Cases and authorities

CIVIL LAW – duelling applications for security of costs – where proceedings consolidated – application by plaintiff for security of costs on defendants’ cross-claim – where same issues arise in defence to plaintiff’s suit as would arise in cross-claim – potential for proceedings to be fractured – plaintiff’s application dismissed – whether plaintiff impecunious – where evidence does not establish that plaintiff unable to meet costs order – plaintiff flush with funds – long delay in bringing application - defendants’ application dismissed

PRACTICE AND PROCEDURE – Where the defendant was a medical practitioner practicing in France – Where the plaintiff brought proceedings for damages against the defendant arising from alleged negligence in performing surgery – Where surgery was undertaken in France – Consequent necessity to apply French law – Where the plaintiff and the entirety of the witnesses he proposed to call were in Australia – Limited documentary evidence located in France – Defendant a French national who was fluent in English – Plaintiff a resident of NSW who was not fluent in French – Where the defendant sought a stay of proceedings on the basis that the Supreme Court of NSW was a clearly inappropriate forum – Where defendant failed to discharge the onus – Notice of Motion dismissed

Evidence – rulings – no question of principle

PROCEDURE – application to amend defence and file cross-claim – where arguable case sought to be put on amended defence and proposed cross-claim – whether unacceptable prejudice to plaintiff of permitting amendment – where granting leave consistent with approach of allowing issues to be decided on their merits – held, leave to amend defence and file cross-claim granted. JURISDICTION – Cross-vesting – application for transfer to Federal Court – whether “special federal matter” – where proceedings well advanced and hearing imminent – where some bankruptcy-related issues could not proceed for want of relevant parties – claims for monetary judgments against non-bankrupt parties severed to be determined first – transfer at this stage refused.

SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions

PRACTICE and PROCEDURE – representative proceedings – application to amend statement of claim – application for leave to rely on further expert’s report – expert’s report addressed operation of dams during flood- further report contains additional simulations of counterfactual operation of dams – form of amendments – attempt by plaintiff to reserve unfettered right to rely on simulations that might arise out of Court’s judgment – amendment to that effect disallowed – plaintiff seeks to rely on additional simulation as primary case – defendants entitled to respond – defendants’ response likely to take months – granting leave will lead to delay in hearing – importance of amendments to plaintiff’s case – amendments allowed – plaintiff allowed to rely on further report and simulations.

SUCCESSION – family provision orders – failure of applicant to make full and frank disclosure of circumstances

CONTRACTS — construction — approach to construction – whether plaintiffs permitted to refinance debt without the consent of all creditors — determination of conditions that must be satisfied to refinance debt — determination of amount payable upon the redemption of debt — whether plaintiffs permitted to amend a deed without unanimous decision — where contracts interlock — identification of the commercial purpose or objects of the contracts

CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — whether extension of time for compliance with statutory demand ought to be granted in circumstances where applicant intends to apply for leave to appeal from primary judge’s decision to refuse to set aside the statutory demand — extension granted APPEALS — Application for leave to appeal — whether material possibility of prejudice — whether grounds are sufficiently arguable — whether appeal would be rendered nugatory

COSTS – where son successfully sued father’s estate to recover entitlement to real estate and a share of a water access licence devised under father’s will to son’s mother – where mother also executrix of father’s estate – whether costs of executrix, including costs payable to appellant, should be paid out of deceased’s estate – whether departure from general rule that costs follow event justified by probate exception – where proceedings adversarial in nature

LAND LAW – appellants tenants-in-common of real property – equitable tracing by respondent – findings that first appellant guilty of unconscionable conduct and breach of fiduciary duty – second appellant only made a party to the proceedings after those findings had been made – whether the second appellant could challenge respondent’s standing to apply for orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property –whether findings of breach of duty and unconscionability made against the first appellant binding on second appellant ESTOPPEL – circumstances in which parties are bound by issue estoppels – consideration of principles of privity of interest where current party not a party to earlier proceedings – Tomlinson v Ramsey Food Processing (2016) 256 CLR 507; [2015] HCA 28 – second appellant did not have any legal interest in outcome of earlier proceedings nor later acquire a legal interest affected by an estoppel connected to the earlier proceedings LAND LAW – whether costs of litigation may be ordered to be paid to incumbrancee out of co-owner’s share of the proceeds of s 66G sale – whether appropriate for co-owners to share costs and expenses for s 66G sale where sale caused by wrongful acts of one co-owner

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where child under the parental responsibility of the Minister – child placed in foster care – application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care – where applicant conceded at trial that the court was engaged in a “balancing exercise” between the child’s interests and other competing interests – whether applicant can raise new arguments on appeal contrary to concession below –construction of strict liability offence for publication of child’s name contrary to Children and Young Persons (Care and Protection) Act 1998, s 105 – whether primary judge’s construction was arguably wrong – whether judge’s exercise of discretion in refusing to grant injunction arguably miscarried.

SENTENCING – appeal against sentence – where error on Form 1 – where offence not known to law – resentencing necessary SENTENCING – penalties – intensive correction orders – whether available for offences found to constitute “substantial trafficking” of prohibited drugs SENTENCING – appeal against sentence – general principles – drug offences – where “substantial trafficking” in prohibited drugs found by sentencing judge – whether full-time custody mandated but for “exceptional circumstances” SENTENCING – appeal against sentence – general principles – consideration of sentencing discretion – consideration of judicially mandated sentencing “policy” – consideration of the “policy” in Clark

CRIMINAL LAW – Appeal – Crown appeal against asserted manifest inadequacy of sentence – Where respondent was charged with using a carriage service to access child pornography and possessing child abuse material – Where the respondent was sentenced to 15 months imprisonment in respect of the first count and 12 months imprisonment in respect of the second count – Where the sentencing judge ordered that the terms of imprisonment be wholly concurrent and that they each be served by way of an Intensive Correction Order – Whether the sentencing judge erred in failing to accumulate the sentences to any degree – Whether the sentencing judge erred in failing to have proper regard to the need for general deterrence – Whether the sentencing judge erred in giving excessive weight to the respondent’s rehabilitation – Errors established – Sentence manifestly inadequate CRIMINAL LAW – Appeal – Practice and procedure – Crown appeal against asserted manifest inadequacy of sentence – Whether the Court’s residual discretion to decline to intervene and re-sentence the respondent should be exercised – Where there was a delay in the provision of the transcript of the proceedings and the remarks of the sentencing judge – Where the Crown did not notify the respondent that an appeal was being considered – Where the notice of appeal was filed approximately two months after the sentence was imposed – Where the notice was not served on the respondent until one week after that – Whether the respondent was unfairly prejudiced by that delay

CRIMINAL APPEAL – application for leave to appeal against sentence – serious child sexual assault offences – special circumstances – where sentence accumulated on pre-existent sentences – where result of accumulation was to reduce period during which offender eligible for parole – where resultant non-parole period 81% of total sentence – whether result of accumulation inadvertent – appeal allowed and offender re-sentenced

CRIMINAL LAW – application for leave to appeal against sentence – late plea of guilty to two offences of supplying prohibited drugs – where total effective sentence of 2 years, 8 months with non-parole period of 1 year, 10 months – where applicant sought to tender new evidence to establish father’s terminal illness – where applicant was aware of father’s illness before sentence but did not raise the matter with his legal representative or in evidence – where no complaint of incompetent legal representation – whether Court should exercise discretion to admit new evidence – whether miscarriage of justice – whether sentence imposed was manifestly excessive.

LANDLORD AND TENANT – ex parte application for stay of eviction order made by New South Wales Civil and Administrative Tribunal – stay refused – false evidence presented on previous ex parte application – referral to the Director of Public Prosecutions of New South Wales to investigate possible offences

PRACTICE AND PROCEDURE – claim for damages for negligence – application for leave to amend pleading – where proposed amendments to pleadings in respect of child plaintiffs to bring particulars of duty into line with particulars of breach alleged – HELD – serial default in compliance with directions of Court – expert evidence served by plaintiff did not support any causal connection between alleged deficiencies in education or recreation provided to child plaintiffs while in detention and psychological or psychiatric harm alleged to have been suffered by them – no utility in allowing further particulars which enlarged case to extend to educational and recreational services and facilities – importance of avoiding further delay in bringing matter to hearing

LOCAL COURT ACT 2007 (NSW) – appeal – question of law – whether magistrate failed to give reasons – where magistrate found no right to claim breach of contract on the cross claim where no contract in existence – where magistrate identified legal person behind business and communications as constituting terms of the contract –HELD – magistrate provided sufficient reasons for findings made – no error of law – grounds of appeal not made out LOCAL COURT ACT 2007 (NSW) – appeal – question of mixed law and fact – where magistrate found an intention to create legal relations and existence of contract between the parties ­– where basis of quantum and reasons for judgment sum by magistrate can be explained by reference to pleadings – no error of fact or law – grounds of appeal not made out

CRIMINAL LAW – evidence – admission by silence – tacit admission – husband and wife accused of murdering husband’s father – whether failure of wife to rebut inference in husband’s letter that she was involved evidence of an admission – where letter long and discursive – circumstances where silence may constitute an admission – where wife attempts to retrieve letter – where wife lies to police about knowledge of letter – evidence not admissible as an admission – admissible in different form to establish consciousness of guilt CRIMINAL LAW – separate trial application – where evidence of letter excluded as admission – letter to be considered by jury on different bases in case against each accused – where accused jointly charged – where substantial body of evidence admissible against both accused – where large parts of evidence not to be disputed by applicant for separate trial – where other evidence to be admitted against one accused only – where case against co-accused stronger than case against applicant for separate trial – whether accused embarrassed or prejudiced in conduce of defence – interests of justice

CORPORATIONS — Arrangements and reconstructions — Schemes of arrangement or compromise — Applications for approval of creditors’ schemes of arrangement – where Plaintiffs seek approval of schemes in altered form – whether schemes would be approved by honest and intelligent creditor – whether schemes unfair to shareholders – whether schemes unlawful – whether schemes should be approved with alterations

CRIMINAL LAW – murder trial – application to discharge jury – where widow of deceased gave evidence that the deceased had visited the accused Popovic in gaol – whether high degree of necessity to discharge the jury

CONTEMPT – criminal contempt – contumacious breach of court order – punitive purpose of contempt charge – penalty proceedings following declaration and conviction of contempt in the contemnor’s absence– whether “criminal proceedings” within the meaning of the UCPR and Civil Procedure Act 2005 (NSW) - UCPR inapplicable and r 36.16 cannot be invoked to set aside conviction CRIMINAL LAW – criminal contempt – fitness inquiry – where concern as to fitness arises after conviction but before sentence – Mental Health (Forensic Provisions) Act 1990 (NSW) not applicable – plaintiff unfit according to the R v Presser [1958] VR 45 criteria – no penalty where psychiatric illness diminished moral culpability - no detriment to contemnor in proceeding to finality despite unfitness

PRACTICE – application to vacate hearing of appeal – fresh evidence – where fresh evidence not yet available – where fresh evidence may not be dispositive of appeal – where substantial parts of appeal independent of fresh evidence – application dismissed

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — From interlocutory orders — exercise of discretion on a matter of practice and procedure — inappropriate vehicle for considering question of principle — no reasonable prospect of success — leave refused

CORPORATIONS – motion to substitute party SECURITY FOR COSTS – motion

CRIMINAL PROCEDURE – suppression and non-publication orders – necessary to prevent prejudice to the proper administration of justice – pre-trial proceedings

SUBPOENA – “legitimate forensic purpose” – rugby league – allegation of head injury (concussion) sustained in course of employment as a professional rugby league player - whether documents relating to treatment of other players with concussive head injuries relevant to plaintiff’s claim against his employer

PRACTICE AND PROCEDURE – application for stay of execution of writ of possession – appeal pending – reliance on “promissory notes” in satisfaction of judgment debt – application refused

ADMINISTRATIVE LAW – judicial review – whether there could be a medical dispute under s 58(1)(a) or (b) of the Motor Accidents Compensation Act when no claim for treatment expenses – held – no requirement for claim – Authority obliged to refer dispute for medical assessment under s 60 of Motor Accidents Compensation Act once dispute found ADMINISTRATIVE LAW – judicial review – reasons of assessor which set out materials considered, findings on examination and history taken adequate to demonstrate performed assessment as required by legislation

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application for further medical assessment- decision of a Proper Officer – whether the Proper Officer applied incorrect principles to s 62 - whether the Proper Officer applied the different test in clause 14.7 of the Guidelines - whether additional medical reports were additional relevant information- whether the Proper Officer determined whether additional information was capable of having a material effect on the outcome of the previous assessment

EVIDENCE – opinion evidence – exceptions to the opinion rule – expert opinion – proof of assumption rule – basis rule – whether assumptions underlying expert opinion must be proved for the opinion to be admissible CRIME – manufacture large commercial quantity of prohibited drug – where only evidence of quantity of drug produced is expert opinion evidence – whether verdict unreasonable or unsupported by the evidence

CRIME – interlocutory appeal – Director’s appeal from order for judge alone trial – whether in interests of justice to order trial without jury – proposed cross-examination of victim might reveal accused was refused bail – lack of evidence of likely prejudice – assessment speculative – failure to consider whether risk capable of amelioration by directions

PRACTICE AND PROCEDURE – vexatious litigant – application for leave to institute proceedings where vexatious proceedings order made in respect of applicant

PRACTICE & PROCEDURE – Children (Criminal Proceedings) Act 1987 – child allegedly killed – found to be deceased – no senior available next of kin – public interest requires giving child dignity and respect of a name – middle name used

CRIMINAL LAW - accused charged with murder, wounding with intent to cause grievous bodily harm and dangerous driving during a police pursuit - defence application to vacate trial date - claim that adjournment necessary to explore possible partial defence of substantial impairment- psychiatric and neuropsychological reports already obtained - no evidence of cognitive impairment on the basis of possible acquired brain injury - claim that further testing in 12 months’ time might indicate whether there is any degree of cognitive impairment - no proper basis to vacate trial date - application to vacate trial refused

CRIME – fitness to stand trial – murder charge – consideration of the Presser criteria – psychiatrists ad idem on diagnosis – held unfit to be tried

JURISDICTION – exclusive jurisdiction of Federal Court “in bankruptcy” – whether matters arising under the Bankruptcy Act fell within the Federal Court’s exclusive jurisdiction or could be determined by State Supreme Court in the exercise of its federal jurisdiction – relevance of trustee choosing not to take an active part in claiming alleged debts as assets in the bankrupt estate of discharged bankrupt JURISDICTION – right of set-off under s 86 of the Bankruptcy Act 1966 – HELD fell within jurisdiction “in bankruptcy” because s 86 is a code and constitutes the sole source of the creditor’s right to set off in relation to mutual dealings – special federal matter – transfer to Federal Court required

CORPORATIONS — Winding up — Statutory demand — Application to set aside – whether evidentiary basis of conduct said to give rise to genuine dispute established – whether Plaintiff’s construction of deed seriously arguable – whether serious question to be tried that debt is not due and payable – whether offsetting claim or some other reason to set aside demand established

Insurance – debt servicing standing charges policy – damage to works under construction – indemnity over period of “delay” in completion of project – construction of policy – concurrent causes of delay – quantum of debt charges recoverable – interest on claim – unreasonableness of insurer in declining claim Evidence – expert opinion – admissibility – proper basis for opinion – ultimate issue – documentary evidence with opinions tendered without objection Evidence – failure to call witnesses – conditions for drawing adverse inferences – availability of witness – knowledge of witness – onus of proof – lapse of time

Succession – family provision – applicant son of deceased – adequacy of provision – modest estate – minimum adequate provision for widow – incorrect denial of paternity – “bare paternity” – deceased having obtained family provision from parent’s estate – independent and mature adult applicant – provision which ought to be made – relevance of financial “needs”

PRACTICE AND PROCEDURE – whether monies deposited in a controlled account should be transferred to an account earning a higher interest rate – whether the first defendant should be a signatory to such account – whether the interest rate on the current account is unfairly disadvantageous to the first defendant – where there has been delay and complication in transferring funds – where costs generated by litigation are disproportionate to potential loss alleged – where proceedings brought about by the notice of motion were neither cost nor time effective – where the position can be further considered following completion of the costs assessment process

CRIMINAL LAW – murder – trial by judge alone – alleged deceased was accused’s infant daughter – child not seen since 2000 or 2001 – no sign of life from extensive police searches – circumstantial case – lies evidencing consciousness of guilt – satisfied child is deceased – satisfied deliberate act/omission causing the child’s death CRIMINAL LAW – defence of mental illness – history of serious mental illness – expert evidence unanimous that defence available – schizophrenia – accused untreated during period child disappeared – chronic persecutory delusions involving the child, accused’s mother and authorities – not guilty by reason of mental illness

PROCEDURE – civil – summons in supervisory jurisdiction – application to stay hearing of appeal in District Court – whether arguable case for relief on summons – whether relief futile – whether relief available in District Court

CRIMINAL – appeal – sentence – trafficking a commercial quantity of cocaine – whether sentence manifestly inadequate – whether sentence imposed failed to reflect objective seriousness of offending despite compelling subjective features – difficulty in establishing manifest inadequacy in absence of comparative sentences – Crown appeal dismissed

CRIMINAL LAW – appeal against sentence – offence of break enter and steal – whether sentencing judge breached the principal of totality when seeking to impose new sentence on the existing sentences – whether sentencing judge erred in declining to find special circumstances – whether the sentence imposed was manifestly excessive – where the Crown concedes error in commencement date of sentence and accepts that the Court should intervene

PROCEDURE – show cause requirement following breach of direction and failure to appear – parties’ obligation to assist the court to serve the overriding purpose – whether proceedings should be dismissed

PRACTICE AND PROCEDURE – proceedings involve a plaintiff who was appointed a tutor – ss 75 and 77 of the Civil Procedure Act – consent orders – requisite legal incapacity – proper basis for the approval of settlement under ss 75(2) and 77 – settlement approved – verdict and judgment for the plaintiff