Cases and authorities

ADMINISTRATIVE LAW – judicial review – Medical Appeal Panel of the Workers Compensation Commission of New South Wales – appeal against medical assessment – Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Act”), ss 323, 327, 328 – where impugned medical assessment had no deduction of degree of impairment for previous injury or pre-existing condition – where appeal upheld by Panel and deduction assessed at 50% – grounds of appeal under s 327(3) of the Act – whether assessment made on basis of “incorrect criteria” per s 327(3)(c) of the Act – whether assessment contained “demonstrable error” per s 327(3)(d) of the Act – whether appellate decision unreasonable – whether lack of “evident and intelligible justification” – whether procedural fairness denied – whether failure to provide sufficient reasons – summons dismissed

COSTS – appropriate principles and considerations – indemnity costs – lump sum or gross costs order – whether indemnity costs or lump sum costs order should be made – appropriate discount to lump sum or gross costs order

TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.

CONSUMER LAW — misleading or deceptive conduct — where plaintiff is a South African corporation — where defendant distributed plaintiff’s products in Australia to Woolworths on a trial basis — where plaintiff and defendant then unable to agree on price for which defendant would purchase plaintiff’s goods with a view to on sale in Australia to Woolworths — where defendant then manufactured similar products in Australia and sold to Woolworths — whether defendant thereby misleadingly or deceptively represented to Woolworths that its goods were those of the plaintiff — whether plaintiff had goodwill and reputation in Australia — whether Woolworths relied on any representation by defendant when purchasing goods from it TORTS — passing off — whether defendant passed off its goods to Woolworths as those of the plaintiff — whether plaintiff had reputation in Australia — whether defendant represented to Woolworths that its goods were those of the plaintiff

ADMINISTRATIVE LAW – regulations — validity of delegated legislation — whether Racing Appeals Tribunal Regulation 2015 (NSW), cl 5 arbitrary or capricious CIVIL PROCEDURE — parties — joinder — whether necessary to join State of New South Wales (or other relevant polity) where challenge to validity of regulations — State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 not followed JURISDICTION — Racing Appeals Tribunal – decision by Racing NSW not to renew bookmaker licence – jurisdiction to hear appeal WORDS AND PHRASES — “regulations may make provision for or with respect to appeals” — Racing Appeals Tribunal Act 1983 (NSW), s 18 WORDS AND PHRASES — “person … may, in accordance with the regulations, appeal” — Racing Appeals Tribunal Act 1983 (NSW), s 15 — “revoke the licence of any person under the rules” — Racing Appeals Tribunal Regulation 2015 (NSW), cl 5

CRIMINAL PROCEDURE – Summaries of evidence – not to be tendered at this stage – No point of principle.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed schemes of arrangement – whether requirements to order scheme meetings are satisfied. CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in propounding resolutions to implement the proposed trust schemes – whether proposed amendments are within the powers of alteration conferred by the constitution of the managed investment scheme and s 601GC of the Corporations Act.

COSTS — Party/Party — General rule that costs follow the event — where costs follow the event in main proceedings — whether third and fourth defendant should not have costs incurred preparing evidence of witness not called — whether plaintiffs should have their costs of responding to that evidence — where related proceedings referred to arbitration — where arbitration subsequently remitted to court to be heard concurrently with main proceedings — whether plaintiff should pay costs of that arbitration

PRACTICE AND PROCEDURE – Juries – Discretionary discharge of juror – Whether entire jury should be discharged

REAL PROPERTY - caveats - withdrawal of caveats - Real Property Act, s 74MA - contract for sale of land made in October 2014 - specific performance of the contract for sale ordered in May 2017 - settlement scheduled before the Registrar in Equity on 11 April 2018 - caveat lodged on 4 April 2018 - plaintiffs apply on 18 April 2018 for orders under Real Property Act, s 74MA that the caveator withdraw the caveat and for orders under Real Property Act, s 74O that the caveator be restrained from lodging further caveats - whether the Court should exercise its discretion under Real Property Act, s 74MA to order the withdrawal of the caveat - whether there is a serious question to be tried - what is the balance of convenience - whether an order restraining the caveator from lodging further caveats should be made - whether caveators should pay the plaintiffs’ costs and if so on the indemnity basis.

CRIMINAL LAW – whether evidence given before Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – where application opposed by known person – where evidence does not appear to contain exculpatory or inculpatory evidence – where submissions heard in absence of Crown and accused – application refused

EVIDENCE – business records – reports and manuals prepared years after events subject of proceedings –identification of representation – relevance –whether representation opinion – “so far as the documents contain representations” – tender of bulk of documentary evidence rejected

CIVIL PROCEDURE – hearings – suppression and non-publication – orders – proceedings concerning a ‘serious crime prevention order’ in respect of members of an Outlaw Motor Cycle Gang – whether necessary to suppress parts of transcript of hearing in closed court tending to identify the source of evidence in confidential affidavit of police officer – Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 – whether public interest in preserving secrecy outweighs public interest in publication – general concern that publication would endanger source – orders made with respect to confidential evidence without disclosing the evidence itself

EVIDENCE – where significant passage of time between material events and trial – where each witness has strong self-interest and emotional investment in outcome of trial – where witnesses from both sides disposed to substantial in-court inventions – no substantial probative weight attached to disputed testimonial evidence. CONTRACT – loan agreements between members of family – initial question of whether loan agreements took effect as deeds – no credible evidence to support conclusion that formal requirements of signing were not met – agreements took effect as deeds. CONTRACT – execution of deeds said to have been procured by misleading or deceptive conduct – where executed deed differed from antecedent oral and written ‘agreements’ – where both parties received legal advice as to the terms of the deeds – where defendants aware of terms of deeds and demonstrated agreement by signing – no misleading or deceptive conduct established. CONTRACT – enforcement of deeds said to be unconscionable – where deeds provided for interest rate of 18% p.a. compounded daily – plaintiffs conceded that simple interest rate of 18% p.a. to be applied. EQUITY – judicial sale – construction of deeds – whether equitable charges granted by deeds only extended to properties owned as at date of deeds or also to future properties – mutual intention of parties demonstrates the latter intention – plaintiffs entitled in principle to order for judicial sale. CONTRACT – contractual discharge of liabilities – whether compromise was reached between the parties – no compromise demonstrated to have taken place.

CIVIL PROCEDURE – summary disposal – application by plaintiff mortgagee for summary judgment for possession of land upon default of defendant mortgagor – summary judgment not available when defence of sham was neither hopeless nor unarguable – where plaintiff was silent as to whether it advanced funds pursuant to loan agreement CIVIL PROCEDURE – pleadings – amendment – to plead that loan and mortgage documents were a sham – registration of mortgage did not preclude defence of sham - no inconsistency with previous pleadings – early application to amend worked no prejudice on plaintiff

CRIME – appeal – sentence – sole ground asserting insufficient disparity with sentence imposed upon co-offender – no merit – no point of principle – leave to appeal refused

CRIMINAL LAW – appeal against sentence – applicant entered pleas of guilty to 29 offences contrary to ss 61J(1), 61M(1), 91G(1)(a) and 91H(2) of the Crimes Act 1900 (NSW) – whether the sentence imposed was manifestly excessive.

CIVIL - approval of settlement - claim by person under legal incapacity - failure of NDIS to indicate whether payback would be sought - unsatisfactory that tutor and disabled person not have certainty on this issue - Court states that it would be highly undesirable for NDIS to seek payback in this case - settlement approved - consent orders made

CRIMINAL PROCEDURE – application to set aside subpoena issued to Commissioner of NSW Police – where subpoena was lengthy and broad in scope –whether subpoena amounted to discovery and was a fishing expedition – whether paragraphs objected to had legitimate forensic purpose – subpoena set aside in part – other paragraphs permitted after amendments

CRIMINAL PROCEDURE – application to set aside subpoena issued to third party – whether subpoena amounted to discovery and was a fishing expedition – whether no legitimate forensic purpose – subpoena set aside in part

CRIMINAL PROCEDURE – leave sought by Crown to file and serve on accused aerial photographs of various locations where offences took place – no question of principle – leave granted

CRIMINAL LAW – trial by Judge alone – application brought late – whether leave should be granted – where prosecution consent to a trial by Judge alone – operation of statute – application granted

CONTRACT – construction COSTS – discretion to deny a proportion of costs to successful party

PRACTICE AND PROCEDURE – application to vacate hearing date – where defendants sued on guarantee – where defendants belatedly adduced evidence that some signatures on surety documents purporting to be theirs were not genuine – whether there is an arguable defence

REAL PROPERTY - caveats - withdrawal of caveats - Real Property Act, s 74MA - contract for sale of land made in October 2014 - specific performance of the contract for sale ordered in May 2017 - settlement scheduled before the Registrar in Equity on 11 April 2018 - caveat lodged on 4 April 2018 - plaintiffs apply on 18 April 2018 for orders under Real Property Act, s 74MA that the caveator withdraw the caveat and for orders under Real Property Act, s 74O that the caveator be restrained from lodging further caveats - whether the Court should exercise its discretion under Real Property Act, s 74MA to order the withdrawal of the caveat - whether there is a serious question to be tried - what is the balance of convenience - whether an order restraining the caveator from lodging further caveats should be made - whether caveators should pay the plaintiffs’ costs and if so on the indemnity basis.

HIGH RISK OFFENDER – serious sex offender – extended supervision order final hearing – whether high degree of probability that defendant poses unacceptable risk of committing another serious offence if not under supervision of ESO – where defendant convicted of violent sexual assault and conspiracy to murder – where defendant evinced denial of responsibility for offences – where defendant convicted of aggravated indecent assault on person under 16 – where defendant subject of allegations not resulting in charge or conviction – where defendant subject of allegation of sexual assault resulting in APVO – where defendant’s parole revoked due to breach of alcohol abstinence direction – where psychiatrists and psychologists almost unanimously categorised defendant’s risk of reoffending as moderate to high – where defendant diagnosed with HIV-associated neurocognitive disorder – extended supervision order granted

HIGH RISK OFFENDER – serious sex offender – extended supervision order preliminary hearing – interim supervision order hearing – whether matters alleged would if proved satisfy the court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision – where defendant diagnosed with Asperger’s syndrome – where defendant had sexual assault and indecent assault convictions – where defendant had multiple convictions for breaches of protection orders – where defendant’s risk assessment in highest level – interim supervision order granted – two psychiatrists and/or psychologists to conduct examinations of the defendant and furnish reports for final hearing

CONTRACTS – construction – shareholders agreement – mechanism for compulsory disposition to remaining shareholders or third party in certain events – whether compulsory disposal mechanism triggered – provision for expert determination of price at which shares to be purchased by remaining shareholders – whether determination can be impugned – whether expert entitled to determine methodology by which price to be determined – whether price means market value or fair and reasonable value of the shares – whether expert erred in adopting market value – whether expert made determination of the kind specified in the shareholders agreement – whether compulsory disposition mechanism void for uncertainty

PUBLIC LAW – COMPULSORY ACQUISITION OF LAND – Land Acquisition (Just Terms) Compensation Act 1991, s 15 – Roads Act 1993, ss 177(1) and (2)(b) – validity of proposed acquisition notice –departure from Ministerially approved form – validity of approved form – requirement to state public purpose of acquisition – improper purpose – whether proposed acquisition notice issued for ulterior purpose; HELD proposed acquisition invalid for statutory non-compliance. If otherwise not invalid, it would be invalid because it was issued for improper purposes.

SUCCESSION – family provision – deceased left estate to widow – no provision made in will for adult son – whether provision should be made under s 59 of Succession Act 2006 (NSW) in favour of adult son – whether notional estate orders should be made – appropriate approach to balancing obligations to beneficiary and applicant – respect for testator’s intentions – conclusion that deceased did not fail to make “proper” provision for the applicant’s maintenance, education and advancement in life hence no family provision order made

LEASES AND TENANCIES – Exercise of option – Whether agreement for lease arising out of exercise of option had been abandoned – Held no abandonment – Discretionary considerations relevant to a specific performance order – Held specific performance of the agreement for lease should be ordered – Cross-claim for alleged breaches of option lease

ADMINISTRATIVE LAW – Judicial review - whether a s 323 deduction should have been made due to previous injury/pre-existing condition - whether the Appeal Panel misdirected or a asked itself the wrong question – “main contributing factor” - whether the Appeal Panel relied on illogical and irrational reasoning - Appeal Panel expertise – whether the Appeal Panel’s decision was legally unreasonable as to the outcome - Court’s supervisory role – area of decisional freedom

CIVIL PROCEDURE – notice of motion to set aside judgment of Court of Appeal for fraud – whether there was new evidence on the basis of which judgment should be set aside

PRACTICE - transfer application under cross-vesting legislation - proceedings between substantially same parties in Supreme Court and Federal Court following termination of licence agreement for exploitation of registered trade marks - contractual obligation to sell trade marks within a reasonable time - board deadlocked on sale of marks - Supreme Court proceedings sought compulsive sale of trade marks and winding up - basis of winding up application improper commencement of Federal Court proceedings by director without directors’ or members’ resolution - Federal Court proceedings sought declaratory, injunctive and pecuniary orders for trade mark infringement - undetermined application for security for costs - applicant in Federal Court proceedings having no liquid assets and no source of income and large indebtedness - application to transfer Supreme Court proceeding to Federal Court under Corporations Act 2001 (Cth), s 1337H - whether “more appropriate” that Supreme Court proceedings be heard and determined in Federal Court - overlap of issues in relation to value of trade marks and means and manner in which Federal Court proceedings commenced - exceptional case where transfer not shown to be more appropriate, having regard to uncontested evidence as to damage to marks if not in market, large volume of stock and unfulfilled orders, and real prospect of Federal Court proceedings being delayed because of properly founded application for security for costs - application to transfer dismissed

RESTRICTED PREMISES – application for declaration of premises under the Restricted Premises Act – whether reasonable grounds exist for suspecting entertainment of a demoralising character takes place on the premises – meaning of the term “demoralising” – whether entertainment involving the use of a “stripper pole” has a demoralising character within the meaning of the Act – whether reasonable grounds exist for suspecting liquor unlawfully sold on the premises – whether reasonable grounds exist for suspecting reputed criminals resort to the premises PRACTICE AND PROCEDURE – appropriateness of determining application ex parte – urgency – where premises registered in the name of a deregistered company – premises used as a club house for an outlaw motorcycle gang – occupier not readily identifiable

COSTS - Party/Party - Exceptions to general rule that costs follow the event - Whether Strata Schemes Management Act 2015 (NSW) made adequate provision for the enforcement of rights or remedies which plaintiff sought to enforce in Supreme Court – Application to Supreme Court for declarations to be discouraged where relief to the same effect available in NCAT - Strata Schemes Management Act 2015 (NSW), s 253

CRIMINAL LAW – application for severance of counts – relevant principles – where accused charged with murder – further charged with soliciting the murder of a witness – where accused and stepbrother charged with conspiracy to murder witness – where tendency evidence to be tendered on murder charge not admissible in respect of solicit and conspiracy charges – whether facts behind solicit charge admissible to prove consciousness of guilt – whether prejudice capable of being cured by direction – application refused CRIMINAL LAW – murder – conspiracy and solicit murder of witness – application for separate trial from stepbrother – where stepbrother charged with conspiracy but not other offences – where cases substantially different – where case against stepbrother relatively confined – where stepbrother made inadmissible and pejorative references to accused and his defence to the murder charge – psychotic – compulsive liar – “believes his own bullshit” – stand-over merchant - cumulative impact of prejudicial material – incapable of cure by direction – application granted

MEDICAL NEGLIGENCE – birth difficulties – approval of settlement for incapacitated party – question of whether agreement had been reached on offer of compromise – offer made which was accepted – offer in accordance with UCPR – agreement effective – matter settled – issue between the parties on terms of orders on question of costs and interest on costs – not an issue undermining agreement – orders made resolving issue between parties – settlement approved.

SET OFF – judgment for $250,000 plus interest entered against the defendants for conversion of the plaintiff’s stock, plant and equipment – after judgment the defendants sought set off or a stay of part of the judgment on account of a claim in another jurisdiction for arrears of rent alleged to be due in respect of the rental premises where the re-entry occurred – whether the proceedings should be re-opened – whether defendants entitled to a set off – whether judgment should be partially stayed. COSTS – plaintiff successful in claim for conversion – but plaintiff claims substantial damages, including consequential loss – plaintiff only partly successful in claim for damages – should prior costs orders be revisited - what is appropriate costs order.

APPEAL – Local Court – leave to appeal – dismissal and incompetency – Uniform Civil Procedure Rules, 50.16A – Local Court Act 2007 (NSW), s 40 – whether Local Court’s decision is interlocutory or final – whether leave should be granted on questions of mixed fact and law – questions of law – Local Court Act 2007 (NSW), ss 34 and 39 – whether procedural fairness was afforded to the plaintiff – whether the Local Court has jurisdiction to hear a claim under the Australian Consumer Law – whether Local Court has power to dismiss proceedings for want of jurisdiction – Judiciary Act 1903 (Cth), s 39

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District Court - Proceedings erroneously commenced in Court without jurisdiction – Whether power to transfer proceedings to District Court under s 146 of the Civil Procedure Act 2005 COSTS – Party/Party – Cost orders in interlocutory proceedings – Costs in the cause – Court’s discretion

CRIMINAL LAW – practice and procedure – direction sought as to competing evidence – factual issue – direction sought refused

BUILDING AND CONSTRUCTION – Progress payments – Effect of omission of information from a supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(9) – Effect of failure to serve a supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(7)

CRIMINAL PROCEDURE – application to set aside subpoena issued to third party – whether subpoena amounted to discovery and was a fishing expedition – whether six paragraphs objected to had no legitimate forensic purpose – subpoena set aside in part

CRIMINAL PROCEDURE – interlocutory orders –motion for reformulation of Crown electronic brief in specified form – where order previously made requiring Crown to prepare an electronic brief –consideration of mandatory pre-trial disclosure obligations – Criminal Procedure Act 1986 ss 141(1)(a) and 142 – motion dismissed in part

CRIMINAL LAW – evidence – application to exclude evidence received about a shooting under s 137 of the Evidence Act – whether there is a risk of unfair prejudice to accused - application refused – reasons

CRIMINAL LAW - evidence – disputed telephone calls – evidence relevant to circumstantial case – relevance established – evidence cannot be excluded under s 137 of the Evidence Act

CRIMINAL LAW – practice and procedure – disputed evidence concerning a shooting – whether evidence is relevant – whether it should be excluded under s 137 of the Evidence Act 1995 (NSW) - whether the probative value of the disputed evidence is outweighed by the danger of unfair prejudice to the accused – evidence relevant and should not be excluded

CRIMINAL LAW – evidence – access sought to letters involving co-accused’s plea negotiations – voluntary disclosure – Legal professional privilege – without prejudice privilege – where part of letters disclosed to the accused – whether plea negotiations are privileged – where letters contained admissions – “Cox v Railton” exception to the privilege – whether letters sought are privileged under s 119 of the Evidence Act – whether privilege was waived or lost – whether there is an exception to privilege under s 131 of the Evidence Act