Cases and authorities

CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Schedule 2, ss 18(1) and 236(1) – Misleading or deceptive conduct – plaintiff insurers claimed that they were induced to issue surety performance bonds for a publicly listed company by misleading or deceptive conduct on the part of the defendant individual officers of the company – misleading or deceptive conduct claimed to be representations and non-disclosures – no claim of accessorial liability – HELD: no misleading or deceptive conduct on the part of the defendants established – the alleged misleading or deceptive conduct was not causative of the plaintiffs’ loss.

CRIMINAL LAW – sentence – foreign incursion offences – ss 119.1 and 119.4 Criminal Code (Cth) - offender performed services for another with the intention of supporting the commission by them of an offence against incursions into a foreign country for the purpose of engaging in hostile activities – s 16BA offence – offender doing preparatory acts for incursion into a foreign country for the purpose of engaging in hostile activities - offending underpinned by an adherence to extremist ideology – offender made telephone calls to obtain assistance for co-offender to cross from Turkey to Syria – no assistance obtained - low level of objective seriousness – weight given to subjective circumstances – offender aged 16 and 17 at time of offending - acts preparatory to foreign incursion distinguished from terrorist acts directed less remotely towards the Australian community – risk of re-offending – lack of developed risk assessment protocols based on actuarial studies CRIMINAL LAW – sentencing of juveniles – Children (Criminal Proceedings) Act 1987 (NSW) s 19 – whether special circumstances justify offender’s detention as a juvenile after the age of 18 years – meaning of “unacceptable risk” of suffering physical or psychological harm – relevant factors – likely that offender would be incarcerated in a facility with others whom the offender knows and a significant proportion of whom have been convicted of similar offences – offender formerly addicted to Islamic State propaganda – offender feared that he could again be inculcated with extremist ideology – unacceptable risk of offender suffering psychological harm in the form of re-radicalisation if not detained as a juvenile offender

CONTEMPT OF COURT – sentencing – breach of consent orders preventing conduct with respect to residential building work – plea of guilty to knowingly breaching orders in five respects – contempt committed during period of suspended prison sentence imposed for a similar breach of the same orders – aggravating factors - no demonstration of remorse – high likelihood of reoffending – significance of both specific and general deterrence – no penalty other than fulltime imprisonment appropriate

CRIMINAL LAW – appeal – sentencing – whether sentences imposed were manifestly excessive

CRIME – appeal against sentence – supply prohibited drug – ongoing supply prohibited drug – possession of unauthorised firearm – deal with proceeds of crime – whether sentencing judge failed to take into account the objective seriousness of the offending – where brief ex tempore remarks on sentence – leave to appeal refused

CRIME – Crown appeal against sentence – supply prohibited drug – ongoing supply prohibited drug – Drug Misuse and Trafficking Act 1985 ss 25(1) and 25A – knowingly direct criminal activities of a criminal group – Crimes Act 1900 s 93T(4A) – whether aggregate sentence manifestly inadequate – whether sentencing Judge erred in failing to give adequate weight to general deterrence – whether sentence reflected additional criminality of offence on Form 1 – whether sentencing Judge erred in failing to appropriately accumulate multiple offences – whether sentencing Judge erred in extent of statutory variation of head sentence to non-parole period ratio – appeal allowed

CRIMINAL LAW – Evidence – Jury – Application to discharge jury – Suggested change in the Crown case – Application refused.

CORPORATIONS — Members’ rights and remedies — Oppression — interim injunctive relief – where breach of shareholders agreement – where shareholder/director employed by competitor – interim injunction granted

CONFISCATION OF ASSETS – interim orders freezing assets and preventing any dealings – jurisdictional gateway satisfied – orders made

EVIDENCE – Privileges – claim for legal professional privilege – claim for litigation privilege – preliminary proceedings – whether statutory provision applies to preliminary proceedings – common law definition of litigation privilege applies in preliminary proceedings EVIDENCE – Privileges – Litigation privilege – whether expert report privileged – application of “dominant purpose” test – scope of report too wide – no direct evidence on instructions to expert – direct evidence apparently available – whether claim of privilege should be upheld as matter of inference when direct evidence available – privilege claim over report dismissed EVIDENCE – Privileges – litigation privilege – where claimant asks court to inspect documents over which it claims privilege – whether appropriate for court to exercise power to inspect documents – where other party not in a position to inspect and make submissions on documents – risk of “gross unfairness” – whether inspection detracts from requirement that claimant prove privilege claim with admissible evidence – not appropriate for court to inspect documents where inspection detracts from requirement CIVIL PROCEDURE – Subpoenas – documents produced on subpoena – legal professional privilege – litigation privilege – whether documents preceding issue of expert report privileged – whether inference that communications directly relate to proceedings available – whether documents advance case of claimant – whether documents produced for purpose related to expert report – insufficient evidence that documents advance case – insufficient evidence documents prepared for purpose related to expert report – inference communications directly relate to proceedings not available – privilege claim over documents dismissed

CONTRACTS — Construction — Interpretation — No issue of principle — Whether offer of call option engages right of first refusal to purchase land

INDUSTRIAL LAW – cancellation of registration of industrial organisation of employers – organisation defunct – effect of industrial activity being overtaken by federal legislation – no activity since 2013 – application by organisation – application granted

CRIMINAL LAW – Procedure – Juries – Application for discharge of jury following outburst from witness – Jury immediately directed to ignore outburst – Matter appropriately dealt with by direction – Application refused

CRIME – sentencing – manslaughter – substantial impairment – mercy killing – where mother kills her disabled adult son – victim sedated and asphyxiated – where mother cared for son for many years before killing – victim an alcohol, drug user and abusive – mother suffering severe depressive episode – underlying bi-polar disorder or schizophrenia – exhaustion – intensely sad case – tragic personal history – good character – vulnerable victim – offence in victim’s home – where offender had spent over two years in custody – offender to be released from custody forthwith

CRIMINAL PROCEDURE – application for suppression and non-publication order – application for release on bail before trial on serious indictable offences – Court Suppression and Non-publication Orders Act 2010 ss 7 and 8 – prejudice to the accused – safety of family members of the accused – principle of open justice – limited suppression order made

CRIMINAL PROCEDURE – interlocutory orders –motion for re-service of Crown brief in specified form – mandatory pre-trial disclosure obligations – Criminal Procedure Act 1986 s 141(1)(a) – order made for production of an electronic court book – motion otherwise dismissed

SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three sons and a daughter – another daughter pre-deceases the deceased leaving four children – the deceased’s estate comprises a single farming property and other investment properties – the investment properties are given under the deceased’s will to his grandchildren, the children of his deceased daughter – the remaining property, the farming property, was split up between the surviving children – the plaintiff worked on the farming property for a lengthy period prior to the deceased’s death – the deceased’s will divided the farming property into two parts – the better land on which the principal farming buildings are erected on higher ground was given to the two surviving older children, the eldest son and a daughter – the lower and partially flood prone land with no farm buildings was given as tenants-in-common to the plaintiff and his twin brother – the plaintiff claims that his capacity to earn a living in farming from the land given to him under the will is severely impaired – whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision needs to be made for the plaintiff out of the estate of the deceased – if further provision needs to be made for the plaintiff, what is the nature and quantum of that provision.

CRIMINAL PROCEDURE – case in reply – where accused gives evidence – where Crown seeks to tender CCTV footage in cross-examination

CRIMINAL LAW - sentence - guilty plea - aiding and abetting commission of terrorist act - fatal shooting of Curtis Cheng outside New South Wales Police Headquarters - 18-year old Offender supplied firearm to 15-year old killer - other acts of assistance by Offender - Offender a supporter of Islamic State - Offender deeply radicalised at time of offence - Offender remains radicalised - very high objective gravity of offence - absence of contrition and remorse - grim prospects of rehabilitation - factors relevant to sentence - importance of denunciation, general deterrence and specific deterrence - relevance of youth - very substantial determinate sentence imposed

ESTOPPEL – estoppel by deed or convention – estoppel by convention – plaintiff mother sought possession of property owned by defendant daughter pursuant to Deed of Loan and mortgage executed in favour of plaintiff – whether Deed of Loan and mortgage were sham documents intended by parties merely to deceive defendant’s estranged husband in respect of any family law property proceedings – whether defendant was induced to sign documents by a representation that neither document was intended to have its apparent, or any, legal consequences – defendant did not meet “heavy onus” of proving a sham EQUITY – general principles – rules and maxims of equity – unclean hands – effect of defendant’s complicity in alleged sham on availability of equitable relief – defendant could not rely on personal equity to overcome effect of registration pursuant to Real Property Act 1900 (NSW) s 42 INTERPRETATION – general rules of construction of instruments – Deed of Loan provided that defendant “must pay principal and interest” – term not uncertain because interest rate, principal and duration of loan were specified – plaintiff not required to give oral or written direction in relation to payment of instalments INTERPRETATION – general rules of construction of instruments – whether Deed of Loan incorporated into registered mortgage – whether contra proferentum rule applied – reference to “Deed of Acknowledgement of Loan” in annexure to registered mortgage clearly a falsa demonstratio for the words “Deed of Loan” CONTRACTS – general contractual principles – harsh and unconscionable contracts and statutory remedies – defendant mortgagor was financially and emotionally dependent on plaintiff mortgagee – plaintiff knew that defendant had no ability to comply with provisions of Deed of Loan such that transaction amounted to “asset lending” – same solicitor acted for mortgagee and mortgagor - interests of plaintiff and defendant diverged considerably – defendant asked to sign Deed of Loan and mortgage without independent legal advice, explanation or negotiation of terms – transaction was unjust within meaning of Contracts Review Act 1980 (NSW) s 9(2)

LOCAL COURT APPEAL – procedural fairness – contractual dispute - whether adequate reasons given by Magistrate

SUCCESSION - Wills - Wills, Probate and Administration Act 1898, s 29 (WPA Act) - a child of a testatrix predeceased her leaving issue - gift of residue in the testatrix’s will made “of the whole of my Estate equally” to the testatrix’s children - gift expressed to be “between such of my children as survive me as tenants common” - unless displaced by a contrary intention, WPA Act, s 29 will apply to save the gift for a child who predeceases the testatrix and will preserve the gift for the issue of that predeceased child - whether the gift in the testatrix’s will expresses a contrary intention for the purposes of s 29.

PROCEDURE – judgments and orders – application for stay of judgment pending appeal – no proper basis for stay demonstrated PROCEDURE – judgments and orders – application for injunction restraining respondent acting on Notice of Termination – no proper basis for injunction

BIAS – apprehended bias – application for disqualification of judge – application based on asserted misstatement of facts in earlier interlocutory judgment

SUCCESSION – wills, probate and administration – whether evidence raised doubt as to testamentary capacity – whether proponents of last will satisfied the court that the deceased was of sound mind, memory and understanding at time of execution of will. SUCCESSION – wills, probate and administration – whether presumption of knowledge and approval of contents of will displaced by suspicious circumstances – where respondent son involved in will-making process – whether deceased understood the legal effect of specific gifts of jointly owned property. SUCCESSION – wills, probate and administration – claim for rectification of will – whether will gave effect to the deceased’s intention – where instructions for will given by deceased to his solicitor and also via his son - challenge to credit based findings of primary judge accepting evidence of instructions given by the deceased to his solicitor and his son. SUCCESSION – wills, probate and administration – whether ademption of gift of specific property to appellant is affected by Protected Estates Act, s 48 or NSW Trustee and Guardian Act, s 83 – where gift of specific property given by will to appellant – where specific property held by deceased in joint tenancy with his wife – where joint tenancy severed by deceased’s financial managers and deceased’s interest in specific property later transferred to wife pursuant to orders of Family Court of Australia – whether statutory provisions operate to “claw back” value of interest given to appellant under the will but adeemed because deceased did not hold such property at date of death. SUCCESSION – family provision and maintenance – whether order for further provision from estate should be made in favour of appellant – where appellant failed to adduce evidence that adequately disclosed his financial position.

NEGLIGENCE – medical negligence – respondent became paraplegic as a result of surgery – principal anaesthetist’s attempts to address respondent’s continuing high carbon dioxide levels during operation were unsuccessful – whether head surgeon and principal anaesthetist negligent in failing to terminate operation earlier than occurred – roles and responsibilities of head surgeon and principal anaesthetist NEGLIGENCE – medical negligence – peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether necessary that at the time of the alleged negligence there was an established practice which was widely accepted as competent medical practice – McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158 considered NEGLIGENCE – medical negligence – inherent risk – Civil Liability Act 2002 (NSW) s 5I – whether risk of neurological injury was inherent risk of surgery that could not have been avoided by the exercise of reasonable care and skill

ESTOPPEL – by judgment – res judicata or cause of action estoppel – where notices of motion seek to re-agitate matters already decided – bankrupt litigant – where order previously made for possession of property by trustee in bankruptcy – where issues raised would fall within exclusive federal bankruptcy jurisdiction pursuant to the Bankruptcy Act 1966 (Cth) CIVIL PROCEDURE – parties – vexatious litigants – declaration of – “vexatious proceedings” under s 6 of the Vexatious Proceedings Act 2008 (NSW) – proceedings amounting to abuse of process – proceedings pursued without reasonable grounds – where proceedings re-agitate matters already decided – where relief sought precluded by earlier orders

CRIMINAL - Criminal Assets Recovery Act 1990 - production order sought - orders made

SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of the suit for family provision order – Offer of Compromise served about 2 months prior to the hearing – Defendant obtained order no less favourable than offer made – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion.

CORPORATIONS – external administration – application to approve the remuneration of special purpose receivers for work already performed – where ASIC does not appear to make submissions after being given notice of the application –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time charged basis.

EVIDENCE – discretions – exclusions of evidence – where accused told former wife he had “open relationship” with friend of deceased ex-wife – where Crown contended evidence relevant as evidence of affair and motive – where asserted lie that relationship was “open relationship” also proposed to be used as credibility evidence – whether possibility of evidence of lie being used in relation to credit would give rise to risk of unfair prejudice that outweighed probative value – evidence significant to motive – asserted lie would not be admissible solely for credibility purpose – evidence admitted EVIDENCE – discretions – exclusions of evidence – where accused lied by saying murdered wife had died of cancer – where Crown proposed to lead evidence as relevant to credit – whether jury might give evidence undue weight or see it as evidence of bad character – lie not substantial enough to impact credibility – lie of minimal probative value – danger of misuse by jury despite directions – evidence excluded

EQUITY - interlocutory injunctions - serious question to be tried - balance of convenience - interests associated with the first defendant to sell a gym business to the plaintiff - second defendant is employed as a mentor within the gym business from the time of the sale - post-sale restraints agreed to by the first defendant - second defendant leaves the employment of the plaintiff and proposes to work for first defendant - whether first defendant’s business competes with the plaintiff’s business - whether the second defendant’s proposed employment with the first defendant should be restrained pending final hearing.

ADMINISTRATIVE LAW - claim for declaratory and prerogative relief - Defendant accepts hardship application by Plaintiffs under Land Acquisition (Just Terms Compensation) Act 1991 - Plaintiffs’ property partly zoned “public recreation” and partly zoned “infrastructure - local drainage” - Defendant decides that acquisition under hardship application will apply to “public recreation” land only - whether land zoned “infrastructure - local drainage” is land reserved for “any other purpose that is prescribed as a public purpose for the purpose” of s.26(1)(c) Environmental Planning and Assessment Act 1979 - held that land is so prescribed by Appendix 8 to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - Plaintiffs entitled to relief - orders made

COMMON LAW – APPEAL FROM THE LOCAL COURT – appeal from decision of the Local Court – nature of proceedings – money claim – whether claim equitable in nature – jurisdiction – question of test to be applied to a claim for restitution

CIVIL LAW – cross vesting – application to transfer proceedings to the ACT – where plaintiff resident in Canberra – plaintiff a paraplegic with severe disabilities – plaintiff’s injury and disabilities subject of the proceedings make it difficult for her to stay in Sydney – interests of justice – relevant considerations – plaintiff’s difficulties part of the interests of justice – cause of action arose in New South Wales – most witnesses resident in New South Wales – matter listed for hearing – hearing date imminent – where previous hearing date vacated – application refused

ADMINISTRATIVE LAW – challenge to implementation of policy of Greyhound Racing NSW as inconsistent with Rules and not authorised by Act - duty to prevent harm to dog not inconsistent with procedure to provide water in kennel at racetrack, even though particular dog may harm itself.

COURTS & JUDGES – error is reasons for judgment - wrong calculation of life expectancy – life expectancy agreed between parties – judgment intended to reflect agreement – Schedule misread – misapprehension of fact – correction made; COSTS – agreement between two defendants that one case be conducted – one defendant successful which did not separately participate – costs follow the event, even if on taxation costs may be nil.

COSTS – whether valid offer of compromise made or whether Calderbank offer – whether discretionary power of setoff to be exercised – whether gross sum costs order to be made - fruits of the action lien – whether Shine Lawyers entitled to equitable lien over the judgment monies

CRIMINAL LAW – murder - special hearing – plea of not guilty by reason of mental illness -

SUCCESSION – Claim for declaration that the Plaintiff is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death – Claim for family provision order –– Reliance on different categories of eligibility – Defendant denies that Plaintiff an eligible person within any category of eligibility – Defendant also denies that, if relevant, there are factors warranting the making of the Plaintiff’s application – Whether eligibility and factors warranting the making of the application established and, if so, whether an order for provision ought to be made.

PROCEDURE – whether the plaintiff’s amended summons ought to be dismissed on grounds of incompetency – whether amended summons and proceedings ought to be dismissed pursuant to UCPR 13.4 – whether further opportunity to replead summons would allow for the identification of any arguable points of law or any points of mixed law and fact – leave to replead summons refused – amended summons dismissed

ADMINISTRATIVE LAW – declaratory relief – applicant in custody – applicant involved in potential litigation – judicial review of decision affecting conditions of applicant’s incarceration – access to laptop with write and edit functionality in cell – application dismissed

CRIMINAL LAW – sentencing murder – guilty plea entered early in process – mid line of objective seriousness - offender suffered from post-traumatic stress disorder – also extremely intoxicated at time of offence – whether PTSD materially contributed to offending behaviour – extreme remorse

EQUITY - specific performance - contract for sale of land - first defendant fails to complete contract - plaintiffs commences proceedings for specific performance - first defendant consents to orders for specific performance two weeks before the date fixed for trial - whether the first defendant should pay the plaintiffs’ costs of the proceedings and on what basis (ordinary or indemnity) and for what period - whether the second defendant should also pay part of the plaintiffs’ costs of the proceedings.

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

CIVIL PROCEDURE – application for a stay of order releasing funds applicant ordered to pay to respondent by this Court as a condition of stay pending applicant’s appeal to the High Court of Australia – unsuccessful appeal to High Court of Australia by applicant – application refused

PROCEDURE – release of funds paid into Court – Building and Construction Industry Security of Payment Act 1999 (NSW) – unsuccessful appeal to High Court of Australia – stay of recovery of progress payment on terms that progress payment be paid into Court – whether proceedings should be remitted to Equity Division or progress payment released to successful High Court respondent

CRIMINAL LAW – appeal against sentence – five counts of contravening a control order contrary to s 104.27 of the Criminal Code – whether the sentencing judge took into account utilitarian considerations when allowing a 15 per cent discount for guilty pleas

CRIMINAL LAW – Appeal – Evidence – Unfavourable witness – Cross-examination – Cross-examination of unfavourable witness in respect of matters relevant only to credibility – Whether such questioning went beyond such matters – Whether further grant of leave was required – Whether miscarriage of justice arose CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Whether summing-up failed to adequately balance the respective cases of the Crown and the accused – Where trial judge repeatedly reminded the jury of the defence case – Structure of the summing-up a matter for individual judgment – No requirement on the part of the trial judge to “compartmentalise” the summing-up by separately identifying and summarising the defence case – Ultimate question whether the trial judge has put the defence case in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf CRIMINAL LAW – Appeal – Offences – Where jury found the appellant guilty of wounding with intent to cause grievous bodily harm – Whether verdict unreasonable and could not be supported by the evidence – Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant held the requisite intention – Where a combination of circumstances relied upon by the Crown provided a sound basis upon which it was open to the jury to infer such intention on the part of the appellant – Where issue not explored in evidence by trial counsel CRIMINAL LAW – Appeal – Practice and procedure – Directions to the jury as to the question of intention – No basis upon which to conclude that issues were conflated by the trial judge – No issue raised by trial counsel as to the directions given – Position taken by trial counsel entirely unsurprising – Leave to appeal refused

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – person under disability and for whom tutor appointed proves disability no longer operative – preferable for plaintiff to give her own instructions – orders removing the tutor issued – Amended Statement of Claim in plaintiff’s own name