Cases and authorities

PRACTICE - appeal - security for costs - appellant a corporate trustee - application under Corporations Act 2001 (Cth) s 1335 - concession that discretion enlivened - where costs of appeal very small - where shareholders had granted options to buy each other out in event appeal dismissed - where provisions of agreement provided measure of security if appeal dismissed - application for provision of security dismissed

CIVIL PROCEDURE – judicial review – extension of time to commence proceedings – 10 months out of time – whether proposed proceeding had reasonable prospects of success – whether adequate explanation for delay – Uniform Civil Procedure Rules 2005 (NSW), r 59.10 CRIMINAL PROCEDURE – appeal from Local Court to District Court – application to state case to Court of Criminal Appeal – application refused because no question of law – case to be stated within 28 days – application made 15 months after District Court judgment – no extension of time sought from Court of Criminal Appeal – whether application particularised question of law – Criminal Appeal Act 1912 (NSW), s 5B

CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for judge only trial – nature of appeal – function of appellate court – Criminal Appeal Act 1912 (NSW), s 5F – DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 applied – discussion of R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 CRIMINAL PROCEDURE – interlocutory appeal – application for judge only trial – whether judge only trial in the interests of justice – relevant considerations – change of venue required if application rejected – Criminal Procedure Act 1986 (NSW), s132

CIVIL PROCEDURE – ex parte application for sperm retrieval from body of deceased romantic partner of applicant – medical efficacy of procedure requires utmost urgency – order made authorising extraction and retention of sample by medical practitioner pending further order of the Court

COSTS – application for payment forthwith – consideration of relevant factors – protracted dispute as to discovery – where refusal to order payment forthwith would stultify defence of bank’s claim – whether defence of claim futile – whether payment forthwith should be refused on that basis

DEFAMATION – pleading – application to amend name of defendant – where plaintiff had difficulty identifying the user of a particular WeChat identifier

DEFAMATION – Practice and procedure - tender of audio visual recording of Royal Commission into Institutional Responses to Child Sexual Abuse - objected on basis of relevance and probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial - dangers of relying upon demeanour and unreliability of demeanour as an aid in assessing the quality of evidence - imputation drawn with specificity - satisfied of relevance - Counsel for the plaintiff granted liberty to nominate portions of the recording to guard against the risk of unfairness

PROCEEDS OF CRIME – application for order for compulsory examination – threshold question whether to proceed ex parte – no compelling reason for proceeding ex parte established – application dismissed

CIVIL PROCEDURE – application by plaintiff to transfer proceedings to the District Court – damages quantum likely not to exceed jurisdictional limit of District Court – where identical issues in another case to be heard in Supreme Court – risk of inconsistent verdicts – undesirability of plaintiffs giving evidence twice – interests of justice – transfer application refused LIMITATION OF ACTIONS – tort – sexual abuse claim – whether corporal punishment falls within Limitation Act 1969 – whether claim is statute barred – issue to be decided upon full hearing

CRIMINAL PROCEDURE – application by accused for further adjournment of criminal trial – accused charged with a number of serious historical offences –difficulties faced by accused in consulting with lawyers whilst in custody – where new lawyers retained by accused – arrangements made by accused to retain forensic experts – where production and review of documents sought by subpoenas issued to third parties is incomplete – where accused sought a judge alone trial – where application for judge alone trial was granted – increased flexibility available in judge alone trial – consideration of the interests of justice – order made requiring Crown to deliver opening address in week fixed for trial – adjournment granted for two months before commencement of evidence

CRIME – application for trial by a judge alone – s 132(1) of the Criminal Procedure Act 1986 – trial involving historical offences including four counts of murder – where consent by prosecution to order for judge alone trial – leave granted to apply out of time – order made

CORPORATIONS – statutory demand – whether genuine dispute – solicitor client relationship – solicitor acts for plaintiff – whether term of retainer that solicitor would act on “no win no fee” basis – disputed testimonial evidence as to terms of retainer – various circumstances tending to support plaintiff’s account – inconsistencies in evidence adduced by defendant – statutory demand set aside

APPEAL – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – s 83 of the Civil and Administrative Tribunal Act 2013 – s 69 of the Supreme Court Act 1970 – principles governing grant of leave to appeal – discretion of the Tribunal pursuant to s 107 of the Residential Tenancies Act 2010 – construction of s 107 of the Residential Tenancies Act 2010 – whether questions of law were raised as to the miscarrying of a discretion under s 107 of the Residential Tenancies Act 2010 – procedural fairness in Appeal Panel proceedings – jurisdiction of Appeal Panel to make an order for payment of a bond – contention of bias of Appeal Panel – whether Appeal Panel should have issued certificate pursuant to s 128 of the Evidence Act 1995 – leave to appeal granted – incompetent grounds – leave to appeal refused – no error of law –summons dismissed – costs reserved

CORPORATIONS LAW – access to company’s books by member – Corporations Act s 247A – whether available as interlocutory relief – whether supported entitlement to answers to questions – whether common law right was consistent with restrictive provision in company’s Constitution – whether analogous to beneficiary’s right to trust documents PRACTICE – pleadings – particulars – dispute about entitlement to particulars – parties already exchanged substantial affidavit evidence – limited particulars ordered

SENTENCING – remarks on sentence – offence of hindering the investigation of a serious indictable offence (murder) contrary to s 315(1)(a) of the Crimes Act 1900 (NSW) – plea of guilty to lesser offence at start of trial

CIVIL PROCEDURE – variation of orders – costs – application for award of interest on costs – source of power to award interest on costs – whether interest calculation to run from date of payment of costs to own lawyers – relevant considerations – when evidence of payment relevant – whether costs disproportionate to amount in issue – interest on costs of trial first sought after judgment on appeal CIVIL PROCEDURE – costs – interest on costs – importance of avoiding satellite litigation CIVIL PROCEDURE – exercise of discretionary powers – reasons in one case not to be taken as statement of principle generally applicable STATUTORY INTERPRETATION – use of extrinsic materials to resolve uncertain operation of amendments – available construction shown to be unintended

CRIME – application for leave to appeal against sentence – domestic violence – repeated serious offending against same victim – unusual chronology – pre-existing sentence relating to offences committed after the subject offences – correct commencement date – where sentence summary apt to mislead sentencing Judge – incorrect commencement date – requirement that sentence takes into account time spent in custody for present offence – pre-existing sentence less than three years – statutory parole period – whether accumulation nullified finding of special circumstances – applicant re-sentenced

CRIMINAL LAW – appeal against conviction – sexual offences against a child family member – where Crown case included alleged admissions including general admissions not referring to any particular act, charged or uncharged, and specific admissions of uncharged acts – whether the trial judge failed to give adequate direction as to the way in which that evidence could be used

CRIMINAL LAW - conviction appeal – three offences of using a carriage service to transmit child pornography material contrary to s.474.19(1) Criminal Code 1995 (Cth)- online communications by appellant with a police officer using an assumed online identity of a 30 year old woman – appellant’s transmissions included descriptions of sexual activities he wished to undertake with the woman and her 11 year old daughter – definition of “child pornography material” in s.473.1 of Code – contention that offence did not extend to transmissions concerning future sexual activity - held that the offence is not limited to descriptions of sexual activity expressed in the present tense – narrow construction would lead to absurd results and not promote legislative purpose – no error established in trial Judge’s refusal of application for directed verdicts of acquittal – claim of error in directions concerning recklessness and inferences – directions to the jury concerning recklessness were appropriate – no further directions sought by counsel – no error demonstrated – directions to the jury concerning inferences were appropriate – no error demonstrated – appeal dismissed

CRIMINAL LAW – sentence appeal – filming private acts without consent in circumstances of aggravation – 10 counts with 14 counts on a Form 1 – offences committed over a 7 year period – 8 victims – victims aged generally between 14 and 16 – covert filming of young girls showering, changing and toileting – significant breach of trust – fact that offending could have been more serious not a matter of mitigation – sentence not manifestly excessive – appeal dismissed.

APPEALS – appeal against conviction – judge-alone trial – requirement to give reasons – historical indecent assaults by principal against pupils – whether trial judge failed to give reasons dealing with appellant’s and expert’s evidence occasioning miscarriage of justice – where appellant denied allegations but gave little evidence – where expert witness gave evidence of limitations of memory after time lapse – where trial judge gave extensive reasons for accepting complainant’s evidence over appellant’s evidence – trial judge gave adequate reasons why satisfied beyond reasonable doubt of accused’s guilt – ground rejected. APPEALS – appeal against conviction – historical indecent assaults by principal against pupils – whether verdicts in judge-alone trial unreasonable – where complainants’ evidence said to be not cogent and that significant doubt necessary – open to trial judge to be satisfied of the accused’s guilt beyond reasonable doubt – appeal dismissed. SENTENCING — appeal against sentence — severity — whether sentence manifestly excessive – where appellant convicted of three counts of indecent assault on pupils – where appellant sentenced to 18 months with non-parole period of 9 months – where appellant conceded imprisonment appropriate – whether appellant’s breach of trust more serious because he was school principal – sentencing judge not in error as to approach or applicable principles – leave to appeal granted – appeal dismissed.

CRIMINAL LAW – evidence – leave to re-establish credibility through another witness – prior inconsistent statement – whether cross-examination raised fabrication, reconstruction or suggestion – consideration of previous authorities – credibility rule not waived

CRIMINAL LAW – evidence – tendency and coincidence evidence – where evidence has significant probative value – role of trial judge – consideration of Evidence Act 1995, ss 97 and 98 – effect of Criminal Procedure Act 1986, ss 130 and 130A CRIMINAL PROCEDURE – application by accused to sever counts on the indictment – where prior ruling refusing severance – application of Criminal Procedure Act 1986, s 130A – whether it would not be in the interests of justice for that previous ruling to be binding – where new evidence served by Crown – challenges to accuracy of one Crown case statement in evidence CRIMINAL PROCEDURE – application by accused to call three witnesses before trial for cross-examination – tendency and coincidence evidence sought to be led by Crown – alleged insufficient probative value

COSTS – applications for leave to appeal costs order made in the Local Court – applications for relief not sought in the Local Court – claimants ought to have known their applications against another party enjoyed no real prospect of success – application for indemnity costs

COSTS – application for leave to appeal against costs order of the Local Court – whether any important point of principle raised – where Magistrate declined to award indemnity costs in favour of successful defendant after plaintiff’s failure to accept offer of compromise – potential conflict between practice note and rules – no new issue not previously considered by this Court – absence of merit in proposed grounds of appeal

PROCEEDS OF CRIME – confiscation – ex parte application for restraining order pursuant to the Criminal Assets Recovery Act 1990 – statutory interpretation of s 10A – whether no temporal or other connection required between reasonably suspected “serious crime related activity” and interests to be restrained – application dismissed

CIVIL PROCEDURE – costs – solicitor-client costs – gross sum costs order – where application made by plaintiff’s solicitor for variation of final orders – where application seeks dispensation of final orders requiring that solicitor-client costs be assessed before a gross sum assessment can be made – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – whether the court has jurisdiction to make the substantive variations to final orders sought – plaintiff’s solicitor has no standing to make application – not in plaintiff’s best interests to dispense with requirement for full assessment of solicitor-client costs SOLICITORS – duties – application for gross sum costs order – application to dispense with order requiring assessment of solicitor-client costs

LANDLORD AND TENANT – BUILDING AND CONSTRUCTION LAW – agreement for lease – where landlord agreed to carry out certain building work on the premises but did not do so – where binding determination by an expert found that the landlord was in breach – whether appropriate to grant a decree for specific performance requiring the landlord to do the work – claim for damages for breach of the agreement for lease representing the loss of profits from not being able to conduct child care centre business at the premises; HELD: the question of whether specific performance should be granted should be decided before all other questions in the proceedings – decree for specific performance made.

INSURANCE – PROCEDURE – civil – whether leave should be granted to proceed against the insurer under s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – exclusion clauses – whether insurer can disclaim liability – discretion of the court; HELD: leave to proceed granted

CIVIL PROCEDURE — Pleadings — Amendment — Application for leave to withdraw admissions made in pleadings CIVIL PROCEDURE — Admissions — Admission of facts — Withdrawal of admissions — whether the Court should grant leave to withdraw admissions made in pleadings — whether admitted fact is likely to be false — whether the withdrawal of the admissions will further the interests of justice

COSTS – amendment of defence – where amendment involves withdrawal of admissions – where evidence obtained in the process of exchange of statements supports withdrawal of admissions – where mediation had already taken place – unreasonableness of Plaintiff’s opposition to amendment given the explanation provided – mediation of less utility as a result of Defendant’s amendments

CONTRACT – implied terms – whether exclusivity term should be implied into the contract – breach of contract – repudiation COSTS – Calderbank offer – indemnity costs – proportionate costs orders – UCPR r 42.34

COSTS — party/party — orders against non-parties — personal costs orders against lawyers — whether lawyer’s conduct constitutes serious incompetence or neglect — whether personal costs order should be made COSTS — party/party — orders against non-parties — personal costs orders against lawyers — scope of jurisdiction — whether jurisdiction includes indemnity with respect to contractual liabilities to lawyers and third parties — Civil Procedure Act 2005 (NSW), s 99(2)(c) EVIDENCE — judgments and convictions — admissibility of decisions or findings of fact — whether court can rely on findings made in principal proceedings when exercising jurisdiction to order personal costs against lawyer — Evidence Act 1995 (NSW), s 91

CRIMINAL LAW – Evidence – leave to revive memory by use of document – whether memory of witness exhausted – “Fuck, I can’t remember what I said” – insightful self-assessment of the quality of witness’s memory – “heaps of drugs” – whether “fresh in the memory”

EQUITY – Equitable Trusts – 1897 trust deed relating to the Sze Yup Kwan Ti Temple in Glebe – Where proceedings commenced by one of the trustees against the other trustees – Where Attorney General has intervened in the Proceedings – Where the Attorney General’s consent or leave of the court is required if the proceedings are “charitable trust proceedings” pursuant to s 5(2)(b) of the Charitable Trusts Act 1993 (NSW) – Preliminary question as to whether the proceedings are “charitable trust proceedings”; agreement reached at hearing of preliminary question that the Attorney General circulate proposed orders – Where agreement reached between the parties on all terms of the proposed orders, bar one – Determination of final orders – Whether or not the orders should include a provision which permits any trustee to record, by audio or audio-visual means, the meetings of trustees; Held: not appropriate to fetter the trustees as to how meetings should be conducted – Orders as made annexed to reasons for judgment (Schedule A).

DEFAMATION – Practice and procedure - tender of written submissions - whether the admission of the document is unfairly prejudicial - probative value - author of article not present - claim of lost opportunity to cross-examine - probative value not substantially outweighed by the danger that the evidence might be unfairly prejudicial to plaintiff - not uncommon - plaintiff did deprived of opportunity to make a Jones v Dunkel submission

DEFAMATION – Fair comment - factual basis for comment - matter published on privileged occasion – transcript tender from Royal Commission into Institutional Responses to Child Sexual Abuse - Royal Commissions Act 1923 (NSW) - abrogation of privilege against self‑incrimination - exceptions - Royal Commissions Act 1902 (Cth) - distinction drawn between State and Commonwealth legislation - transcript admitted into evidence for limited purpose

EQUITY – application for interlocutory injunctive relief – plaintiffs seek to restrain defendant using certain documents in Fair Work proceedings – where such documents alleged to be either confidential or the property of the plaintiffs – no basis for characterising the documents as either of these – application dismissed.

CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where significant risk of harm to child if order not made - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery - orders made.

CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where significant risk of harm to child if order not made - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery - orders made.

CRIMINAL PROCEDURE – application in relation to custodial conditions of accused before trial – agreement reached with Commissioner for Corrective Services as to a number of orders sought – transfer of accused to previous correctional centre – improper to make order permitting solicitors for the accused to have mobile phone access with internet capacity during legal visits – contrary to policy – clear security risk – strong recommendation made that daughter of the accused be able to attend legal visits in company of solicitors for the accused

PROCEDURE – civil contempt of Court – contravention of Court orders – clear and deliberate breach

CORPORATIONS - liquidators - direction that liquidator justified in compromising litigation - Corporations Act 2001 (Cth) s 479

COSTS – hearing for primary proceedings vacated as no justiciable issue had yet crystallised – both parties contributed to outcome – no basis to allocate individual responsibility – no order as to costs leading up to hearing date. COSTS – summary dismissal – plaintiff accepts it must pay costs associated with notice of motion – orders made.

CIVIL PROCEDURE – summary disposal – judgment for plaintiff – whether there is no arguable case – where defendant guaranteed loan made by plaintiff to defendant’s company – where company defaulted on repayments – whether guarantee enforceable against defendant – whether terms void or unjust or unenforceable – whether plaintiff’s conduct prevented performance – whether guarantee enforceable against third parties – not established that there is no arguable case – notice of motion dismissed

CORPORATIONS – winding up – insolvency – set-off – Corporations Act 2001 (Cth) s 553C – where question as to quantum of debt owed to company - where discrepancies between MYOB records and financial statements – Corporations Act s 1305 - whether former director could set-off alleged debt – where director intended to take assignment of debt owed by company to a related company but agreement for assignment made between related company and co-director - where debt arose through constructive trust creating an equitable interest at the time of commencement of winding up – whether equitable interest short of equitable ownership could be set-off CIVIL PROCEDURE – Pleadings – whether s 553C(2) was required to be pleaded – Uniform Civil Procedure Rules, r 14.14(2)(b) – leave to amend not sought

EVIDENCE – whether question in cross examination within the ambit of pleadings – where specific terms of announcement not pleaded – where specific terms of announcement not objected to in other statements

WILLS AND ESTATES – disputed probate hearing – application for plaintiffs to be appointed as administrators of will pending hearing – consideration of principle in De Chatelain that a party to the proceedings will ordinarily not be appointed administrator – where any risk of conflict is more theoretical than real – where urgency surrounds the application – where no proper alternative other than plaintiffs – discretionary exercise tips in favour of appointing the plaintiffs – application granted. CONTEMPT – defendant in significant contempt of court orders – where no attempt made to purge the contempt – where the contempt relates directly to subject matter of proceedings – defendant can oppose relief sought by plaintiffs but cannot be heard to propound himself as candidate for administrator.

CRIMINAL PROCEDURE – application for non-publication order pursuant to Court Suppression and Non-publication Orders Act 2010– application made by prosecution in another Australian jurisdiction – where non-publication order is necessary to prevent prejudice to the proper administration of justice in a separate trial – consideration of the principle of open justice – no prejudice to accused in conducting his defence – non-publication order made

CIVIL PROCEDURE – application for summary dismissal of the proceedings of the plaintiff against the second defendant – no formal notice of motion – whether self-represented plaintiff appreciated the nature of the application to be made – second defendant true opponent and contradictor in proceedings – contention of plaintiff not doomed to failure – application dismissed