Cases and authorities

JURISDICTION – Cross-vesting – Transfer of proceedings – between State Supreme Courts – relevant considerations – where plaintiff resides in New South Wales and the defendant resides in Queensland – where the defendant company’s principal place of business is in Queensland – centre of main interests in Queensland – held, proceedings transferred.

CIVIL PROCEDURE - application by Plaintiffs to vacate hearing of summary dismissal applications brought by Defendants - reliance upon filing of application to remove other proceedings into High Court of Australia - hearing of summary dismissal application adjourned previously to meet convenience of Plaintiffs’ counsel and solicitor - no proper basis to vacate hearing of summary dismissal applications - application dismissed with costs

MENTAL HEALTH – application for appeal against a Community Treatment Order under Mental Health Act 2007, s 163 – plaintiff seeks interim relief to lift a community treatment order (“CTO”) made against her in October 2017 – CTO expires in April 2018 – proceedings urgent – clear need for legal assistance for the plaintiff due to her personal circumstances – consideration of referral under UCPR, r 7.36 to the NSW Bar Association’s Pro Bono Scheme for legal assistance.

COSTS – application for costs in gross sum – no response to plaintiffs’ evidence – appropriate to make order

CIVIL PROCEDURE – stay of orders of Land and Environment Court pending appeal – whether real prospects of success on appeal – whether appeal rendered nugatory without stay

CIVIL PROCEDURE – application for leave to appeal – referral for pro bono assistance – prior pro bono referrals – where appeal from interlocutory orders – where application made in context of lengthy history of proceedings – whether in interests of justice to grant referral – Uniform Civil Procedure Rules 2005 (NSW), r 7.36

CRIMINAL LAW - sentence – Applicant pleaded guilty to assault with intent to rob whilst armed causing wounding under s.98 Crimes Act 1900 - co-offender pleaded guilty to reckless wounding whilst in company under s.35(3) Crimes Act 1900 – Applicant appeals on parity ground – obvious are marked distinction between offences and offenders – appeal dismissed

CIVIL PROCEDURE – application to extend time within which originating process is valid for service – confusion as to identity of fourth defendant – where a person accepted service of process as the party named but later denied being the party named – appropriateness of extending period of validity for service

HIGH RISK OFFENDER – preliminary hearing – Crimes (High Risk Offenders) Amendment Act – applicability of amendments to proceedings commenced before amendments came into force – otherwise no question of principle

CRIMINAL LAW – Procedure – Accused charged with murder – Where witness giving evidence for the Crown against the accused had previously pleaded guilty to his role in the murder and had been sentenced – Where witness had been charged shortly before the commencement of the accused’s trial with conspiracy to extort money from the accused in return for not giving evidence – Where application was made on behalf of the witness that any evidence given in cross-examination in n relation to those charges not be published – Whether such an order necessary to prevent prejudice to the proper administration of justice – Order not necessary – Interim order discharged WORDS AND PHRASES – “necessary”

Succession – Family provision – Claim by adult son – Absence of social relationship arising from dispute as to paternity – No attribution of fault – Son deprived of benefit of paternal association – Affluent father – No actual estate, but significant notional estate – Order for provision made

CRIMINAL LAW – sentencing – murder – attempted murder – infliction of grievous bodily harm – grave offences of violence – son kills father for insurance money – planned and premeditated attack – initial attempt to kill unsuccessful – offences committed in home of victims – two victims left with life threatening injuries – murder committed shortly after father released from hospital – murder committed with samurai sword – katana – offences substantially above mid-range of objective seriousness – cold-blooded determination scarcely imaginable – staggering moral delinquency – whether life sentence appropriate – aggregate sentence CRIMINAL LAW – sentencing – mitigating features – where offender subject to childhood neglect and abuse at the hands of his father – whether non-exculpatory provocation established – where offender suffers depressive illness as a result of abuse – moral culpability diminished – impact on general deterrence – unusual if not unique mitigating feature for such an offence

Leave to reopen – previous judgment refused leave under the Felons (Civil Proceedings) Act 1981 – no question of principle

CORPORATIONS – Order sought for leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed with a claim against company in voluntary liquidation – where leave is being sought to commence class action that overlaps with existing class action proceedings - whether leave should be granted to bring claim.

COSTS - Party/Party – Urgent proceedings – where plaintiff did not succeed in obtaining the relief sought, but obtained other relief

PROCEDURE – courts and judges generally – judges – disqualification for bias – whether reasonable apprehension of bias – judge was a member of Legal Profession Admission Board that excluded party from Board’s legal course – application to recuse made after judgment given in principal proceedings and orders for costs made – successful party subsequently seeking specified gross sum costs order – no issue of credibility – recusal refused PROCEDURE – costs – maximum costs orders and capped costs – whether a gross sums costs order should be made – non-complex administrative law proceedings involving small sum claimed in Local Court – unrepresented party against whom cost orders made – likelihood of lengthy and protracted costs assessment – relevance of the manner in which the party conducted the proceedings – proportionality of costs PROCEDURE – application by party for release from undertaking as to costs – undertaking given to enable director to appear for plaintiff company – UCPR r 7.1 – where no change in circumstances from time of giving undertaking – whether interests of justice required release – whether party understood basis of undertaking

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application to revoke restraining order – property identified as interest in bank account - account deposits made by way of money laundering scheme known as ‘cuckoo smurfing’ - whether property ceased to be proceeds of crime – whether applicant acquired property for sufficient consideration as a third party – nature of chose in action - whether it serves the interests of justice to revoke restraining order – interaction of ss 19 & 22 of the Proceeds of Crime Act 2002 (Cth)

PRACTICE AND PROCEDURE – application for summary judgment under UCPR r 13.1(1) – whether triable issue – whether triable defence of equitable set-off – whether triable defence under s 54 of the Sale of Goods Act 1923 (NSW)

ADMINISTRATIVE LAW – motion to remove proceedings to Court of Appeal in judicial review proceedings under UCPR r 1.21(1) - discretion to transfer proceedings – relevant factors in exercise of discretion

CRIMINAL LAW – application for leave to appeal against sentence – drug offences – prohibited weapons offences – Drugs Misuse and Trafficking Act 1985 (NSW) s 25(1) – Weapons Prohibition Act 1998 (NSW) s 7(1) CRIMINAL LAW – application for leave to appeal against sentence – whether trial judge failed to make an assessment of the applicant possibly suffering from mental illness – whether trial judge erred by not giving regard to applicant’s sexual orientation and nationality – whether trial judge erred by not adequately having regard to prospects of drug and alcohol rehabilitation – whether judge erred by failing to foresee that the Department of Correctional Services would breach its duty of care – whether sentence manifestly excessive CRIMINAL PROCEDURE – sentence – breach of good behaviour bond – District Court Judge revoked bond – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 98-99

CORPORATIONS — Winding up — Recovery proceedings — Voidable transactions – where company insolvent – whether reasonable grounds for recipient to suspect insolvency – relevance of delay in payment – relevance of actual payment

CRIMINAL PROCEDURE – application for discharge of jury – where Crown Prosecutor in murder trial opening address mentioned defendant had a sexual relationship with a witness who was then 15 years’ old – whether inference of involvement in child sexual abuse would amount to incurable prejudice – application refused

TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925

COSTS – application for extension of operation of caveat – application made following service of lapsing notice by first defendant – order for extension made by consent – whether appropriate to order first defendant to pay plaintiff’s costs

CRIMINAL LAW – sentencing – manslaughter by unlawful and dangerous act – joint criminal enterprise – co-offenders hog-tied and gagged deceased and left him in unit – discount for male offender for early offer to plead guilty to manslaughter and agreement to give evidence against female offender – subjective circumstances found for female offender

EVIDENCE – whether respondent had made admission as to appellants’ right to immediate possession – probative value of admission made– whether inference should be drawn from respondent’s failure to give evidence at trial PERSONAL PROPERTY – machinery owned by company in administration – machinery left with defendant – former director and guarantor of company’s debts claims entitlement to machinery – whether basis of entitlement established

CRIMINAL PROCEDURE – application for separate trials – where new information – where Crown and co-accused case theory both implicate applicant – where co-accused’s case theory unlikely to have credibility or be pursued – application based only on speculation that particular case theory be pursued or would have credibility – application refused

EVIDENCE – admissibility and relevancy – evidence of representations made by two witnesses who are unavailable – where unavailable witness gave evidence that the deceased had been threatened by the accused – whether necessary that the representation be made as evidence of the truth of the assertion – evidence admissible as evidence of the fact that the statement was made and not that the statement was true – s 65(2) EVIDENCE – admissibility and relevancy – where witness proposed to give evidence of her opinion on progress of property transaction between accused and victim – whether expression of opinion was inadmissible as opinion evidence – ruled inadmissible EVIDENCE – admissibility and relevancy – where witness proposed to give evidence that the deceased had indicated that he was going to sue the accused and had been scared of being assaulted or murdered – where evidence of deceased’s fear of being assaulted or murdered did not name the accused – whether the probative value of the evidence was outweighed by the danger of unfair prejudice – evidence ruled admissible EVIDENCE – admissibility and relevancy –where witness gave evidence that the deceased had been threatened by the accused over property transaction – whether necessary that the representation be made as evidence of the truth of the assertion – evidence admissible as evidence of the fact that the statement was made and not that the statement was true

CORPORATIONS - Winding up - Application for approval for entry into deed of settlement and assignment - Whether leave under s 477(2B) of the Corporations Act is required in respect of a deed of settlement and assignment - Whether a party to a deed of settlement and assignment other than the liquidator is entitled to seek leave under s 477(2B) of the Act.

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made

EVIDENCE – tendency evidence – murder – where alleged tendency to use violence, or the threat of violence, to collect drug debts or advance a drug supply business – where no significant probative value – where evidence only shows a tendency to make unfulfilled threats of violence

COSTS – application for lump sum costs order and order that legal representatives pay costs – lump sum agreed – order made – insufficient reason for Court to exercise discretion to order lawyers to pay costs.

EQUITY — Trusts and trustees — Alleged misappropriation of trust funds — Deposit of funds to bank account styled as trust account.

CIVIL PROCEDURE – Interim preservation – Freezing orders – Continuation of CIVIL PROCEDURE – Interim preservation – Freezing orders – Whether freezing order should be given in respect of a claim under s 37A of the Conveyancing Act CIVIL PROCEDURE – Stay of proceedings – Pending appeal – Whether stay is appropriate on basis that appeal likely to be rendered nugatory by possible liquidation if stay not granted

CONTRACTS – Breach of contract – Consequences of breach – Right to termination – Innominate terms – Principle from Koompahtoo case CONTRACTS – Construction – Interpretation – Whether franchise consultant’s negotiation of sponsorship agreements without authorisation from client breached obligation to act in good faith CONTRACTS – Construction – Whether an exclusivity provision prohibited sponsorship fundraising by franchise consultant CONTRACTS – Construction – Whether client’s authorisation for inclusion of unusual terms by franchise consultant was required CONTRACTS – Construction – Interpretation – Whether consultant breached obligation to act in good faith by failing to follow client’s instructions, misleading client, failing to provide honest answers to client CONTRACTS – Construction – Interpretation – Whether consultant’s obligation to act in good faith was breached by failure to inform client about special condition TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth) and related legislation – Misleading or deceptive conduct – Whether misleading or deceptive representations about an approval requirement for unusual terms and an exclusive territory of operation were made EVIDENCE – Opinion evidence – Exceptions – Expert opinion – Whether chartered accountant had specialised knowledge or sufficient evidence to make assumption about likely number of future sales CONTRACTS – Termination – Election – Whether parties agreed to terminate CONTRACTS – Termination – Repudiation of contract – Express refusal to perform CONTRACTS – Remedies – Damages – Loss of chance – Reasonableness of assuming completion of further franchise agreements after breakdown of client-franchise consultant relationship

ENVIRONMENT AND PLANNING – materials recycling facility approved by Planning Assessment Commission under Pt 3A of Environmental Planning and Assessment Act 1979 – primary judge dismissed appeals by third party objectors – whether primary judge failed to consider objectives contained in Liverpool Local Environmental Plan – whether primary judge failed to consider context of Liverpool Local Environmental Plan – whether primary judge erred in finding noise impacts could be managed by conditions and that further measures were not required APPEAL – whether adequate reasons for decision – whether failure to impose additional acoustic mitigation measures unreasonable

CRIMINAL LAW – s 5F appeal – interlocutory judgment or order – whether trial judge erred in requiring Crown to provide a further statement from complainant - whether trial judge erred in requiring complainant to travel from country NSW to Sydney to give evidence via audio visual link from Sydney court complex

CRIMINAL LAW – indecent assault - appeal against conviction – trial judge’s directions to jury – whether directions suggested or implied an onus of proof on the accused – rule in Browne v Dunn – whether rule applicable to criminal proceedings – where parties agreed on the sufficiency of cross-examination – where trial judge raised with the jury the failure to cross-examine beyond the agreement reached – whether misdirection excluded reasonable possibilities of innocence from the jury’s consideration - whether misdirection cured by later direction – whether verdict was unreasonable – relevance of misdirection to consideration of unreasonableness – whether jury’s advantageous position relevant where misdirection affected onus of proof – improbability of offence having been committed – verdict unreasonable

CRIMINAL LAW – appeal against sentence – recklessly dealing with proceeds of crime – whether sentencing judge erroneously sentenced the applicant for a more aggravated offence featuring knowledge – appeal dismissed.

CIVIL PROCEDURE — Service outside Australia —Proceedings in which permitted — Application for leave to proceed — Leave of the court required to proceed against a person outside Australia served with an originating process if the person has not entered an appearance — Rule 11.8AA and schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW) — Principles derived from Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

EVIDENCE – admissibility and relevance – where an expert gave evidence concluding that a scar on the defendant’s hand could have been the result of the alleged offence – whether risk that jury would improperly use the evidence – conclusion ruled inadmissible

CRIMINAL PROCEDURE – application for separate trials – whether evidence against one accused significantly weaker than evidence against co-accused – whether evidence against co-accused highly prejudicial to applicant such that there is real risk that it will make case against applicant impermissibly stronger – whether unfairness can be remedied by directions to the jury – whether in the interests of justice that the whole set of circumstances be presented to the jury – whether balance possible between public interest in jury hearing trials together and any prejudice to co-accused – possible prejudice can be ameliorated by direction – possible future applications during course of trial not foreclosed – application refused.

CRIMINAL LAW – procedure – murder trial – trial by jury – practice as to entering the dock – application for accused to sit outside dock – discussion of countervailing factors – application refused

PRACTICE AND PROCEDURE – pleadings –amendment - amendment sought on second day of hearing

CRIMINAL LAW – “official questioning” - consciousness of guilt - unusual circumstances - unfair prejudicial effect outweighs probative value

FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — effect of child’s consent to own adoption — Adoption Act 2000 (NSW), s 8(1)(a), s 8(2)(a)

PRACTICE AND PROCEDURE – summary dismissal – no reasonable cause of action disclosed JURISDICTION – Federal Court has exclusive jurisdiction under Fair Work Act 2009 (Cth) – no right of review in Supreme Court of decisions of Fair Work Commission JURISDICTION – no jurisdiction to grant relief under the Anti-Discrimination Act 1977 (NSW) DEFAMATION – claim out of time – proposed defendants have benefit of statutory immunity as long as acted in good faith – no proper particulars of absence of good faith – action not maintainable

CIVIL PROCEDURE – summary disposal – default judgment against first defendant CIVIL PROCEDURE – summary disposal – strike out pleadings – summary judgment against second defendant

ADMINISTRATIVE LAW – appeal from Appeal Panel of Civil and Administrative Tribunal of NSW – alleged failure to comply with Procedural Direction – non-compliance not established – no procedural unfairness – leave refused