Cases and authorities

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process CONTRACTS — Construction — Termination clause — No question presently arises — Hypothetical proceedings

COMMERCE — Pre-contractual representation — Inducement of purchase — Incomplete disclosure of material information — Whether misleading or deceptive conduct — Whether plaintiff reasonably relied on representations COMMERCE — Misleading representations — Damages — Fair value — Whether Potts v Miller approach to assessment question is appropriate No question of principle

DEFAMATION – publication – consideration of circumstances in which separate publications may be pleaded as a single publication – disparate communications published in different forms over several days – whether open to plead as a single publication – likelihood of confusion at trial – prejudice in pleading of defences DEFAMATION – publication – where source sued as joint publisher of newspaper article – particulars of claim both prolix and uninformative – whether capable of establishing assent or control DEFAMATION – imputations – objections as to form and capacity – use of word “caused” – whether ambiguous

ADMINISTRATIVE LAW – judicial review – cancellation of working with children check clearance – where applicant’s understanding of child protection issues clouded by subjective judgment – whether applicant poses a real and appreciable risk to children – no error of law CIVIL PROCEDURE – bias – application for disqualification of judge – whether reasonable apprehension of bias

COSTS – where respondents did not act on opportunity to engage with applicants – ex parte hearing – specified gross sum costs order COSTS – interest on costs – where costs sum not available to respondents until publication of this judgment – no order for interest on costs

CIVIL PROCEDURE – discontinuance of proceedings – where notice filed without consent of other party or leave of the court – notice ineffective to discontinue proceedings

NON-PUBLICATION ORDER – order necessary for the administration of justice – non-publication order made regarding previous conviction of one accused and making of freezing orders against the assets of both accused – order to continue until the determination of the criminal trial of both accused

CRIMINAL LAW – admissibility of evidence – crime scene photographs depicting deceased – whether the probative value is outweighed by the danger of unfair prejudice – photographs ruled admissible

SUMMARY CHARGES – Local Court – attempt to invoke supervisory jurisdiction – stay previously refused – Local Court proceedings progressing – defendants seek summary dismissal – adjournment application – Court and parties’ resources should not be applied to matter while proceedings continuing in Local Court – adjournment granted

RESTRICTED PREMISES – ex parte – application under s 3(1) and s 3(3) of the Restricted Premises Act 1943 – necessary emergency established – declaration sought made

Practice and procedure – custodial arrangements

COSTS – party/party – exceptions to general rule that costs follow the event - costs of cross-claim against cross-defendant – defendant/cross-claimant does not need to pursue cross-claim as defendant/cross-claimant fails on defence against plaintiff’s claim – what is the appropriate order for costs on the cross-claim – is the cross-defendant able to indemnify itself for its costs of the cross-claim under the terms of its mortgage with the plaintiff.

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – misleading and deceptive conduct. DAMAGES – assessment of damages where loan the subject of the claim repaid and re-advanced by discretionary trust controlled by the lender – recovery of mitigation costs – whether an order should be made under Fair Trading Act 1987, s 72, for the payment of a sum of money to the trustee of the discretionary trust controlled by the lender – approach court should adopt on assessment of damages on an ex parte application. BANKRUPTCY – whether claim for misleading and deceptive conduct provable in bankruptcy.

REAL PROPERTY – easements – validity of right of vehicle parking and garaging – whether use of easement area amounts to joint occupation of the easement area - degree of interference with area actually affected by easement or the whole of the servient land – whether right of vehicle parking and garaging substantially deprived servient owner of rights of proprietorship or possession of servient land – whether servient owner demonstrated that motor vehicles could not be turned around in the driveway without encroaching upon the easement area.

CRIMINAL LAW – appeal – sentencing – whether error in assessment of objective seriousness of offences – whether error in having regard to certain matters as aggravating features of the offending – whether error in declining to take into account utilitarian value or benefit of the applicant’s guilty pleas notwithstanding that the applicant was being sentenced for federal offences – whether error in not taking into account evidence the applicant would experience more onerous custody by reason of the fact he is a foreign national – whether error in not sentencing in accordance with s 19AB(1) of the Crimes Act 1914 – whether sentences imposed are manifestly excessive – whether justifiable sense of grievance by reason of the sentence imposed upon co-offender

DEFAMATION – interim injunctions granted ex parte – plaintiff subsequently arrested and charged with matters the subject of the restrained publication – charges widely reported by other media outlets – occasion for revoking injunctions

CIVIL PROCEDURE – application for substituted service

CIVIL PROCEDURE – application for adjournment – lack of expedition by defendants – interests of justice – overriding purpose – Civil Procedure Act 2005

DEFAMATION – rulings as to procedural steps – no question of principle

EQUITY — whether the Development Consent issued in February 1969 by Sydney City Council permits the Plaintiffs, as owners of parking lots in the apartment complex Elizabeth Bay Gardens (“EBG”) who do not reside in EBG, to park their vehicles in those parking lots - meaning of “occupants of the building” in the Development Consent – whether the approval by Council of the plan of subdivision for EBG in October 1970 permits the Plaintiffs to park their vehicles in the parking lots created by the Strata Plan – consideration of s 20 of the Conveyancing (Strata Titles) Act 1961 (NSW).

CIVIL PROCEDURE – claim for defamation in respect of television broadcast by television station in administration at time of publication – in-house lawyers declining to accept service of pleading against journalist – application for substituted service on journalist

COSTS – estate litigation – delay since the Court’s orders in the payment of the court-awarded legacy to the plaintiff – whether the costs cap on the plaintiff’s costs should be increased on account of the delay – whether interest should now be paid on the plaintiff’s legacy.

Taxes and duties – income tax and related legislation – collection and recovery of tax – where tax unpaid while appeal against disallowance of objections pending

PRATICE AND PROCEDURE – notice to produce served after disclosure of documents given – imminent trial date – defendant in effect seeking further disclosure – whether defendant should show necessity as if Practice Note SC Eq 11 applied – or whether sufficient to show relevance

HIGH RISK OFFENDER – final hearing – application for continuing detention order – application for extended supervision order – the period for which the continuing detention order should be imposed.

CROSS-VESTING – law to be applied is law of another State – plaintiff suffering severe psychiatric disorders preventing travel to other State – transfer refused.

APPEAL – “question of law above” – magistrate’s decision not to disclose reasoning adequately nor conclusions of facts – magistrate failed to conduct balancing exercise under s 138 of Evidence Act – decision quashed. ARREST – arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety.

OCCUPATIONAL HEALTH AND SAFETY – trial – Resource Pacific Pty Ltd prosecuted under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – not guilty pleas – defendant operator of coal mine – transport of reject material from reject bin for disposal – reject material released from hopper situated in bin into trucks – loading cycle involved programmable electronic control system to facilitate correct positioning of truck when load released – truck driver killed when reject material released from bin onto cabin of truck – particulars of respective charges considered – findings of a failure to prove beyond reasonable doubt a contravention or the defendant had proved on the balance of probabilities it was not practicable to comply with the duties under s 8(2) – defendant found not guilty – charges dismissed

INDUSTRIAL LAW – appeal from decision of Commissioner of Industrial Relations Commission dismissing an appeal against termination of employment of a government sector employee – appeal to Supreme Court limited to questions of law alone – whether findings of fact made by Commissioner for which no evidence – whether Commissioner failed to apply “Briginshaw standard” – whether inadvertence in one’s private life to criminality constitutes “misconduct” for the purposes of s 69 of the Government Sector Employment Act 2013 (NSW)– appeal upheld – matter remitted to Industrial Relations Commission for making of ancillary orders

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings

CONTRACTS – construction and interpretation – claim for fees payable if short-term loan transaction did not proceed as a result of specified occurrence(s) CONTRACTS – termination – alleged repudiation of contract

SENTENCING – penalties – criminal contempt – deletion of electronic records after commencing proceedings COSTS – costs of separate sentencing hearing

PROCEDURE – order seeking to strike out paragraphs in proposed further amended statement of claim – whether proposed further amended statement of claim needs clarification – whether proposed further amended statement of claim offends UCPR 14.14 and 14.28 – proposed further amended statement of claim to be repleaded

CORPORATIONS – oppression – whether the Court has jurisdiction to make consent orders sought under s 233 of the Corporations Act 2001 (Cth) PROCEDURE – person under legal incapacity – application for approval of settlement of proceedings commenced against person under legal incapacity – whether proposed settlement is in the interests of the person under legal incapacity

PROCEDURE – costs – gross sum costs order - whether gross sum costs order should be made under Civil Procedure Act 2005 (NSW) s 98(4)(c).

LAND LAW – Sale of property – Appointment of trustee for sale – ordinary approach to grant order where majority co-owner seeks it – no reason to not grant order – order granted COSTS – Indemnity costs – No evidentiary basis for opposition – costs to be paid out of defendant’s share of proceeds

ADMINISTRATIVE LAW – declaratory relief – applicant in custody – access sought to computer equipment – requirements for a fair trial – undertakings given – orders made

COSTS – plaintiff successful overall against first defendant but unsuccessful on some issues – parties agree costs should not be ordered on an issue by issue basis – what proportion of plaintiff’s costs should first defendant pay – whether Sanderson order should be made that unsuccessful defendant pay the costs of the successful defendants INTEREST – from what date should interest run on verdict under s 57 of Insurance Contracts Act – by what date was it unreasonable for first defendant not to pay plaintiff’s claim

ADMINISTRATIVE LAW – motor accidents – application for review of decision of proper officer of State Insurance Regulatory Authority – refusal by proper officer to order further medical assessment of plaintiff– legal error conceded – whether decision should not be quashed because decision correct in any event – decision quashed and matter remitted for further hearing

COSTS – party/party – bases of quantification – ordinary basis – indemnity basis – specified gross sum cost orders – offers of compromise/Calderbank offers – where plaintiff did not accept genuine offer

DAMAGES - action for breach of contract - separate hearing on damages - assessment of quantum of damages - proper measure of plaintiff’s loss – parties seek the determination of three issues of principle so they can calculate the final quantum of damages: (1) is the contract between JPD and Channel 9 within the Sean Anderson carve-out provided for under the terms of the Management Agreement; (2) should certain otherwise unallocated payments made by JPD to Curnow Consulting be credited to JPD against Curnow Consulting’s claim for damages; and (3) has Curnow Consulting proved its loss with respect to two small commission claims where the evidence is incomplete. The Court will now deal with each of these questions in turn.

COSTS – gross sum assessment – unrepresented and impecunious costs debtor – simple proceedings – relevance of procedural history to exercise of discretion to order gross sum assessment.

CIVIL PROCEDURE – Notice of motion to set aside or vary a judgment or order

CRIME – appeal against conviction – applicant convicted of joint commission of import commercial quantity of methamphetamine – whether verdict unreasonable or cannot be supported by the evidence – whether prosecution had proved existence of an agreement between applicant and alleged co-offender APPEALS – appeals against conviction – whether re-trial appropriate – re-trial would necessitate amendment of the indictment – Parker v The Queen (1997) 186 CLR 494 – verdict of acquittal entered

CONTRACTS – construction – interpretation – commission calculation – gross margin – meaning of gross margin – contra proferentem principle not applicable where no ambiguity upon application of general principles of construction – leave to appeal granted – appeal upheld

COSTS – application for imposition of an easement – ordinary rule that applicant pays defendant’s costs of proceedings – whether departure from ordinary rule warranted due to unreasonable conduct of defence

CORPORATIONS – members rights and remedies – oppression – closely held company ‘quasi-partnership’ - where majority takes excessive benefits from company – where majority dismisses minority from employment – where minority had legitimate expectation of ongoing participation – oppression established – compulsory purchase order - valuation CORPORATIONS – officers – directors – duties – where directors remunerate majority and their personal company at uncommercial rates in excess of those agreed with minority, for no proper corporate purpose – contraventions established EMPLOYMENT – national employment standards – where alleged agreement to accept other benefits in lieu of annual leave and personal – held, entitlements could not be excluded EMPLOYMENT – national employment standards – – jurisdiction – whether Supreme Court has jurisdiction to entertain claim for entitlements under national employment standards – held, it does not

CIVIL PROCEDURE – case management – vacation of hearing date – interests of justice

APPEAL – appeal on question of law from NCAT by leave only – grounds untenable – leave refused; LANDLORD AND TENANT – relationship between Retirement Villages Act 1999 and Residential Tenancies Act 2010 discussed.