Cases and authorities

COSTS – Party/Party – Costs orders in interlocutory proceedings – where application made for leave to proceed against D&O insurers of former directors of plaintiff under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where solicitors for insurers belatedly notified solicitors for plaintiff that primary insurers had admitted liability to indemnify most of the director defendants subject to the customary reservations – where plaintiff withdrew claim for leave once aware that all insurers had so admitted liability – whether plaintiff should have its costs of the application from the time when primary insurers had admitted liability to most directors PROFESSIONS AND TRADES – Lawyers – Duties and liabilities – duty of solicitors under s 56(4) of the Civil Procedure Act 2005 (NSW) to cause clients not to be in breach of duty to assist court with overriding purpose to facilitate just, quick and cheap resolution of issues in proceedings - where solicitor for insurers did not cause insurers to inform solicitors for the plaintiff of their admission of liability to indemnify most defendant insurers - where solicitor for insurers said solicitors for plaintiff then correct to assume liability had not been admitted

COSTS – Legal Profession Act 2004 (NSW), s 350 – Assessment – Application for extension of time by father of juvenile client – question whether obligation to pay for services – no suggestion that fees unfair or unreasonable – no satisfactory explanation for delay for period ranging from 15 months to 3½ years – time extension refused.

APPEAL AND REVIEW – supervisory jurisdiction – applicant convicted of driving whilst disqualified – appeal to District Court dismissed – certificate recorded applicant as disqualified at time of offence – certificate erroneous – application to extend time to commence judicial review proceedings – whether jurisdictional error on part of District Court – whether mistake regarding applicant’s disqualification error within jurisdiction – whether Court should extend time CRIME – inquiry into conviction – whether appropriate for Court to refer matter for inquiry – Crimes (Appeal and Review) Act 2001 (NSW), s 78 JUDGMENTS AND ORDERS – whether erroneous judgment of District Court effective before set aside – effect of erroneous disqualification from driving

DEFAMATION – defence – contextual truth – Defamation Act 2005 (NSW), s 26 – where defendants pleaded reliance upon plaintiff’s imputations as contextual imputations contingent upon tribunal of fact finding the plaintiff’s imputation to be substantially true – where contingent pleading back struck out – whether contingent pleading of contextual truth defence permissible – whether the imputations which meet the meaning of defamatory imputations in s 26(a) can change at trial DEFAMATION – defence – particulars of mitigation of damages – whether reputation particulars were directly relevant background context – where particulars also relied upon for defence of honest opinion – where particulars struck out – whether particulars lack precision and are inadequate

HIGH RISK OFFENDER – serious sex offender —extended supervision order preliminary hearing – interim supervision order hearing – where defendant consented to making of an interim supervision order subject to amendment to conditions – s 10A Crimes (High Risk Offenders Act) – both pre-conditions for the making of an interim supervision order established – two psychiatrists and/or psychologists to conduct examinations of the defendant and furnish reports for final hearing – objections to conditions concerning provision of financial information and imposing a blood alcohol level limit resolved.

HIGH RISK SEX OFFENDER – application for continuing detention order or alternatively extended supervision order under the Crimes (High Risk Offenders) Act 2006 – recent amendments to relevant test

CRIMINAL LAW – conviction appeal – offence of murder – after an altercation with the deceased the offender armed himself with a knife and stabbed him – whether directions as to self-defence contrary to law – expressing standard of proof as “is there is a reasonable possibility” – consideration of decisions in Hadchiti v R [2016] NSWCCA 63 and Moore v R [2016] NSWCCA 185 – application of r 4 – application of proviso – whether error in order in which jury asked to consider directions – whether error in suggesting to jury that self-defence be considered before intent – no error established – appeal dismissed.

CRIMINAL LAW – sentence appeal – Crown appeal – three co-offenders – robbery in company contrary to s 97(1) Crimes Act 1900 – pleas of guilty – offence objectively serious and assessed at mid-range – offending found to be more serious than that in the guideline judgment of R v Henry – young offenders – strong subjective case – guideline judgment not followed – no explanation of very low non-parole period – sentence manifestly inadequate – application of residual discretion – appeal allowed and offenders re-sentenced.

CRIMINAL LAW – sentence appeal – offence of “take/detain person in company with intent to obtain advantage” – applicant bail refused for that offence and driving offences on 13 July 2015 – applicant sentenced for this offence on 30 September 2016 – applicant had already served a sentence of imprisonment for 10 months in respect of driving offences – commencement date of sentence for this matter backdated and made partially concurrent with sentence for driving offences – applicant successfully appealed against conviction for driving offences – whether commencement date of sentence for this matter should have been backdated to 13 July 2015 when bail was refused – totality considerations relevant – need to re-sentence applicant for this offence – on re-sentence extent of backdating increased but not fully backdated.

CRIMINAL LAW – sentence appeal – murder – plea of guilty – whether childhood disadvantage taken into account – whether Bugmy principle raised – causes of applicant’s substance abuse – whether causes of substance abuse properly taken into account – whether prior good character taken into account – whether sentence manifestly excessive – grounds of appeal not made out – sentence appeal dismissed.

REAL PROPERTY – interlocutory injunctions – where the plaintiffs seek contractual, statutory and equitable injunctive restraints against the defendants prior to hearing and determination of a breach of confidence and restraint of trade case – whether the plaintiffs have a prima facie case against the defendants for any or all of those injunctive restraints to be granted EQUITY – equitable remedies – specific performance – maxims – “he who seeks equity must do equity” – where the plaintiffs have not paid the first defendant the moneys he is owed for their purchase of his shares – whether the plaintiffs’ conduct disentitles them to interlocutory relief in the form of specific performance – breach of contract – whether plaintiffs are “ready, willing and able” to comply with their contractual obligations – discussion of the application of the “ready, willing and able” rule in applications for interlocutory relief – whether the plaintiffs’ failure to fulfil their contractual obligations is a ground for refusing to enforce the first defendant’s statutory or equitable obligations

CIVIL PROCEDURE – judgments and orders – media application for access to court file – where pending criminal proceedings arising out of same events – where personal medical information disclosed in one affidavit – weighing of public interest – grant of access to file with the exception of affidavit containing medical information

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act – Interim Supervision Order – discussion of principles in statute – order granted

CORPORATIONS – management and administration – procedural irregularity – where the parties to the contraventions of provisions of relevant acts and the constitution of the association acted honestly – where no substantial injustice has been or is likely to be caused to any person arising out of the relief sought – whether the Court should declare that the resolutions invalidly passed are not invalid by reason of contraventions of the Associations Incorporation Act 1984 (NSW), Associations Incorporation Act 2009 (NSW) and/or the constitution of the association under s 1322(4)(a) of the Corporations Act 2001 (Cth).

COSTS – statutory demand – where creditor’s statutory demands were set aside by consent – where the creditor ought to have been aware of the likelihood of a genuine dispute as to whether the debts were payable on demand – where the debtor did not clearly articulate the basis on which the demands would be disputed in their correspondence prior to the issue of the demands – whether there was a reasonable basis for the issue of the statutory demands – abuse of process – whether creditor’s statutory demands were issued in order to exert improper commercial pressure in the context of ongoing negotiations.

COSTS – indemnity costs – where applicant acted reasonably in bringing the proceedings – where there was no reasonable prospect that the Court could have upheld the opposition advanced by the respondent – whether indemnity costs will be awarded pursuant to s 98 of the Civil Procedure Act 2005 (NSW).

CONTEMPT – sentence – Pre-Sentence Report provided – Community Service Order imposed

ADMINISTRATIVE LAW – judicial review – decisions of Racing Appeals Panel and Racing Appeals Tribunal – finding of improper practice in connection with racing – procedural fairness – no evidence – irrelevant consideration alleged to be taken into account – validity of regulations – whether time limit imposed by regulations was arbitrary or capricious – whether jurisdiction of the Tribunal was limited to grounds of appeal raised – constructive failure to exercise jurisdiction – jurisdictional error established STATUTORY CONSTRUCTION – interpretation of regulations consistently with enabling Act – principle of implied repeal by statute

SUCCESSION – construction of will – whether references to “children” in will of the deceased include the defendant – proceedings settled between parties – declaration made that references to “children” do not include the defendant

CIVIL PROCEDURE – Subpoenas – Costs of compliance

ESTOPPEL – Proprietary estoppel – Encouragement – Acquiescence or standing by – Expectation that first defendant would make his properties available until his death for use in the family business and leave the properties to the plaintiffs on his death – Whether reliance established – Whether detriment established – Relief – Where acceleration of the expectation is appropriate in order to do equity and effect a clean break

EMPLOYMENT – Interlocutory injunction – the first defendant/employee leaves his employment with the plaintiff – the plaintiff and the second and third defendants are companies all operating in the IT industry – the first defendant initially proposes to work for the second defendant, a direct competitor of the plaintiff – the first defendant then changes course and signs an employment agreement with third defendant – the employment agreement between the plaintiff and the first defendant contains a restraint on a former employee working for “a competitor” for up to 12 months after the termination of his employment – an issue for final hearing is whether the first defendant’s proposed employment with the third defendant is employment with a “competitor” of the plaintiff within the meaning of the employment contract – whether there is a serious question to be tried – what is the balance of convenience in the circumstances.

NEGLIGENCE – whether chiropractor maltreated patient over 7 month period – whether chiropractor fabricated clinical notes – whether duty owed not to cause mental harm – whether defendant chiropractor practised a profession – whether defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice – whether breach of duty by defendant – whether defendant caused harm – whether limitation defence available – Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O and 32 considered and applied – proceedings dismissed

NEGLIGENCE - medical negligence - standard of care for professionals - Civil Liability Act 2002 (NSW) s 5O - injury to plaintiff’s thumb - whether appropriate antibiotics administered - conflicting evidence as to appropriate antibiotic treatment - primary judge found entirety of defendant’s evidence on competent professional practice to be irrational within meaning of s 5O(2) - irrationality not raised on pleadings or mentioned during trial or put to defendant’s experts - primary judge equated irrationality to unreasonableness or more logically probative or insufficiently justified - primary judge relied on dictionary definitions rather than legislative text, context and purpose - trial judge’s finding on irrationality set aside, defence under s 5O upheld and appeal allowed.

CRIMINAL LAW – sentence appeal – extension of time to appeal sentence – fraud – dishonestly obtain financial advantage by deception – whether the offences were aggravated on the basis that each offence was committed for financial gain: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) – whether the offences were aggravated on the basis that each offence constituted a series of acts: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) – grounds of appeal established – whether lesser sentence was warranted in law – not warranted – appeal dismissed

CRIMINAL LAW – appeal against sentence – whether the applicant acted “in company” in supplying prohibited drugs – whether the degree of planning and organisation in the supply of prohibited drugs permitted a finding that the applicant’s offending was aggravated – whether the sentencing judge denied the applicant procedural fairness by finding factors of aggravation without notice to the applicant

CRIME – appeal against sentence – guilty pleas to one count of reckless wounding and one count of recklessly causing grievous bodily harm in company – whether sentencing judge failed to take into account mental health of offender – whether failure to find remorse disclosed material error – whether intoxication relevant to sentence – whether other errors were disclosed – appeal dismissed

CRIMINAL LAW – appeal – conviction – recklessly cause grievous bodily harm – whether verdict unreasonable and unsupported by the evidence – whether trial judge failed to adequately direct the jury in relation to expert evidence on causation

REAL PROPERTY – trustees appointed to sell the defendants’ residence following a finding that moneys paid into the mortgage were obtained by way of an unconscionable gift - where defendants resist sale as they disagree with binding court orders confirmed by the Court of Appeal – where no special leave to appeal to the High Court sought - whether defence should be struck out for untenable grounds – whether summary judgment should be granted – whether indemnity costs should be ordered

LAND LAW — Strata title — Common property — Whether owners corporation could develop common property in a way which would impede owner’s reasonable access to lot used as car space — Strata Schemes Development Act 2015 (NSW) s 28 — Strata Schemes Management Act 2015 (NSW) ss 106 and 153 LAND LAW — Declarations — Utility — Whether sufficiently defined dispute

CIVIL PROCEDURE – Interlocutory applications - referral for pro bono representation - Bar Association and Law Society Referral Scheme - previous representation - amicus curiae - failure to conform with orders - Statement of Claim - dismissed - stay of proceedings - inherent power - prejudicial effect - dismissed

LAND LAW – alienation of property – Conveyancing Act 1919 (NSW), s 37A – transfer of Torrens Title land – value possibly exceeding creditors’ claims – form of order – consequential orders – sale of land – appointment of receiver FAMILY LAW – consent property adjustment orders set aside under Family Law Act 1975 (Cth), s 79A – consequential orders – proper form for fresh application for property adjustment orders – stay of enforcement of orders under Conveyancing Act 1919 (NSW), s 37A

ASSOCIATIONS AND CLUBS – expulsion, suspension and disqualification – exercise of power – decision by defendant specialist medical college to expel plaintiff from fellowship training program for non-compliance with its regulations – whether the plaintiff was denied procedural fairness - defendant failed to respond to plaintiff’s clearly articulated argument – inadequacy of reasons – difficulty in perceiving the reasons for the conclusion of the committee EQUITY – equitable remedies – injunctions – mandatory - jurisdiction of court to grant relief from decision of private association – where regulations of defendant give rise to contractual obligation to accord procedural fairness to plaintiff – remedies for wrongful exercise of power – whether decision amenable to private law remedies of declaration and injunction so that defendant must reconsider decision in accordance with law

APPEALS – appeal from Local Court – competency challenge to appeal – questions of law and mixed questions of fact and law asserted by plaintiff – reliance by defendant on disproportionality between judgment sought and costs – whether summons complied with the Rules - claim by plaintiff for a monetary sum pursuant to the termination of his position as chaplain to the defendant – whether defendant was employer of plaintiff – whether adequate reasons were given by Magistrate – disproportionality did not make appeal incompetent – disproportionality relevant to the grant of leave - defects in form of summons could be rectified by amendment without prejudice to defendant

CRIMINAL LAW – high risk offender – high risk sexual offender – application for extended supervision order – preliminary hearing – two counts of sexual intercourse with a child of 10 years – other offences of a sexual nature – defendant with mental health an drug issues – assessed as high risk – no opposition to interim order – whether a need for electronic monitoring during interim order

CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether appeal has any prospect of success CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether stay should be granted on the balance of convenience

TORTS – Misfeasance in public office – officers of ICAC appointed as senior investigators recorded contents of documents on video during execution of search warrant – whether officers held public office – whether officers acted in excess of power – whether officers were aware of or recklessly indifferent to a likely risk of harm to the plaintiffs – whether sufficient for there to be a reasonable foreseeable risk of harm – whether officers caused damage to the plaintiffs

JUDGMENTS AND ORDERS – amending, varying and setting aside – judgments and orders made following contested hearing – no tutor appointed for one defendant – whether that defendant a person under legal incapacity – whether a failure to comply with rules of court – whether judgments and orders given or made irregularly – whether sufficient cause shown to set aside judgments and orders

INSURANCE – other insurance clauses – excess clauses – s 45 & s 48 Insurance Contracts Act – contribution – effect of two other insurance clauses that each not effective against the other – both insurers liable to indemnify – contribution – effect of Law Reform (Miscellaneous Provisions) Act 1946 and Civil Liability (Third Party Claims against Insurers) Act 2017 discussed TORTS – plaintiff claim for work related personal injury – employer bankrupt – substitution of insurer – dispute as to which insurer required to indemnify

EVIDENCE – Privileges – Legal professional privilege – Litigation – Quality of evidence required to support claim for privilege EVIDENCE – Privileges – Without prejudice privilege

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Calderbank offers – Reasonableness of rejecting a Calderbank offer COSTS – Party/Party – Specific court rules in relation to costs – Whether the court should depart from the ordinary rule in Uniform Civil Procedure Rules 2005 (NSW) r 42.8(2)

COSTS – Party/Party – Whether to make a gross sum costs order – Difficulty of making a fair assessment on a gross sum basis – Effect of delay in making the application

COMMON LAW – APPEAL FROM THE LOCAL COURT – plaintiff’s appeal dismissed – application by defendant for indemnity costs – offers to settle – Calderbank offer – no point of principle

COSTS – where appeal by Council (fourth defendant) allowed from judgment in favour of plaintiffs – where plaintiffs rejected informal Calderbank letter from Council – whether costs incurred after offer rejected be assessed on the indemnity basis – where claim asserted “novel” duty of care on the principal certifying authority to avoid pure economic loss to subsequent purchaser – where close legal and factual analysis of relationships between parties required – where no lay or expert evidence served on plaintiff at time of offer – not unreasonable to refuse to settle

APPEAL – application for leave – applicant incapable of managing her affairs – manager appointed to manage rights and interests pertaining to proceedings – application not brought by manager or tutor – whether application incompetent – whether requirement to bring proceedings by tutor should be waived – whether arguable error by trial judge APPEAL – applicant incapable of managing her affairs – order appointing manager to manage rights and interests pertaining to proceedings – whether order interlocutory or final – whether leave required

INSURANCE – Insurance Contracts Act 1984 (Cth) – duty of disclosure – innocent non-disclosure – pollution cover – whether reasonable person in insured’s circumstances could be expected to know that existing site contamination was materially different from what insurer could assume to exist in property used as service station for several years and accordingly relevant to underwriter INSURANCE – liability insurance – public liability – pollution cover – where petroleum hydrocarbons from insured’s petrol station entered neighbouring sewer owned and operated by Sydney Water – where Damage defined in policy to include nuisance – whether liability for Damage occurring in its entirety during period of insurance and arising out of pollution – whether pollution the direct result of sudden, specific and identifiable event during period of insurance – whether indemnity extended to installing of interception trench to prevent escape of further contaminated groundwater from petrol station TORTS – private nuisance – substantial interference with enjoyment of rights in land – whether unknown presence of risk of fire or explosion could so interfere with Sydney Water’s interest in sewer

CRIME – appeal against sentence – s 16A(2)(h) of the Crimes Act 1914 (Cth) – R v Ellis (1986) 6 NSWLR 603 - whether insufficient discount for applicant’s cooperation in the investigation of the offence and other offences

CRIMINAL LAW – sentence appeal – offence of aggravated (in company) break, enter and commit serious indictable offence (stealing) contrary to s.112(2) Crimes Act 1900 – custodial sentence imposed – whether sentence manifestly excessive – assessment of objective seriousness of offence – relevance of offence being committed in company and stealing being the serious indictable offence – prior criminal history included commission of s.112(2) offence – sentence not manifestly excessive – appeal dismissed

TORTS – malicious prosecution – question of the existence of malicious prosecution in certain civil proceedings – whether the four elements of malicious prosecution could be established CIVIL PROCEDURE – application by defendant to dismiss or strike out Amended Statement of Claim pursuant to UCPR r 13.4 – no reasonable cause of action disclosed – elements of the tort not established – application granted – proceedings dismissed

CORPORATIONS – winding up – application to set aside creditor’s statutory demand – where there is a serious question to be tried as to whether any debt owed was due and payable on demand – whether there is a serious question as to whether alleged loan made by third party to debtor was validly assigned to issuer of statutory demand – whether creditor’s statutory demand should be set aside under s 459H or s 459J of the Corporations Act 2001 (Cth)