Cases and authorities

DEFAMATION – interrogatories – Assaf v Skalkos or “reaction” interrogatories – whether necessary – unlikelihood that answers would usefully inform the assessment of damages

DEFAMATION – publication – where Attorney General participated by telephone in an interview on live radio – where Attorney’s contribution anodyne – whether open to hold her liable as a publisher of the whole broadcast including words spoken before she joined the programme – whether falling within the principles stated in Webb v Bloch DEFAMATION – pleadings – form of imputations – undesirability of rhetorical flourish

CRIMINAL LAW – evidence – hearsay – when led to put other conversations in context – self-defence – where accused the victim of an earlier assault – whether conversation reminding him of the earlier assault is relevant to self-defence – prosecutor’s duty to call relevant witnesses – admirably fair approach taken by Crown Prosecutor.

CORPORATIONS – external administration – winding up – termination of winding up – factors informing court’s discretion – whether state of affairs that caused winding up no longer exists – whether evidence of solvency – whether steps to capitalise director’s contributions to the company should be taken before terminating the winding up.

PRACTICE AND PROCEDURE – disclosure – Practice Note SC Eq 11 - disclosure sought before service of all evidence – whether plaintiff has established exceptional circumstances necessitating disclosure – where disclosure is required in order to brief an expert valuer

DEFAMATION – imputations – requirement of precision – pleading alleging that the matter complained of attributes the plaintiff with being an evil man who is “probably related to Satan” – whether capable of being understood literally – whether ordinary reasonable reader could take Satan to be “in fact” the progenitor of all evil – requirement that an imputation be capable of being literally true

COSTS – proceedings settled – orders agreed to dispose of the proceedings – no agreement about costs of the proceedings – whether plaintiff should have its costs – whether defendant capitulated – whether plaintiff almost certain to succeed

REAL PROPERTY – possession of land – application to stay writ – prospective exchange of contracts by defendants to sell subject land – second application on the same basis – exchange dependent upon purchasers obtaining satisfactory valuation – no basis for further stay

CRIMINAL LAW – Practice and procedure – Juries – Where there was evidence that a jury member had discussed the trial with his partner who was a solicitor – Where partner then sought to initiate discussion with a Crown Prosecutor concerning aspects of the trial about which she had been informed by that juror – Where the jury had been repeatedly directed not to discuss the case – Juror discharged

WILLS – Construction – Right of residency conditional upon payment of expenses and continuing use as principal place of residence SUCCESSION – Family Provision – Claim for relief under Family Provision Act 1982 NSW – Application for extension of time within which to apply – Modest relief granted

INSURANCE LAW – EQUITY – ESTOPPEL – Where insurance policies covered the insured for amounts it became legally liable to pay by way of compensation or damages to a third party – Where insured was sued in arbitral proceedings for damages for breach of contract and misleading or deceptive conduct – where insured entered into a “cap and collar” arrangement with the third party under which the third party would be paid an amount dependent on the outcome of the arbitral award – whether the arrangement constituted a settlement establishing liability to the third party and quantum for the purposes of the policies – Construction of policies – Meaning of Property Damage, Occurrence and Product – Whether policies responded to the third party’s claim – Indemnity for defence costs – Whether policies responded to the insured’s claim for costs of defending the arbitration – Whether insurer agreed or is estopped from denying indemnity for defence costs – Damages – Whether insured would be entitled to its full defence costs as opposed to only reasonable costs in face of insurer’s denial of indemnity – Defence of failure to comply with giving of notice condition where English law governs such defence – HELD – Cap and collar arrangement did not establish liability or quantum – Policies did not respond to third party’s claim – Policies do not respond to claim for defence costs – Agreement or estoppel to pay defence costs not made out – If insured was entitled to damages they would not exceed reasonable defence costs – Late notification defence established.

CRIMINAL LAW – serious sex offender – whether defendant a high risk sex offender – whether high risk sex offender extended supervision order should be made

PRACTICE AND PROCEDURE – interlocutory injunction against former employee – restraint of trade – confidential information – whether serious question to be tried – whether restraint of trade applied to competing with close business partner of former employer – relevance of undertakings accepted by the Court – balance of convenience

EASEMENTS – plaintiff seeks order compelling defendants to execute a development application (“DA”) to construct driveway – plaintiff’s property has no vehicular access – plaintiff’s property includes strip of land to street – plaintiff’s property has right of carriageway over abutting strip owned by first defendant – land steep – plaintiff seeks to construct elevated driveway – form of orders necessary to give effect to entitlement to relief – necessity to identify precise form of development application to be executed – plaintiff cannot reserve entitlement to vary DA without effect on variation on competing rights being scrutinised – whether revised DA should be confined to land owned by defendants over which plaintiff has rights – whether relief should include undertakings in favour of affected third party when affectation of third parties no longer relied on by defendants – whether relief should include undertakings in favour of defendant when no entitlement to relief against defendant – plaintiff required to identify DA to be executed with precision

CORPORATIONS – directors and officers – duties of directors and officers – where payments were made by a company to a senior employee, his wife and their family company – allegation by the company (through its liquidator) that the employee was a de facto director and that he directed, authorised or otherwise caused the company to make the payments in breach of statutory and general law duties – whether the employee was a de facto director – whether he owed fiduciary duties – whether there was commercial explanation for the making of the payments – whether the employee directed, authorised or otherwise caused the company to make the payments – CORPORATIONS – voidable transactions – unreasonable director related transactions – whether relief under s 588FF available to the liquidator in respect of the payments.

CONTRACTS – construction – dispute resolution clause – requirement under contract that expert determination be final and binding “unless a party gives notice of appeal” within 15 days – whether contractual right to litigate arises PRACTICE AND PROCEDURE – notice of motion –application for permanent stay or dismissal of proceedings – whether dispute resolution clause gives rise to right to have dispute determined by the court

AUSTRALIAN CONSUMER LAW – misleading and deceptive conduct – whether representation made in trade or commerce CONTRACTS – general contractual principles – whether intention to be bound by contract can be inferred from parties conduct – whether employee bound by contract which was not signed CORPORATIONS – Corporations Act 2001 (Cth), ss 181, 182, 183 – whether improper use of position – whether improper use of information EQUITY – general principles – fiduciary obligations – duty not to pursue personal interests in conflict with those to whom duty is owed – whether employees pursued their personal interests in conflict with those of their employer – whether novation agreement released defendants from the consequences of breach EQUITY – remedies – Corporations Act 2001 (Cth), s 1317H – calculation of damages or equitable compensation EQUITY – fiduciary obligations – derivative liability for breach of fiduciary duty – whether company “alter ego” of wrongdoing fiduciary ESTOPPEL – estoppel by conduct PRACTICE AND PROCEDURE – pleadings and particulars – whether particulars were sufficient to raise defence of fully informed consent PRACTICE AND PROCEDURE – pleadings and particulars – whether claim of deceit properly pleaded EVIDENCE – admissibility of evidence – Evidence Act 1995 (Cth) s 69 – whether documents admissible as business records TORTS – miscellaneous torts – deceit – whether plaintiff acted in reliance on representation – whether reliance caused the plaintiff loss TORTS – negligence – negligent misrepresentation

Release application following revocation of bail – show cause offences – alleged hardship – show cause not demonstrated.

CRIMINAL LAW – federal offence – prosecution appeal against sentence – sentence imposed following second trial – whether error in taking “double jeopardy” into consideration – whether general law doctrine of “double jeopardy” applicable to federal sentencing governed by Crimes Act 1914 (Cth) s 16A CRIMINAL LAW – federal offence – prosecution appeal against sentence – taking hardship to family into consideration – whether Crimes Act 1914 (Cth) s 16A(2)(p) reflects general law principle that hardship can only be relied on to reduce sentence where circumstances “exceptional” – whether hardship established CRIMINAL LAW – prosecution appeal against sentence – whether error in assuming that respondent’s tax liabilities had been repaid in absence of evidentiary foundation for assumption – whether erroneous assumption resulted in overly lenient sentence CRIMINAL LAW – prosecution appeal against sentence – whether respondent entitled to leniency as a first-time offender – whether error in finding that respondent had no prior criminal record in circumstances where some offences, but not convictions, pre-dated other offences – where respondent also had separate prior conviction – application of Crimes Act 1914 (Cth) s 16A(2)(m) STATUTORY INTERPRETATION – Crimes Act 1914 (Cth) s 16A – whether terms of provision reflect general law sentencing principles – whether general law principles able to be accommodated within terms of provision

SENTENCE APPEAL – indecent assault committed in 1982 – victim either 8 or 9 years old – indecent assault committed in 1985 on same victim included on “Form 1” – application of historical sentencing practices – fixing of non‑parole periods – sentencing judge incorrectly advised that historical practice was to fix parole period between one third and one half of total sentence – historical practice was to fix non parole period between one third and one half of total sentence – error established – Applicant resentenced.

CIVIL PROCEDURE – production of and calls for documents – where discovery has been previously agreed between the parties – where the bank’s paper files have been digitised – legitimate forensic purpose test CIVIL PROCEDURE – further amendment of cross-claim – held that the proposed amendment represents a shift in the cross-claimants’ case – findings of generality and embarrassment in the pleadings

CONTEMPT – Leave sought to issue subpoena for the production of telephone records – Where telephone records said to be material to proving contempt – Where alleged contemnor appeared before the Court and made admissions rendering the subpoena unnecessary – Motion dismissed

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of New South Wales – whether likely that, if successful, amount awarded to the plaintiff will exceed jurisdictional limit of the District Court

PRACTICE AND PROCEDURE – application to reopen proceedings – whether defendant should be allowed to raise further issues – whether matter should be referred to independent accountant PRACTICE AND PROCEDURE – judgment and orders – final orders

CRIMINAL LAW - murder trial - Accused charged with murder of 3 year old boy - mother and stepfather of child - Crown seeks to call off duty police officer to give evidence of conversation between Accused overheard in Centrelink office - defence objection - held evidence relevant and ought not be excluded under s.137 Evidence Act 1995 - evidence allowed

CRIMINAL LAW – evidentiary ruling – hearsay – where previous representation made by alleged victim – statement by victim to bouncer immediately after stabbing – where victim called to give evidence – where maker not asked by either counsel about conversation – whether creates unfair prejudice – Evidence Act does not require evidence of previous representation to be given by maker of representation – whether operation of hearsay provisions creates unfairness – evidence allowed

COSTS - Civil Procedure Act 2005 (NSW) s 98(4) - Civil Procedure Act 2005 (NSW) s 98(2) - lump-sum costs order - calculation on indemnity basis - recovery of costs in Federal Circuit Court – unreasonable costs - discount

BAIL – show cause offence – substantial Crown case – whether bail conditions can mitigate unacceptable risk of committing another serious offence – unsatisfactory prospects of accommodation – mental illness

PROCEDURE – application for leave to appeal – application to join appeal proceedings in the Land and Environment Court refused – whether leave to appeal that decision should be granted – applicant claimed that he was the lawful owner of the land the subject of the proceedings in the Land and Environment Court – issues raised by applicant finally determined in earlier proceedings – no question of principle – leave refused

BIAS – apprehended bias – judicial review of dismissal of application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) for review of conviction of sexual intercourse without consent – application to disqualify all judges of the Supreme Court from hearing summons for judicial review – allegation of judicial conspiracy to pervert the course of justice – whether reasonable apprehension of bias – whether fair-minded observer might reasonably apprehend that all judges of the Court might not decide the case impartially – whether principle of necessity available

CRIMINAL LAW – appeal – conviction – where the trial was conducted with a judge sitting alone – where the trial judge failed to adequately direct himself – where the trial judge failed to observe the requirements of s 133 of the Criminal Procedure Act – where the conviction is quashed – where a new trial is ordered

PRACTICE AND PROCEDURE – Interlocutory injunction – application to restrain voluntary administrators from continuing to act – application to restrain party claiming to be secured creditor from taking any enforcement action – whether prima facie case administrators appointment invalid – whether damages would be an adequate remedy for invalid appointment of administrators – balance of convenience. CORPORATIONS – external administration – challenge to validity of appointment of administrators – relief under s 447A, Corporations Act 2001 (Cth) – whether the operation of Pt 5.3A in relation to the plaintiff companies should be suspended pending determination of proceedings – whether the time for convening first meetings of creditors under s 436E should be extended to date after the determination of proceedings pursuant to s 1322(4)(d), Corporations Act

CORPORATIONS – administrators appointed to two defendants on eve of hearing – whether to grant leave to continue – no question of principle.

TRUSTS AND TRUSTEES – where plaintiff removed as trustee – whether plaintiff is entitled to be indemnified for liabilities it incurred as trustee before removal – whether there was a fraudulent disposition of its legal interest as trustee – where trust property consists of shares in company – where that company issues further shares – whether there was unlawful or fraudulent dilution of the trust’s shareholding

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from Dust Diseases Tribunal of New South Wales to Supreme Court of New South Wales and thence the Supreme Court of Queensland – whether application in the interests of justice – application granted

PRACTICE AND PROCEDURE – disclosure – where parties have filed lay and expert evidence but may seek to supplement expert evidence – where both parties seek disclosure of further documents – where neither party suggested that Practice Note SC Eq 11 is applicable – whether disclosure should be ordered in relation to defined categories of documents on basis of relevance to a fact in issue in proceedings.

LEGAL PRACTITIONERS – whether solicitor on record should be restrained from acting for plaintiffs – whether solicitor in possession of confidential information of the defendants – solicitor’s knowledge of defendants’ litigious character and tendencies – whether fair-minded reasonably informed member of community would regard proper administration of justice as requiring solicitor to be prevented from acting

WILLS AND ESTATES – administration of assets – payment of debts – mortgage registered over two properties – whether as between beneficiaries the charged properties are primarily liable to bear mortgage debt in proportion to their values – whether a contrary or other intention signified by will – Conveyancing Act 1919 (NSW), s 145

LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – leases impose obligation of repair and maintenance on landlord – leases confer certain rights upon landlord to facilitate proposed sale of leased property – whether notice that landlord must undertake repair and maintenance works validly issued – whether tenant obliged to provide landlord with access to properties to assess scope of required works – extent of landlord’s rights in relation to proposed sale of leased property – obligation to do all things necessary to enable other party to perform – obligation of co-operation – whether tenant engaged in unconscionable conduct – declaratory relief granted

CONTEMPT – suppression order – where defendant acted in apparent contravention of suppression order made by judge of the Court – whether orders were valid and enforceable – whether publication wilful and in full knowledge of orders – whether defendant committed contumacious contempt – defendant guilty of contempt

COSTS – indemnity costs – offer of compromise – reasonable time – notice of contention filed after offer of compromise – time to assess reasonableness of offer

CRIMINAL LAW – appeal – leave to appeal out of time granted – leave to appeal against sentence granted – whether there was a failure to pay proper regard to the fact that offences other than Count 1 could have been dealt with in the Children’s Court – no miscarriage or serious injustice demonstrated, ground refused – whether there was a failure to take into account the applicant’s immaturity other than in relation to the issue of rehabilitation – no failure demonstrated, ground refused – whether aggregate sentence imposed is manifestly excessive – appeal dismissed

EVIDENCE - coincidence evidence - victim was threatened on two occasions in May and October - evidence established applicant had intimidated victim on second occasion - whether error in jury being directed that it could use that evidence to find that applicant was the man who had demanded money from same victim on first occasion - relevance of dissimilarities in the evidence as to identity - no complaint to jury direction made at trial - appeal dismissed - Evidence Act 1995 (NSW), s 98.

DAMAGES – quantification of damages for trespass – compensatory damages to be calculated on restitutionary basis – whether cross-defendant liable for acts of trespass by cross-defendant’s tenants – whether cross-defendant authorised, caused or permitted tortious acts by tenant – whether cross-defendant’s conduct justifies award of exemplary damages

CRIMINAL LAW – Evidence – Conversation between accused and son about a newspaper article pertaining to the deceased’s murder – Whether relevant

CORPORATIONS – Winding up – Application to set aside creditor’s statutory demands under Corporations Act 2001 (Cth) s 459G – where debts identified in demands are the subject of District Court proceedings brought by the Defendant – where there is inconsistent evidence as to the terms of any agreements giving rise to the alleged debts – where there is a dispute as to whether the Defendant charged, and was permitted to charge, for legal, conveyancing, tax or credit services – whether a genuine dispute is established – whether the statutory demands should be set aside for some other reason.

TRUSTS AND TRUSTEES – remuneration and expenses of person acting as liquidator of company operating solely as trustee and receiver of trust property – where part thereof held to be entitled to Universal Distributing priority and balance held to rank after claims of secured creditors – whether liquidator/receivers’ liability for costs of unsuccessful resistance to secured creditors’ claims for priority should be limited to trust assets

DEFAMATION – contextual truth – reasons for rulings made during trial – jury asked questions in two phases – rulings concern contextual truth defence – whether contextual imputation must be defamatory – whether imputation pleaded by plaintiff found to be defamatory and substantially true can be deployed by plaintiff, deployed by defendant or disregarded in applying s 26 of the Defamation Act – whether effect of all defamatory imputations on reputation considered along with facts surrounding all contextual imputations – whether jury should consider evidence of plaintiff’s reputation in applying s 26(b)

ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether adjudicator failed to afford natural justice or procedural fairness – whether adjudicator gave sufficient reasons for his decision BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether adjudicator erred in making a finding in relation to the “Superintendent’s Representative” – whether adjudicator adequately dealt with contract variations

ENVIRONMENT AND PLANNING – Development control – when consent required – validity of approval – whether development consent not required due to cl 6 of the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) – whether treatment on one petroleum title of produced water generated on another title is use for the purposes of “petroleum exploration” ENVIRONMENT AND PLANNING – Development control – classification of uses – whether development was for the purpose of petroleum exploration – whether development properly characterised as a waste disposal facility or resource recovery facility ENVIRONMENT AND PLANNING – environmental planning – planning schemes and instruments – relationship between Petroleum (Onshore) Act 1991 (NSW) and State Environment Planning Policy (Infrastructure) 2007 (NSW) and State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW)