Cases and authorities

CRIMINAL PROCEDURE – notice of motion seeking a copy of transcripts for all pre-trial proceedings – where cost of transcripts was estimated to be substantial – interests of justice – access to transcripts granted

CRIMINAL PROCEDURE – notice of motion seeking an order that the Crown be required to re-test some forensic material – evidence that test sought is no longer performed in Australia – motion dismissed

PROCEDURE — Judgments and orders — Orders giving effect to the principal judgment — declaration of legal and beneficial interest in land and order to pay rent received COSTS — Party/Party — Bases of quantification — Ordinary basis COSTS — Party/Party — Bases of quantification — Indemnity basis COSTS — Party/Party — Offers of compromise/Calderbank offers — whether Offers of compromise/Calderbank offer was effective — whether indemnity costs should be ordered against offeree following non acceptance of Offer of compromise/Calderbank offer — costs on the indemnity basis following non acceptance of an effective Calderbank offer

SUCCESSION – family provision and maintenance – principles upon which relief granted – claim by adult children against large estate CONTRACT – Account – Money due on account stated – Whether “Acknowledgement of Loan” signed by parties was account stated

CIVIL PROCEDURE – whether order should be made for court-annexed mediation – whether respondent’s solicitor should be directed not to attend mediation – whether new independent legal representatives for respondent should be appointed – what procedural steps applicant should take to review earlier Court of Appeal decision

DEFAMATION – offer of amends – whether implicitly rejected prior to purported acceptance by intervening offer of compromise by plaintiff – consideration of the proper construction of the offer of amends provisions of the Defamation Act 2005 (NSW) – good sense in construing those provisions so as to reserve to the party making an offer exclusive control to determine the term for which the offer remains open for acceptance

DEFAMATION – publication – claim based on allegedly defamatory comments by reader posted on newspaper’s Facebook page in response to newspaper article – newspaper disputing liability for publication of reader’s comment – whether plaintiff entitled to discovery of documents relevant to that issue

CIVIL PROCEDURE – duty of a plaintiff to prosecute action with due despatch – where plaintiff repeatedly failed to comply with pre-trial directions - requirement to show cause for a second time why proceedings should not be dismissed

DEFAMATION – form of pleading – plaintiff seeking to restrain apprehended publication – whether “strike-in” of further material can be compelled in that context – imputations – whether capable of being conveyed

CIVIL PROCEDURE – administration of estate – Uniform Civil Procedure Rules 2005 (NSW), r 54.3 – potential US tax liabilities of deceased estate – whether deceased estate is liable to pay US income tax, estate tax, and tax on superannuation benefits – where there is expert evidence that the estate has potential US tax liabilities – consideration of amount of moneys that should be retained by the estate to meet its potential tax liabilities – consideration of amount of moneys that should be distributed to estate beneficiaries

PROCEDURE – application for stay – concurrent civil and criminal proceedings – where plaintiffs in civil proceedings have not yet filed evidence – no prejudice to first defendant if evidence is permitted to be filed – prejudice to plaintiffs’ if stay granted – application for stay premature – application dismissed.

CRIMINAL PROCEDURE – application for injunction restraining DPP from conducting committal hearing pending appeal – where stay application previously refused – where notice of motion provided to duty judge one court hour before committal hearing due to commence – where one defendant not served with notice of motion

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – adjudication determination – whether adjudicator failed to perform statutory function – whether adjudicator failed to determine for himself the construction work that had been carried out whether it constituted a variation and its value

CRIMINAL LAW – offences against the person - murder - trial by judge alone - defence of mental illness - accused suffering from severe case of Chronic Paranoid Delusional Disorder - accused did not understand wrongfulness of his act - distinction between legal and “moral wrongfulness” - finding of not guilty by reason of mental illness

CORPORATIONS – winding up – distribution of surplus – Corporations Act 2001 (Cth), s 488(2) – grant of special leave to distribute surplus to contributories CORPORATIONS – winding up – insolvency set-off – Corporations Act 2001 (Cth), s 553C(1) – whether liquidator’s decisions to apply insolvency set-off should be confirmed CORPORATIONS – winding up – application of rule in Cherry v Boultbee – where contributory indebted to company in liquidation under a judgment debt – where contributory became a bankrupt prior to winding up order

PRACTICE AND PROCEDURE – restraining solicitors from acting – inherent jurisdiction – integrity of judicial process – due administration of justice – where solicitors allegedly in receipt of confidential information – whether information claimed to be confidential identified with specificity – whether information imparted for a limited purpose – whether real and sensible possibility of misuse of allegedly confidential information.

CORPORATIONS – plaintiffs seek leave under s 444E(3) of the Corporations Act 2001 (Cth) to proceed against the first defendant company – where the company is subject to a deed of company arrangement – factors relevant to the grant of leave – whether leave ought to be granted nunc pro tunc – whether grant of leave under s 444E(3) would be futile because of moratorium and barring provisions in deed of company arrangement

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – final hearing –defendant previously convicted of murder – extended supervision order sought – whether Court satisfied to a high degree of probability that defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision – psychiatric evidence – issues of the appropriate duration of any extended supervision order and nature of conditions to be imposed – threshold issue of unacceptable risk not established – application dismissed

CRIME – appeal against sentence – recklessly inflicting grievous bodily harm – whether approach by sentencing judge gave rise to a reasonable apprehension of bias – whether error in not finding special circumstances – whether error in not finding remorse – whether lesser sentence warranted

CRIMINAL LAW – Sentence – Appeal – Federal offences – Failure to have regard to utilitarian value of plea of guilty in assessing discount – Error established – Applicant resentenced CRIMINAL LAW – Sentence – Appeal – Federal offences – Discount for plea of guilty – Necessity to specify the discount which is given in terms which ensure transparency in the sentencing process and precision in the sentence imposed – Observations as to the practice of expressing discount by reference to a range

CORPORATIONS – winding up – application based on failure to meet creditor’s statutory demand – whether company should be wound up

PRACTICE AND PROCEDURE – Cross-vesting legislation – Special federal matter – No point of principle

CIVIL PROCEDURE – where plaintiffs have drafted short minutes of order to give effect to first decision – interlocutory relief – restraints – whether contractual, statutory, and equitable restraints should be imposed in the form proposed by the plaintiffs – where the defendants are former employees of the first plaintiff – contractual obligations arising under employment agreements – statutory obligations – Corporations Act 2001 (Cth), s 183 – improper use of information obtained as a director or employee to gain advantage – whether a proposed order that copies statutory language is appropriate – equitable obligations – equitable obligations of confidence - whether a proposed order that attempts to summarise equitable doctrine is impermissibly vague CIVIL PROCEDURE – confidential information – where plaintiffs’ evidence included copies of confidential information purportedly taken from them by the defendants – where plaintiffs did not seek orders to restrict the disclosure of confidential information at the time the evidence was read or tendered – Court Suppression and Non-Publication Orders Act 2010 (NSW), s 6 – whether requirements are now met for an order restricting use of the plaintiffs’ confidential information – open justice rule – powers to bind litigants and legal practitioners in their conduct outside the courtroom in relation to their use of confidential information – express or implied obligation on defendants’ legal practitioners from time of service to restrict use of the plaintiffs’ evidence to use in the proceedings – the court is not deprived of its power to bind litigants and legal representatives due to the plaintiffs’ failure to seek an order restricting the use of confidential information when their evidence was read or tendered

CORPORATIONS – voluntary administration – deed of company arrangement – Corporations Act 2001 (NSW), s 450E(2) – requirement that the words “subject to deed of company” be included after the company’s name in public documents and negotiable instruments – where dispensation order sought –Corporations Act 2001 (NSW), s 450E(5) – where the deed administrators do not oppose the dispensation – whether the dispensation will result in any significant risk to interests of creditors – exercise of discretion to grant dispensation from the requirement of s 450E(2)

CRIMINAL LAW – sentencing – evidence – accessory after the fact to manslaughter – admissibility of victim impact statements by family of deceased – victim impact statement provisions not applicable to the offence – whether any other law by which statements could be received.

CRIME – appeal – interlocutory order of magistrate refusing to uphold claim of apprehension of bias – where applicant the defendant in Local Court criminal proceedings– where applicant’s husband a Corrective Services officer in Local Court – where magistrate refused to uphold apprehension of bias – where second magistrate from different Local Court seconded for hearing – no basis for apprehended or actual bias – whether first magistrate failed to provide procedural fairness by refusing to adjourn matter – no procedural unfairness – whether first magistrate failed to apply Criminal Procedure Act s 30 – counsel failed to raise provision at hearing – whether first magistrate erred by making erroneous finding of fact – error did not vitiate decision

PRACTICE AND PROCEDURE – pleadings – manifestly defective – several opportunities to re-plead – self-represented litigant – proceeding dismissed for want of due despatch and for abuse of process

COSTS — Party/Party —Offers of compromise/Calderbank offers — whether Calderbank offer was effective — whether indemnity costs should be ordered against offeree following non acceptance of Calderbank offer — whether offer of compromise was a real and genuine offer COSTS — Party/Party — Bases of quantification — Ordinary basis COSTS — Party/Party — Bases of quantification — Indemnity basis

COSTS – dispute in Strata Scheme – operation of s 90 of Strata Schemes Management Act 2015 (NSW) – undertaking to indemnity costs to Lot Owners by one Lot owner as basis for plaintiff’s actions – orders made preventing defendant from contributing to plaintiff’s costs in capacity as Lot Owner.

COSTS – ordinary rule that costs followed the event displaced by abandonment of grounds.

DEFAMATION – defences – honest opinion – opinion “not honestly held” – whether defendant had reasonable grounds to believe opinion was “not honestly held” – no evidence opinion was not honestly held – “matter of public interest” – whether opinion related to “matter of public interest” – forced marriage and attitudes to premarital relations – scope of defence of honest opinion – whether defence applies to individual opinionative imputations where defamatory imputations of fact conveyed by the same publication – issue not determined due to delayed application inconsistent with conduct at trial DEFAMATION – practice and procedure – application to have certain jury answers and judgment set aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – where ground of alleged error in judgment not raised at trial or before entry of judgment DEFAMATION – remedies – compensatory damages – damage to reputation – injury to feeling – where publication partly justified – mitigating effect of imputations found true – mitigating effect of compensation already received from third party republishing defamatory material – Defamation Act 2005 (NSW), s 38(1)(e) – where third-party compensation greater than damages that would be assessed COSTS – party-party – bases of quantification – ordinary basis – where plaintiff partially successful in defamation proceedings – where compensation already received from third party – where conduct of both sides resulted in prolonged proceedings – application for costs on indemnity basis – where Calderbank offer made – one week for acceptance – where offeree unrepresented at time of offer – whether non-acceptance unreasonable

EQUITY – Equitable interests in property – Nature of equitable interests – whether the first plaintiff has an equitable interest in the property EQUITY – Trusts and trustees – Declaration of trust – whether the equity in the property was held on trust for the first plaintiff EQUITY – Defences – Illegality – whether the illegality had an immediate and necessary relation to the equities sued for

COSTS – party/party – bases of quantification – indemnity basis – defamation – defamatory imputations found proven substantially true – jury answers construed as implicitly finding plaintiff deliberately untruthful – false or misleading evidence – where claim pursued on a basis known to be false – whether pursuit of claim was abuse of process

BAIL – detention application following return of verdicts by jury on three counts – custodial sentence highly likely if not inevitable – bail concerns of failure to appeal and risk of committing further serious offences – proceeds of crime unaccounted for – bail revoked

BAIL – detention application – where respondent required to show cause why his continued detention is not justified

LAND LAW — Easements — Construction of easements — Whether benefit of easement extends to land consolidated into a single lot with original dominant tenement LAND LAW — Easements — Registration of easements — Section 88B instruments

EQUITY – Equitable Assignment – Preliminary determination of separate questions – Whether either of two deeds were effective to assign claimed rights of the purported assignor against the Defendants – Issues of authority to execute documents on behalf of the assignor – Consideration of the effect of a prohibition on assignment clause – Construction of the wording of the deeds and whether the deeds, if otherwise valid, involved assignment of a bare right of action.

HIGH RISK OFFENDER – application to extend interim orders – defendant complying with interim regime but not present at court – appropriateness of extending orders in absence of express consent

PRACTICE AND PROCEDURE – Civil proceedings – Application for freezing order – Insufficient evidence of good arguable case – Where evidence did not address requirements of rules governing applications for freezing orders against third parties – Unexplained delay in bringing the application – Order refused

CIVIL PROCEDURE – Referral to referee – Applications for adoption in part or in whole of referee’s reports

JUDGMENTS AND ORDERS – res judicata – interlocutory orders – Civil Procedure Act 2005 (NSW), s 91 – where order dismissing appeal proceeding because of appellant’s non-appearance not subject to any terms preventing further proceedings and not including any determination on the merits – whether jurisdictional error or error of law on face of record in dismissing later appeal proceeding because existing order dismissing proceeding deprived court of jurisdiction PRACTICE AND PROCEDURE – leave to commence judicial review proceeding outside three-month period under Uniform Civil Procedure Rules (NSW), r 59.10 – where applicant’s ultimate interest in quashing orders dismissing appeal is in successfully prosecuting appeal from cost review panel’s assessment of solicitor’s costs – where no explanation of delay in District Court and Supreme Court, insufficient evidence to assess merits of underlying appeal, and disproportion between costs incurred and nominal amount of earlier legal costs in issue – whether applicant’s interest in successfully prosecuting underlying appeal warrants incurring of further costs as between parties or in public interest – no question of principle

GUARANTEE AND INDEMNITY – construction – use of extrinsic evidence to identify subject matter – where guarantee expressed to cover the debt with supplier for fuel supplied to debtor – whether guarantee covered interest on unpaid balance – whether guarantee covered amount outstanding on date of guarantee or thereafter from time to time

APPEAL – interlocutory judgment rejecting proposed tendency or coincidence evidence – whether rejection of evidence eliminated or substantially weakened prosecution case – whether prosecution case necessarily weakened by rejection of evidence with significant probative value – consideration of R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCA 112 – whether appeal Court should determine admissibility EVIDENCE – tendency evidence – coincidence evidence – criminal proceedings – whether trial judge erred in finding probative value did not substantially outweigh prejudice – whether relevant prejudice limited to effect of evidence on jury

SENTENCING – Appeal against sentence – severity – commencement date of sentence – offender was on bail for offence subject of sentencing proceedings but remanded in custody for a separate murder charge that was later no billed – whether the trial judge erred in failing to find that the time on remand was “in relation to” to the offence the subject of the sentencing proceedings, pursuant to s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether the trial judge erred in properly exercising his discretion under s 47(2) of the Act by not backdating the sentence further to account for this additional time spent on remand

EQUITY – trusts and trustees – powers of trustees – statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW), s 81 – power to undertake a “transaction”

EQUITY – Trusts and trustees – Judicial advice – Declarations and orders made in support of Deed

SUCCESSION — Family provision and maintenance — Circumstances precluding relief — Claim by 64-year-old son in small estate — Sole beneficiary paid for house which was only asset of the estate

SECURITY FOR COSTS – application on the basis that there was reason to believe that the plaintiff could not pay a costs order – terms resolved – costs of application – Calderbank letter – costs on indemnity basis ordered – no question of principle

PRACTICE AND PROCEDURE – Application for removal of tutor and a stay of proceedings – Application based upon asserted conflict of interest of the tutor – Where infant plaintiff alleged negligence against the defendants in their capacity as medical practitioners – Where plaintiff’s tutor brought proceedings in her own right for nervous shock arising out of the damage allegedly suffered by the plaintiff – Where defendants pleaded a claim for contribution from the tutor in the plaintiff’s proceedings on the basis of the tutor being a joint tortfeasor – Where no cross-claim joining the tutor had been filed – Where the Court was informed that the claim for contribution was pressed – Where the Court was then informed that the claim would be withdrawn – Little possibility of conflict where plaintiff and tutor were prosecuting essentially the same case – No other person available to act as tutor – Possibility of plaintiff’s case being stultified if orders were made – Motion dismissed PRACTICE AND PROCEDURE – Where defendants had pleaded a claim for contribution against the tutor on the basis of the tutor being a joint tortfeasor – Where the defendants had not filed a cross-claim joining the tutor – Observations as to the desirability of a cross-claim being filed in such circumstances so as to ensure that all issues are properly before the Court

PRACTICE AND PROCEDURE – affidavit or oral evidence – affidavit of plaintiff allowed to be used – defendant unable to comply with requirement as to Statement of Issues – practice directions made waiving need to comply with rules.