Cases and authorities

CRIMINAL LAW – terrorism trial – application for suppression orders – application granted

CORONERS – Application for an order quashing coronial inquest into death and ordering fresh inquest - Where juvenile killed whilst riding bicycle – Where Coroner found that police were not in pursuit – Whether finding open – Whether Coroner correctly interpreted provisions of relevant policy – Whether Coroner’s inquiry sufficient

CONFLICT OF LAWS – choice of law – stay of proceedings – whether proceedings should be stayed on forum non conveniens grounds CONTRACTS – interpretation and construction – exclusive jurisdiction clause – whether clause conveys exclusive jurisdiction on the courts of Delaware – whether jurisdiction clause covers alleged breaches of s 18 of the ACL

APPEAL – challenge to orders made by consent – leave required pursuant to Supreme Court Act 1970 (NSW), s 101(2)(c) – challenge to refusal by trial judge to reopen orders made by consent – whether order interlocutory – whether leave required pursuant to Supreme Court Act 1970 (NSW), s 101(2)(e) – whether appeal lodged without leave incompetent – whether notice of motion in appeal incompetent JUDGMENT AND ORDERS – orders made by consent – request by successful party to trial judge to refer papers to Attorney General to investigate prosecution of unsuccessful defendant – request refused by trial judge – whether consent vitiated by failure to seek referral before judgment entered – whether request for referral justified

TAX AND DUTIES – income tax and related legislation – Taxation Administration Act 1953 (Cth) – where company fails to remit tax withheld from employees to Commissioner of Taxation – where penalty imposed on appellant as director – whether appellant was appointed or acted as director – whether illness or some other good reason made it unreasonable to expect appellant to take part in the management of the company – whether unamended form of s 269-30 applied to remit appellant’s liability EVIDENCE – admissibility – hearsay rule – where ASIC decision and reasons for disqualifying director from managing companies admitted over separate and erroneous objection – whether business records exception applied STATUTES – acts of parliament – where conditions for remission of liability not satisfied before amendment – whether presumption against retrospectivity engaged – whether meaning of provision governing application of amended form of s 269-30 is clear and unambiguous

APPEAL – costs – no issue of principle

CRIMINAL LAW – Crown appeal against sentence – one count of causing grievous bodily harm with intent – whether offence fell into worst category – whether error in finding of objective seriousness in high range – whether sentence manifestly inadequate – life threatening injuries inflicted on 7 month old with consequent severe disabilities – need for general deterrence – sentence manifestly inadequate – whether residual discretion should be exercised – re-sentence

SENTENCING – CROWN APPEAL – Respondent sexually abused his 4-year-old daughter – three offences – District Court imposed aggregate sentence of 7 years imprisonment with a non‑parole period of 4 years and 6 months – Respondent provided information to prosecuting authorities in relation to a conspiracy to murder six years prior to abusing his daughter – received financial reward – sentencing judge afforded discount of 15% under s 23 of the Crimes (Sentencing Procedure) Act 1999 –interpretation, scope and purpose of s 23 – assistance to authorities provided by Respondent fell within s 23(1) of Sentencing Act – found sentencing judge erred in failing to consider whether the absence of any relationship between the offending the subject of the assistance and the offences committed by the Respondent warranted the grant of any discount on account of assistance – found that discount for assistance was unreasonable – whether sentencing judge erred in assessing objective seriousness of one of the sexual assault offences – whether sentencing judge erred in not finding that one of the sexual assault offences was aggravated by a breach of trust – error established in failure to find offence was aggravated by a breach of trust but not in relation to characterisation of sexual assault offence – whether aggregate sentence was manifestly inadequate – sentence manifestly inadequate because of discount for assistance and relationship between indicative sentences and aggregate sentence – residual discretion not to intervene not exercised – Respondent resentenced – aggregate sentence of 9 years imprisonment with non-parole period of 6 years imposed.

CRIMINAL LAW - appeal against sentence - use a carriage service to access child pornography - possess child abuse material and like offence taken into account on Form 1 - whether an inadequate discount was applied - whether the objective criminality was properly assessed - whether an Intensive Corrections Order should have been considered - whether the sentence was manifestly excessive - leave to appeal granted - appeal dismissed

CORPORATIONS — Dissolution — Reinstatement — Application to reinstate company under Corporations Act 2001 (Cth) s 601AH(2) – where Plaintiffs intend to bring a derivative action on behalf of the deregistered company – where leave to bring an improperly formulated derivative action unlikely to be granted – where company apparently insolvent with no consent to appointment of liquidator obtained.

Trust and trustees – judicial advice – to enter into litigation funding agreement – no question of principle

PROCEEDS OF CRIME – forfeiture order – no question of principle

PRACTICE AND PROCEDURE - application for stay of orders of single Judge pending appeal - Judge refused Applicant leave to file amended pleading and made associated orders - Applicant has filed Notice of Intention to Appeal only - no grounds of appeal identified - stay refused

PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - order for possession - writ of execution issued - application by tenant for stay of execution - health issues - short-term stay granted

CRIMINAL – application by the Crown to cross-examine witness – whether witness making a genuine effort to give evidence – application granted

LANDLORD AND TENANT – Termination of a residential tenancy – expiring injunction – injunction restrains landlord from acting on decision of NCAT to allow re- entry to residential premises - parties not legally represented - priority in the administration of justice for final resolution of dispute and reduction of future disputation - potential for consent to be reached about final disposition of proceedings - rental arrears paid and payment made in advance – parties agree on form of consent orders - consent orders uncertain and inappropriate in form – parties agree on final date of occupation of premises.

PROCEDURE – Civil proceedings in State and Territory courts – Procedural aspects of evidence – Other matters – Application to access documents on court file in different proceedings – Where registrar rejected application – Application for review of registrar’s decision – Principles relevant to application to access court file in different proceedings – Application of Uniform Civil Procedure Rules r 33.13 and Practice Note SC Gen 2 – Meaning of ‘parties’ in Practice Note SC Gen 2.

CONTRACTS – construction and interpretation of fee deed – whether language of deed ambiguous – whether defendants’ entitlement to an incentive required conduct of a physical stock take – use of text, context and purpose – where one construction would lead to commercial absurdity

FAMILY LAW - Adoption - Application for declaration of paternity of child - Application for orders dispensing with consent of birth parents - Application for adoption - Application for approval of change of last name of child - Whether name change is in child's best interests

WILLS - testamentary capacity - deceased makes wills in 2006 and 2011 – plaintiff seeks probate of 2006 will - defendants/cross-claimants seek probate of 2011 will – 2011 will made through a newly admitted solicitor – deceased had several mental and physical disabilities – deceased temporarily discharged from hospital to give instructions for 2011 will – solicitor not made aware of all the deceased’s disabilities- whether deceased had testamentary capacity at time of the making of the 2011 will.

HIGH RISK SEX OFFENDER – application for Continuing Detention Order followed by Extended Supervision Order – defendant diagnosed with paraphilia – little chance of control without anti-libidinal medication – defendant agrees to undertake such medication program – time required to stabilise and test such medication – Continuing Detention Order granted for period sufficient for such stabilising and testing to occur – thereafter Extended Supervision Order for 5 year period issued.

CIVIL PROCEDURE — Notices to produce — Before hearing — Relevant to a fact in issue – Application to set aside notice to produce – where notice to produce unnecessary to prove facts in issue and relevant only to allegations that have not been made

PRACTICE AND PROCEDURE – leave to file Amended Statement of Cross-Claim – introduction of new issue at a late stage – no actual prejudice shown – interests of justice require amendment to be permitted

Interlocutory application – serious question to be tried – balance of convenience – restraint of trade – misuse of confidential information – inducement of breach of contract.

PRACTICE AND PROCEDURE - application by judgment creditor for order under s.135 Civil Procedure Act 2005 for Sheriff to enter property of judgment debtor to take possession of goods under writ of execution - requirements under s.135 and Rule 39.52 Uniform Civil Procedure Rules 2005 satisfied - order made

ADMINISTRATIVE LAW – judicial review – reasons for grant of orders – decision of proper officer of Motor Accidents Authority/State Insurance Regulatory Authority – additional relevant information – refusal to address statement – denial of procedural fairness – decision based on no probative material – error of law

COSTS – Whether gross sum costs order should be made – Whether should be payable forthwith and proceedings stayed pending payment – No issue of principle

DEFAMATION – allegation that Councillor not fit and proper person – imputation held to be fact not comment – defamatory – sufficiently specific – defendant liable for republication of statement to journalist – damages awarded

BAIL – show cause – whether unacceptable risks – bail granted - conditions imposed

CRIMINAL LAW – Offences – Sentence – Making documents connected with preparation for a terrorist act knowing of the connection – Where documents which were partly compiled by the offender set out a plan to attack two specifically identified targets – Offender aged 18 at the time and aged 21 at the time of sentence – Plea of guilty – Where plea was evidence of some contrition – Need for any sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence. CRIMINAL LAW – Practice and procedure – Where report from psychologist tendered on behalf of the offender on sentence – Report contained statements made by the offender to the psychologist regarding the circumstances of the offending and the renunciation of his extremist beliefs – Where offender did not give sworn evidence – Limited weight given to hearsay statements and opinions of psychologist based on those statements in the absence of sworn evidence from the offender – Where the plea of guilty and the offender’s expressed desire to enrol in a remedial program could be taken as some cautious indication of a move away from previously held extremist beliefs

INJURIOUS FALSEHOOD – pleadings – where plaintiff pleads only hearsay version of offending email – whether precluded from pleading claim until application for preliminary discovery made – whether representations capable of being conveyed

DEFAMATION – pleadings – identification – where plaintiff not named in the matter complained of – whether adequate particulars of identification given DEFAMATION – imputations – objections as to form and capacity – whether allegations of corruption capable of being understood from the matter complained of – whether attribution of engaging in corrupt conduct can be levelled at a company as opposed to its officers

DEFAMATION – pleadings – rulings as to form and capacity of imputations – consideration of adequacy of particulars of identification

EQUITY – maxims – “he who seeks equity must do equity” – purchase of property in breach of fiduciary duty – proprietary relief – tracing – account of profits – equitable compensation

PROCEDURE – application to vacate hearing date – where Supreme Court of another State recently published a decision concerning the proper construction of the relevant legislation – Commissioner intending to appeal against that decision – where multiple proceedings concerning the same legislation awaiting hearing – factors to be taken into account in determining whether to vacate a hearing date – principle that the Court should deal with the law as it is rather than speculate about changes in the law

APPEAL – appeal against Local Court decision - whether primary judge erred in law by misconstruing the nature and effect of pleading admissions and non-admissions – error found – whether primary judge erred in law by ruling that business records were inadmissible – error found – appeal upheld – remittal to Local Court

CONTRACT – indemnity by defendant to plaintiff for loss suffered as a result of claim made by owners corporation under residential building insurance policy – proper construction of indemnity – whether condition precedent to liability established – whether plaintiff issued policy of the kind referred to in indemnity – whether plaintiff was obliged to indemnify owners corporation for loss now claimed against defendant; BUILDING AND CONSTRUCTION – whether defects in residential building were structural defects – whether defects complained of by owners corporation were in a structural element – whether defects were structural defects that were likely to result in physical damage to any part of the building – proper construction of reg 57AC of Home Building Regulation

CRIMINAL LAW – sentence – one count of murder – offender a doctor – injected his wife with a fatal dose of insulin – vulnerable victim – extreme breach of trust – criteria for life sentence not established – offence above midrange – subjective circumstances (offender’s health and age) provide some mitigation of penalty – good character – no guilty plea – offender maintains his innocence – no basis for a finding of special circumstances – need for general deterrence and recognition of harm caused.

CONTRACT – consortium agreement – construction – performance bond – condition precedent to beneficiary’s entitlement to call on bond – whether beneficiary agreed not to call on bond unless it was called on to pay bond given by it to head contractor – whether interlocutory injunction restraining beneficiary from calling on bond should be continued

CORPORATIONS – external administration – application to approve the remuneration of special purpose receivers for work already performed – where earlier orders of the Court appointing special purpose receivers deferred approval of remuneration – where special purpose receivership involves conduct of three sets of proceedings in Supreme Court of Victoria involving claims in excess of $100 million – whether remuneration is a fair and reasonable reward for work done in the due course of administration – where remuneration calculated on a time charged basis – where remuneration based on percentage of recoveries not appropriate – where committee of inspection approved the remuneration – where ASIC does not appear to make submissions after being given notice of the application.

CORPORATIONS – external administration – application to recover monies paid to creditor pursuant to a purported voidable transaction within the meaning of Corporations Act, s 588FE – whether payment to creditor voidable as unfair preference and insolvent transaction within meaning of Corporations Act, ss 588FA and 588FC – where presumption of insolvency under s 588E(4) on basis that company failed to keep adequate books and records not available because liquidator’s claim not against a related entity of the company – whether plaintiff established on balance of probabilities that transaction was made at a time when the company was insolvent.

CORPORATIONS – external administration – application to convert deemed creditors’ voluntary winding up to a court ordered winding up in insolvency – whether appropriate to exercise discretion to order winding up in insolvency under Corporations Act, s 459A – where claim under Corporations Act, s 588FJ only available to liquidators appointed pursuant to a court ordered winding up – whether a rational possibility that a s 588FJ claim might result in potential benefits for the general body of creditors – whether appropriate for the Court to apply a higher standard of satisfaction as to the potential benefits to creditors as if on a summary dismissal application – whether court should decide legal arguments – where contestable issues of fact and construction of legislation and security deed.

COSTS – set-off – whether plaintiff (tenant) is entitled to set off its rent obligations to defendant (landlord) under a lease against costs awarded to plaintiff in court proceedings – whether set-off would be inequitable – whether defendant’s conduct was unreasonable so as to justify an order that defendant pay plaintiff’s costs

CRIMINAL LAW – high risk offenders – application for interim extension order - high risk sex offender – sexual intercourse with child under the age of 10 – victim was daughter of offender – prior offending including property and violence offences – one prior sex offence – offender assessed as high risk of further sexual offending – whether offender an unacceptable risk of committing a serious sex offence – offender conceded that interim order was appropriate – parties agreed on conditions of order – conditions found to be appropriate

ADMINISTRATIVE LAW – judicial review – grounds for review – assessment by CARS assessor under Motor Accidents Compensation Act – application by insurer for exemption from assessment – allegation of false or misleading statement in a material particular in relation to injuries – claimant asserted injuries to back and left shoulder in accident - statements made by claimant to various doctors of no previous injuries to back and left shoulder – statements asserted to be false or misleading by reason of physiotherapy records – whether assessor asked and answered the correct question – whether claim not suitable for assessment in CARS – whether assessor constructively failed to exercise her jurisdiction – whether adequate reasons – significance of procedure for assessment at CARS – whether evidence should be given in court on oath and subject to cross-examination – error demonstrated – decision quashed – matter returned to State Insurance Regulatory Authority to be determined in accordance with law

ADMINISTRATIVE LAW – judicial review – grounds of review – assessment conference under Motor Accidents Compensation Act 1999 – assessment of residual earning capacity – claimant asserted no capacity – claimant in receipt of carer’s allowance for care of elderly mother – whether payment of allowance showed residual earning capacity – direction sought by insurer after assessment conference for authority to claimant to obtain application for carer’s allowance – assessor did not respond to request – finding of no residual earning capacity – evidence to support finding - whether procedural fairness denied – whether assessor constructively failed to exercise jurisdiction – whether practical injustice where carer’s allowance required to be repaid to Centrelink in any event – summons by insurer dismissed

PROCEDURE - Vexatious Proceedings Act 2008 (NSW) – orders sought opposed – whether the Council met the onus of establishing that Mr Stankovic has frequently instituted or conducted vexatious proceedings – established – whether Court’s discretion to make orders should be exercised – form of orders – orders made – costs

EVIDENCE – subpoena for production of documents – whether subpoena should be set aside – whether documents subject of subpoena are privileged – whether privilege lost because of knowing and voluntary disclosure – whether party claiming privilege acted in a way inconsistent with the maintenance of the privilege PRACTICE AND PROCEDURE – discovery and interrogatories – disclosure of documents – access to documents produced on subpoena

APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would be unduly oppressive to the respondent – leave to appeal refused APPEAL – application for leave to appeal – appeal from interlocutory judgment – issue of principle raised – where a grant of leave would result in a disproportionate burden on the resources of appellate and trial courts – leave to appeal refused DEFAMATION – practice and procedure – parties – joinder of parties where leave under s 23 of the Defamation Act 2005 (NSW) applies – interplay between s 23 of the Defamation Act and continuing internet publications – leave to appeal refused

APPEAL – leave to appeal – wrongful arrest and false imprisonment – construction and application of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – construction and application of s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether arrest reasonably necessary – whether it was reasonably practicable for the arresting officers to inform the arrested person of the reason for his arrest at the time of the arrest – whether the arrest was prospectively validated – whether non-compliance with s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was technical – whether damages excessive – inadequate reasons for damages – where a new trial would be a misuse of public and private resources – where outcome modest – where applicant’s complaints stem from the way in which it conducted its case at trial – application for leave to appeal dismissed