Cases and authorities

CORPORATIONS – Practice and procedure – Application by director and shareholder for leave to bring proceedings in name of company against director and employee – Whether proceedings in bests interests of company – Whether proceedings brought in good faith – All criteria satisfied – Leave granted CORPORATIONS – Practice and procedure – Application for setting aside of search order – No cause to set aside order

CRIME – conviction appeal – wound with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 – whether trial judge should have left self-defence to jury – group attack – no evidence from any of five accused – accused initial aggressors – accused had means to leave – pure speculation to theorise victim produced knife during confrontation – reasonable possibility accused believed necessary to assault victim with a weapon in order to defend themselves excluded – Crown case joint criminal enterprise lasted throughout course of melee – artificiality of breaking up a violent incident into discrete components – trial judge correct to refuse to direct on self-defence CRIME – conviction appeal – wound with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 – whether unreasonable verdict – Crown case victim attacked by five men armed with cricket bat, knife and metal pole – whether mental element proved beyond reasonable doubt – no clear evidence on force with which weapon(s) used – wounds consistent with causes other than metal pole – victim’s evidence required circumspection – reliability and credibility issues – admitted lies – intoxication – verdict cannot be supported having regard to the evidence – s33(1)(a) verdict set aside – substituted with verdict of guilty of a s 33B(2) offence

CRIMINAL LAW – appeal – joint criminal enterprise – manslaughter – where deceased’s act causes own death – s 18 Crimes Act 1900 (NSW) does not encompass self-killing – conviction quashed

SENTENCING – supply commercial quantity of cocaine – whether sentence of 9 years 9 months manifestly excessive – offender with prior history of drug offending – offender conducted business of supplying cocaine over six month period – 2.4kg supplied – sophisticated drug supply operation – use of comparable cases and statistics – sentence not manifestly excessive – leave to appeal granted – appeal dismissed.

CORPORATIONS – external administration – winding up – liquidator – removal and replacement – where current liquidator is significantly incapacitated and terminally ill – whether (CTH) Corporations Act 2001, Insolvency Practice Schedule (Corporations), s 90-15, constitutes replacement power to that conferred by former ss 502 and 503.

INJURIOUS FALSEHOOD – application for injunction to restrain publication of blogs discussing proposed development of rural land – whether prima facie case established – inchoate nature of applicant’s interest in the development – applicant having little more than a prospective advantage based on an undeveloped marketing proposal

CRIMINAL LAW – evidence – lies – consciousness of guilt – where accused allegedly killed father using samurai sword – katana – uncontested evidence that accused owned katana – where accused told investigating police that Queensland police seized sword – where evidence may disclose fact of earlier police investigation or offence – assessment of probative value – considerations of whether evidence can be presented to reduce or eliminate prejudice

CRIMINAL LAW – evidence – telephone intercept – “that woman” – reference to person charged with offence – where accused charged with same offence – “she wouldn’t know what I looked like” – “they can’t link us to her” – whether capable of constituting an admission or consciousness of guilt – whether prosecution changed its case

PRACTICE AND PROCEDURE – stay application – power to grant stay in respect to enforcement actions in the District Court – Farm Debt Mediation Act application – must demonstrate proper case or reason – arguability of appeal – application of Waller v Hargraves – balance of convenience – competing rights of the parties – application for stay refused

CORPORATIONS – external administration – winding up – liquidators – application for directions – correction to previous judgment.

CORPORATIONS – external administration – winding up – winding up in insolvency – creditor’s statutory demand – application to set aside – separate question as to whether plaintiff's application is time-barred – where plaintiff filed originating process outside twenty-one day period – where defendant ought to have dispelled applicant of mistaken belief as to date of service – held, defendant estoppel from disputing that originating process was filed within time.

COSTS – indemnity costs – consent orders

PROCEDURE – personal injury – expert reports – r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether leave should be granted to rely on expert reports – existence of exceptional circumstances – effect of misconduct during proceedings – leave refused

DEFAMATION – interrogatories and discovery – strike out pleading – no order to strike out pleading – orders otherwise made

DEFAMATION – imputations pleaded – capacity to arise from limited nature of publication – conjecture as to entirety of publication – responsibility for re-publication – different context, sense and substance – dishonest or dishonourable – conduct as a candidate for office not as holder of office – imputations do not arise – damage trivial.

CIVIL PROCEDURE – action for defamation – application for separate decision of question whether matters complained of reasonably capable of identifying the plaintiff – weight to be given to the fact that separate decision of that question could bring the proceedings to an end – importance of case management principles in proceedings for defamation DEFAMATION – identification – requirement that the defamatory publication sued on be “about” the plaintiff – articles concerning events involving members of a church dating back over decades – actions for defamation brought by a corporation which is not the church – plaintiff company incorporated in 2012 with the object of acting as the secretariat of the church in Australia – whether open to jury to find that the articles were about the corporation

CORPORATIONS – winding up – termination - where statutory demand and originating process served in compliance with (CTH) Corporations Act 2001, s 109X but did not in fact come to notice of company – where winding up order made in absence of company – where company is solvent – application to terminate winding up or set aside winding up order – whether terminating or setting aside appropriate - held, originating process seeking winding up dismissed.

PRACTICE AND PROCEDURE – Application for leave to administer interrogatories – Whether to exercise discretion to dispense with operation of rule – Whether special reasons to justify order – Confusion as to identity of person in tendered documents – Application refused

PRACTICE AND PROCEDURE – Disclosure of expert’s reports – Whether evidence of specialised knowledge – Whether opinions based wholly or substantially on specialised knowledge – Discretion to exclude evidence sought to be adduced for the purposes of qualifying the witness as an expert – Evidence rejected

CRIMINAL LAW – evidence – Crown application to tender evidence of experiment or demonstration concerning strength of tape – evidence relevant to accused’s account of circumstances of father’s murder – where demonstration does not replicate circumstances of event – application for jury to be invited to conduct tests of tape in jury box – undesirability of jury becoming investigators – desirability of jury remaining impartial observers until all evidence tendered – various demonstrations inadmissible

APPEAL – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – whether questions of law – principles governing grant of leave to appeal – whether the Appeal Panel erred in law by finding that the lease had been lawfully terminated by the defendant – rental determination with respect to “current market rent” – whether “rent free period” for the new lease – under option – whether there was an error of law by not entertaining or refusing leave to bring claims for the conversion and unconscionable conduct – plaintiff failed to establish a proper basis for the grant of leave to appeal – leave to appeal was refused

INSURANCE – property damage and business interruption policy – warehouse collapse in a storm – whether plaintiff insured entitled to indemnity under a Local Policy or alternatively a Master Policy – whether insurer agreed conditionally to accept liability under the Local Policy – whether collapse was caused by hail or storm – whether on its proper construction Local Policy has the hail limit specified in the Master Policy – whether Local Policy should be rectified to include a hail limit – whether faulty design exclusion in Local Policy enlivened – whether plaintiff is an insured under Master Policy – whether plaintiff entitled to bring action under Master Policy – whether faulty construction exclusion in Master Policy enlivened – quantum of plaintiff’s claim – whether plaintiff’s stock was lost in collapse; CONTRACT – insurance policies – whether on its proper construction Local Policy has hail limit specified in Master Policy – whether policy should be rectified to include hail limit – whether on proper construction of Master Policy plaintiff entitled to indemnity under storm limit notwithstanding existence of hail limit

PERSONAL INJURY – negligence – injury caused by allegedly defective ladder – whether the ladder was defectively manufactured – how the plaintiff husband came to fall off the ladder – consequences of the ankle injury sustained after the fall – nature and cause of the plaintiff wife’s injuries – what loss and damage each plaintiff suffered – credibility and reliability of witnesses – contributory negligence – claims dismissed with costs

BUILDING AND CONSTRUCTION – challenge to jurisdiction of adjudicator to make determination under the Building and Construction Industry Security of Payment Act 1999 – whether there was an available reference date to support the payment claim the subject of the determination – whether defendant was a head contractor as defined in the Act and thus obliged to cause its payment claim to be accompanied by a supporting statement – whether adjudicator’s acceptance was served on plaintiff when deposited into its letterbox by a neighbour into whose letterbox Australia Post had wrongly deposited the adjudicator’s acceptance

REAL PROPERTY – licences – termination

INTEREST AND COSTS – defamation proceedings – plaintiff succeeded on some imputations – relief on offer of compromise – whether to order otherwise – whether mixed success on imputations warrants otherwise ordering – whether findings as to plaintiff’s credibility warrants otherwise ordering – whether response to notice to admit warrants otherwise ordering

SENTENCING – murder – where actual use of weapon and prior criminal record – where offender heavily intoxicated

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 – challenge to the assessment of a State Insurance Regulatory Authority Claims Assessor for damages – whether the Claims Assessor erred in law in finding there was no exercisable residual earning capacity - whether the Claims Assessor failed to explain the actual path of reasoning by which he reached his conclusion – whether the Claims Assessor failed to engage with the insurer’s argument – whether there was a denial of procedural fairness

NEGLIGENCE – breach of duty – workplace accident – whether employer is vicariously liable for driver – contributory negligence of driver – whether motor vehicle owner is negligent under Civil Liability Act 2001 (NSW), ss 5, 5B, 5C and 5D – whether motor vehicle owner is liable as a statutory agent under s 112 of the Motor Accidents Compensation Act 1999 (NSW) – application of ss 3A and 3B of the Motor Accidents Compensation Act 1999 (NSW) – whether s 112 creates an exception to the general rule against dual vicarious liability – damages – Motor Accidents Compensation Act 1999 – whether first injury contributed to second injury

CRIMINAL LAW – appeals against convictions – charges of conspiracy to import a commercial quantity of pseudoephedrine contrary to subsections 11.5(1) and 307.11 of the Criminal Code (Cth) – whether trial judge’s directions erroneous as to s 307.11(b)(ii) of the Code – Crown concession of error – whether belief required was that another person had an immediate intention to use the precursor to manufacture a controlled substance – whether evidence failed to establish a single conspiracy – whether more than one conspiracy charged – whether trial judge was required to direct the jury that the Crown must prove a single conspiracy and not two separate conspiracies – whether s 311.16(b) if the Code modifies conspiracy as fixed by the common law – s 311.16(b) considered – whether miscarriage of justice occasioned by Crown Prosecutor’s submissions concerning character – whether trial judge’s refusal to discharge the jury occasioned a miscarriage of justice – whether Crown Prosecutor’s questions of Huynh asking if a Crown witness was lying occasioned a miscarriage of justice – whether evidence of Huynh’s prior involvement with co-offenders admissible – whether evidence was tendency evidence – whether Crown Prosecutor placed his own personal opinions before the jury – whether error by trial judge in not ascertaining from the Crown Prosecutor the use to be made of an asserted lie.

COSTS – whether failure by the plaintiff to accept offers contained in Calderbank letters should lead to an order for indemnity costs – whether an offer of compromise sent by the plaintiff to the defendants could be relied on - whether a specified gross sum order ought to be made, pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW), in relation to the costs payable by the plaintiff to the defendants in circumstances where the defendants have incurred considerable costs successfully defending a hopeless case, the costs assessment process would be protracted and expensive and it is uncertain whether the plaintiff would be able to meet a costs order against her – what the specified gross sum order should be as against the plaintiff – whether interest should be awarded on costs.

EVIDENCE – medical evidence of injuries to accused – repetitious – nevertheless relevant – not to be used for credit without further express leave

PRACTICE AND PROCEDURE – Disclosure of experts’ reports – Whether appropriate to dispense with rule – No exceptional circumstances – Evidence rejected

EVIDENCE – relevance – transcript of domestic violence proceedings – arguably relevant to motive for murder – hear further submissions

BAIL – sexual assault – serious allegations – alleged victim three years old – show cause – material omission in police facts – Crown case weak – bail proposal otherwise strong – bail granted

CORPORATIONS — Winding up — Liquidators — where former liquidator ordered to deliver company’s books and records to company – whether documents belong to company or former liquidator

CORPORATIONS – external administration – winding up – winding up by the court – liquidators – retention of books – early destruction – effect of amendments introduced by Insolvency Law Reform Act – held, in the present case, repealed Corporations Act, s 542, still available.

CORPORATIONS – deregistration and reinstatement – vesting of property of deregistered corporation – superannuation entitlement – where trust property vested in Commonwealth – where vesting order under Trustee Act, s 70 available – held, superannuation entitlement vested in another compliant superannuation fund.

EVIDENCE – affidavit evidence – contents of documents – where admission into evidence would be unfair to the defendants – Evidence Act 1995 (NSW) s 135 – EVIDENCE – expert evidence – whether opinion wholly or substantially based on specialised knowledge – Evidence Act 1995 s 79(1) –EVIDENCE — course of evidence — evidence in reply – re-opening case – where admission into evidence would be unfair to the defendants – Evidence Act 1995 (NSW) s 135 – CIVIL PROCEDURE — pleadings — amendment — late application for amendment – where leave to amend would be unfair to the defendants and cause undue expense and delay – CONTRACT – the nature and extent of the contractual duties owed to the plaintiff – whether the defendants breached one or more of these duties – EQUITY – the nature and extent of the equitable and fiduciary duties owed to the plaintiff – the nature and extent of the duty of confidence – whether the defendants breached one or more of these duties – CONSUMER LAW – whether the defendants engaged in misleading and deceptive conduct – INTELLECTUAL PROPERTY – the nature and extent of the plaintiff’s copyright protection in the various elements of an online system – whether the defendants breached the plaintiff’s copyright protection

JUDICIAL ADVICE – whether appropriate to give judicial advice – whether costs should be paid from trust estate

CONTRACT – franchise agreement – where defendants breached the franchise agreement inter alia by denying the plaintiff its right of first refusal or option to purchase – whether plaintiff would have pursued its right of first refusal or option to purchase but for the breach – CONTRACT – franchise agreement – whether breach of the franchise agreement caused the plaintiff loss – CONTRACT – franchise agreement – whether misleading or deceptive conduct by the defendants caused the plaintiff loss – EQUITY – trusts – whether the terms of the franchise agreement operated to create a trust over the assets of the defendants’ store

Judgments and Orders – construction contracts – challenge to adjudication determination – denial of natural justice – declaration that determination is void – order quashing determination – appropriate relief

Civil Procedure – preliminary discovery – production of documents in connection with marketing of new private equity fund by former employees of plaintiff – strength of potential claim – breach of employment contract – suspected disclosure of confidential information – confidentiality of aspects of “track record” of plaintiff – availability of information in the public domain – no evidence of disclosure of confidential information – discretionary reasons for refusal of application – letter of demand alleging breaches – no fixed decision to sue

EQUITY – final injunctions ‘everywhere in the world’ – foreign defendants – extra-territorial reach – jurisdiction and discretion EQUITY – confidential information – claim against Twitter as recipient of information –cause of action separate from claim against persons responsible for original ‘leak’ INJUNCTIONS – form of orders – onerousness – width – suggested difficulty of performance – principles applicable INJUNCTIONS – utility – likelihood of compliance – relevant considerations – social responsibility of Twitter DISCOVERY - identity disclosure orders – relevant considerations – necessary to enable plaintiff to bring claim against persons responsible for original leak STATUTE – Court Suppression & Non Publications Orders Act, 2010 (NSW) – whether suppression of identity of defendants justified – no reasonable likelihood of prejudice to plaintiff

CRIMINAL ASSETS – superannuation order sought under the Crimes (Superannuation Benefits) Act 1989 (Cth) - whether leave under s 82(1) of the Bankruptcy Act 1989 (Cth) required to commence proceedings – whether offences answer the description of “corruption offences”

PRACTICE AND PROCEDURE – tort of deceit – application to strike out pleadings – whether pleading sufficiently particularised – whether elements of tort of deceit specifically pleaded – whether pleading embarrassing PRACTICE AND PROCEDURE – application for separate trial of limitation question

Equity – equitable estoppel – alleged promises made by husband of deceased that property would pass to plaintiff – promises not established on the evidence – deceased not party to any promises on the evidence – indefeasibility Succession – family provision – claim made nine years after prescribed period – extension of time – “sufficient cause” – estate not distributed – lack of knowledge of ability to make family provision claim during prescribed period – discretion – interests of justice – onus – prejudice to defendants in meeting claim Succession – family provision – will providing for property to be divided equally between children – relevance of “needs” – community standards – propriety of equal distribution

DEFAMATION – limitation period – primary Judge makes order extending the time for commencement of proceedings arising out of alleged slander by regulatory agency – application for leave to appeal – whether primary Judge erred in finding that plaintiff (respondent) did not learn of the slander until after expiry of the twelve month limitation period – no issue of principle

PRISONERS – civil proceedings – application by prisoner for leave to institute proceedings for defamation in the District Court – appeal against judge’s refusal of leave – statement of claim including true imputations and imputations relating to findings and evidence at proceedings on sentence – whether proceedings are an abuse of process DEFAMATION – imputations – whether the pleading of incontrovertibly true imputations by a plaintiff amounts to an abuse of process

PRACTICE – application to reopen under UCPR 36.16 – no basis for reopening – observations as to the nature of the power – application dismissed