Cases and authorities

PRACTICE AND PROCEDURE – stay of proceedings in lower court – abuse of process – proceedings in lower court commenced shortly after proceedings commenced in Supreme Court – disputes essentially based on single set of underlying facts – whether continuation of lower court proceedings would be oppressive or vexatious

JURISDICTION – cross-vesting – application to have proceedings transferred to Supreme Court of Victoria – consideration of relevant factors – delay – jurisdictional nexus – expense and inconvenience – where plaintiffs filed motion after listing of cross-vesting motion to have defendant dealt with for contempt of interlocutory orders – importance of procedural fairness to defendant facing allegations of contempt

COSTS – application for personal costs order against executor of deceased estate – whether executor of deceased estate entitled to be indemnified for expenses incurred before distributing estate – whether actions of executor would have been authorised had trustee sought judicial advice

CIVIL PROCEDURE – application to strike out statement of claim – limitation period – whether statement of claim brought after expiration of limitation period – whether proceedings brought outside of limitation period are statute barred – whether proceedings are an abuse of process because a defence exists – notice of motion dismissed

CRIMES – sentencing – sentencing judge’s remarks and sentences irreconcilable – sentences set aside – on re-sentence evidence adduced that applicant has very short life expectancy due to terminal liver cancer – taken into account on re-sentence

EQUITY – Trusts and trustees – Charitable trusts

CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for three murders – no doubt or question as to the applicant’s guilt

CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – making false accusation with intent to subject a person to investigation contrary to Crimes Act 1900 (NSW), s 314 – appeal from interlocutory order dismissing application for permanent stay of prosecution – appeal brought pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b) – relief in nature of certiorari and declaration alternatively sought pursuant to Supreme Court Act 1970 (NSW), ss 69, 75 – accused summoned to give evidence before Inspector of Crime Commission pursuant to Crime Commission Act 2012 (NSW), s 64 – where accused given notice in writing pursuant to Royal Commissions Act 1923 (NSW), s 8 – where notice signed by solicitor assisting Inspector – whether signature of Inspector necessary on written notice – whether impermissible delegation of decision to summon witness – appeal dismissed and other relief refused

CRIMINAL LAW – sentence – manslaughter – partial defence of substantial impairment by abnormality of mind– chronic depression, post-traumatic stress disorder and dependent personality disorder - substantial history of intimate partner violence – killing of abusive and controlling partner – level of planning in killing carried out by intended new partner of Offender with her assistance – no prior criminal history - early plea of guilty – assistance to authorities – remorseful – good prospects of rehabilitation

ADMINISTRATIVE LAW – Police Act 1990 (NSW) Part 8A – obligation to accord procedural fairness to police officer the subject of an anonymous complaint under Part 8A – Police Act 1990 (NSW) s 173 – decision to take non-reviewable action against a police officer – content of procedural fairness where non-reviewable action taken – Police Act 1990 (NSW) s 169A – meaning of “complainant” – Police Regulation 2008 (NSW) cl 53 – Police Regulation 2015 (NSW) cl 54 – obligation of non-disclosure of the identity of complainants – whether procedural fairness required disclosure of the identity of complainants and investigation reports in the circumstances of the case COSTS – Uniform Civil Procedure Rules r 42.1 – where there has been a mixed result in proceedings

SUPPRESSION AND NON-PUBLICATION – action for defamation – plaintiff suing on imputation of sexual impropriety – newspaper seeking to justify imputation relying in part on allegations of sexual impropriety made by persons not referred to in the matter complained of – persons providing that information seeking protection of their anonymity and suppression of the information provided – whether “parties to the proceedings” within the meaning of the Courts Suppression and Non-publication Act – whether grounds for making orders established – where particulars of defence held back pending success of application for suppression orders

HIGH RISK SEX OFFENDER – application by State for extended supervision orders – agreed consent orders in relation to psychiatrists’ assessments and necessary steps for the preparation for final hearing – order made restricting access to file, except with prior notice to parties to allow them an opportunity to be heard

CORPORATIONS – winding-up – application to set aside winding-up order – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (2) (b) – where orders made in the absence of a party – where company unaware of winding-up application – where liquidator and plaintiff neither consented to nor opposed the relief sought – where company has paid amount claimed in the statutory demand and liquidator’s fees and expenses – where no outstanding debts owed by the company CORPORATIONS – winding-up – whether sole director can bring proceedings in company name to set aside winding-up order – Corporations Act 2001 (Cth), s 198G – whether court should grant leave to director to exercise powers to bring application in name of the company

CONTEMPT – where allegations constituted contempt – where suppression order exists over allegations – application to lift suppression order – whether subject material in public domain – public interest

CONTEMPT – suppression orders in contempt proceedings – where previous suppression orders made – where affidavit in notice of motion contains suppressed material

EVIDENCE – affidavit evidence – objection under s 138 of the Evidence Act 1995 (NSW) – exclusion of improperly obtained evidence – objection rejected – reasons

CIVIL PROCEDURE – notice of motion – leave sought to amend statement of claim – where amendments in response to cross-claim filed a year prior – where delay occurred as a result of representative error – whether granting amendment consistent with overriding purpose of just, quick and cheap resolution of issues in dispute – costs – leave to amend granted – costs

Partnership – rights and duties of partners inter se – Partnership Act 1892 (NSW) s 28 – obligation to account annually for partnership income Estoppel — estoppel by representation — equitable fraud – alleged agreement by plaintiff to allow the defendants to purchase certain land for redevelopment – alleged representation that the plaintiff would share in the profits of that development – equitable relief only available where no adequate remedy at law – remedies available in the law of partnership – no available claim based on estoppel or equitable fraud Land law – conveyancing – requirements of writing – contracts for the sale or other disposition of land or any interest in land – Conveyancing Act 1919 (NSW) s 54A – alleged agreement between successful bidder at auction with other parties to develop land – writing ordinarily required Land law – conveyancing – requirements of writing – exceptions – fraud on the Statute – no requirement of writing where detriment may be shown – loss of opportunity by being ready, able and willing to complete constitutes detriment – writing not required Limitation of actions – general – statute of limitations – claim against partners for share of alleged partnership property and profits of alleged partnership business – Limitations Act 1969 (NSW) s 15 – time runs from termination of the partnership business – alleged agreement to purchase and develop property – claim barred Limitation of actions – general – statute of limitations – claim for constructive trust relief based on alleged agreement to purchase and develop property with plaintiff to receive one-fifth share – Limitations Act 1969 (NSW) s 47 – time runs from the first act inconsistent with the alleged trust – claim not barred by statute Limitation of actions – equity – laches – concurrent questions with applicable statutory limitation periods – prejudice suffered by the defendant as a result of the passage of time – loss of evidence – death of a key witness – inordinate delay – speculative venture – difficulty of redoing the accounts of the partnership as a whole – defence established Contract – abandonment – alleged agreement to purchase property and develop it in partnership – no financial participation by plaintiff for more than a decade – alleged agreement abandoned Partnership – general – what constitutes partnership – agreement – alleged agreement to purchase and develop property in partnership – no partnership established on the evidence

ADMINISTRATIVE LAW — judicial review — implied statutory obligation to give reasons — inadequate reasons — error of law on the face of the record. ADMINISTRATIVE LAW — judicial review — determination of Appeal Panel of Workers Compensation Commission — appeal from Medical Assessor — failure to respond to grounds of appeal — procedural fairness — constructive failure to exercise jurisdiction — determination quashed — matter remitted to fresh appeal panel.

CRIMINAL LAW – application for inquiry into sentence imposed by the District Court – applicant convicted of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug – appeal dismissed by the Court of Criminal Appeal – appearance of doubt or question as to mitigating circumstances not demonstrated – application dismissed

EQUITY – Proprietary Estoppel – distribution of proceeds paid into Court – two brothers own real property – one brother dies in 2008 and his widow lives on the property until a short while after her husband’s death property is sold under Conveyancing Act, s 66G at the suit of the surviving brother – proceeds of sale paid into Court after payment out of mortgage and sale expenses – dispute about proceeds in Court – widow of the deceased brother claims all the proceeds in Court – surviving brother and his two sons also claim all the proceeds in Court – proprietary estoppel claim – whether the deceased brother promised the surviving brother and his children that the deceased brother would leave the deceased brother’s interest in the property to the surviving brother and surviving brother’s children upon the death of the deceased brother – whether the loan obligations secured by mortgage over the property were taken out for the benefit of both the deceased brother and the surviving brother or solely for the surviving brother – whether the surviving brother’s payment of interest on the mortgage was for the benefit of the deceased brother’s interest in the property or solely for the benefit of the surviving brother and his wife – whether the surviving brother paid council rates upon the property and made improvements to the property for which he is now entitled to reimbursement from the estate of the deceased brother out of the proceeds of sale of the property.

EQUITY – Equitable remedies – Relief against forfeiture – termination by vendor of agreement entered into pursuant to an option for sale of poker machine permits – whether purchaser had a subsisting equitable interest in permits arising apart from sale agreement – whether “unconscientious” for vendor to terminate agreement on grounds of surprise or mistake

CRIMES – appeal – sentencing – prosecution appeal against inadequacy of sentence – offender convicted of sexual intercourse without consent –consideration of principles constraining prosecution appeals against sentence – whether need to establish sentencing standard – whether error of principle

CRIMINAL LAW - application for leave to appeal from decision refusing to adjourn trial - trial for break, enter and steal and engaging in police pursuit - other trials listed for sexual and other offences - claim of denial of procedural fairness and discretionary error in refusing adjournment - no denial of procedural fairness - no arguable ground of discretionary error - leave to appeal refused

CRIMINAL LAW – appeal against sentence – possession of four prohibited firearms contrary to s 51D(2) of the Firearms Act – whether the sentencing judge erred in his assessment of the objective seriousness of the offence – whether the sentencing judge erred in applying the principle of general deterrence – whether the sentencing judge failed to take account of the applicant’s limited criminal record – whether the sentencing judge failed to assess the applicant’s prior good character – whether the sentence imposed was manifestly excessive.

CRIMINAL LAW – sentence appeal – whether the sentences imposed were manifestly excessive – whether the applicant’s offending constituted trafficking to a substantial degree – whether a sentence other than a custodial sentence was available and/or appropriate – failure to consider objective circumstances of the offending – failure to consider the applicant’s subjective circumstances.

CRIMINAL LAW – appeal against sentence – disparity between sentences of co-offenders – justifiable sense of grievance – whether principle of parity correctly applied – where sentencing exercise resulted in unjustifiable discrepancy – appeal allowed

CIVIL PROCEDURE – costs – security for costs – representative proceedings – where lead plaintiff impecunious – where no litigation funder – nature of claims – personal injury – where claims are genuine – not possible to conclude at this preliminary stage that plaintiff has a weak case – late timing of applications after conclusion of opt out process – benefits to defendants in claims being litigated as representative proceedings – consideration of whether proceedings would be stultified – no order for security for costs

CIVIL PROCEDURE – professional negligence - duty of care – materialisation of rare but severe side effect of medical treatment - liability – lamotrigine - questions of primary fact - corroboration - causation issues - joint expert report - approval of proposed compromise - mediation unsuccessful - entry into deed of release - court approval required - approved

CIVIL PROCEDURE – application to discontinue proceedings – where plaintiff received benefit of interlocutory order which rendered underlying proceedings unnecessary – defendant consented to discontinuance subject to costs and an inquiry into damages resulting from the interlocutory order –defendant asserts entitlement for inquiry as to damages as plaintiff had not vindicated its right to the interlocutory relief at trial – inappropriate to resolve issue of damages at present – defendant given leave to move for an inquiry as to damages at its own risk.

CIVIL PROCEDURE – application for an adjournment - inability to obtain legal representation - appeal proceedings fixed - New South Wales Civil and Administrative Tribunal appeal panel decision - conditions on professional registration - practising psychologists - injury said to incapacitate - financial difficulty - overriding need for efficiency - self-representation - no material change in circumstances - dismiss motion - hearing date confirmed

COSTS – application by third defendant for indemnity costs order and specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – where offer of compromise not accepted – where proceedings brought by plaintiff were summarily dismissed – claims were ill-conceived and doomed to fail – whether offer of compromise was a real and genuine offer – where costs incurred by third defendant were reasonable – indemnity costs order made – gross sum costs order made

CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for two convictions to solicit to murder – no doubt or question as to the applicant’s guilt or as to any part of the evidence in the case – application refused

CIVIL LAW – Application for Extended Supervision Order - High Risk Offender - conditions are satisfied -serious offence - wanton murders - assault occasioning bodily harm in custody - Interim Supervision Order - whether there is a high degree of probability that the offender poses an unacceptable risk of committing another serious offence - work release program breach - ongoing substance abuse - encouraging signs - absence of violence for 25 years whilst in custody - independent living and employment - actively pursuing a pro-social lifestyle - Court Appointed Experts - forensic psychiatrists - history - diagnoses - anti-social personality disorder - criminogenic factors - substance abuse - chaotic and deprived childhood - appropriate conditions - electronic monitoring - curfew - modified

PRACTICE AND PROCEDURE – application under r 26.6 of the Uniform Civil Procedure Rules 2005 (NSW) for the discharge of a Court-appointed receiver – whether it is just and convenient for the receiver to remain in office.

CRIME – sentencing – murder – offender experiencing symptoms of psychosis at time of offence – whether psychosis drug-induced or due to chronic psychotic illness – whether moral culpability diminished on account of psychosis – whether offence aggravated by offender’s prior personal knowledge of risk of drug-induced psychosis – victim pregnant at time of offence – consideration of significance of that fact – domestic violence – whether offence aggravated by domestic context – whether offence separately aggravated by the fact that the offence was committed in the home of the victim

EVIDENCE – exclusion of evidence – criminal proceedings – whether probative value of evidence is outweighed by the danger of unfair prejudice – where letters written in gaol which attempt to influence a Crown witness – where impressions recovered from those letters – where the letters raise violence as a possibility – where impressions invite speculation by the jury

HIGH RISK OFFENDER – serious violent offender – preliminary hearing – application for interim supervision order and for examination by court-appointed psychiatrists –“serious violence offence” of manslaughter in 1999 – multiple offences of robbery in 1990s and 1999 – offence of aggravated robbery inflicting grievous bodily harm in 2012 – 1999 and 2012 offences committed whilst on parole – offences involve explosive violence against strangers in public places while under influence of illicit drugs – relevance to risk assessment of offences of violence which are not “serious violent offences” – interim supervision order made together with order for examination by two psychiatrists

CRIMINAL PROCEDURE – suppression order – use of CCTV footage by media outlet – CCTV in private residence – interests of family of the deceased – interests of open justice – where application for access to CCTV footage previously refused

CIVIL PROCEDURE – Pleadings – Striking out – Failure to adequately particularise the pleaded facts – Failure to plead a logical connection between an allegation and the pleaded facts

COSTS – application for indemnity costs – where offer of compromise concerned appeal and cross-appeal – no question of principle

CONTRACT – parties – construction of terms – online account to facilitate playing poker – former operators of website were made subject of restraining orders and forfeiture proceedings in United States – balance of player’s account “frozen” – settlement of United States litigation involving new operators acquiring assets and promising to pay account balances of non U.S. players – plaintiff enters into contract with company not party to settlement – whether implied term that company pay existing balance – whether other respondents parties to that contract – appeal allowed against fourth respondent only COURTS – precedent – status of High Court decision with no ratio decidendi – status of principle enunciated by Gaudron J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44 UNJUST ENRICHMENT – settlement involving promise to make payments to non U.S. players – plaintiff not party to settlement – whether plaintiff could sue in unjust enrichment for breach of obligation to pay – precedential authority of reasons of Gaudron J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44

NEGLIGENCE – medical negligence - whether a compromise reached between the parties ought to be approved in accordance with the provisions of s 76 of the Civil Procedure Act 2005 (NSW) - proceedings by tutor - physical health issues arising from stroke - satisfied real issues to be tried - quantification of damages - compromise appropriate - plaintiff’s best interests - settlement approved

PRACTICE & PROCEDURE – application to set subpoena aside – claim of oppression supported only by evidence on information and belief – failure to specify details as to informant’s role or source of knowledge – claim for damages under the Montreal Convention – commercial carrier shot down over the Ukraine – fact in issue as to whether accident due to the negligence or other wrongful act or omission of the carrier – basis established for apprehending carrier in possession of documents warning civilian airlines of risk of aircraft flying over the Ukraine being shot down

CIVIL PROCEDURE – appeal - reduction of judgment liability - application for instalment order made - judgment creditor failed to file objection in time - application for extension of time to file objection - steps instituted to enforce judgment - service of bankruptcy notice - statutory demand for payment of debt - neither instalment paid - order to extend time - judgment debtor to pay costs of application

EQUITY – trusts and trustees – judicial advice – whether executor justified in settling claim for family provision order under Succession Act 2006 (NSW) SUCCESSION - family provision and maintenance

COSTS – security for costs – where plaintiff in liquidation – where dispute as to the form of security – where plaintiff proposed to provide deed of indemnity in favour of defendant from overseas insurer– where plaintiff also offered to pay $20,000 as security for costs incurred in enforcing the deed in overseas jurisdiction – where defendant sought security in form of cash deposit or bank guarantee – whether deed of indemnity is adequate to protect the defendant

NEGLIGENCE – application for summary dismissal - removal of contraceptive implant from arm - vicarious liability - visiting staff specialist at public hospital referred patient to himself in a private capacity - avoided delay - difficult operation - resulted in median nerve injury - dismiss application - issue whether specialist was an expert in removal of device when deeply embedded in arm - plaintiff’s cause of action not sufficiently pleaded - plaintiff’s case not completely untenable

CIVIL PROCEDURE – appealing decision and seeking leave to appeal - Magistrate failed to decide a material issue - mixed questions of fact and law - failure to adhere to timetable - notice of ceasing to act filed - no appearance for plaintiff before Registrar - efficiency of the Court - attempts made to contact the plaintiff - adequate notice given - whether the matter should be dismissed for want of cause - no motion seeking pro bono referral - whether proceedings should be dismissed in the absence of the plaintiff - case not prosecuted with due dispatch - prejudice to the defendant - failure of the plaintiff to appear - appeal dismissed - costs awarded

CORPORATIONS – winding up – public examinations by liquidators – application by examinee to set aside examination summons – where examinee’s application was served one day late – consideration of merits of the application – whether the Court should extend time for service of the application or dispense with the rules governing service of the application CORPORATIONS – winding up – public examinations by liquidators – application by examinee to set aside examination summons – where liquidators commenced proceedings in Federal Court relating to an insolvency trading claim – where one of the examinee’s is a defendant in such proceedings – permissible scope of examinations – where liquidators seek to investigate the financial capacity of the defendant to meet any adverse judgment – whether the Supreme Court was an appropriate forum to conduct public examinations – whether the examinations would afford the liquidators an impermissible forensic advantage – whether impermissible use of the examination power under Corporations Act 2001 (Cth), s 597 – whether examination summons should be set aside