Cases and authorities

PRACTICE AND PROCEDURE – application for further discovery – no question of principle.

CORPORATIONS — Voluntary administration — Deed of company arrangement – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed – directions as to conduct of application.

COSTS — Party/party — Indemnity costs — Whether plaintiff should be ordered to pay defendant’s costs on an indemnity basis — Where defendant made an offer of compromise to the plaintiff — Where plaintiff obtained a result more favourable than the offer.

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – scope of s 10A(5)(a) – restraining orders – ancillary orders – ex parte – orders made

CRIMINAL LAW – sentencing – offence of conspiring to bribe a foreign (Iraqi) public official pursuant to ss 70.2 and 11.5 of the Criminal Code 1995 (Cth) – pleas of guilty entered by all three offenders – two offenders were brothers and directors of engineering, infrastructure and construction company in Australia – third offender was go-between and facilitator – US$1 million transferred to Iraq for purposes of bribe CRIMINAL LAW – statutory construction – purpose of criminalisation of foreign bribery – regard to OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Second Reading Speech – maximum penalty the same as for local offence of bribing a Commonwealth official

COSTS – successful plaintiff – costs follow the event – solicitor and client dispute – no reasonable basis for solicitor to defend claim by a former client for provision of itemised bill of costs – indemnity costs – defendant’s resistance to the relief claimed ill-founded

COSTS – offer of compromise – UCPR 20.26 – offer not accepted – application for indemnity costs

CRIME – sentence – Crown appeal – dangerous driving causing death and dangerous driving causing grievous bodily harm – fatigue – whether sentencing judge erred in assessment of moral culpability – whether sentence manifestly inadequate

JUDICIAL REVIEW – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – challenge to conviction – challenge to sentence of imprisonment to be served by way of intensive correction order – whether District Court had failed to rehear the proceedings – whether denial of procedural fairness in re-imposing further sentence imposed in Local Court – whether jurisdictional error established CRIME – appeal – procedure – nature of rehearing in District Court – sentence of imprisonment to be served by way of intensive correction order – how stay on execution of sentence effected by Crimes (Appeal and Review) Act 2001 (NSW) s 63 and Supreme Court Act 1970 (NSW) s 69C

CRIME – Crown appeals – sentence – manifest inadequacy – two counts of soliciting to murder – child victims – mid-range seriousness – whether sentence reflecting a starting point of nine years’ imprisonment for each offence too lenient

CRIME – appeals – sentence – whether manifestly excessive – plaintiff pleaded guilty to 13 child sexual assault offences – whether sentencing judge erred in not specifying which indicative sentences to be served concurrently and which to be accumulated and to what degree when imposing aggregate sentence

APPEAL AND REVIEW – crime – stated case from District Court on question of law pursuant to Criminal Appeal Act 1912 (NSW), s 5B – applicant convicted of offences of possessing eastern rock lobster in contravention of Fisheries Management Act 1994 (NSW), ss 18, 35 – whether erroneous construction of statute and regulations resulted in wrongful convictions ENVIRONMENT AND PLANNING – regulation of commercial fishing – protection of eastern rock lobster – failure to tag lobster in contravention of regulations – ambit of statutory definition of “take” fish – temporal limitations of activity of “taking” fish WORDS AND PHRASES – “lawfully taken” and “illegally taken” fish – Fisheries Management Act 1994 (NSW), ss 18, 35

CRIMINAL LAW – sentencing – murder – cultivation of large commercial quantity of cannabis – where murder planned premeditated and motivated to avoid detection of drug offence – assistance to authorities – disclosure of location of victim’s corpse – whether discount for assistance inadequate – parity of sentencing – concept of material difference – whether differences in cases justified differences in sentences imposed – co-offender young with no prior offences and medical condition – applicant middle aged man with substantial history of drug cultivation – where sentencing judge partially accumulated sentences in applicant’s case – where sentence at top of range but not manifestly excessive – whether combination of justifiable differences might give rise to total sentence offending parity principle – life expectancy tables – whether relevant to sentencing – whether sentence manifestly excessive – appeal dismissed by majority

EVIDENCE – guilt by association – probative value – unfairly prejudicial effect – evidence rejected

APPEALS — Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal — Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Sch 6, cl 14. MENTAL HEALTH - Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal - Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Sch 6, cl 14(1)(b) — Application for leave to appeal on grounds other than a “question of law” — Grant of leave requires question of principle or some form of irregularity – Leave refused - Appeal dismissed.

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – serious sex offender – application for further interim detention order – no suitable accommodation available for supervision in the community – possible vacancy being evaluated – defendant conceded order should be made – order made for 28 days

CONTRACTS – Illegality – Restraint of trade – Employment Contracts – senior employee working in removals and storage industry gives notice and signs contract of employment with competitor company - whether the former employee should be restrained from working for competitor company – whether form of restraint protects legitimate business interests of former employer – application of the Restraints of Trade Act 1976 – whether restraint in the public interest - reasonableness of restraint. CONTRACTS – Construction – Interpretation – consideration of applicable notice period – implied term permitting employer to direct employee to take garden leave - whether employee would be entitled to a bonus by reason of rendering service rather than serving out a contractual notice period on garden leave CONTRACTS — Termination — Repudiation of contract – whether employment contract repudiated by employer – effect of potential repudiation on any post-employment restraint and any otherwise required notice of termination.

REAL PROPERTY – easements – whether plaintiff entitled to implied easement of access over Torrens title land – implied easement available as a personal right enforceable against transferor but not successors in title – no easement of necessity in the context of alternative means of access – no Wheeldon v Burrows easement in the absence of sufficient evidence of continuous and apparent quasi-easement – held, plaintiff’s implied easement case fails. EQUITY – estoppel – whether defendant estopped from denying the right of plaintiff to access her property via a track – where plaintiff purchased property with no practical means of access other than track – where plaintiff located her removable house by reference to endpoint of track – where plaintiff therefore detrimentally relied on assumption she could legally access her property via the track – where defendant used the track to show plaintiff the property for pre-purchase inspection, and indicated she should use track to install her house without relevant words of limitation – held, unconscionable for defendant to deny truth of assumption of access to property via track. EQUITY – estoppel – remedy – where the touchstone of defining the remedy is the scope of plaintiff’s assumption to the extent that it was or ought to have been known to defendant – where the relevant assumption was general right of way for all purposes – where the assumption founds equitable equivalent of express grant of carriageway – held, plaintiff therefore entitled to transfer of that right, at plaintiff’s cost. REAL PROPERTY – easements – Conveyancing Act 1919, s 88K – imposed easement not reasonably necessary – had it been necessary to decide, plaintiff’s case for an imposed easement under s 88K would have therefore failed.

PRACTICE AND PROCEDURE – Where order made for security to be lodged – Order not complied with – Proceedings dismissed

SUCCESSION – Wills, probate and administration – Executors and administrators – Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – Whether administrator would be justified in administering estate on basis that proceeds of certain insurance policies are not liable to be applied in payment of debts of the deceased – Meaning of “the person’s debts” in s 205 of the Life Insurance Act 1995 (Cth)

DISCIPLINARY PROCEEDINGS – professional misconduct – failure to comply with a notice under s 660 of the Legal Profession Act 2004 (NSW)

CONVEYANCING – orders under s 66G of the Conveyancing Act 1919 (NSW)

CIVIL PROCEDURE – application to have proceedings in the District Court for damages for personal injury transferred to the Supreme Court – whether amount of damages likely to exceed $750,000 – requirement to consider likely damages as a matter of impression

CROSS-VESTING – defendant’s application for transfer to Supreme Court of Queensland – interests of justice – proper law of tort is Queensland law – potential witnesses in Queensland and northern NSW – plaintiff’s solicitors in Sydney and expert witnesses in Sydney – possibility of Court sitting in Lismore to take evidence – order for transfer refused

INSURANCE — Life insurance — Whether second defendant validly rejected plaintiff’s claim — Whether plaintiff was totally and permanently disabled at the assessment date. INSURANCE — Claims — Utmost good faith — Whether second defendant breached duty of utmost good faith — Whether second defendant ‘constructively denied’ the plaintiff’s claim.

CRIME – appeals – application under r 50C of the Criminal Appeal Rules – held applicant seeking to re-argue arguments previously considered and re-argue the case – held applicant has not demonstrated misapprehension as to facts or law

CIVIL PROCEDURE – application for leave to file amended statement of claim to correct name of defendant – where limitation period expired after filing of originating process – whether the mistake in the name of the defendant was misleading

PRACTICE AND PROCEDURE - application by judgment creditors for order under s.135 Civil Procedure Act 2005 for Sheriff to enter property of judgment debtor to take possession of goods under writ for levy of property - Court makes s.135 order - judgment creditors seek additional orders to enable Sheriff to enforce order - further orders made

CONTRACTS — Formation — Intention to create legal relations ESTOPPEL — Proprietary estoppel — Estoppel by encouragement FAMILY LAW — Adjustments under Property (Relationships) Act 1984 (NSW) CIVIL PROCEDURE — Standing of bankrupt

LAND LAW – easements – imposition of easements by Court – whether easement reasonably necessary for effective use of agricultural and residential land

TORT – negligence – personal injury – slip and fall on building site – where wet and no enclosing structure –non-delegable duty of care of employer to plaintiff as employee – where labour hire company, principal building contractor and sub-contractor – whether breach of duty – no breach by labour hire company and principal building contractor – breach by sub-contractor—causation CONTRIBUTORY NEGLIGENCE – allegation that plaintiff failed to take proper care of own safety – contributory negligence found DAMAGES – assessment of damages for personal injury – non-economic loss-past and future economic loss – gratuitous domestic assistance

CRIME – accused charged with murder – hearing to determine fitness to be tried – unanimous medical opinion – accused unfit to be tried

CIVIL PROCEDURE – cross-examination – obligations of counsel to conduct cross-examination in fair and civil manner – obligations of trial judge to ensure fair process – permissibility of adverse witness credibility findings when witness subjected to confronting and insulting cross-examination CIVIL PROCEDURE – notice of contention – respondent sought leave to file notice of contention after commencement of hearing – whether leave should be granted – whether grounds of contention hopeless CONSUMER LAW – guarantee that services will be rendered with due care and skill under Australian Consumer Law s 60 – whether plaintiff diving instructor suffered decompression illness when assisting incapacitated client during dive – whether defendant ought to have known that plaintiff required oxygen – whether insufficient oxygen on board boat – whether plaintiff provided with insufficient assistance in lifting client onto boat – whether defendant advised client to dive with knowledge of client’s pre-existing head injury DAMAGES – assessment of quantum – whether failure of plaintiff to mitigate loss – whether correct assessment of loss of earning capacity and past and future economic loss – whether correct assessment by reference to Australian Consumer Law s 236 TORTS – negligence – breach of duty – whether defendant’s alleged breaches resulted in its liability under Civil Liability Act 2002 (NSW) TORTS – negligence – causation – Civil Liability Act 2002 (NSW) s 5D – whether alleged lack of oxygen on boat led to plaintiff suffering decompression illness – whether client would have abandoned dive if not for defendant’s advice TORTS – negligence – defences to liability – Civil Liability Act 2002 (NSW) s 5L – whether decompression illness constitutes the materialisation of a well-known and obvious risk of a dangerous recreational activity

EVIDENCE – assessment of damages – certificate of whole person impairment – relevance to assessment of economic loss PERSONAL INJURY – motor vehicle accident – Motor Accidents Compensation Act 1999 (NSW), s 83 – whether insurer had admitted causation of injury – payment of claimant’s treatment expenses – admission of liability – whether given appropriate weight – later denial of liability PERSONAL INJURY – motor vehicle accident – damages claimed for injuries sustained as a result of second of two accidents – whether claimant established further injuries in second accident –credibility of claimant’s evidence – whether reasons adequate

CONTRACTS – whether primary Judge correct to find that the appellants signed a loan agreement in a form incorporating a guarantee – whether persons named as guarantor signed merely as witnesses or whether they signed in their personal capacity

PROCEDURE – dismissal of proceedings for failure to pay security for costs ordered by the Court

CRIMINAL LAW - appeals against conviction - break and enter dwelling house and commit serious indictable offence - Crimes Act 1900 (NSW) s 112 - meaning of “break” - whether “constructive break” occurred when person enters dwelling house pursuant to permission gained without trick or threat or artifice but with intent to commit serious indictable offence - relationship of s 112 with burglary at common law - relationship of s 112 with other cognate provisions - appeals allowed and convictions quashed

LAND LAW – mortgages – statutory redemption under Conveyancing Act 1919 (NSW), s 98 – mortgagor claims that funds secured by mortgage granted in 1995 were never advanced – mortgagee out of the jurisdiction – any claim by mortgagee for repayment statute barred – whether all amounts due under mortgage have been paid MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagor – redemption – mortgagor claims that funds secured by mortgage granted in 1995 were never advanced – mortgagee out of the jurisdiction – any claim by mortgagee for repayment statute barred – whether all amounts due under mortgage have been paid CIVIL PROCEDURE – service of originating process – service outside the jurisdiction – whether defendant personally served – whether leave to proceed should be granted where no appearance by defendant – Uniform Civil Procedure Rules 2005 (NSW), r 11.8AA – leave to proceed granted

EVIDENCE – application for ruling on admissibility in advance of trial – expert’s report – whether appropriate to make ruling – application dismissed

REPRESENTATIVE ACTION – group defined as passengers who suffered psychological injury on flight due to allegedly faulty engine – most claims settled – application to dismiss claims of group members who have not provided particulars of their loss – application granted

COMMERCIAL LAW – not-for-profit statutory corporation – alteration to rules pertaining to ability of members to trade rights to water and delivery thereof – whether breach of contract – whether unconscionable conduct contrary to s 51AC of the Trade Practices Act (now s 21 of the Australian Consumer Law) – whether misleading or deceptive conduct contrary to s 52 of the Trade Practices Act (now s 18 of the Australian Consumer Law) – all bases of claim dismissed

CIVIL PROCEDURE

CRIMINAL LAW – evidence – post mortem photographs – photograph of deceased in situ at murder scene – assessment of probative value – assessment of prejudicial effect

CRIMINAL LAW – evidence – admissibility of expert opinion – opinion that wounds could have been caused by samurai sword – where pathologist revises opinions based on emails from investigating police – original opinion that wounds most likely caused by axe found at scene – where police advise pathologist that no forensic evidence found on axe – where police further advice pathologist they have “determined” that wounds caused by samurai sword – whether opinion rendered inadmissible – where deficiencies in evidence will be exposed in front of jury – whether evidence misleading, confusing or unfairly prejudicial

AUSTRALIAN CONSUMER LAW – misleading and deceptive conduct pursuant to s 18 of Sch 2 of the Competition and Consumer Act 2010 (Cth) – claim for damages – where plaintiff entered into two loan agreements based on representations made by defendants– whether representations made to induce plaintiff to advance monies under the loan agreements were false, misleading or deceptive – where fourth defendant was bankrupt and fact of bankruptcy not disclosed – where fourth defendant represented himself as an “executive chairman” – HELD – failure of fourth defendant to disclose fact of bankruptcy was misleading and deceptive – third defendant involved in contravention – representation by fourth defendant as “chairman” misleading and deceptive as he was not entitled to hold office during bankruptcy– plaintiff has established that it suffered loss because of conduct of third and fourth defendants – but for misleading and deceptive conduct plaintiff would not have advanced monies under the loan agreements

COSTS.

COSTS.

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 – whether orders for discovery in the categories proposed reasonably necessary for the fair resolution of the real issues in the proceedings

CONTRACTS — Unconscionable conduct — Special disadvantage — Whether plaintiff suffered from a special disadvantage — Whether defendant unconscientiously took advantage of plaintiff to procure execution of deed.