Cases and authorities

PRACTICE AND PROCEDURE – stay of proceedings – s 67 of the Supreme Court Act 1970 – general power to stay proceedings – intention to appeal interlocutory proceedings before the Court – no summons seeking leave to appeal filed – no draft appeal provided – applicant seeks opportunity to prosecute that appeal – relevant authorities – interests of justice – whether reasonable arguable grounds of appeal – discretion – application dismissed – costs reserved

EVIDENCE – procedures under Crimes (Forensic Procedures) Act 2000 and Law Enforcement (Powers and Responsibilities) Act 2002 – non-compliance – nature of discretion – other evidence objected to under s 137 of the Evidence Act 1995 – importance of ensuring adherence to procedures – exercise of discretion

CRIMINAL LAW – Practice and Procedure – Witnesses – Where Crown declined to call witness or make him available for cross-examination on the grounds of unreliability – Whether Court should order witness to be called – Power of the Court to do so – Whether temporary stay of proceedings should be granted – Whether to call the witness

CIVIL PROCEDURE – notice of motion to set aside earlier decision – where Plaintiff/Applicant did not appear – affidavit in support almost entirely incomprehensible – notice of motion dismissed

COSTS — Costs assessment — Procedure — Seriously contested questions of fact not suitable for determination on the papers as part of assessment — Assessment restrained to permit factual and legal issues to be resolved in Local Court proceedings — Legal Profession Act 2004 (NSW)

CONTRACT – construction – whether the Court can have regard to prior negotiations which indicate parties’ subjective intention in construing contract – implied terms – whether term is necessary for business efficacy or so obvious that it goes without saying – whether term is to be implied into the contract. CONTRACT – repudiation – whether party has indicated a refusal to perform the contract – whether acceptance of repudiation was communicated to the promisor. CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181, 182 and 183 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty to avoid improper use of information – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether conduct of Defendants amounted to breach of statutory duties. EQUITY – general principles – fiduciary obligations – where business venture has been consensually terminated – whether parties to venture owe fiduciary duties to one another – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether director of company breached no conflict and no profit duties – whether director of company breached best interests and proper purposes duties – whether director of company breached equitable duty of confidentiality. TRADE PRACTICES – application of Restraints of Trade Act 1976 (NSW) s 4 – where contractual restraint of trade in broad terms – whether restraint of trade is void for breach of public policy. TRADE PRACTICES – misleading or deceptive conduct claim under s 18 of the Australian Consumer Law – whether representations made are misleading or deceptive – whether representations among directors of a company are made in trade or commerce.

PROCEDURE – liberty to apply – working out – effect of orders allowing liberty to apply – extent of arguments and pleadings to be raised under liberty to apply CONTRACTS – interpretation – whether contract between parties allowed for sale of joint venture assets to fund purchase price – characterisation of sale of properties in joint venture as dividends or otherwise CORPORATIONS – company – Solomon Islands and Cook Islands company law – financial assistance by company to acquire its shares – whether applicant could draw on assets of joint venture companies to pay purchase price of shares

CRIMINAL LAW - Plaintiff charged with domestic violence related assault – Plaintiff issues subpoenas – Magistrate made rulings on subpoenas adverse to Plaintiff – legitimate forensic purpose and public interest immunity – application for leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 – confined to grounds which involve question of law alone – requirement for leave to appeal from interlocutory orders – reflects need to minimise fragmentation of process of criminal justice – factors relevant to grant of leave – error of law not demonstrated – no proper basis for grant of leave to appeal – leave to appeal refused

EVIDENCE – non-disclosure of evidence – where evidence comprises images that reveal surveillance technologies and methods – whether suppression and non-publication orders are necessary – meaning of “necessary” – Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 – whether prejudice to proper administration of justice and interests of Cth in relation to national security outweigh public interest in open justice – where decision as to orders is made on evidence not available to parties – where summary of relevant content of images is available to parties – where accused not opposed to orders CRIMINAL LAW – procedure – witnesses – where witnesses are AFP and FBI operatives – whether orders protecting identity and online personas of witnesses are necessary or desirable – Crimes Act 1914 (Cth) s 15MK – whether facial features of witness giving evidence by AVL should be screened from accused – whether screening would have substantial adverse effect on right of accused to a fair hearing – where jury is not apprised of fact that accused cannot face accuser – where accused not opposed to orders

MENTAL HEALTH – Mental Health Review Tribunal – Appeal – Community Treatment Order – Forced medication by depot injection – Mental Health Act 2007 NSW, sections 51, 53, 163, 164

SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE – The Plaintiff, a daughter of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 – No grant of administration – No provision made for the Plaintiff in the Will – Very little actual estate - The Defendant is the widow of the deceased and the holder of all property that may be designated as notional estate - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made - Whether property of the Defendant should be designated as notional estate

CIVIL PROCEDURE – leave to appeal – application to set aside statutory demand – whether out of time – whether proposed grounds better than merely arguable – matter of public importance – whether applicant should pay costs in any event

CIVIL PROCEDURE – application for leave to appeal – proposed appeal from decision regarding practice or procedure – where leave sought to appeal from dismissal of proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 14.3 – whether issue of principle, question of general public importance, or more than merely arguable error raised – whether leave should be granted

COSTS – party/party – self represented litigant – where self-represented litigant has been declared bankrupt – where no further action taken by the parties regarding costs application – no issue of principle

APPEAL – procedure – motions for dismissal for want of due despatch and compliance with court directions – where no opportunity for recommencement – where minimal progress has been made – no issue of principle

CIVIL PROCEDURE – Court of Appeal – application to vacate hearing date – where self-represented litigant – where there is no prospect of securing legal representation – no issue of principle CIVIL PROCEDURE – Court of Appeal – application for order preventing court registry from preparing appeal books – no issue of principle CIVIL PROCEDURE – registrars – powers of registrar – power to waive, postpone and remit fees – whether registrar erred in refusing to waive fees JURISDICTION – Court of Appeal – application for access to audio recordings of District Court proceedings – whether Court of Appeal has power to make such order

CONTEMPT – applicable principles – nature of contempt alleged to be specified – proof beyond reasonable doubt – disobedience of court orders – orders must be unambiguous – must be wilful, not casual, accidental or unintentional CONTEMPT – scandalising the court – interference with the course of justice – relevant considerations – protection of administration of justice – right to criticise courts and their decisions – scurrilous abuse CONTEMPT – whether failure of accused to give evidence available in determination of guilt – where relevant facts peculiarly in knowledge of the accused CONTEMPT – failure – non-compliance with costs order against company – whether sole director may be liable in contempt for failure to cause company to pay – whether company impecunious and unable to pay CONTEMPT – failure to comply with subpoena – late production of documents – whether additional documents in existence and under control of accused CONTEMPT – structuring financial affairs to avoid enforcement of orders by garnishee – whether capable of constituting contempt CONTEMPT – sentencing COSTS – civil jurisdiction – where mixed outcome – where appropriate to apportion costs – whether competing costs orders are inconsistent with the purpose of quelling litigation quickly, justly and cheaply

INDUSTRIAL LAW – New South Wales – Industrial Relations Commission – Industrial Relations Act 1996 (NSW) s 137(1)(a) – whether Commission has power to make orders against an industrial organisation directing it to cease organising industrial action and to not induce, encourage or direct its members to take industrial action INDUSTRIAL LAW – New South Wales – Industrial Relations Act 1996 (NSW) s 139(3)(e) and s 139(4) – whether multiple contraventions occurred during course of conduct extending over multiple days – whether penalty imposed was manifestly excessive

SENTENCING – appeal against sentence – informers – sentence reduced because of undertaking to assist law enforcement authorities – where informer refuses undertaking – whether sentence should be increased

CRIMINAL LAW – sentence appeal - break, enter and steal – long criminal history – applicant on parole at time of offending – no arguable ground of appeal - leave to appeal refused

CRIMINAL LAW – sentence appeal – aggravated kidnapping – sexual intercourse without consent – related matters on Form 1 – domestic violence – record of similar offences - challenge to sentencing judge’s assessment of objective gravity of aggravating kidnapping – whether sentences manifestly excessive

CRIMINAL LAW – Juries – Discretionary discharge of juror following irregularity – Principles to be applied

CRIMINAL LAW – procedure – suppression order

CONTRACTS – Conveyancing Act – s 52A(2) – statutory warranties – disclosure of relevant “matter” – where defendant sold plaintiffs a three-bedroom apartment when development consent only permitted two-bedroom apartments – where plaintiffs rescinded contract upon discovery that apartment did not comply with development consent – whether defendant in breach of contract – whether rescission by plaintiffs valid – whether plaintiffs validly forfeited deposit – whether failure to disclose breach of development consent constitutes breach of statutory warranty – breach of development consent is “relevant matter” due to state of building – defendant in breach of contract – plaintiffs validly rescinded contract – deposit not forfeited by plaintiffs – plaintiffs entitled to return of deposit DEVELOPMENT STANDARDS – State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – cl 15.1, 2.51 and 2.52 – whether altering media room into third bedroom an exempted development – whether development complies with “development standards” DEVELOPMENT STANDARDS – State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – cl 2.52 – where plaintiffs claim insertion of wall into media room is an exempt development because configuration of room remains unchanged – whether cl 2.52 is determinative of whether development is exempt – cl 1.15 – whether development is “specified development” and meets “development standards” – cl 2.51 – development is not a “specified development” – cl 2.52 is not determinative – cl 2.52 is not enlivened

COSTS – Where plaintiff was successful in application for judicial review of the decision of a Medical Review Panel – Whether costs should follow the event – Whether costs should be reserved pending the outcome of the decision of new Medical Review Panel to which the matter will be referred – No reason why costs should not follow the event – No point of principle

CIVIL PROCEDURE – Interim preservation – Freezing orders CIVIL PROCEDURE – Interim preservation – Ancillary orders where no freezing order has been made

COSTS – where it is appropriate to deprive successful appellant of a portion of its costs because matters upon which it was unsuccessful took up a significant and separable part of appeal – re-exercise of discretion regarding costs of the trial – respondent unsuccessful in significant and separable part of trial

SECURITIES – personal property – registration – priority – purchase money security interest – failure to register interests with correct details within 15-day period due to inadvertence – extension sought in circumstances where one grantor corporation has gone into administration – no appearance by any party whose interests may be affected by the granting of an extension.

CRIME – joint criminal enterprise ­– extended joint criminal enterprise ­– self-defence ­­– whether self-defence should be left to the jury in relation to accused who did not commit the act which caused death CRIME ­– extended joint criminal enterprise ­­– whether jury should be directed that the Crown must establish that each accused must be aware that an extendable baton was to taken to the premises ­– where cause of death unknown CRIME – constructive murder ­– whether constructive murder should be left to the jury ­

CIVIL PROCEDURE – short service – application for serious crime prevention orders – outlaw motorcycle gangs – no point of principle

CIVIL PROCEDURE – costs – discontinuance of proceedings – multiple defendants – review by the Court pursuant to UCPR r 42.19(2) – where only claim against the second defendant is in his capacity as guarantor for the first defendant – whether the Court should depart from the ordinary rule – plaintiff required to pay costs of second defendant, so far as they solely relate to second defendant’s role as guarantor

HEALTH PRACTITIONERS – disciplinary proceedings before the NSW Civil and Administrative Tribunal – practice of Chinese medicine – finding of unsatisfactory professional conduct – imposition of conditions on registration as practitioner of Chinese medicine – appeal against decisions – asserted error of law - question of significance of drafting of complaint – whether complainant’s attitude to significance of particulars binds Tribunal – whether plaintiff denied procedural fairness by failure to warn of the possibility that a finding of unsatisfactory professional conduct may be made on a basis other than that asserted by complainant

CRIMINAL LAW – Evidence – Subpoena – Whether legitimate forensic purpose established

EQUITY – trusts – funds held by stakeholder – funds held pending conclusion of proceedings and direction of court – funds obtained from proceeds of sale of real property owned by fourth defendant – fourth defendant in liquidation – plaintiffs successful against first to third defendants but did not seek leave to proceed against fourth defendant – whether funds should be paid to fourth defendant or to plaintiffs – funds be paid to fourth defendant where plaintiffs established no claims against it or interest in the real property or its proceeds

CIVIL LAW – Supervision Order - Extended - comply with conditions

CIVIL PROCEDURE – application to transfer proceedings to District Court – where proceedings commenced in District Court and were previously transferred to Supreme Court – where granting application would require vacation of hearing date in April 2018

CIVIL PROCEDURE – application for stay of proceedings – application for vacation of hearing date – matter already assigned to particular judicial officer two days later for hearing – matter previously case managed by that particular judicial officer – application stood over for hearing by trial judge

MENTAL HEALTH – forensic patient – application for extension of term – up to 5 years available – sexual offending – schizoaffective disorder and Borderline Personality Disorder – recent diagnosis of schizoaffective disorder – need for medication to be stabilised – Mental Health Facility probably appropriate, but need for Tribunal to oversee any alterations – 2 year extension granted in accordance with expert opinion.

DEFAMATION – imputations – whether plaintiff should have leave to amend to add new imputations – no question of principle

PRACTICE AND PROCEDURE – where plaintiff in default of directions – where such default caused by default of its legal advisers and not by any fault of the plaintiff - where plaintiff for second time sought leave to rely on evidence served in the face of a guillotine order – whether leave should be granted LEGAL PRACTITIONERS – whether solicitor for plaintiff should pay the costs that the plaintiff must pay the defendants by reason of its default – whether the costs of the solicitor should be disallowed as between her and the plaintiff

COSTS – unsuccessful plaintiff impecunious – no reason to depart from general rule that costs follow the event – no question of principle

COSTS – Costs follow the event – first plaintiff fails on motion to lift a stay on enforcement of costs orders – defendants argue that costs should follow the event and the first plaintiff should pay the defendants’ costs – first plaintiff argues that the defendants have invited the filing of the motion and bear responsibility for the incurring of costs on the motion – matter complicated by the defendants opposition being based on a need to seek leave to pursue other proceedings – possibility exists that the Court may not permit the other proceedings to be pursued – the fairness of resulting costs orders in all the circumstances considered.

EQUITY — Equitable remedies — Specific performance — Court’s jurisdiction to supervise performance of lease entered into pursuant to orders for specific performance ESTOPPEL — Anshun estoppel — Issue estoppel — Decisions to which applicable — Second motion in connection with orders made to give effect to equitable estoppel LANDLORD AND TENANT — Covenants — Implied covenants — Whether landlord required to consent to lodgement of development application by tenant to extend hours of operation — Whether consent unreasonably withheld

COSTS – gross sum costs order – where party applies, in accordance with previous order, to vary amount of costs ordered – whether Court will scrutinise individual cost attendances – whether Court will apply broad brush approach to fixing costs.

CIVIL PROCEDURE—Pleadings—Amendment—whether leave should be granted to further amend statement of claim—whether pleadings sufficiently precise and clear CIVIL PROCEDURE—Pleadings—Striking out—whether further amended statement of claim should be struck out—whether further amended statement of claim contains allegations of fact capable of supporting claims EVIDENCE—Admissibility of evidence—Affidavit evidence—whether plaintiff entitled to rely upon unsworn draft affidavit EQUITY—Trusts and trustees—Powers, duties, rights and liabilities— circumstances in which director personally liable for debts incurred by corporation as trustee

CIVIL PROCEDURE – Application to vary interlocutory order – whether sufficient basis to vary order – whether circumstances have sufficiently changed to warrant the variation of an interlocutory order – application to vary order dismissed

CIVIL PROCEDURE – judgments and orders – writ of execution – whether leave should be granted under UCPR r 39.1 – whether opportunity should be given for a party to have costs assessed – set off cost order – injustice and grave circumstances

APPEALS – appeal from summary judgment entered against plaintiff in the Small Claims Division of the Local Court – self‑represented litigant CIVIL PROCEDURE – application by defendant to dismiss or strike out Summons pursuant to UCPR rule 13.4 – no reasonable cause of action disclosed – absence of jurisdiction – Summons dismissed

PROCEDURE – notices of motion – review of case management orders made by Registrar – application for referral of various persons for alleged criminal actions BIAS – actual bias – apprehended bias – application for recusal of judge – application for disqualification of Registrar

CRIME – sentence – prosecution appeal against manifest inadequacy – conviction following trial of three counts of sexual intercourse without consent under Crimes Act 1900 (NSW), s 61I – sentences of 2 years’ imprisonment on each count – sentences fully concurrent – sentences suspended – residual discretion to intervene CRIME – sentencing – use of precedent – identifying pool of comparable cases – leniency absent evidence of remorse – assessing objective seriousness of penetrative sexual offending – exceptional hardship to family – relevance of delay in determining proceedings