Cases and authorities

STATUTES – Acts of Parliament – operation and effect of statues – where criminal offence under repealed provision preserved by Interpretation Act 1986 (NSW), s 30 – where in repealed provision, by Crimes Act 1900 (NSW), s 580F(3), reference to “penal servitude” taken to be reference to “imprisonment” – whether reference to “imprisonment” made offence under repealed provision a “serious indictable offence” to which Crimes Act, s 316 capable of applying CRIMINAL LAW – general matters – where common law offence of misprision of felony abolished and statutory concealment offence created – where appellant charged under Crimes Act 1900 (NSW), s 316(1) with failing to bring material information to attention of police concerning offence under Crimes Act, s 81 alleged to have been committed before that section repealed in 1984 - whether Crimes Act, s 316 capable of applying to that offence in respect of non-disclosure of information in 2004-2006 WORDS & PHRASES – “serious indictable offence” – “penal servitude” – “imprisonment”

TRUSTS AND TRUSTEES – construction of charitable trust in a will – whether question posed for judicial advice not a proper question under s 63 of Trustee Act – whether error in advice that trustee justified in forming opinion under proviso to will – whether failure to have regard to the effect of s 63 of the Trustee Act on the right to litigate the propriety of any formulation of opinion under proviso by trustee – whether error in proper construction of clause – whether error in finding that arguable that beneficiary utilised funds for a purpose other than that set out in clause – whether error in finding trustee had no obligation to reconsider the opinion formed under the proviso to the clause

REAL PROPERTY – possession of land – judgment for possession following mediation – stay sought on writ of possession – no basis shown for stay

HIGH RISK OFFENDER - serious sex offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists

Application for orders under the Proceeds of Crime Act 2002 (Cth)

MURDER – sentence – guilty by jury verdict - where the victim is a child – where there is intention to cause grievous bodily harm – where tendency evidence found beyond reasonable doubt – no issue of principle

COSTS – where proceedings concern previously undecided issue of law – no reason to depart from the usual rule that costs follow the event

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – vexatious litigant seeks leave to appeal against NCAT orders – leave sought in identical terms to previous application – proceedings vexatious

COSTS – indemnity costs – where offer of compromise directed to all defendants jointly rather than to each defendant individually – where plaintiff recovered a judgment no less favourable than the terms of the offer – where defendants in differing interests and where no defendant had authority to bind any other defendant – whether offer of compromise invalid – whether it was reasonable for the defendants not to accept the offer

CRIMINAL LAW – high risk offenders – application for continuing detention order - preliminary hearing – whether defendant is a high risk violent offender – where final hearing will be conducted prior to expiration of the defendant’s sentence – only order sought is examination of defendant by psychiatrist and psychologist – need to find prima facie case even although no interim order is being made – principles for determining preliminary hearings

BUILDING AND CONSTRUCTION – contract –extension of time clause – whether terms of contract relating to extension of time were modified by deed of amendment – whether defendant entitled to extension of time under contract – whether plaintiff entitled to liquidated damages under contract. BUILDING AND CONSTRUCTION – contract – liability for defective works – whether contract specification required rectification of defects – whether rectification of defects unreasonable. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) s 10 – whether Home Building Act 1989 (NSW) s 10 applies. CONTRACT – building and construction contract – unenforceable – quantum meruit claim – whether plaintiff entitled to recover fair and just compensation for work completed in accordance with contractual specifications – whether costs incurred for work were reasonable – whether deductions should be applied to quantum meruit claim. CONTRACT – consideration – promise to perform existing duty – whether bona fides compromise of a disputed claim made. CONTRACT – construction and interpretation – “practical completion” – when did “practical completion” occur. CONTRACT – construction and interpretation – whether contract can be inferred from parties’ conduct – whether words and conduct of parties would lead a reasonable person in the position of the other party to believe there was a contract. PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 14.14 – whether point should have been pleaded – whether point likely to take defendant by surprise

PRACTICE AND PROCEDURE – stay of judgment sought pending application for special leave to appeal to the High Court – applicant did not file and prosecute the special leave application as contemplated by the terms of a previous stay – notice of motion dismissed

ADMINISTRATIVE LAW – summons seeking judicial review – summary dismissal – reviewable decisions and conduct – summons seeking judicial review of judges of Supreme Court APPEAL – summons seeking leave to appeal – whether any arguable grounds of appeal – whether default judgment should be set aside – whether Principal Registrar had authority to issue default judgment (Uniform Civil Procedure Rules 2005 (NSW), r 16.4) – whether default on loan agreement – whether tender of purported promissory notes discharged loan liabilities – Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1); Supreme Court Act 1970 (NSW), s 46(1)(b) CONSTITUTIONAL LAW – notice under Judiciary Act 1903 (Cth), s 78B – whether matter arising under Constitution identified PROCEDURE – litigants advancing spurious and hopeless arguments – wastage of court time – unnecessary costs to parties – availability of costs order against third party

SUCCESSION – wills, probate and administration – probate and letters of administration – whether deceased had testamentary capacity – effect of caveats against the grant of probate – application for removal of caveats – grant of probate in solemn form PROCEDURE – appeals – denial of procedural fairness – extent of miscarriage of justice – whether new trial should be granted – whether new trial would be futile

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

DEFAMATION – Civil Procedure Act 2005 (NSW), s 62(3) – where parties’ estimate for length of trial disproportionate to the interest at stake – power to limit the time that may be taken by the hearing

CORPORATIONS – deregistration – application for reinstatement under Corporations Act s 601AH(2) – where claim of applicant alleging creditor status has no prospects of success – where reinstatement would therefore be vexatious – held, reinstatement declined. LIMITATION OF ACTIONS – contracts – when time begins to run – Limitation Act s 14 – where alleged loans made over six years ago – where alleged loans were said to be repayable ‘on demand’ – where no contractual term preventing cause of action arising upon making of loan advance – held, claim time-barred.

PRACTICE AND PROCEDURE – application to have judge recuse herself on the grounds of actual bias – where judge had previously refused an application by the plaintiff – plaintiff alleging that earlier judgment discloses actual bias

CORPORATIONS — Arrangements and reconstructions — Schemes of arrangement or compromise – Application for approval of scheme of arrangement – where scheme proposed to replace current scheme – where current scheme difficult to administer – whether Court should dispense with requirement for publication of notice of the application

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

PROCEDURE – settlement approval – orders made – reasons

PROCEDURE — Costs — Departing from the general rule – whether Applicant’s delay in making Interlocutory Application supports order for indemnity costs – whether application brought for a collateral purpose

CRIMINAL LAW – sentence – multiple serious offences in single episode of criminality – double murder – murder of a child – drug-induced psychosis – where offender denies any recollection of the offending – consideration of whether offender suffered from a mild intellectual disability – consideration of the offender’s deprived background and drug addiction

PRODEDURE — Costs — Departing from the general rule – where Plaintiff and Cross-Claimants did not accept Calderbank offers in respect of the Plaintiff’s claim and the cross-claim respectively – whether it was unreasonable for the parties not to accept the Calderbank offers PROCEDURE — Costs — General rule – where First Cross-Claimant required to prove insolvency of a company as at particular dates in defending the Plaintiff’s claim and prosecuting a Cross-Claim as to the 2013 charge and Cross-Claimants required to prove insolvency as at other dates in prosecuting a cross-claim for insolvent trading – whether Cross-Defendant should be ordered to pay the Cross-Claimants’ costs of proving insolvency where she was successful in defending a cross-claim for insolvent trading but unsuccessful in her own claim and in defending the cross-claim relating to the 2013 charge – whether costs ordered in favour of the Cross-Defendant of the unsuccessful cross-claim for insolvent trading should exclude the costs of proof of the companies’ solvency

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

CONTEMPT OF COURT – contempt of Local Court – vexatious litigant – jurisdictional question arising from Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 –construction of the Local Court Act and r 55.11 of the Supreme Court Rules – nature of Local Court’s power of referral of contempt to this Court – whether s 24 of the Local Court Act required that proposed contemnor be afforded procedural fairness before the power of referral to this Court exercised by the Local Court –procedural fairness required but not afforded –finding of contempt revoked – orders made – summons dismissed and matter returned to Local Court

CRIMINAL LAW – sentence – principal offender – 2 counts of wilful misconduct in public office – Minister of Mineral Resources – use of power conferred on him by the Mining Act to grant exploration licence to confer benefit on third party – damage to public institutions – importance of general deterrence and denunciation – motive not established CRIMINAL LAW – sentence – wilful misconduct in public office – common law offence – no maximum penalty – consideration of statutory analogies CRIMINAL LAW – sentence – accessory – 2 counts accessory before the fact to wilful misconduct in public office – accessory causative of principal offence – motivated by financial gain

CRIMINAL LAW – application for leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5G – discharge of jury by trial judge – Crown proposed to change case during the course of trial – trial judge found that it would not be fair to confine Crown to case initially presented – whether trial judge erred in exercising discretion to discharge jury in these circumstances

CRIMINAL LAW – sentence appeal – three offences of commercial supply of cocaine and one offence of dealing with the proceeds of crime – whether sentencing judge wrongly took into account a matter of aggravation – whether sentencing judge incorrectly stated the maximum penalty for the supply offences – grounds of appeal made out – need to resentence – on resentence no lesser sentence warranted in law – appeal dismissed.

CRIME – murder – self-defence – misdirection by trial judge as to appropriate verdict in the event the jury was satisfied as to matters required to be proved by the Crown – error conceded by Crown

CRIMINAL LAW – appeal against sentence – supply commercial quantity of prohibited drug (cocaine) – whether sentencing judge failed properly to assess objective seriousness of the offence – need to determine relative seriousness of offending – applicant resentenced CRIMINAL LAW – appeal against sentence – possess an unauthorised firearm – whether sentencing judge failed to consider s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW – appeal against sentence – possess an unauthorised firearm – supply commercial quantity of prohibited drug (cocaine) – whether sentencing judge failed to take into account applicant’s lack of criminal record as a matter affecting leniency

CRIMINAL LAW – sentencing – recklessly causing grievous bodily harm – aggravating and mitigating factors – victim a security guard who had refused the applicant entry to a licenced premises – whether the victim was ‘vulnerable’ for the purposes of section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – consideration of vulnerability arising by reason of a person’s occupation – consideration of sections 73, 74 and 77 of the Liquor Act 2007 (NSW) – victim was vulnerable in the relevant sense CRIMINAL LAW – appeal against sentence – leave to appeal – delay resulting from need for committal proceedings – applicant convicted after trial by jury – applicant had made an early offer to plead guilty to the only offence of which he was convicted – whether sentencing judge erred in failing to take delay into account CRIMINAL LAW – appeal against sentence – leave to appeal – recklessly causing grievous bodily harm – whether sentencing judge failed to take into account applicant’s mental condition – whether sentence manifestly excessive

BAIL – application to Court of Criminal Appeal following refusal of Bail by Supreme Court and pending re-trial after Court quashed conviction – Applicant charged with murder, being a show cause offence – serious threats to Police and the community – Court has Bail concerns relating to safety of the community and witnesses – Court not satisfied that Applicant would adhere to any conditions imposed – Court not satisfied that Applicant has shown cause as to why his detention is not justified – Bail refused

REAL PROPERTY – joint tenancy and tenancy in common – first defendant lodged transfer severing joint tenancy – plaintiff claims that land is held on trust precluding severance of joint tenancy – plaintiff claims that first defendant is estopped from severing joint tenancy – inadequate evidence of agreement or representation – no evidence of detrimental reliance – claims dismissed

PROCEDURE – notice of motion – leave sought to inspect, copy and otherwise utilise documents produced under subpoena – leave sought to be limited to sue by parties for purpose of proceedings – costs – orders sought made

UNFAIR CONTRACT – ex parte proceedings – claim for declaratory relief and monetary payments pursuant to s 106(1) and (5) of the Industrial Relations Act 1996 – whether the contract or arrangement was unfair, harsh or unconscionable or against the public interest – transitional provisions – regard to record of Industrial Court save for evidence objected to – arrangements constituted contract for purposes of s 106 – no jurisdictional barrier under s 108A the Industrial Relations Commission Rules 2009 – grounds concern unfairness regarding termination, bullying and disparagement – no protection from arbitrary and immediate termination – termination without notice – contract unfair in operation – termination likely to and did cause the plaintiff to suffer hurt, distress and humiliation – no protection from bullying and harassment – no provision for the timely resolution of any complaint or grievance – insufficient evidence to support disparagement ground – contract was unfair and harsh for the purposes of s 105(1)(a) – declaratory relief granted – monetary orders – relevant common law principle regarding notice – additional factors under s 106 – compensation for distress, stress, damage to reputation and humiliation – mitigation – settlement second defendant – avoiding risk of double counting – interest, costs – directions for further submissions and evidence

PROCEDURE – application to strike out paragraphs of affidavit – relevance of paragraphs – strike out application unsuccessful

Limitation of actions – suspension of limitation period – “cause of action based on fraud” – fraudulent concealment – determination in absence of defence and reply pleadings Civil Procedure - abuse of process – relitigation of issues decided in previous proceedings – summary disposal – stay of proceedings pending payment of costs

PRACTICE AND PROCEDURE – Construction of orders for specific performance to give effect to equitable estoppel – No issue of principle

INJUNCTIONS – interlocutory injunction – whether interlocutory injunction should be granted – whether serious question to be tried – whether balance of convenience favours granting of injunction. PRACTICE AND PROCEDURE – interlocutory injunctions – undertakings – whether onus lies with the defendant to persuade the court that an interlocutory inunction should be ordered – whether onus is on the defendant to persuade the court that they should be released from undertaking

COSTS – indemnity costs – offer of compromise rejected – genuine offer of compromise

BAIL – pending application for leave to appeal against conviction and sentence – whether special or exceptional circumstances – no such circumstances demonstrated – release application refused – no issue of principle

APPEAL AND NEW TRIAL – appeal – new point raised on appeal not taken below – where appellant attempted suicide at home while on a period of leave from a mental health facility – where primary judge found respondent had breached its duty of care by failing to provide adequate advice to the appellant and his parents that alcohol and contact with his ex-fiancée were stressors to be avoided, and if his parents were concerned about his condition to telephone the respondent for advice or return the appellant to hospital – where appellant sought to reformulate the content of the duty of care on appeal - where alleged breach of duty involved the failure to advise the appellant’s parents to immediately return the appellant to hospital if the appellant was exposed at all to either stressor – whether appellant could rely on new case on appeal – whether cross-examination by the respondent likely to be different – whether appellant had otherwise demonstrated exceptional circumstances justifying the Court entertaining the new point. TORTS – negligence – essentials of action for negligence – where appellant attempted suicide at home while on a period of leave from a mental health facility – causation – whether respondent’s breach of duty as found by the primary judge caused the appellant to attempt suicide – where appellant advanced alternative counterfactuals based on evidence of what the appellant’s mother would have done in a hypothetical situation – where primary judge found that no real weight could be given to such evidence – whether appellate court should interfere with the primary judge’s assessment of such evidence – whether appellant’s consumption of two beers and text messages with a friend that related to his ex-fiancée were causally connected with his later decision to attempt to commit suicide – whether factual findings open to primary judge

MOTOR ACCIDENTS COMPENSATION – action for damages – non-economic loss – medical assessment of permanent impairment caused by motor accident – dispute as to degree of permanent impairment of injured person – application for referral for further medical assessment – delay in making application – delay caused by reassessment process – whether primary judge erred in exercising discretion to make order for referral under Motor Accidents Compensation Act 1999 (NSW), s 62(1)(b) – discretion miscarried given significant delay if referral for reassessment

CONTRACT – implied contract – expired fixed term labour supply contract – where labour continued to be supplied and paid for – whether implied contract on same terms as expired contract – whether reasonable bystander would regard parties’ conduct, including silence, as signalling to other party that relationship continued on terms of expired contract CONTRACT – indemnity – labour supply contract – contractual indemnity – construction – claim by worker injured at labour hirer’s premises – indemnity claimed by hirer from labour supplier CONTRACT – contractual indemnity – construction – whether strictissimi juris principle enlivened CONTRACT – construction – use of definitions WORDS AND PHRASES – “employed by” – “arising out of” – “in connection with”

CONTRACTS – breach of contract – deed required respondent developer to “procure replacement” of above ground electricity cables with underground cables in accordance with Energy Australia’s requirements – Energy Australia refused permission to undertake works – whether developer’s resultant failure to procure work constituted breach of agreement – whether Energy Australia’s approval necessary condition of fulfilment DAMAGES – alleged loss suffered by Council as result of breach of contract by developer – Council claimed damages equivalent to costs of undertaking works not completed by developer – whether loss demonstrated in circumstances where works unable to proceed without Energy Australia’s approval

COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – application for judicial review of District Court decision – whether costs assessor had jurisdiction to determine that party was a “third party payer” within meaning of s 302A – role of costs assessor – whether jurisdiction to determine that party was a “third party payer” was reserved to Manager, Costs Assessment – role of Manager, Costs Assessment STATUTORY INTERPRETATION – the Legal Profession Act 2004 (NSW), s 302A, meaning of “third party payer” – meaning of “non-associated third party payer” JUDICIAL REVIEW – jurisdictional error – whether administrative officer has the power to determine whether it is acting within authority – whether costs assessor under the Legal Profession Act 2004 (NSW) had jurisdiction to determine that a party to an assessment was a “third party payer” within meaning of s 302A – whether District Court judge erred in law in holding that costs assessor had jurisdiction COSTS – Chorley exception – costs assessor allowed solicitor professional costs where he was self-represented litigant – whether ‘Chorley exception’ applies in New South Wales – scope of exception STATUTORY INTERPRETATION – construction of the Civil Procedure Act 2005 (NSW), s 98 – s 98(1)(a) provides that costs are in the discretion of the court – meaning of costs as defined in the Civil Procedure Act 2005 (NSW), s 3

CRIMINAL LAW – Crown appeal against sentence – two counts of supply of not less than the large commercial quantity of methylamphetamine contrary to s 25(2) Drug Misuse and Trafficking Act – drug “rip-offs” – whether non-custodial sentence was manifestly inadequate – whether findings of fact were open to the judge – whether judge had misdirected himself – whether judge had failed to properly consider the terms of the drug transaction – objective seriousness of drug “rip-offs” – need for specific and general deterrence – sentence manifestly lenient – whether Court should exercise residual discretion – extraordinary delay in sentencing proceedings

CRIMINAL LAW – sentence appeal – domestic violence – nine offences of physical and sexual violence against the same victim – whether proper assessment made of objective seriousness of offending – whether sentence for offence of aggravated detain for advantage manifestly excessive – whether delay in prosecution adequately taken into account – whether error in recitation of maximum penalty for aggravated sexual assault offence – objective seriousness properly identified – sentences not manifestly excessive – error identified in recitation of maximum sentence for aggravated sexual assault – need to resentence – no lesser sentence warranted in law – leave to appeal against sentence granted but appeal dismissed.

CRIME – Sentence appeal – offences of use carriage service to groom person under 16 – use carriage service to engage in sexual activity with person under 16 – possess child abuse material – further offences on a schedule - question of application of totality principle – complaint as to degree of accumulation – complaint of manifest excess – nor error found – no point of principle