME – sentence – where error on the part of the sentencing judge is conceded by the Crown –contention by Crown that “no lesser sentence is warranted in law” – how apt to mislead – obligation of appellate court to exercise its own sentencing discretion independently of the sentence selected at first instance

CIVIL PROCEDURE – Subpoenas – Application to set aside – Limits on the disclosure of personal information – Privacy and Personal Information Act 1998 (NSW) – Exemptions – Whether a public sector agency may disclose otherwise private information when subpoenaed – Audio record of phone calls made while party in custody – Subpoena not set aside.

PRACTICE AND PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7 -Application by Defendants for dismissal of proceedings - No explanation for Plaintiff's absence – Evidence that Plaintiff aware of the hearing - Proceedings dismissed

SEARCH AND SEIZURE – challenge to validity of search warrants – specificity required of description of “searchable offence” on the face of the warrant – requirement for sufficient connection between things to be searched for and searchable offence

POSSESSION OF LAND – Retail Leases Act 1994 – retail shop – lease advice sheet – no lease signed – evidence adduced – rulings on admissibility – commencement of fit out without consent – negotiation of terms of a draft lease – break down of lease negotiations – notices to vacate – whether a lease between the parties existed – definition of a lease pursuant to ss 3 and 6A of the Retail Leases Act 1994 – authority of real estate agent under agency agreement – whether the real estate agent had ostensible authority – whether the agreement was ratified by the plaintiffs – no clear case for offer and acceptance of an agreement – an agreement of the intention of the parties – correspondence between parties showing continued in negotiation – no agreement for or constituting a lease found – estoppel – principles from Walton Stores (Interstate) v Mahr – factual background – no clear articulation of an assumption – no encouragement for defendant to take possession and commence fit out – no unequivocal representation that a lease was granted – no encouragement that plaintiffs committed to a lease – renegotiating terms inconsistent with any reliance being placed on representations in lease advice sheet – any reliance was unreasonable – plaintiffs’ conduct was not unconscionable – no estoppel established – implied tenancy at will found – s 127 of the Conveyancing Act 1919 – termination of implied tenancy at will – alternative case if lease found – terms of lease – s 85(d) of the Conveyancing Act 1919 – failure to pay rent – abatement of rent – recoupment of rent – right to set-off – no right to set-off found – whether consent to development application was a term of the alleged lease – no basis for finding consent to development application was a term in the alleged lease – special condition to provide air-conditioning unit – breach of term to install air-conditioning – whether causation and loss suffered as result of breach – evidentiary deficiencies in proving causation and loss – evidentiary deficiencies in relation to quantification of damages – case for damages not established – entitlement to possession – unconscionable conduct – plaintiffs entitled to possession, arrears for rent and mesne profits

ADMINISTRATIVE LAW – judicial review – Land and Environment Court – decision of Commissioner of Land and Environment Court – relief sought by third party pursuant to Supreme Court Act 1970 (NSW), ss 65 or 69 CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – Land and Environment Court – judicial review of decision of Commissioner of Land and Environment Court – application put before Court of Appeal to transfer proceedings to Land and Environment Court – Civil Procedure Act 2005 (NSW), ss 149B, 149E – where proceedings erroneously commenced in Common Law Division – whether transfer application should be determined by single judge in Common Law Division – Supreme Court Act 1970 (NSW), ss 48, 51 – order for removal of proceedings to Court of Appeal

SUPRESSION AND NON-PUBLICATION – proceedings for defamation – defendants pleading truth to imputations of sexual impropriety – appropriateness of suppressing identity of person named in defence – suppression order sought in aid of protection conferred by Victorian legislation

CIVIL PROCEDURE – interlocutory application to restrain ninth defendant from sending communications to the plaintiffs and their employees – where both sides have been prepared to lob epistolary grenades at the other – where present application peripheral to the real issues in the substantive litigation – no basis established for ordering restraint – whether power to order that both parties should step back and take a cold shower before resuming the civilised preparation of the substantive litigation – application dismissed.

REAL PROPERTY – possession – notice of motion – order seeking possession of property and judgment in favour of plaintiff – leave sought to issue writ of possession – orders sought not opposed – orders made

PROCEDURE – application to have proceedings dismissed for want of prosecution – where plaintiffs took no steps in proceedings after obtaining urgent ex parte injunctions and suppression orders – relevance of plaintiffs’ delay – application for review of suppression orders – whether necessary in aid of injunctions – whether injunctions should be dissolved – consideration of test in Brimaud v Honeysett Instant Print – where orders obtained on short notice in absence of defendant – appropriateness of revisiting orders after period of delay

COSTS – indemnity costs – where unsuccessful application for discharge of Court-appointed receiver – whether applicant will be required to pay receiver’s costs on indemnity basis.

DEFAMATION – whether plaintiff’s imputations reasonably capable of arising – whether matter complained of capable of defaming plaintiff at all – meaning of defamatory – whether actions in defamation in Australia face the requirement of a threshold of seriousness as has been recognised in other jurisdictions

CORPORATIONS – CORPORATIONS – statutory demand – application for declaration that statutory demand is a nullity – whether non-compliance with prescribed Form 509H renders demand invalid – where demand served in New South Wales – where no address for service in New South Wales given in the demand CORPORATIONS – statutory demand – application to set aside statutory demand – whether fundamental defects in demand cause substantial injustice to the company – Corporations Act 2001 (Cth), s 459J(1)(a) - whether creditor failed to identify the source or basis of the debt – whether amount of the debt is grossly overstated – whether the alleged gross overstatement constitutes “some other reason” to set aside the demand – Corporations Act 2001 (Cth), s 459J(1)(b) - whether genuine dispute about the existence of the debt - Corporations Act 2001 (Cth), s 459H(1)(a)

FEDERAL JURISDICTION – matter in which High Court has original jurisdiction – matters “arising under any laws made by Parliament” – proceedings under Bankruptcy Act 1966 – order for sale of property made by Federal Court under Conveyancing Act 1919 (NSW), s 66G as “picked up” by Judiciary Act 1903 (Cth), s 79(1) – further proceedings for consequential relief in Federal Court – subsequent claim against trustees for breach of trust in Supreme Court – whether in federal jurisdiction – whether a “special federal matter” for cross-vesting purposes CROSS-VESTING – Supreme Court has general equity jurisdiction to entertain proceedings – not a “special federal matter” – s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987 – “more appropriate” court – not “in the interests of justice” to transfer proceedings

OCCUPATIONS – legal practitioners – discipline – suspension of practising certificate – interim or immediate suspension under s 77 of the Legal Profession Uniform Law (NSW) – where stay granted – no suspension under s 82 within 56 days – effect of the stay – whether stay obviated need for Law Society to make a decision under s 82 - whether interim suspension lapsed

COSTS – application by defendant to have four related matters heard together – whether plaintiff’s opposition to that course reasonable – whether plaintiff’s attitude caused unreasonable expense or delay – whether plaintiff should pay costs of the defendant’s notice of motion – whether costs should be paid on an indemnity basis PRACTICE & PROCEDURE – where plaintiff sought leave to rely upon additional medical reports – whether leave to do so should be granted

Succession – Intestacy and distribution on intestacy – Indigenous intestate – Intestate never married; died without partner, issue, dependents or debts – Contest between his parents, both members of the same Indigenous community as their son – Adjustment of their respective entitlements to share the estate under general rules of intestacy – Distribution order made, in favour of mother without exclusion of father, under Succession Act 2006 NSW, section 134.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – review of orders of Industrial Relations Commission – order reinstating correctional officer to employment in correctional centres – whether Commissioner failed to take mandatory relevant considerations into account – whether primary judge erred in finding Commissioner’s decision vitiated by jurisdictional error ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – Commissioner’s reasons – role of court on judicial review – whether Commissioner’s reasons demonstrated mandatory relevant considerations taken into account ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – whether employer’s mandatory relevant considerations case advanced before Industrial Relations Commissioner ADMINISTRATIVE LAW – judicial review – jurisdictional error – unfair dismissal claim – where Full Bench refused employer’s application for leave to appeal – where primary judge’s finding affected by jurisdictional error – whether necessary to identify jurisdictional error in Full Bench decision before setting aside Commissioner’s reasons

ADMINISTRATIVE LAW – regulations – validity of delegated legislation – whether Fisheries Management Legislation Amendment (Quota Shares) Regulation 2017 and Fisheries Management Legislation Amendment (Quota Management) Regulation 2017 authorised by Fisheries Management Act 1994 (NSW) ADMINISTRATIVE LAW – judicial review – validity of statutory instruments – whether Fisheries Management (Allocation Formula for Issuing Quota Shares) Notice 2017 and Fisheries Management (Issue of Quota Shares) Instrument 2017 authorised by parent Act and regulations – whether effect of instruments arbitrary or capricious ADMINISTRATIVE LAW – judicial review – appellant challenged Government-run Subsidised Share Trading Market as unauthorised and invalid – whether appellant raised valid grounds of review STATUTORY INTERPRETATION – principle of legality – where statutory instruments curtailed privilege previously enjoyed by appellant – whether “clear statement principle” warranted reading down regulation-making power conferred by parent Act STATUTORY INTERPRETATION – regulations promulgated prior to commencement of provision in parent Act relevant to their validity – operation of Interpretation Act 1987 (NSW), s 26 WORDS AND PHRASES – “criteria provided for by the management plan” – Fisheries Management Act 1994 (NSW), s 71A WORDS AND PHRASES – “of a kind authorised by the plan” – Fisheries Management Act 1994 (NSW), s 64

APPEALS – challenge to factual findings – failure to make express factual finding of delivery of goods the subject of disputed invoices – requirement to give reasons – inadequacy of reasons for any implicit finding of delivery APPEALS – task of Court on appeal by way of rehearing – weight of evidence does not permit a factual finding of delivery

LEAVE TO APPEAL – Easement – Equitable right of carriageway – Where easement has a value of less than $100,000 – Whether leave to appeal should be granted – Whether primary judge erred in assessing the evidence - Whether primary judge decided case as pleaded – Whether appropriate equitable remedy granted - No error established that occasions any serious injustice – No question of principle

APPEAL – refusal of leave to appeal against decision giving only limited leave to amend statement of claim – no issue of principle

PRACTICE AND PROCEDURE – slip rule – variation of orders

CRIMINAL LAW – stay of proceedings – accused charged with unlawfully killing his disabled daughter – police investigation produced 370 hours of sound recordings from listening device – none of recordings incriminated accused – recordings all disclosed to accused in 2016 – Legal Aid unwilling to pay for lawyers to listen to recordings – Crown unwilling to provide transcripts – trial judge refused to grant stay pending provision of transcripts – whether leave should be granted to appeal from refusal to grant stay – where insufficient prospects of success – where allowing appeal would likely result in vacating the trial – leave refused

CRIME – conviction appeal – father arranged for his 12-year old daughter to marry – whether procured a child for unlawful sexual activity WORDS AND PHRASES – meaning of the word “procure” in s 66EB of Crimes Act 1900 (NSW) – importance of context when considering meaning CRIME – application for leave to appeal against sentence – assessment of objective seriousness as “very serious” open to sentencing judge – motive for offence was father’s religious belief – not an ameliorating factor – no error in judge’s sentencing process PRACTICE AND PROCEDURE – application for extension of time – advice received that no merit in appeal against conviction or application for leave to appeal against sentence – further advice obtained substantially later – extension of time to appeal against conviction and to apply for leave to appeal against sentence refused

CRIMINAL LAW – appeal against sentence – asserted failure to take into applicant’s assistance to authorities – asserted inadequacy of reasons of sentencing judge in imposing three years full-time imprisonment – asserted justifiable sense of grievance for the applicant due to sentence disparity with co-offender – sentence asserted to be manifestly excessive – erroneous disparity found – appeal upheld

CRIMINAL LAW – appeal against sentence – asserted error in applying discounts for pleas of guilty – asserted failure to give effect to finding of special circumstances due to cumulation – ratio between the non-parole period and total head sentence beyond the “statutory ratio” of 75% – appeal upheld – countervailing considerations on re-sentence regarding violent schizophrenic applicant

PRACTICE AND PROCEDURE – leave granted to file a notice of discontinuance – proceedings against the State settled – notice of motion – leave to file an amended statement of claim – directions made

PRACTICE AND PROCEDURE - Application for summary judgment – where company has declared dividends in favour of the plaintiff – resulting in a debt due to the plaintiff – where the plaintiff did not know or authorise payments to the plaintiff’s children or other in-house transfers – where credit given for actual payments made to the plaintiff and payments on the plaintiff’s behalf – where plaintiff has given evidence that the company has no defence to that part of the claim – where suggested defences of conventional estoppel and mistake of fact have no real prospects of success.

CRIMINAL PROCEDURE – where instructions to counsel appearing for accused withdrawn – application for adjournment – application to discharge the jury – whether counsel’s dismissal reasonable

COSTS — Party/Party — Bases of quantification — Indemnity basis — application for special costs order on an indemnity basis — Calderbank offer — making of a “walk away” offer at relatively early stage in the proceedings — whether unreasonable for the plaintiff not to have accepted in the circumstances

CONTRACT – whether purported termination of exclusivity provisions valid – power to terminate enlivened if Dimmi missed agreed KPI targets for four consecutive quarters – whether Dimmi met the Revenue KPI Target for September 2015 quarter –whether cost of Dimmi Rewards should be offset against revenue figures or treated as a cost of sales – KPI targets agreed by reference to the latter approach – performance should be assessed on the same accounting basis as targets were set – subsequent accounting advice that this was erroneous does not displace this conclusion – power to terminate not enlivened. CONTRACT – conventional estoppel – whether parties adopted a common assumption that revenue was to be calculated by treating Dimmi Rewards as a cost of sales – whether Dimmi would have attempted to act differently had it known the assumption to be untrue – whether loss of this opportunity would constitute detriment – unnecessary to decide.

EVIDENCE – admissibility – hearsay evidence – business records exception under s 69 of Act – Ombudsman’s report recording what Ombudsman was told during interview – whether fact or opinion – whether evidence of fact EQUITY – estoppel – estoppel in pais – common assumption of fact – whether representation was based on an existing fact or promissory in nature EQUITY - laches – prejudice suffered by the defendant as a result of the passage of time – plaintiff’s acquiescence to violation of rights REAL PROPERTY – estoppel allegedly arising out of prior owner’s conduct - indefeasibility EQUITY – equitable estoppel – whether conduct amounted to representation of lifetime tenancy – whether renovation works undertaken in reliance on belief of lifetime tenancy – rent charged at less than market value – alternative public housing tenancy offered – whether detriment suffered in the relevant sense

JUDICIAL REVIEW – pending appeals in District Court from convictions in Local Court – application to transfer appeals from Parramatta to Sydney CBD – application refused – application for review by Court of Appeal – exceptional nature of jurisdiction – jurisdictional error not established

CORPORATIONS ACT - claim in equity against third parties involved in director’s dishonest and fraudulent breach of duty - whether claim limited by analogy with 6 year limitation period under Corporations Act 2001 (Cth) s 1317K against persons involved in breach of directors’ duties under s 79 of that Act EQUITY - fiduciary duty - Barnes v Addy claim for knowing receipt - money taken from client account and used to contribute to purchase price of property - liquidator contended money taken from company in breach of duty - no error in finding by primary judge that money borrowed from client - no claim for breach of duty owed to client pleaded EQUITY - fiduciary duty - Barnes v Addy claim for knowing assistance - fraudulent scheme by director to create appearance that his personal indebtedness to the company had been repaid - scheme involved dishonestly created letter referring to commercial opportunity, the creation of companies unbeknownst to their directors, and a “round robin” of cheques - primary judge held that transactions although fraudulent had no legal effect and thus caused no loss to company - held on appeal that effect of transactions was to replace claim in debt against director by more complicated claim against third parties - consideration of direct application of limitation statute, and application by analogy in equity LIMITATION PERIODS - definition of “trust” and “trustee” in s 11 of Limitation Act 1969 - whether limitation period of 6 years applied to Barnes v Addy claim for knowing assistance by analogy with Corporations Law s 1317K - whether direct application of Limitation Act - whether defences of laches and informed consent made out

CRIMINAL LAW – procedure – permanent stay – stay granted by court below on basis of weakness of Crown case – whether primary judge had applied correct test – whether “incurable weakness” in Crown case such that prosecution was “foredoomed to fail” – consideration of exceptional nature of jurisdiction – appeal allowed, stay discharged and matter remitted to District Court for trial