Cases and authorities

LEGAL PRACTITIONERS – disciplinary proceedings – New Zealand lawyer registered in New South Wales under Trans-Tasman Mutual Recognition Act 1997 (Cth) – failure to disclose suspension from practice in New Zealand and pleas of guilty to driving and tax-related criminal offences – false statements in application for practising certificate – order made for removal of name from roll of Australian Lawyers

CRIMINAL LAW – sentence appeal – offence of specially aggravated break and enter a dwelling and committing a serious indictable offence, namely robbery, contrary to s 112(3) Crimes Act 1900 (NSW) – co-offender pleaded guilty to lesser offence contrary to s 112(2) Crimes Act – whether parity principle required applicant’s sentence to be reduced – difference in objective seriousness of offending justified difference in sentences in circumstances where the subjective case of both offenders similar – appeal dismissed.

CRIMINAL LAW ― appeal against sentence ― sexual offences against two women ― three counts of sexual intercourse without consent ― digital/vaginal penetration ― applicant of good character ― pleas of guilty in the District Court ― whether aggregate sentence manifestly excessive ― appeal dismissed

CRIMINAL LAW – appeal against conviction and sentence – guilty plea – where appellant pleaded guilty to importing marketable quantity of border controlled drug – statutory defence of no intent to sell - where appellant claimed that drug was for personal use and not sale – whether guilty plea based lack of legal advice as to availability of defence – whether lawyer’s failure to provide such advice occasioned a miscarriage of justice – Criminal Code (Cth) s 307.2(4)

CRIMINAL LAW – appeal – conviction – whether trial judge erred in failing to give reasons for refusing application to exclude evidence of complainant – whether trial judge erred in failure to exclude evidence of complainant – whether verdict unreasonable or unsupported by evidence

CRIMINAL PROCEDURE – application to discharge jury – where accused charged with murder – where evidence adduced in cross-examination implied that accused had had sexual relationship with underage girlfriend – whether allusion to accused having sexual intercourse with underage female would occasion irreparable prejudice – application refused

EVIDENCE – s 138 Evidence Act – whether photographic identification evidence improperly obtained – whether police did not comply with procedural requirements of commissioner of police – where identification of accused made after conclusion of video recording of photo line-up – whether irregularity was inconsistent with minimum standards expected of law enforcement – no impropriety found EVIDENCE – s 137 Evidence Act – whether probative value of photographic identification made over twenty years after event outweighed by risk of unfair prejudice – where cross-racial identification – where witness made photographic identification confidently – where witness also made inconsistent statements as to appearance of accused – low probative value – outweighed by risk of unfair prejudice – evidence excluded

ROAD TRANSPORT - suspension of driver’s licence under demerit point system - notice of suspension posted to Plaintiff’s mailing address - Plaintiff states he did not receive notice - suspension for three months comes into effect - Plaintiff claims denial of procedural fairness - Plaintiff makes application for stay of suspension pending final hearing - only 13 days remaining of three-month suspension - claim for final relief not sufficiently arguable for grant of stay - stay refused

CONTRACTS – breach of promise – oral contract – sale of business – plaintiff ordered stock on credit for defendant – whether that amount now payable to plaintiff COSTS – whether plaintiff should have a costs order – good reason to transfer proceedings to Supreme Court COSTS – plaintiff’s offer of compromise – offer not accepted – plaintiff betters offer – indemnity costs awarded from date of offer of compromise No issue of principle

Civil Procedure – Disclosure of documents – Access to documents – Alleged misappropriation of cash takings – Documents evidencing financial affairs of defendant and his domestic partner – Whether “on the cards”

CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Witness compelled to give the evidence WORDS AND PHRASES – “interests of justice”

REAL PROPERTY – easement – alleged nuisance and obstruction of easement – proceedings commenced in 2018 to remove obstructions and abate nuisance – proceedings commenced in 2017 between same parties and one other party had settled, although settlement had not been fully performed – parties now in dispute about issues that had arisen after the settlement of the 2017 proceedings.

PRACTICE - parties approach the Equity Duty judge to vacate a Court-annexed mediation fixed for the following day - Court not informed that the Registrar had already made a direction requiring the filing of a motion (and the payment of the necessary motion fee) for an application to vacate the mediation date - Court orders vacation of the mediation date by consent - decisions of Registrars - obligation on parties to inform the Court of relevant prior orders or directions of Registrars that the Court is being asked to vary or reverse - need to follow proper procedure for appeals against Registrar’s decisions - parties recalled to revise orders made - incidence of the costs of the recall considered.

COSTS – application by successful plaintiffs for order that costs be paid in a gross sum – appropriate that such order be made – potential difficulties in recovery relevant – probable disproportionality between costs claimed and costs of assessment – overriding purpose in s 56 of Civil Procedure Act 2005 (NSW) advanced by order

INJUNCTIONS – interlocutory injunctions – agreement to acquire units in a unit trust – application by purchaser for restraint upon trustee dealing with principal asset of trust – whether serious question to be tried that agreement remains on foot notwithstanding purported termination – whether balance of convenience in favour of imposition of restraint – interlocutory injunction granted on conditions

PROFESSIONS AND TRADES – lawyers – duties and liabilities – availability of supervisory jurisdiction to restrain solicitors from acting – whether solicitors in a position of conflict – whether integrity of judicial process impaired – defendant alleged that solicitors for plaintiff had an improper interest in justifying their own conduct – solicitors might have indirect pecuniary interest in outcome of proceedings in that they might be exposed to a claim by the plaintiff for loss suffered by it if it is unsuccessful – no evidence from which to infer negligence or unlawful conduct – no risk that solicitors would breach the confidences of the defendant – plaintiff itself did not perceive any conflict of interest – no exceptional circumstances in which solicitors owed a duty of care to another party PROCEDURE – judgments and orders – application to vary or set aside a judgment that client legal privilege had not been waived by solicitors for the plaintiff – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3) – no evidence of material change in circumstances or discovery of new material subsequent to the hearing of the original application – no evidence of subsequent waiver – diary notes kept by solicitor for the plaintiff were subject to client legal privilege – Evidence Act ss 117, 118 PROCEDURE – discovery and interrogatories – leave to unrepresented party to issue subpoena to plaintiff’s solicitors - parties previously agreed to use Notices to Produce in lieu of discovery – four Notices to Produce already issued to plaintiff for the same documents –non-compliance or incomplete compliance alleged – leave to issue subpoena refused

SUCCESSION – Family provision and maintenance – Practice – Administrator of deceased estate – Obligation of disclosure – Location, size and value of estate and notional estate – Obligation extends to property, and property transactions, outside territorial jurisdiction of court SUCCESSION – Family provision and maintenance – Practice – Deceased person domiciled outside territorial jurisdiction of Court – Court’s jurisdiction to make family provision order limited to property within territorial jurisdiction of Court – Existence of property, and property transactions, outside territorial jurisdiction of court relevant to determination whether to make family provision order affecting property within territorial jurisdiction. COURTS – Administration of justice – Public interest in open justice – Application for suppression order – Probate – Non-dispositive provisions of will – No ground for suppression of information about those provisions. SUCCESSION – Wills, probate and administration – Omission of part of will from grant of probate – No allegation that will contains scandalous, offensive or defamatory material or is otherwise abuse of process of court – Application for suppression order in relation to non-dispositive provisions of will – Application dismissed – No ground for departure from open administration of justice.

APPEAL – Local Court – leave to appeal – Local Court Act, ss 39 and 40 – question of mixed law and fact – judicial notice – Evidence Act, s 144(1)(a) – whether judicial notice could be taken of standards of welding workmanship – whether aesthetic standards of welding are common knowledge and not reasonably open to question – no evidence – whether there was no evidence that the work was defective or damage was suffered – whether there was no evidence of an admission – whether the Magistrate had relied upon excluded and inadmissible evidence

APPEAL – application for leave to appeal – no issue of principle CIVIL PROCEDURE – deemed admission made under UCPR r 17.3 – whether trial judge erred in refusing application for leave to withdraw deemed admission under UCPR r 17.3

SUCCESSION – family provision – eligibility – whether appellant dependent or partly dependent on the deceased for accommodation – whether circumstances warranting making the claim – whether adequate provision for the proper maintenance and advancement of appellant

EVIDENCE ­­­– relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – photographs of tattoo on accused’s torso – where tattoo is not offensive and does not show a predisposition to violence

EVIDENCE ­­­– exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused –text messages between witness and accused

EVIDENCE ­­­– relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused

TAXES AND DUTIES – income tax and related legislation – collection and recovery of tax

PRACTICE AND PROCEDURE – where hearing of challenge to validity of deed of company arrangement not completed – where creditors have voted to support the deed of company arrangement knowing of the prior challenge – whether deed of company arrangement is valid and effective for all purposes of the Corporations Act 2001 (Cth) PRACTICE AND PROCEDURE – where provision of deed of company arrangement required by s 444DA(1) of the Corporations Act was not included – whether non-inclusion of the provision would be likely to result in the same or a better outcome for employee creditors than would result from immediate winding up of the company – whether Court will approve the non-inclusion of such a provision pursuant to s 444DA(5) of the Corporations Act

CRIMINAL LAW – application for media access - audio-visual recording - open justice principle - application for access refused

CRIMINAL LAW – application for separate trials – murder – accessory after murder – where principal charged with murder and applicants charged as accessories – incurable prejudice to applicants asserted if tried with principal – question of strength of the respective cases against each accused – asserted dramatic nature of the evidence – capacity of directions to address potential prejudice

PROCEDURE – civil – abuse of process –proceedings for breach of employment contract raising a question as to whether the plaintiff’s employment was ongoing – where the same question was determined in earlier proceedings in the Industrial Relations Commission – whether a determination of the Industrial Relations Commission is capable of creating issue estoppel – whether issue estoppel arose

CONTRACT – ineffective and unenforceable – no claim for damages available – wrong party – no allegation of mistake – no claim for rectification ESTOPPEL – by deed – recital patently untrue – does not prevent proof of true facts

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by two adult children of the deceased – The first Defendant, the executor of the Will of the deceased to whom Probate granted and also a child of the deceased – Actual estate consisting of small amount of cash all of which will be expended in first Defendant’s costs of the proceedings - Jointly held property transmitted to second Defendant, as the surviving joint tenant, on the deceased’s death – Order sought designating deceased’s interest in jointly held property as notional estate - Whether adequate and proper provision not made in Will of the deceased for each of the Plaintiffs – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs - Whether order designating property as notional estate should be made. PRACTICE AND PROCEDURE – Joinder of necessary party – Late application to join holder of property sought to be designated as notional estate as the second Defendant in the proceedings. COSTS – PRACTICE AND PROCEDURE – Conditional costs agreement – No uplift factor – Whether legal representative of each party has obligation to include the fact of the conditional costs agreement and its terms in any affidavit of costs –Practice Note SC Eq 7

CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Consumer Law – unconscionable conduct – whether conduct of an experienced commercial party in imposing a price increase on another experienced commercial party was in all the circumstances unconscionable CIVIL PROCEDURE – Commercial List, Technology and Construction List – Procedure – whether reply to commercial list response forms part of pleadings – whether pleaded case encompassed claim for statutory warranty for defective equipment regardless of cause of defect

ADMINISTRATIVE LAW – judicial review – jurisdictional error – severity appeal – where District Court permitted withdrawal of appeal against severity of sentences in Local Court – where judge gave “Parker warning” – where judge terminated applicant’s cross-examination of police officer – whether denial of procedural fairness – whether as conducted appeal encompassed a conviction appeal

CONTRACTS – breach of contract – consequences of breach – right to damages – whether remedy identified in contract was the exclusive remedy for breach CONTRACTS – construction and interpretation – whether contractual guarantee was given by first appellant only CONTRACTS – breach of contract – whether breach established – whether shares in the second appellant company had tripled in value within two years of their issue – whether trial judge erred in relying on certain expert evidence regarding value of the shares CONSUMER LAW – misleading or deceptive conduct under statute – parties accepted that representation that shares would triple in value was misleading and deceptive – whether reliance on particular representation was established by respondents CIVIL PROCEDURE – procedural fairness – self represented defendants – defendants indicated that they would be unable to pay for US resident to give expert evidence – failure to make expert available for cross-examination led to rejection of his report – defendants gave no indication that situation would change – whether procedural unfairness because trial judge failed to advise defendants to seek adjournment to further attempt to make expert available

TORTS – negligence – apportionment of responsibility and damages – medical negligence – whether pre-existing condition was progressively deteriorating – whether causation was established – whether assessment of damages could be challenged – challenges to findings of fact and damages dismissed

CONSUMER LAW – misleading or deceptive conduct – whether respondents made representation that appellants would be the only fresh fruit and vegetable retailer in a section of the respondents’ shopping centre CONSUMER LAW – misleading or deceptive conduct – whether failure by shopping centre’s owners to disclose to an independent retailer of fresh fruit and vegetables in the centre that a supermarket had plans to engage in that activity was misleading or deceptive or constituted unconscionable conduct

INSURANCE - construction of policy terms - public liability and professional indemnity - exclusion clauses - respondent provided building inspection report to plaintiff purchaser - report negligently failed to identify defective balcony - baluster failed causing injury - whether appellant’s policy responded to respondents’ claim - conflict between policy endorsement and exclusions - relevance of hierarchical provisions providing that specific endorsements prevail over general exclusions - relevance of commercial purpose of policy

CRIMINAL LAW – appeal against sentence - misstatement of maximum penalty - whether sentencing judge acted on wrong maximum - evidence of progress toward rehabilitation since sentence

CRIMINAL LAW – sentencing – whether judge made assessment of objective criminality – aggravating factors – planned and organised criminal activity – offence committed for financial gain – whether judge erred – commercial drug supply – whether factors inherent in offence – whether judge erred – “double counting” – parity of sentencing – equal justice – where sentencing judge determined appropriate proportion in sentencing co-offenders – where co-offender re-sentenced by Court of Criminal Appeal – need to re-establish proper proportions – applicant re-sentenced

CRIMINAL LAW – sentence appeal – offences of murder and sexual intercourse without consent – offending occurred in 1988 but not sentenced until December 2015 – victim an elderly woman living in circumstances of social isolation – whether victim should have been regarded as “vulnerable” in accordance with s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether judge properly applied the principles applying to sentencing for historical offences – whether judge should have found special circumstances having regard to the length of non-parole periods imposed during the 1980s – whether judge should have taken into account applicant’s upbringing as bearing upon his moral culpability – whether judge properly took into account by way of mitigation the applicant’s previous good character – grounds of appeal not made out – leave to appeal granted but appeal dismissed.

COSTS – no point in principle

CORPORATIONS — Winding up — Liquidators — Remuneration – remuneration approved EQUITY — Trusts and trustees — Judicial advice - Payment of trust funds into Court – where the liquidator has been unable to identify the beneficial owner of the funds – held, the liquidator should inform all interested parties and seek the Court's advice that he would be justified in disregarding any claim which has not been made within time, and in distributing the funds according to such determination as he might reasonably make having regard to the claims made and the available evidence

CIVIL LAW – vacation of trial date – failure of parties to comply with court orders – lamentable and flagrant breach of timetable by both parties – disruption of list – interference with rights of other litigants – appropriate orders as to costs – no question of principle

PRACTICE AND PROCEDURE – legal professional privilege – application to prevent liquidator accessing documents produced in response to an order to produce – where director claimed that he and company jointly obtained legal advice or had common interest privilege – whether director can rely on legal professional privilege to prevent company accessing advice.

CRIMINAL LAW – evidence – privilege against self-incrimination – where witness to give evidence in respect of two murders – where witness involved in events related to murders – where witness to be asked about other criminal activity – where reasonable grounds for objection – where in the interests of justice that witness be called – order that certificate to witness be provided

TRUSTEE ACT – Section 63 – judicial advice sought regarding the commercial choices which the trustee may adopt – advice not appropriate – advice refused

CIVIL PROCEDURE – leave to amend defence to add a pleading of failure to mitigate – prejudice to plaintiffs – interests of justice – Civil Procedure Act 2005 s 58 – leave refused CIVIL PROCEDURE – case management – notice to produce documents – where accuracy of records is uncertain – limitation placed on notice to produce

CRIMINAL LAW – appeal and new trial – pardon, commutation of penalty, reference or petition for pardon and inquiry after conviction – application for inquiry into sentence under Crimes (Appeal and Review) Act 2001 (NSW), s 78 – where applicant had already appealed unsuccessfully to the District Court against severity of sentence – whether the Court can consider the application under Crimes (Appeal and Review) Act, s 79(2) – whether present evidence raises a doubt or question as to any mitigating circumstances – whether the Court can refuse to consider the application under Crimes (Appeal and Review) Act, s 79(3) – whether the matter had bene fully dealt with in the proceedings or previous review – whether special circumstances exist

EVIDENCE – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused

APPEALS – contract law – construction of guarantee – whether guarantee applied to subsequent building contract – whether Ankar principle relieves guarantor of liability