Cases and authorities

PROCEDURE – disclosure – interlocutory orders – where leave sought to rely on affidavit evidence sworn and served in response to disclosure orders – where grant of leave not opposed – whether imposition of conditions on grant of leave appropriate – whether grant of leave should be made nunc pro tunc.

BAIL – federal offences – applicant charged in January 2016 with attempting to possess border controlled drug, namely methyl amphetamine – granted bail and complied with bail conditions – charged in June 2016 with attempting to possess a greater amount of methyl amphetamine arising out of the same events – bail refused – charges reformulated – no relevant prior criminal record – vulnerable family – proposed electronic monitoring at his own cost– Australian Federal Police assert do not have resources to monitor data from electronic monitoring company – time to trial in excess of 12 months – cause shown – risk of non‑appearance and commission of further offence reduced below unacceptable level by strict conditions – bail granted

TRADE PRACTICES – misleading or deceptive conduct – whether representations made – whether reliance – unconscionable conduct – s 51AC Trade Practices Act 1974 (Cth) – RETAIL LEASES – unconscionable conduct – s 62B Retail Leases Act 1994 (NSW) – claim for compensation – s 34(1)(b) Retail Leases Act 1994 (NSW)

PRACTICE – Further evidence – Application for leave to file further evidence relevant to interlocutory decision – Where further evidence would not change the court’s decision even if admitted. COSTS – Security for costs order sought by cross defendants – Quantum. PRACTICE – Application to vary substantive interlocutory order – Where it was decided in principle in previous judgment that security for costs should be awarded to cross defendants – Where there was no material change of circumstances or discovery of new material that was not reasonably available at the original hearing. EQUITABLE REMEDIES – Interlocutory injunction – Where plaintiff claims to be rightful owner of business owned by defendant – Whether interlocutory injunction may be ordered to prevent defendant from engaging in conduct that enhances the value of the business in its own hands but would reduce the value of the business in the plaintiff’s hands.

SUCCESSION – Administration of estate – Assets – Other cases – Whether asset in estate was held on constructive trust for beneficiary. SUCCESSION – Administration of estate – Whether executor derelict in his duties under the grant of probate. CONVEYANCING – Sales by court order or direction – Whether court should make an order appointing a trustee for sale – Where property held by tenants in common – Where an order appointing a trustee for sale would be more expensive than other suggested options.

PROCEDURE – whether declaratory relief to reflect limited success on the cross-claim should be granted – COSTS – where each party had limited success – where each party opposed each of the issues advanced – each party to pay their own costs – COSTS – Attorney-General entitled to costs as a necessary party in a charitable trust case

CRIMINAL LAW – sentence – murder – recklessly destroy property by fire – two counts of discharging a firearm to avoid apprehension – separate criminality of the offences – father and son – working as labourers on rural properties – developed sense of grievance against various employers – arson of sheds and farming equipment out of vengeance for perceived wrongs – no intent to cause personal injury by fire -deterioration in relationship with property manager on a separate property – apprehension by offenders that they would be put off the property – older offender shoots and kills manager at younger offender’s instigation – two subsequent police pursuits – offenders fire at police vehicles with high-powered rifle – no intent to injure or harm police officers – no remorse shown except for arson offence – no drug, alcohol or mental health issues – development of anti-authority belief system - significance of general and specific deterrence for offences concerned – special circumstances for older offender by reason of his age and the length of sentence

COSTS – application for an interlocutory injunction – application for summary dismissal – whether the costs of the applications should be costs in the cause – no question of principle

COSTS – whether indemnity costs should be awarded – whether offers of compromise were made – whether Court should otherwise order (UCPR r 42.15A)

PARTNERSHIPS AND JOINT VENTURES — Partnerships — Terms of partnership agreement — Partnership agreement not in writing — One partner unavailable to give evidence due to mental incapacity — Need to assess evidence as a whole — Evidence of conversations viewed in context — Terms of partnership inferred from course of dealing. PERSONAL PROPERTY— Ownership of property used by a partnership — Extent of legal and beneficial interest in property contributed to partnership — Property acquired using resources of the partnership — Property forms part of partnership property.

CRIMIAL LAW – sentence – accessory before the fact to murder

CRIMINAL LAW – murder – trial by judge alone CRIMINAL LAW – wounding with intent to cause grievous bodily harm – trial by judge alone CRIMINAL LAW – defence of substantial impairment by abnormality of mind – depression – whether capacity to control self substantially impaired – whether impairment so substantial so as to warrant reduction of liability from murder to manslaughter CRIMINAL LAW – murder – whether intent to kill or intent to inflict grievous bodily harm

PROCEDURAL – application to amend Summons Seeking Leave to Appeal – constitutional law issue raised – where prosecution of appeal not delayed

CRIMINAL LAW – sentence appeal – one count of knowingly taking part in supply of not less than the large commercial quantity of ephedrine – whether financial reward and planning could be taken into account as substantial aggravating factors – whether marked disparity with co-offender’s sentence – whether justifiable sense of grievance – whether sentence should be reduced

CRIMINAL LAW – CONVICTION APPEAL – attempted murder – 30 shots fired through a closed door of a suburban house – female occupant seriously injured – whether intent to murder proved beyond reasonable doubt – whether reasonable possibility of shots having been fired recklessly excluded by the Crown – point not taken at trial – verdict not unreasonable and supported by the evidence – conviction appeal dismissed – SENTENCE APPEAL – whether sentencing judge erred in not taking account of the risk of institutionalisation – risk of institutionalisation not raised in sentence proceedings – whether error in characterising the objective seriousness of offence as being in the worst case category – whether totality principle properly applied – whether sentence manifestly excessive – leave to appeal against sentence granted but appeal dismissed.

CRIMINAL LAW – sentence appeal – one charge of supply a firearm to an unauthorised person – two charges of supply a commercial quantity of a prohibited drug – other offences on a Form 1 – comprehensive analysis by sentencing judge of extent of planning, role, financial gain, motivation, quantity and purity of prohibited drug – applicant did not give evidence in sentence proceedings – subjective history provided by psychologist – whether sentence imposed was manifestly excessive – all relevant sentencing issues considered by sentencing judge – criminality of offending substantial – limited value of statistics – sentence stern but not excessive – leave to appeal against sentence granted but appeal dismissed.

EQUITY – relief against forfeiture – hearing eight months after termination – discretionary considerations – claim dismissed PRACTICE & PROCEDURE – non-appearance of plaintiff – unmeritorious claim – discretionary considerations – cross claim – judgment against absent plaintiff

JUDICIAL REVIEW – Assessment under Motor Accidents Compensation Act 1999 – awarding of buffer for past economic loss – whether compliance with s 126(3) – award of amount for future economic loss – whether compliance with s 126(3) – error of law on face of record established – assessment certificate set aside

Costs – Indemnity costs – Whether indemnity costs order should be made against defendant – Where defendant was a self-represented litigant with limited grasp of the English language – Where defendant failed to appear in court – Where defendant failed to challenge plaintiff’s evidence – Where defendant failed to comply with court orders.

GUARANTEE AND INDEMNITY – Rights of surety – Against co-surety – Contribution – No general equitable jurisdiction to adjust rights to contribution to reflect culpability or responsibility for debt

ADMINISTRATIVE LAW – judicial review – where decision of State Parole Authority – where decision of Commissioner for Corrective Services – where certiorari sought – whether the Commissioner for Corrective Services acted in bad faith and for an improper purpose – whether a failure to consider relevant considerations – whether consideration of irrelevant considerations – whether failure to provide reasons – whether an incorrect test was applied – whether there was insufficient evidence to support the outcome – further amended summons dismissed

CRIMINAL LAW - murder trial - sick and absent juror - Crown application to discharge juror opposed by defence - whether juror should be discharged with trial to proceed with jury of 11 - trial well advanced and ahead of schedule - absent juror not discharged

PRACTICE AND PROCEDURE – summons – application to file further amended summons – whether defendants would be unfairly prejudiced if the amendment were allowed and no adjournment granted

CIVIL – PROCEDURE – personal injury proceedings – application to file and serve further pleadings – leave granted to file and serve second further amended statement of claim – application in relation to previously agreed timetabling orders with regard to expert evidence – notice of motion dismissed

NEGLIGENCE – failure to keep proper lookout – failure to take reasonable steps to prevent foreseeable injury – erection of pile driver – tensile failure of auxiliary cable under 28 tonnes of load – failure to react to perceived tension – significant injuries – pile driving company liable in negligence – employer not liable – no contributory negligence – principles for the assessment of damage and calculations determined.

COSTS – general rule – costs should follow the event – whether unjust for unsuccessful respondent to bear costs of proceedings where court reaches conclusion on basis of reasoning not on all fours with argument run at first instance COSTS – indemnity costs – Calderbank offer in first instance proceedings – where rejection or non-acceptance of offer not unreasonable – offer of compromise in relation to appeal – element of compromise in relation to costs – overall, offer comprised in offer of compromise no less favourable to appellant than outcome of appeal COSTS – interest on moneys paid to respondent in respect of judgment at first instance – case more closely approximates one where claim for pre-judgment interest

PROCEDURE – parties and representation – legal representation – application pursuant to r 7.29 of the Uniform Civil Procedure Rules 2005 (NSW) by solicitor for leave to withdraw from and cease to act in proceedings on basis of perceived conflict – application dismissed

PROCEDURE – judgments and orders – enforcement of judgment and orders – where proceedings stayed pending High Court special leave application – where applicant for stay failed to file an application for special leave expeditiously – whether stay should be lifted – stay lifted.

CRIMINAL LAW – appeal against severity of sentence – supply of a large commercial quantity of a prohibited drug - “Muldrock error” – error in assessment of a sentence where a standard non-parole period applies – ground of appeal allowed – assessment of objective seriousness of offence – relevance of delay - whether lesser sentence warranted - applicant re-sentenced

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – whether trial miscarried by reason of prosecutor’s submissions to jury about lack of consent, and knowledge thereof – whether conviction unreasonable or unable to be supported on the evidence – appeal dismissed

PROCEDURE – Application to be joined as defendant to proceedings – where Plaintiff does not seek to bring proceedings against Applicant – whether Applicant is a proper or necessary party to proceedings PROCEDURE – Application for leave to discontinue proceedings – where Defendant is being wound up and unable to meet a judgment – where leave to continue proceedings against the Defendant would be refused

CORPORATIONS – Management and administration – Authority, rights and powers of officers of corporation – Application by director to represent a company in proceedings while it is being wound up – where director thereby seeks to vindicate his personal reputation – whether it is in the interests of the company or the director, or the interests of justice, to make the orders sought.

PLEADINGS – no question of principle

DECLARATION – Menacing dog – Where defendant made declaration prior to allowing the plaintiff the full prescribed statutory period in which to make submissions – Declaration declared invalid

STAY OF PROCEEDINGS – whether relief short of a permanent stay sufficient to ensure a fair trial – whether adequate reasons provided – whether coercive provisions under one Act can be used to obtain evidence for the prosecution of criminal offences under a different Act – whether weighing process undertaken to balance requirements of fairness to accused with legitimate public interest

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 is 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 real property under terms of the Will - No 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

DAMAGES – plaintiff under incapacity – compromise of component of damages representing costs of fund management – component relatively small and supported by evidence – compromise approved

COSTS – Bullock order – whether Bullock order should be made in respect of costs of proceedings in Dust Diseases Tribunal below – whether Bullock order should be made in respect of costs of appeal – whether reasonable to join both defendants in cross-claim in proceedings below – importance of evidence of conduct of parties in Dust Diseases Tribunal below

APPEAL – application for leave - where applicant sought damages for wrongful arrest and false imprisonment – where respondent asserted arrest lawful by reason of s 50 of Bail Act 1978 (NSW) – where applicant sought to rely on new point of unlawful apprehension after evidence had been led alleging that respondent failed to satisfy onus to prove “effectual” exercise of discretion conferred by s 50 – where issue of discretion first raised in applicant’s supplementary submission – whether primary judge erred in holding that applicant not permitted to rely on submission – Uniform Civil Procedure Rules 2005 (NSW) r 14.14 – party’s obligation to plead any matter which may take other party by surprise – Civil Procedure Act 2010 (NSW), s 56(3)

CONTRACT – interpretation – text, structure and purpose of commercial contract – relevance of headings – relevance of retrospectant evidence INSURANCE – reinsurance – “back-to-back” presumption – whether presumption that reinsurance is back to back with underlying insurance displaced – whether clause in contract was a condition of or exclusion from the reinsurance cover, or a qualification on limits within which reinsurer was obliged to follow insurer's settlement decisions

EQUITY – usual undertaking as to damages – where, but for an injunction obtained by the appellants, the respondents would have earned rental from leasing out strata units – where unrealised capital value of the strata units increased during the period of the injunction by more than the lost rent – whether respondents’ compensation falls to be reduced by the unrealised capital gain

CONTRACTS – action to recover price of coal sold and delivered – no question of principle – INTEREST – where judgment sought in another currency – whether to calculate interest at the rate applicable to the currency of the judgment

PRACTICE AND PROEDURE – application for leave to vacate hearing date – where party has initiated corporate insolvency resolution process under the Insolvency and Bankruptcy Code of India - where party will be absent – Rule 29.7 Uniform Civil Procedure Rules – application dismissed

CONTEMPT – criminal contempt – contumacious non-compliance with Court orders – where plaintiff’s communication with defendant restricted by order of the Court – where plaintiff knowingly and repeatedly breached that order – breaches involved gratuitous abuse and serious harassment. CONTEMPT – criminal contempt – where alleged contemnor not present in Court – where absence due to alleged contemnor’s own choice – hearing of contempt charge to proceed in alleged contemnor’s absence – ex parte hearing preferable to issuing bench warrant for arrest – hearing as to penalty deferred until pre-sentence report obtained.

PROCEDURE – orders by consent – final injunctive relief – where invalid security interests caused to be registered on the Personal Property Securities Register – where invalid appointment as ‘managing controller’ of plaintiff companies procured.

FREEZING ORDER – whether good arguable case that first defendant misappropriated stock and now selling that stock to plaintiff’s customers – whether freezing order should be continued

CONTRACT – Breach of contract where no damage is established – appropriateness of making a declaration of breach – assessment of nominal damages.

COMMERCIAL ARBITRATION – arbitrator dismissed claim – arbitrator ordered defendant to pay costs of the arbitration including arbitrator’s fees – whether necessary to bring these proceedings to compel defendant to pay those fees – whether any utility in these proceedings

CRIMINAL LAW – Practice and procedure – Juries – Request by jury for copies of trial transcript, final addresses of both counsel and the summing up of the trial judge – Whether request should be met.

HIGH RISK SEX OFFENDER – preliminary hearing –defendant sentenced to imprisonment in relation to multiple sexual assaults on two adult women in 2007 – orders sought largely not opposed, save for curfew and wording of certain conditions