Cases and authorities

COSTS – costs assessment – costs ordered by court or tribunal – jurisdiction of costs assessor – whether costs assessor undertook construction of court’s order and thus exceeded jurisdiction ADMINISTRATIVE LAW – judicial review – discretion to refuse relief – where alternative review procedures provided for by statute

COSTS – proceedings for appointment of trustees for sale of property – proceedings commenced by plaintiff whilst proceedings pending in Family Court in connection with property – proceedings dismissed by consent following orders made by Family Court – whether plaintiff acted reasonably in commencing proceedings – plaintiff ordered to pay defendants’ costs

PRACTICE AND PROCEDURE – Costs – Where defendant the beneficiary under will of which the plaintiff was executrix – Whether order showed be made for costs to be paid from defendant’s entitlements.

CONTRACT – shareholders agreement – proper construction – whether shareholder taken to have previously exercised power to appoint a director – whether that shareholder now precluded from participating in further appointment of a director; CORPORATIONS – whether second defendant validly appointed director – whether sixth defendant validly appointed director – whether as a matter of construction of shareholders agreement directors empowered to resolve to reduce maximum number of directors

HIGH RISK OFFENDER – serious sex offender – application for interim detention order JURISDICTION – application for interim detention order – second application – first application refused

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

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

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

CRIMINAL LAW – murder – judge alone trial – killing of elderly woman – accused raises defence of mental illness – accused affected by schizoaffective disorder – both psychiatrists agree that accused did not know her actions were morally wrong according to the ordinary standards of right and wrong – significant body of independent material pointing to accused being mentally ill in the period prior to and after offence – whether psychiatrists’ opinions should be rejected because of dependence upon unreliable version of offence given by accused – whether accused’s actions in covering up offence negates mental illness defence – psychiatrists’ opinions accepted – defence of mental illness upheld.

EQUITY – Equitable Remedies – injunctions – application to vary an injunction previously granted to prohibit the defendant from selling, encumbering or otherwise dealing with certain real property – whether injunction should be varied to permit the sale of property where the proceeds of sale would be quarantined in a solicitor’s trust account

COMMERCIAL ARBITRATION - Commercial Arbitration Act 2010 (NSW) s 34A - CONTRACT - contractual construction - appeal from arbitrator’s award declaring the proper construction of the provisions of an Alliance Agreement - HELD: arbitrator’s award not wrong - appeal dismissed

PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim – Uniform Civil Procedure Rules 2005 (NSW), r 14.28 – form of pleading embarrassing and prejudicial to defendant – leave granted to re-plead. PRACTICE AND PROCEDURE – summary dismissal – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – no maintainable cause of action disclosed – collateral attack on judgement and orders of the Family Court. TORTS – intentional tort – Wilkinson v Downton – alleged mental and emotional harm arising from making and enforcement of Family Court orders – whether defendants liable for procuring Family Court orders – collateral attack on Family Court orders not permissible – advocate’s immunity – no recognised psychiatric illness

COSTS – where defendants initially contest insolvency but later admit – whether costs order against defendants should be made before final resolution of proceedings – whether costs order should be made on the ordinary or indemnity basis.

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment—Whether defendant should be granted leave to amend its defence. EVIDENCE—Tendency evidence—Whether defendant’s notice of intention to adduce tendency evidence was valid—Whether requirement that defendant give notice of intention to adduce tendency evidence should be dispensed with.

COSTS – where there is a final decision that has not been reached or made after a consideration of the merits – where it was necessary to approach the Court to obtain relief – where the defendant was willing to accept an offer earlier made by the plaintiff – where there is a disputed issue that has not been determined – no order as to costs

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Application for declarations that, inter alia, Plaintiff is not director or secretary of company – whether Plaintiff consented to appointment – whether Plaintiff director or secretary of company.

Civil Procedure – leave to file amended statement of claim – leave to amend previously granted – no amended statement of claim filed in accordance with leave – summary dismissal for want of prosecution – substitution of plaintiff – equitable estoppel claim – assignment of cause of action – necessity of previous articulation of cause of action in pleadings – limitation period Limitation of Actions – leave to file amended statement of claim – leave to amend previously granted – no amended statement of claim filed in accordance with leave – delay – analogy at law – substantial identity of causes of action – discretion to order amendment – date of effect of amendment

PROCEDURE – Application to adjourn hearing and amend pleadings – No issue of principle

BANKRUPTCY – administration of property – trustee in bankruptcy obtained order for possession of real estate – application for interim injunction – whether sequestration order was made – whether order for possession of property was validly made – whether trustee in bankruptcy can be restrained from exercising powers and functions – consideration of “special federal matter” – no arguable case disclosed – no reasonable prospects of success

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – appropriate test to be applied in cases involving custody or access to a child – whether inability of court to make positive finding of abuse determinative of the ultimate question of whether unacceptable risk of harm to child – M v M (1988) 166 CLR 69; [1988] HCA 68 EVIDENCE – standard of proof – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – application of Evidence Act 1995 (NSW), s 140 – application of Briginshaw standard ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – rule in Browne v Dunn (1894) 6 R 67 – significance of witness being on notice of allegation – whether absence of cross-examination on particulars of allegation precluded finding of unacceptable risk of harm to the child

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether return to birth mother or adoption in best interests of children — No issue of principle

DEFAMATION – pleadings – objections to imputations on grounds of capacity – no question of principle

TORTS – injurious falsehood – interlocutory injunctions – requirement that the alleged false representation be directed at the plaintiff’s goods or business – where defendant consented to interlocutory orders restraining publication of certain representations - defendant seeking to have orders varied so as to permit discussion of proceedings brought against him for purpose of raising funds to defend the claim

CIVIL PROCEDURE – Jurisdiction – Transfer to and from other courts – District Court – Personal injury case – Whether damages could exceed the statutory limit of the District Court – Held that matter to be transferred

COSTS – Security for costs EVIDENCE – Affidavit evidence – Whether oath defective – Where solicitor administers oath via social media and deponent is overseas – Whether jurat defective – Affidavit held to be defective in both respects

CONTRACT – Construction of written agreement – dispute concerning the terms of an oral agreement – plaintiff company supplies consulting services to the first defendant company for consideration payable by the first defendant to the plaintiff – first defendant carries on business associated with the public profile of an Australian media celebrity – parties’ contractual arrangements reflected in two agreements – a written services agreement commences on 1 July 2008 for five years until 30 June 2013 – whether the services agreement was terminated on 28 March 2013 – parties also dispute the terms of an oral Management Agreement, including whether and when the payment of management fees under it terminated, the term of the Management Agreement and whether or not the Management Agreement was validly terminated at or about the same time as the services agreement – issues of quantum reserved by agreement for further consideration

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – whether clear and unmistakable language used to abrogate right to a fair trial – clear language in earlier form of s 29(1)(d) – right to a fair trial according to law – reference had to Second Reading Speech – proceedings in s 29(1)(d) are “child welfare proceedings” – s 29(1)(d)(iii) not a reference to all proceedings in this Court involving children – reports inadmissible in criminal proceedings in this Court PRACTICE AND PROCEDURE – offences relating to physical abuse of a child – accused seeks to rely on reports made to the Department of Family and Community Services – perceived bar to admissibility in District Court based on Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 – conditional exemption to present indictment in this Court – reports held to be inadmissible – matter remitted to District Court

SENTENCE — manslaughter — unlawful and dangerous act — offender found not guilty of murder but guilty of manslaughter after trial by jury — other factors besides assault substantially contributed to death — offer to plead guilty to manslaughter before trial — Aboriginal offender with criminal record for violence — offer to give evidence with regard to offending of another person — sentence imposed

PROCEDURE – personal injury – notice of motion – expert reports – order sought for expert reports to be excluded from being admitted at the hearing and in the alternative, the hearing be vacated – Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – exceptional circumstances – leave sought to rely on expert reports granted – hearing dates vacated – costs – reasons

CONTRACTS – Whether contract for sale of goods or bailment for labour and works – Where plaintiff supplied watermelon seeds and defendant supplied seedlings – Where watermelon plants developed “Fusarium wilt” infection – Held to be contract for sale of goods CONTRACTS – Breach of contract – Forms of breach – Breach of conditions implied under Sale of Goods Act 1972 (NT) CONTRACTS – Implied terms – Terms implied – Fitness for purpose – Merchantable quality CONTRACTS – Remedies – Damages for breach of contract – Held that plaintiff took reasonable steps to mitigate its loss

REAL PROPERTY – torrens title – mortgages, charges and encumbrances – advance from father to son to allow purchase of property – whether advanced sum a loan or a gift CONTRACTS – general contractual principles – unjust or unfair contract

SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children’s Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether “significant change in any relevant circumstances” – whether applicants had arguable case

NEGLIGENCE – motor vehicle accident – whether appellants’ vehicle negligently pulled out onto road and caused accident – whether trial judge’s findings on reliability of witnesses could be supported by the evidence – trial judge gave insufficient weight to inconsistencies in the plaintiff’s account – trial judge erred in assessing evidence of third party involved in the accident as unreliable – trial judge erred in findings on sequence of collisions – appeal upheld – judgment in favour of the appellants

LIMITATION OF ACTIONS — Postponement of the bar — Confirmation — whether the primary judge erred in determining the identity of the creditor — whether the acknowledgment of loans in the respondent’s financial statements amounted to sufficient confirmation of the debt – whether acknowledgement of the debt was made to the appropriate party CIVIL PROCEDURE — Court of Appeal — Costs orders — Application for leave to appeal from costs order — no error in exercise of discretion — no question of principle — leave refused

CRIMINAL LAW – conviction appeal – judge alone trial – offence of murder – victim’s body not found – acceptance of tendency evidence fundamental to conviction – whether tendency evidence of Ms Hyde and Ms Brown properly admitted – whether probative value substantially outweighed prejudicial effect – whether his Honour correctly directed himself as to the use to which the tendency evidence could be put – whether his Honour needed to be satisfied beyond reasonable doubt as to the occurrence of the conduct giving rise to the tendency found – whether his Honour erred in taking into account evidence in support of other tendency incidents when considering whether an asserted tendency existed – whether certain documents were properly admitted as “business records” – whether the verdict was unreasonable – whether his Honour failed to exclude reasonable alternative hypotheses inconsistent with guilt – appeal dismissed.

EVIDENCE – witness evidence – children’s evidence – whether trial judge erred in allowing the complainant to give sworn evidence EVIDENCE – witness evidence – children’s evidence – where examination-in-chief given by a complainant in a recorded interview with police – whether witness required to be competent at the time of the interview CRIME – appeal – whether verdict unreasonable or unsupported by evidence

CRIMINAL LAW – sentence appeal – two offences of having sexual intercourse without consent contrary to s.61l Crimes Act 1900 – offence of armed robbery contrary to s.97 Crimes Act 1900 – further s. 61l offence taken into account on a Form 1 – offences committed in 1992 – Applicant not charged until 2013 following “cold case” DNA match – Applicant sentenced to aggregate term of imprisonment for 10 years with a non-parole period of six years – claim that sentencing Judge infringed De Simoni principle – error not demonstrated – claim of error with respect to harm to victim – error not demonstrated – claim of error in approach to delay and totality in relation to sentences imposed for other offences committed by the Applicant in 1993 – no error demonstrated -- claim that aggregate sentence manifestly excessive – offences involved considerable objective gravity –aggregate sentence not manifestly excessive - appeal dismissed

CRIME – appeal against sentence – applicant found guilty of manslaughter following trial by jury on murder charge – jury’s verdicts indicated that it accepted that the applicant’s conduct amounted to excessive self-defence in accordance with Crimes Act 1900 (NSW) s 421 – whether on the evidence it was open to the sentencing judge to find beyond reasonable doubt that the applicant was advancing aggressively towards the deceased immediately before he stabbed the deceased – whether the sentencing judge erred in his findings about the degree to which the applicant’s conduct exceeded that which would have been a reasonable response to the circumstances as he perceived them – whether the applicant’s sentence was manifestly excessive

REAL PROPERTY – mortgages – possession of land – defence filed does not disclose defence to claim – defence seeks to rely on unfiled cross-claim to set-off damages – repeated failures to comply with court orders to file cross-claim – defence struck out

LAND LAW – Enforcement of judgment for possession – Writ of possession – Application for stay of writ of possession – Where four previous stays granted – Where undertaking given not to apply for further stay – Stay refused

SUBPOENA – suggestion that documents sought caught by privilege created for communication in confidence of victim of sexual assault – Court not aware of circumstance of person’s history, nor nature of documents – subpoena issued for purpose of determining preliminary issue of whether privilege under s 295 of the Criminal Procedure Act 1986 applied.

CIVIL PROCEDURE – subpoenas – whether legitimate forensic purpose – where information highly personal

PROCEEDS OF CRIME – application for declaration that property has been forfeited – s 95 Proceeds of Crime Act 2002 (Cth) – property statutorily forfeited in July 2017 – no utility in adjournment – declaration made

CORPORATIONS — Arrangements and reconstructions — Schemes of arrangement or compromise – Application under s 415 of the Co-operatives National Law for orders convening a meeting of capital stockholders to consider and if thought fit to agree to proposed creditors’ scheme of arrangement – where scheme would convert co-operative to public limited company under the Corporations Act 2001 (Cth) and convert capital stock to shares – where Plaintiff proposes interrelated members’ scheme

APPEAL – work-related injury – medical dispute re degree of permanent impairment but not causation –wording of notice of dispute pursuant to s 74 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) ambiguous – Medical Assessor determined causation and excluded from assessment of degree of permanent impairment certain body parts in respect of which no dispute – Appeal Panel upheld decision of Medical Assessor HELD – jurisdictional error in misapprehending ambit of dispute between parties – parties agreement that relief ought be granted – Original Certificate, decision of Appeal Panel and Determination set aside – remitted to Registrar to be dealt with in accordance with law

FAMILY LAW AND CHILD WELFARE - Adoption -application for order – adoption by relatives FAMILY LAW AND CHILD WELFARE - Adoption – Whether adoption in child’s best interests - whether adoption order clearly preferable to any other any other action that could be taken by law in relation to their care FAMILY LAW AND CHILD WELFARE - Adoption – Whether consent of birth parents required - Consent of child’s birth parents not given in accordance with Adoption Act 2000 (NSW) – Consent not effective – grounds for making consent dispense order – Child is over 12, but less than 18, years old - Child gives sole consent to adoption FAMILY LAW AND CHILD WELFARE – Adoption – Whether one of the primary purposes of the proposed adoption is to obtain a visa for the child to remain in Australia – Whether a relevant consideration

EQUITY — Equitable remedies — Injunctions – Application for interlocutory injunction restraining disclosure of confidential information – where Sixth Defendant employee of Plaintiff on gardening leave and possessed substantial volume of Plaintiff’s records EQUITY — Breach of confidence — Springboard doctrine – whether Sixth Defendant should be restrained beyond contractual restraint period from working for a competitor of the Plaintiff – whether springboard doctrine applicable to injunction against breach of fiduciary duty EMPLOYMENT AND INDUSTRIAL LAW — Restraint of trade – whether Sixth Plaintiff should be restrained from commencing employment with a competitor of the Plaintiff – construction of clause

APPEAL – where defendant refused to pay claim on policy of comprehensive motor insurance – whether there was a reasonable apprehension of bias where magistrate had read an earlier appeal decision in same proceedings – whether magistrate was in error in drawing inference adverse to plaintiff for failure to call a witness regarded as being in plaintiff’s “camp” – whether magistrate erred in failing to provide adequate reasons – whether it was open to magistrate to find that claim excluded because collision was intentional – magistrate not satisfied that claim made fraudulently – HELD – no reasonable apprehension of bias where magistrate had disclosed to parties he had read earlier decision and where no parties had objected – magistrate did not err in drawing inference adverse to plaintiff for failure to call a witness – reasons provided by magistrate sufficiently set out – magistrate’s finding that plaintiff not entitled to be indemnified by defendant not in error where damage to vehicle was proved to be caused intentionally and excluded – no inconsistency between finding on exclusion clause and no finding that claim made fraudulently – appeal dismissed