Cases and authorities

CONTRACTS – Breach of contract – Where cross claimant racing team surrendered racing entitlement contract to cross defendant organisation – Where cross defendant tendered cross claimant’s contract – Where cross defendant was obliged to ensure that the price paid for the contract was ‘as commercially advantageous as possible having regard to the current market situation by offering the Contract to the market by tender’ – Whether cross defendant breached obligation. CIVIL PROCEDURE – Pleadings – Whether cross claimant should be able to rely upon submissions outside the scope of its pleadings.

CRIMINAL LAW – sentence – contempt of court – where contemnor did not appear at sentencing proceedings – where contemnor deliberately and enthusiastically disobeyed court orders – whether the contemnor’s culpability is reduced because the orders are liable to be set aside – where contemnor has sought to receive a benefit from the contempt – where contemnor has not expressed any contrition or remorse – where contemnor has provided no evidence regarding personal circumstances or mitigating factors – whether there is a substantial need to deter the contemnor and others of like mind

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Small estate - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The first Defendant also child of the deceased and one of the executors and a beneficiary named in the Will – The second and third Defendants are grandchildren of the deceased and the other executors and beneficiaries named in the Will - Proceedings commenced within time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant also an adult child of the deceased and a beneficiary named in the Will –– Reasonably sized estate in value principally comprising real property – Plaintiff and Defendant share equally the estate under terms of the Will - Competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

ESTOPPEL — Proprietary estoppel —Encouragement — Relief EQUITY — Equitable remedies — Equitable compensation EQUITY — Defences — Laches and acquiescence - Knowledge of ability to bring claim ESTOPPEL — Anshun estoppel — Relevance of new issue in earlier proceedings

EVIDENCE – Privileges – Legal professional privilege CIVIL PROCEDURE – Subpoenas – Application to set aside – Evidence required to support claim for privilege

COSTS – security for costs – proportionality – matter of impression – no question of principle

COSTS – interlocutory process for summary dismissal/striking out of plaintiff’s claim – where held that claim as formulated could not succeed but order made for pleadings

CONTEMPT – practice and procedure – application for adjournment

CORPORATIONS – external administration – winding up – liquidators – application for directions – whether company holds assets beneficially or as trustee – whether liquidator’s remuneration and expenses should be paid from trust assets – entitlement to bank accounts held by companies jointly – entitlement to assets held by companies through partnerships – whether certain associates should be admitted as unsecured creditors.

CRIMINAL LAW – appeal – charge of offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) – alleged victim was police officer acting in the execution of his duties – charge dismissed by magistrate on the ground that the charge should have been laid under s 60 of the Crimes Act 1900 (NSW) – HELD – magistrate erred in law – matter remitted to Local Court to be determined according to law – prosecutor’s discretion to decide what charges to be laid not susceptible to judicial review – importance of ensuring impartiality of judicial process STATUTORY INTERPRETATION – no assumption can be made that Parliament intended specific provision (13 of the CDPV Act) to override general provision (s 60 of the Crimes Act 1900 (NSW)) as they are contained in different statutes – no statutory intention to have one provision give way to another – offences have different elements and independent operation

SUCCESSION – testamentary capacity – whether primary judge erred in finding that deceased had capacity to make last three wills – where deceased nominated long-deceased brother as executor in one of those wills – common ground that onus rested with executor propounding the will to establish capacity – nature of appellate review of decision at first instance

CRIMINAL LAW – evidence – tendency notice

EQUITY — Equitable remedies — Injunctions – plaintiff and defendants all members of a political party and bound by the party’s rules – plaintiff nominates for a pre-selection ballot for local government elections – plaintiff expelled from the party before the counting of pre-selection ballot papers - interpretation of party rules as to eligibility of candidate to be counted in ballot for pre-selection – whether plaintiff entitled to be counted in pre-selection ballot even if she is no longer eligible for endorsement as a candidate on behalf of the party in the local government elections – whether relief claimed is futile – whether relief would occasion hardship to third parties.

CRIMINAL LAW – evidence – tendency evidence

CONTRACTS – construction – informal and partly oral contract to provide search engine optimisation services – where service provider instructed to undertake “aggressive” strategy including link building – where “unnatural”, “artificial” or “spammy” links to target website created in violation of Google Webmaster Guidelines – where algorithmic and human demotion in search results applied by Google – whether “aggressive” strategy entailed impugned link building CONTRACT – remedies – damages – assessment – where marginal profit calculated assuming initial sales revenue from before revenue loss period and growth rate from period after consequences of breach ceased – whether appropriate to apply discount for endogeneity problem, apparent difference in growth trend lines and counterfactual possibility of adverse competition and harmful conduct by plaintiff EVIDENCE – witness evidence – cross-examination – rule in Browne v Dunn – reliability and truthfulness – where adverse credibility findings made against directors of plaintiff – where substantial points of difference between significant affidavit evidence of plaintiff’s directors and defendant – where truthfulness of plaintiff’s directors put in issue by opening statements and cross-examination – whether denial of procedural fairness

CIVIL LAW – whether defendant is a high risk violent offender – application for extended detention order – final orders – where interim supervision order made and upheld on appeal – where defendant compliant with interim order – resource issues arising from defendant’s location in remote rural community – obligation on state to provide resources – where caseworkers committed and motivated – caseworkers commended – extended detention order not justified – extended supervision order made.

EQUITY — Equitable remedies — Receivers — Court supervision of — Remuneration

CORPORATIONS — Winding up — Liquidators – Application by liquidator under Corporations Act 2001 (Cth) s 473(3)(b)(ii) to determine remuneration – whether amount of remuneration claimed is reasonable – whether evidence justifies amount of remuneration claimed

CRIMINAL LAW – evidence – s 39 of Evidence Act 1995 (NSW) – objection over Crown leading evidence in re-examination – reasons for ruling

CRIMINAL LAW – evidence – self-incrimination – Evidence Act 1995 (NSW) - s 128 certificate - whether a certificate could be given in respect of alleged perjury committed on committal – construction of s 128 Evidence Act 1995 (NSW)

ADMINISTRATIVE LAW – motor accident – where insurer admits liability but disputes degree of permanent impairment – judicial review of medical assessments under Motor Accidents Compensation Act 1999 – where physical and psychiatric impairment to be separately assessed – where psychiatrist bound to accept physical assessment of neurosurgeon – where psychiatrist disagrees with neurosurgeon – legal status of Permanent Impairment Guidelines considered – held no reviewable error in medical assessment of neurosurgeon – held that disagreement about physical impairment an irrelevant consideration – medical assessment of psychiatrist quashed – judicial review of decision of proper officer under s 62 Motor Accidents Compensation Act 1999 – meaning of “additional relevant information” – Jubb v Insurance Australia Limited considered – held that proper officer misdirected herself as to meaning of “additional relevant information” – held that proper officer’s opinion nonetheless formed according to law

CRIMINAL LAW – murder trial – application to exclude evidence on the basis of relevance and on basis that probative value is outweighed by the danger of unfair prejudice CRIMINAL LAW – application to exclude evidence of representations made by the deceased – hearsay rule

CORPORATIONS – Voluntary administration – Deed of company arrangement – Where company entered into deed of company arrangement with creditors including its landlord – Where landlord later terminated lease due to breach by company – Where moratorium in deed of company arrangement was subject to requirement that company continue to pay rent – Whether landlord can commence proceedings against company – Effect of decision of Campbell JA in BE Australia WD Pty Ltd v Sutton [2011] NSWCA 414.

TAXES AND DUTIES – proceedings for recovery against Defendant under Taxation Administration Act 1953 (Cth) – defendant’s companies failed to pay withholding tax and superannuation guarantee charges – director penalty notices issued to defendant – liability not in issue – whether defences of illness or taking all reasonable steps are available under s 269-35 TAA – misconceived defence that liquidators may have sufficient funds to pay companies’ tax liabilities – judgment in favour of plaintiff CIVIL PROCEDURE – adjournment – application by defendant shortly before hearing - defendant’s companies in liquidation – whether defendant’s company’s liabilities may be paid by other contingencies – defendant would be entitled to refund even if contingencies eventuated – no basis for adjournment

NEGLIGENCE – duty of care – leased premises – collapse of balcony causing personal injury to plaintiffs – where agent managing property negligent – landlord’s duty of care – whether landlord also breached duty of care NEGLIGENCE – duty of care – leased premises – collapse of balcony causing personal injury to plaintiffs – where agent managing property negligent – tenant’s duty of care – whether tenant also breached duty of care TORTS – negligence – occupier's liability – whether owner of residential premises effectively delegated to managing agent its duty of care as occupier of common property NEGLIGENCE – whether Civil Liability Act 2002 (NSW), s 5B principles considered and applied CONTRACT – contractual indemnity – breach of implied term to exercise reasonable care and skill pursuant to management agreement between managing agent and owners – whether owners entitled to contractual indemnity from managing agent for liability to tenant for breach of contractual obligation to keep premises in repair and for liability to injured plaintiffs for breach of duty of care – whether entitlement to contractual indemnity reduced due to owners’ contributory negligence – Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 NEGLIGENCE – claim for contribution – whether owner liable to contribute as joint tortfeasor to managing agent’s liability to plaintiffs – where tortfeasor seeking to recover contribution from person entitled to be indemnified by it in respect of liability in respect of which contribution is sought – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 NEGLIGENCE – claim for contribution – whether tenant liable to contribute as joint tortfeasor to managing agent’s liability to plaintiffs – apportionment on just and equitable basis – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

TORTS – false imprisonment – wrongful arrest – whether arrest of respondent unlawful – whether arresting police officer held requisite state of mind – whether police officer suspected on reasonable grounds that it was necessary to arrest respondent pursuant to Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b) and (d) TORTS – false imprisonment – wrongful arrest – whether arrest of respondent unlawful – whether at time of arrest police officer failed to inform respondent of his name and police station – when arrest occurred – whether sufficient act of arrest or submission – whether at time of arrest police officer failed to inform respondent of reason for exercise of power of arrest – whether statement “domestic incident” informed respondent of reason for exercise of power of arrest – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 201 DAMAGES – false imprisonment – wrongful arrest – whether award of damages excessive – where award included aggravated and exemplary damages – whether ignorance of alternative non-custodial course of action to arrest respondent conscious wrongdoing in contumelious disregard of his rights

CRIMINAL LAW – Appeal – Sentence – Parity - Where co-offenders participated in drug supply – Where each offender played a different role in the enterprise – Where applicant’s role higher than that of the co-offenders – No justifiable sense of grievance – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – application for bail – charges of murder and accessory after murder – where earlier application refused – s 74 Bail Act 2013 – show cause provision – length of delay in matter proceeding to trial – responsibility for delay – disadvantage in preparing a case from custody – willingness to comply with bail conditions – need for medical treatment

EVIDENCE –– proof of voluminous or complex documents – whether summaries receivable under s 50 of the Evidence Act 1995 (NSW) – where evidence did not establish document did summarise underlying documents – where document substituted figures in underlying document to advance a contention – where document did not identify underling documents purportedly summarised

CIVIL LAW – contempt – contempt in the face of the court – contumacious contempt – question of whether a freedom of political comment provides a defence – no such defence held to exist – defendant found guilty of contempt

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — whether primary judge erred by striking out paragraphs of applicant’s statement of claim but with liberty to re-plead — no arguable error — no issue of principle — applicant failed to plead material facts giving rise to cause of action – whether applicant denied procedural fairness – no denial of procedural fairness - leave to appeal refused

LEAVE – granting leave on a separate question pursuant to s 103 of the Supreme Court Act 1970 (NSW) – whether sufficient grounds for departing from the usual principle

CORPORATIONS LAW – voluntary liquidation – where meeting called by liquidator pursuant to s 497 of Corporations Act 2001 (Cth) – where defendant not provided with notice of meeting – where liquidator did not intend to appear on behalf of plaintiff – HELD – amended summons dismissed – dismissal of amended summons not a proceeding against company within meaning of s 500 of Corporations Act 2001 (Cth) COSTS – gross sum costs order made rather than assessed costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW)

CRIMINAL LAW – murder trial – application by Commissioner of Police for suppression, closed court and pseudonym orders in relation to the identities of two informer witnesses – application granted

Partnerships and Joint Ventures – validity of notice of determination – statutory termination – “retirement” – “dissolution” – Partnership Act 1892 (NSW), s 32 – “fixed term” – “single adventure or undertaking” – “undefined time” – Partnership Act 1892 (NSW), s 26 – “no fixed term”

ADMINISTRATIVE LAW – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – consent authority’s satisfaction that development would have “a neutral or beneficial effect” on water quality required – whether consent authority’s approach valid ENVIRONMENT AND PLANNING – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – development must have “a neutral or beneficial effect” on water quality under State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW) cl 10(1) – nature of comparison required STATUTORY INTERPRETATION – delegated legislation – no general principle requiring laxity or flexibility in construction – adherence to basic principles of statutory construction – focus on text and context

TORTS – negligence – breach of duty – medical practitioner – diagnosis and treatment of lesion on sole of foot – whether plantar wart or malignant melanoma – whether pigmented TORTS – negligence – causation – expert evidence – burden of proof – whether melanoma had not metastasised before plaintiff sought treatment from defendant

CRIMINAL LAW – appeal against aggregate sentence – damage to property intending thereby to pervert the course of justice – whether De Simoni principle infringed by taking into account foresight of consequences of damage to property – HELD – principle not infringed because more serious offences (ss 196 and 198 of Crimes Act 1900 (NSW)) require intention to cause consequences; recklessness as to consequences insufficient STATUTORY INTERPRETATION – relevance of Second Reading Speech – can be used to construe provision but not determinative – express words of statute guide to legislative intent

CRIMINAL LAW – appeal against sentence – one count of supply of not less than commercial quantity of MDMA and one count of supplying MDMA on ongoing basis – whether judge failed to make a determination as to likelihood of re-offending – difference between prospects of rehabilitation and unlikelihood of re-offending considered – whether error in failing to apply sentencing principles applicable to youthful offenders – whether error in failing to consider applicant’s mental condition – whether lesser sentence warranted

CRIMINAL LAW – sentence appeal – seven offences of assault female and commit an act of indecency on a female under 16 – plea of guilty – three victims who were offender’s natural daughters – sentenced to imprisonment for 4 years with non-parole period of 2 years – whether sufficient weight given to offender’s age, ill-health and remorse – whether sufficient weight given to delay in prosecution – whether sentencing judge misstated facts of one of the offences – breach of Di Simoni principle – need to resentence – no lesser sentence warranted – appeal dismissed.

CRIMINAL – sentencing – leave to appeal and appeal against sentence – plea of guilty –procedural fairness – whether sentence manifestly excessive – drug offence – supply of methylamphetamine – role in drug trafficking enterprise - comparable cases – effect of Regulation reducing threshold of large commercial quantity

CRIMINAL LAW – sentence appeal – five counts of supply a large commercial quantity of drugs and one count of participating in a criminal group – referred to Court of Criminal Appeal as a result of inquiry pursuant to Part 7 of Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – parity issue identified – whether reduction in applicant’s sentence would produce a sentence which was erroneously lenient – appeal allowed – applicant re-sentenced.

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 (NSW) – transfer of proceedings from District Court to Supreme Court – where amount to be awarded to the plaintiff, if successful, likely to exceed the jurisdictional limit of a District Court ­– transfer not opposed by defendants – HELD – proceedings transferred from District Court to Supreme Court COSTS – plaintiff ordered to pay the defendants’ costs of the application as plaintiff did not press application for transferred proceedings to be re-transferred to the District Court – defendants had incurred costs in opposing order no longer sought

NEGLIGENCE – occupier’s liability – slip and fall accident on a tiled area in shopping village - duty to take reasonable care so that premises safe for users taking reasonable care for their own safety – foreseeable users included those who may be inattentive or careless, and those proceeding above a normal pace when tiles were wet – reasonable person in the respondent’s position would have taken reasonable steps to reduce the significant risk of such persons slipping and falling NEGLIGENCE – occupier’s liability – damages – whether there was a causal connection between claimed damages and actionable conduct

CONSTITUTIONAL LAW – separation of powers – Kable principle – whether the Crimes (High Risk Offenders) Act 2006 (NSW) undermines the institutional integrity of the New South Wales Supreme Court – whether legislation distinguishable from that considered in Fardon v Attorney-General (Qld) – whether legislation distinguishable from that considered in Wainohu v New South Wales – whether objectives of the Crimes (High Risk Offenders) Act 2006 (NSW) are penal or punitive STATUTORY INTERPRETATION – determination that a person a high risk sex offender pursuant to s 5B – discretion to make extended supervision order pursuant to s 5B ADMINISTRATIVE LAW – whether there was denial of procedural fairness by primary judge – whether primary judge failed to give adequate reasons – whether decision of primary judge was void for legal unreasonableness – meaning of legal unreasonableness

CORPORATIONS – winding up – unfair preferences – determination of separate question of insolvency – where no opposition from active defendants – where expert concludes that company is insolvent – where conclusion is amply justified by the evidence – held, the question whether the company was insolvent from relevant date is answered in the affirmative.

ESTOPPEL — Promissory estoppel — Burial plot licences — Relief

PAROLE – application for direction to the State Parole Authority that the decision to revoke parole was based on false, misleading or irrelevant information – s 176 Crimes (Administration of Sentences) Act 1999 – limited powers of the Court – no power to conduct merits review – threshold test s 176(3) – threshold test not met

PRACTICE AND PROCEDURE – adjournment application – question of legality of transfer under s 51A of Teaching Service Act 1980 (NSW) which was effected prior to giving of direction as a result of disciplinary investigation – whether proceedings may be of limited utility – where disciplinary investigation ongoing – whether public interest in resolving construction of s 51A ought override matters in favour of adjournment – HELD – adjournment desirable in the interests of justice as factual questions, including discretionary matters relevant to whether declaration ought be granted, could be affected by outcome of disciplinary investigation ­– public interest in early determination of pure question of construction does not override factors in favour of granting adjournment