Cases and authorities

CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – dishonestly damaging property by fire with a view to obtaining a gain for another – joint criminal enterprise – subjective circumstances – statutory aggravating factors – general deterrence – specific deterrence – offence committed in company as part of a planned criminal activity without regard for public safety – extent of damage to building bearing on objective seriousness of offence – whether emphasis on level of awareness (and actual materialisation) of risk to public safety converted sentencing judge’s assessment of applicant’s state of mind regarding public safety into de facto extension of criminal liability – whether sentence suggestive of overstatement or wrong assessment of applicant’s culpability

PLEADING – application to amend statement of claim – fraud – exemplary damages – necessity to properly particularise fraud – application refused

CORPORATIONS – external administration – whether appropriate to wind up company on the just and equitable ground – where an irretrievable breakdown between directors and shareholders and the affairs of the company are deadlocked – where evidence that the purpose for which the company was incorporated is no longer possible – where company no longer trades and has negative assets and substantial liabilities.

ESTOPPEL – estoppel by convention – elements – detriment – Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 considered – a person claiming the benefit of a conventional estoppel must demonstrate that he or she would have acted differently but for the common assumption PRACTICE AND PROCEDURE – judge did not determine a pleaded defence – motion for a new trial order under s 126 District Court Act 1973 (NSW) not appropriate – integrity of the hearing not questioned – application to set aside the judgment under r 36.36 of the Uniform Civil Procedure Rules 2015 (NSW) appropriate APPEAL – primary judge did not consider one of the appellant’s defences – whether matter should be remitted to primary judge – determination of the defence would not involve consideration of witnesses’ demeanour – appropriate for the defence to be determined by the Court of Appeal

ADMINISTRATIVE LAW – judicial review – relationship between criminal jurisdiction at first instance and jurisdiction on appeal by way of rehearing – review of decision of District Court in its criminal jurisdiction on appeal from Local Court – where Local Court committed jurisdictional error by summarily hearing indictable offence and convicting applicant – whether District Court committed jurisdictional error by dismissing appeal – whether misconstruction of statutory elements of offence by inferior court constitutes jurisdictional error CRIMINAL LAW – particular offences – offences relating to postal services, telecommunications and computers – meaning of “offensive” in Criminal Code (Cth), s 474.17(1) – whether Criminal Code (Cth), s 474.17(1) limited to communications received by persons in s 474.17(2) ADMINISTRATIVE LAW – judicial review – relief – where only one order that inferior court could make consistent with Supreme Court’s reasoning – whether Supreme Court should make that order in exercise of supervisory jurisdiction

FORENSIC PATIENT – respondent unfit to stand trial – found on limited evidence available that respondent committed sexual assault of child under ten – limiting term of imprisonment for 2 years and 6 months imposed – Attorney General applies to extend period in which the respondent is a forensic patient – schizophrenic – suffers from polydipsia – intellectual impairment – whether poses unacceptable risk – whether other less restrictive means available – whether risk could be managed under Mental Health Act – lack of availability of suitable places – extension order made – period limited to enable consideration of accommodation as involuntary patient

PRACTICE AND PROCEDURE – where first defendant represented by solicitors retained by its insurer – where first defendant wishes to make claim against that insurer – whether leave should be granted permitting first defendant to have separate representation for the purpose of prosecuting its claim against the insurer – whether preferable course is to declare that first defendant is entitled to appoint a legal representative independent of its insurer

CORPORATIONS – winding up – application for winding up by the Court – whether appropriate to wind up company on the just and equitable ground – where irretrievable breakdown between directors and shareholders and the affairs of the company are deadlocked.

PRACTICE AND PROCEDURE – application to set aside costs orders made as condition to grant of leave to the plaintiff to apply to file an amended commercial list statement in circumstances where leave refused for filing of then proposed amended commercial list statement – where plaintiff contends that new information and evidence has come to light – application unsuccessful PRACTICE AND PROCEDURE – application that proceedings be dismissed or stayed on basis that plaintiff lacks authority to commence or continue proceedings in its stated capacity as corporate trustee of a superannuation fund

PRACTICE AND PROCEDURE – application to transfer proceedings to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) – where defendant in District Court proceedings has foreshadowed filing of a cross-claim seeking rescission of contract under ACL– summons dismissed

EVIDENCE – legal professional privilege – implied waiver – where plaintiffs put in issue facts that could only be proved or disproved by reference to client solicitor communications COSTS – where plaintiff resisted inspection of subpoenaed documents but later consented – where defendant had litigated the question of inspection – whether plaintiff justified in resisting inspection COSTS – costs against legal practitioners – Civil Procedure Act 2005 (NSW), s 99 – whether costs incurred “without reasonable cause, in circumstances for which a legal practitioner is responsible” – where plaintiffs’ unreasonable resistance to inspection of subpoenaed documents was on the advice of legal representatives

PRACTICE AND PROCEDURE – application for stay pending hearing of application for leave to appeal – proposed appeal from interlocutory order refusing interlocutory injunction – contract of sale of strata title – whether receiver complied with obligation to take “all reasonable care” to sell at market value – whether damages an adequate remedy in the case of breach

PRACTICE AND PROCEDURE – appeal – stay of payment of judgment for damages pending determination of appeal – part payment made – some risk of non-repayment in event appeal succeeds – balance of convenience

PROPERTY – Alienation of property – Application under Conveyancing Act 1919 (NSW) s 37A to avoid alienation of property with intent to defraud creditors – where property transferred pursuant to a property settlement effected by consent orders made by the Family Court of Australia – whether property settlement negotiated after a genuine breakdown of the Defendants’ de facto relationship – whether transferor intended to hinder or delay Plaintiff – whether transferee purchaser in good faith without notice EQUITY – Trusts and trustees – where Defendants tenants in common of real property before the end of their de facto relationship – whether constructive or resulting trust over the property should be recognised to have existed before the Defendants’ property settlement reflecting unequal contributions to the property – whether unclean hands defence made out – whether trust should not be ordered or be postponed by reason of unsecured debt owed by putative trustee to the Plaintiff ESTOPPEL – By judgment – Anshun estoppel – where earlier proceedings consisted of consent orders made by the Family Court of Australia to give effect to a negotiated property settlement

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SoP Act) – ss26A, 26B, 26C and 34 – Contractors Debts Act 1997 (NSW) (CD Act) – ss 5, 6, 7, 8, 9(1) and 11(1) – Ealwin owed the plaintiff money for goods supplied – a third party joint venture owed Ealwin money for goods supplied – the plaintiff served a payment withholding request under s 26A of the SoP Act on the joint venture (as principal contractor) – Ealwin had assigned the debt owed to it by the principal contractor to the defendant (or its predecessor) – the plaintiff obtained an adjudication determination and a debt certificate for its claim against Ealwin and then served a notice of claim on the joint venture under s 6 of the CD Act – s 8(1) of the CD Act provides that service of a notice of claim on the principal operates to assign to the unpaid person (here West Tankers) the obligation to pay the money owed under the contract to the defaulting contractor (here Ealwin) – both the plaintiff and the defendant claimed the money originally owed by the joint venture to Ealwin which the joint venture paid into Court to abide the outcome of the contest – HELD: the defendant’s legal assignment prevailed and it was entitled to the money in Court.

CIVIL PROCEDURE – police officer – mental injury – post-traumatic stress disorder – plaintiff alleges mental injury arising from duties as a police officer – whether the claim is statute-barred – whether a limitation defence is to be determined at an interlocutory stage or at trial – defendant seeks further pleadings of limitations issue – consideration of when the cause of action accrued – held that the burden of proof lies with the defendant in raising a limitation defence – plaintiff directed to amend pleadings

EQUITY – Equitable remedies – Injunctions – Application to enjoin sale of property in which Applicant claims equitable lease – where damages likely to be an adequate remedy – where Applicant delays in seeking injunction.

PRACTICE AND PROCEDURE – security for costs – relevance of offer made by principal to accept liability for adverse costs order made against impecunious company – relevance of position of all those standing behind the company – application granted – no relevant delay by applicant

INTERROGATORIES – requirement that they be necessary – importance of consideration of other forensic procedures available to the applicant – interrogatories must be drafted with precision to achieve a forensic purpose

SENTENCING – manslaughter – offender drowned infant daughter in bath – offender entered plea of guilty to manslaughter – basis of plea was substantial impairment – Crimes Act, s 23A – offender suffering anxiety and symptoms of schizophrenia in period up to the drowning – offender acting under delusion that daughter had genetic abnormality – offender previously found unfit to be tried – later found fit – offender served previous period in custody – offender’s moral culpability reduced by reason of mental illness – offender unsuitable vehicle for general deterrence, denunciation and punishment – non custodial sentence imposed – bond

PRACTICE AND PROCEDURE – proceedings transferred to Supreme Court pursuant to s 144(2) of the Civil Procedure Act 2005 (NSW) – where District Court had a doubt as to its jurisdiction to grant certain equitable relief – whether to remit matter to District Court

CRIMINAL LAW – sentencing – murder – wounding with intent to cause grievous bodily harm – offender suffering from abnormality of mind at time of offence – moral culpability reduced – no special circumstances – murder in mid-range of seriousness – wounding in low-range of seriousness – some accumulation imposed

BUILDING AND CONSTRUCTION – CONTRACTS – operation of Building and Construction Industry Security of Payment Act 1999 (NSW), s 8, s 13 – where contract fixed dates for making progress claims and deemed claims made earlier to be made on that date – where progress claim served 8 days before specified date – where specified date for progress claims are also “reference dates” - operation of deeming provision in construction contract – adjudication – whether jurisdictional error – whether there was a reference date for the payment claim – PROCEDURE – whether plaintiff required leave – UCPR r 59.10(1), (5) – where proceedings not commenced within three months of the adjudicator’s determination

INSURANCE – insurance policy – whether loss covered by the policy – whether plaintiff breached duty of disclosure – whether insurer entitled to reduce liability to nil - application of Insurance Contracts Act 1984 (Cth), ss 21(1), 28(3)

ADMINISTRATIVE LAW – judicial review – whether to extend time to commence proceedings for judicial review – summons filed 23 years after relevant decision made – extension of time refused PRACTICE AND PROCEDURE – application for leave to amend pleadings – further amended summons and two different points of claim documents – pleadings with respect to public nuisance and negligence disclose no reasonable cause of action – whether plaintiff should be given leave to plead private nuisance

CONTRACT – meaning and effect – approach to construction – written agreement – relevance of prior non-binding document

ADMINISTRATIVE LAW – declaratory relief – judicial review – correction of court record of an Apprehended Domestic Violence Order – whether jurisdictional error – application for correction made by solicitor – no application for variation of order as originally made – no error established ADMINISTRATIVE LAW – declaratory relief – judicial review – asserted decision by Local Court to commence proceedings to Apprehended Domestic Violence Order – no such decision – no error established – no basis for relief ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against order extending Apprehended Domestic Violence Order – appeal dismissed – whether jurisdictional error – whether appeal hearing was conducted as a rehearing – whether denial of procedural fairness – no error established ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against costs order following contested application for extension of Apprehended Domestic Violence Order – whether jurisdictional error – whether failure to consider grounds for awarding costs on an indemnity basis – whether failure to address submissions made by appellant – no error established

TORT – negligence – occupier’s liability – where respondent injured by tripping over corner of raised timber platform while walking across the lobby area of appellant occupier’s hotel – where primary judge found respondent did not see raised platform due to “intense glare” in lobby area – whether primary judge erred in finding respondent affected by glare – whether absent finding as to glare, appellant breached duty as occupier by failing to warn of risk of tripping – whether that was an “obvious” one such that appellant did not owe any duty to warn (Civil Liability Act 2002 (NSW), ss 5F(1), 5H(1)) – whether respondent contributorily negligent – whether appellant’s failure to warn of risk caused respondent’s injuries

CRIMINAL LAW – appeal – appeal against sentence – drug related offences – manifestly excessive ground – aggregate sentence not unreasonable or plainly unjust – justifiable sense of grievance given the sentence ground – principle of parity – parity principle not applicable – utility of sentencing statistics – leave to appeal in ground 1 dismissed – leave to appeal in ground 2 dismissed after leave granted

CRIMINAL LAW – appeal – criminal trial - procedure – juries – jury invited to formulate questions for witnesses – jury given opportunity to formulate questions at the completion of evidence of each witness – questions permitted put to witnesses by Crown prosecutor – encouragement of jury to participate in inquisitorial process – trial process altered in a fundamental respect – miscarriage of justice – observations on criminal trial process – whether miscarriage of justice – appeal allowed CRIMINAL LAW – appeal – directions – juries – whether direction by trial judge encouraging questions of witnesses from a jury changed the nature of the role of the jury – whether miscarriage of justice resulted – appeal allowed CRIMINAL LAW – appeal – procedure – juries – whether establishing a process by which a jury can deliberate on questions to witnesses and then have them put changes the nature of the role of the jury – whether miscarriage of justice results – appeal allowed

SENTENCING – Crown appeal – respondent aged 42 – four counts of sexual intercourse with 14-year-old girl – other sexual offences – received aggregate sentence of 3 years and 3 months – non-parole period of 1 year and 10 months – sentencing judge erred in characterising objective seriousness of the offence as “towards the lower end of objective seriousness” – no error in finding special circumstances – error in approach to accumulation – sentence manifestly inadequate – sentencing statistics – sentencing judge misunderstood statistics – Crown could have but did not correct error – discretion to intervene not exercised – appeal dismissed.

CRIMINAL LAW – application for leave to appeal against conviction – plea of guilty – integrity of plea – circumstances which will justify setting aside a conviction following a guilty plea – whether such circumstances arose CRIMINAL LAW – application for leave to appeal against conviction – destruction of evidence – whether certain CCTV footage was supressed, concealed or destroyed CRIMINAL LAW – application for leave to appeal against conviction –entrapment – no defence of entrapment – whether integrity of guilty plea impugned

SENTENCE APPEAL – possession of methylamphetamine – courier – culpability diminished because offence committed to discharge son’s debt – procedural fairness – whether sentencing judge used a particular sentence in another case as yardstick – whether sentencing judge obliged to bring decision relied on to parties’ attention – sentencing judge only used decision to distil matters of principle- no error shown – leave granted – appeal dismissed

CORPORATIONS – liquidators – approval to enter into litigation funding agreement under (CTH) Corporations Act 2001, s 477(2B) – standing of target of funding agreement to oppose approval – construction of s 477(2B) – some prospect that funding agreement may benefit creditors – no detriment in pursuing that prospect – held, liquidator permitted to enter into funding agreement.

PRACTICE AND PROCEDURE – Preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW) Part 5 Rule 5.3(1) – where the plaintiffs have satisfied the requirement of showing they may have a claim – UNCONSCIONABILITY – Australian Consumer Law 2010 (Cth) ss 20(1), 236– whether calling on a bank guarantee without a basis can constitute unconscionable conduct – whether the plaintiffs are persons who may have suffered damage because of the defendants’ conduct.

CRIMINAL LAW – sentence – murder – single blow to the deceased’s throat with a hammer in the course of a struggle – no premeditation – intent to cause grievous bodily harm – where offender showed genuine remorse – where offender’s mental illness an operative cause of offending conduct – reduced moral culpability – reduced weight of denunciation and general deterrence – low risk of re-offending – special circumstances – low range of offending

CRIMINAL LAW – sentence – murder – stalk and intimidate – breach of apprehended violence order – murder of ex-wife’s new boyfriend – offence motivated by jealousy – obsessive behaviour connected with major depressive illness – relevance of psychiatric condition – where offender attempted suicide after killing – impact on victim’s family – death of a son – Dwight Eisenhower – general deterrence – relevance to offences committed in setting of domestic violence – victim defenceless – killed in own home – breach of bail – planning – intent to kill – multiple stab wounds – defence of substantial impairment rejected by jury – standard non-parole period – instinctive synthesis – balancing contradictory factors

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

CROSS-VESTING – loan from family trust to beneficiary’s spouse during marriage – trustee sues for debt in District Court – Family Court proceedings underway – trustee raises real question of jurisdiction of Family Court to deal with the debt to it – s 90AB of Family Law Act 1975 (Cth) considered – Family Court has jurisdiction to hear debt claim but issue not without doubt – in circumstances not appropriate to transfer – alternative steps, given real possibility of inconsistent verdicts, were to stay District Court proceedings or transfer Family Court proceedings to Supreme Court – parties to be heard further

CRIMINAL LAW – sentence – manslaughter – three possible bases for jury’s verdict – offer to plead guilty to manslaughter in the Local Court rejected by Crown – found not guilty of murder but guilty of manslaughter by jury at trial – discount applied to sentence for offer – underlying mental problems plus history of drug abuse – special circumstances found

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 the widow of the deceased and the sole executrix and beneficiary named in the Will - No application by Defendant for administration made at date of hearing – Whether grant of administration is necessary in order to deal with the Plaintiff’s application –– Virtually no actual estate – Whether the deceased’s interest in the proceeds of sale of jointly held property, or other jointly held property that passed by survivorship to the Defendant should be designated as notional estate – Property that may be designated as notional estate of large value – Significant provision made for the Plaintiff during the lifetime of the deceased - Competing financial claim advanced by the Defendant Whether family provision order should be made in favour of the Plaintiff, and if so, the nature and quantum of the provision to be made

LEGAL PROFESSION – solicitor convicted of conspiring to dishonestly cause a risk of loss to a Commonwealth entity – application in the inherent jurisdiction to remove the solicitor from the Roll – whether sentencing remarks admissible to prove underlying facts – Court satisfied of unfitness to practise

CRIMINAL – offence of assault causing death whilst intoxicated and over the age of 18 years – element of accused being “intoxicated” – direction to jury with regard to meaning of “intoxicated” with regard to alcohol

PROCEDURE – Application to vacate orders that proceedings be dismissed which were stayed when made – where Plaintiffs did not attend directions hearing and hearing of interlocutory application – where pleading embarrassing – where Plaintiffs seek to replead their case – where detriment to Defendants sufficiently addressed by an order for costs – whether order that proceedings be dismissed should be vacated – whether Statement of Claim should be struck out PRODEDURE – Costs – Departing from the general rule – whether Plaintiffs should pay costs thrown away by striking out of Statement of Claim and costs of hearings they did not attend on an indemnity basis – whether order should be made as to costs of Defendants’ application that proceedings be dismissed – whether costs should be payable forthwith – whether costs should be payable on a gross sum basis

REPRESENTATIVE PROCEEDINGS – competing class actions – Queensland Flood – first class action commenced in 2014 – second class action commenced just prior to expiry of limitation period – first class action already set down for trial – overlapping group members – plaintiff in first action applied to strike out part of group definition in second action – maintenance of overlapping groups creates conflict of duty for legal representatives – inhibits progress of proceedings and likelihood of settlement – parts of group definition that create overlap struck out – leave to amend group definition in second action otherwise refused

NEGLIGENCE – medical negligence – where plaintiff with Noonan Syndrome rendered paraplegic in surgery to correct spinal deformity and associated respiratory difficulties – where plaintiff’s intraoperative condition deteriorated significantly – where operation halted but not before the plaintiff suffered a spinal stroke that led to paraplegia – whether operation should have been abandoned before this occurred – whether reasonable to continue with operation having regard to plaintiff’s pre-operative condition – whether operation should have been abandoned when spinal monitoring became ineffective following administration of vecuronium to assist ventilation

CONVEYANCING – conditional call option – nature of optionee’s interest under call option – where purchaser of land grants option to third party prior to the purchaser acquiring legal title to the land – whether third party optionee acquires equitable interest in land before purchaser completes contract EQUITY – priority and notice – competing equitable interests in land – test for resolution of priority – whether merits equal – whether conduct not leading to the creation or acquisition of a later equitable interest but only to a failure to protect existing contractual rights in respect of land qualifies as disentitling conduct where such rights would, if exercised, have led to the creation of an equitable interest in that land prior in time to the competing interest – whether conditions can be attached to declaration as to priority EVIDENCE – Jones v Dunkel inference – whether evidence supported drawing of Jones v Dunkel inference – whether findings were open on evidence without need for drawing a Jones v Dunkel inference ADMINISTRATIVE LAW – procedural fairness – whether findings by primary judge that party acted “surreptitiously”, “stealthily”, and engaged in “sharp practice” amounted to a denial of procedural fairness EQUITY – relief against penalties – whether impugned stipulation out of all proportion to loss that might be suffered on happening of insolvency event – time at which penal nature of a non-monetary stipulation is to be assessed EQUITY – relief against forfeiture – whether adequate compensation available on happening of insolvency event such as to warrant relief against forfeiture of property

CRIMINAL LAW – appeal – offence of cultivation of not less than the commercial quantity of a prohibited plant (cannabis) – enhanced means of cultivation – whether sentencing judge erred in determination of objective seriousness of offence leading to manifest excess – whether sentencing judge erred in finding of readiness to supply – whether sentencing judge erred in failing to take account applicant’s background – HELD –appeal dismissed