Cases and authorities

CIVIL PROCEDURE – registration of foreign judgment under the Foreign Judgments Act 1991 (Cth) – application to set aside registration of a foreign judgment – freezing order under the Uniform Civil Procedure Rules 2005 (NSW) – whether freezing orders ought to be continued – challenge to the making of freezing orders

CONTRACT – construction – dispute resolution clause – expert determination – whether pending expert determination arises from a ‘dispute’ within the meaning of dispute resolution clause

CORPORATIONS – share capital – share capital transactions – where company seeks order allowing it to purchase shares in itself, without shareholder approval of selective buy-back, to implement settlement of other proceedings – whether Corporations Act 2001 s 259A(c) confers a power on the Court to make such an order – whether such an order ought to be made.

REAL PROPERTY – caveats – caveat lodged by registered proprietor claiming improper exercise of power of sale by mortgagee – caveat lapses – application for leave to lodge further caveat in respect of same interest – grounds for interlocutory injunction to restrain completion of sale made by mortgagee not established – leave to lodge further caveat refused – Real Property Act 1900 (NSW) s 74O

CRIMINAL LAW – Evidence – Where answers to questions put to witness tended to prove the commission of an offence – Where objection was taken to answering the questions – Whether in the interests of justice for the evidence to be given

TRUSTEES FOR SALE – Conveyancing Act s 66G, 66H and 66I – property jointly owned in equal shares – one co-owner deceased – other co-owner occupies property - trustees for sale appointed – writ for possession of property issued in favour of trustees in 2015 - occupier seeks stay of writ in 2016 and stay declined – writ ordered to lie in court – writ will be issued imminently - whether writ should now be stayed on motion of occupying co-owner – whether trustees have consulted with occupying co-owner under Conveyancing Act s66H.

PRACTICE AND PROCEDURE – whether defendant should be given leave to amend defence to cross-claim to allege a duty of care owed by builder to cross-claimant; TORTS – duty of care to avoid economic loss – vulnerability – whether necessary to plead that relevant party unable to protect itself from economic loss – whether cross-defendant has no prospect of demonstrating such inability at trial

PROCEDURE – Costs – Interlocutory proceedings – where claim of privilege maintained in relation to subpoenaed documents – where consent orders permitting access ultimately made after complete capitulation of earlier held position – whether appropriate to order costs in favour of party filing motion to obtain access

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – ss 17(3), 17(5) and 19 – Interpretation Act 1987 (NSW) ss21(1) – where an adjudication application made by the claimant differs from that referred by the authorised nominating authority to the adjudicator – where an adjudication application served on the respondent is not a copy of that referred to the adjudicator – where a claimant delivers a Universal Serial Bus (USB stick) containing an adjudication application – HELD: the adjudicator did not have jurisdiction to determine the adjudication application referred to him – HELD: delivery of USB stick is not service of a copy in writing until it is opened by the recipient – HELD: adjudication determination to be quashed.

CRIMINAL LAW – evidence – post-offence conduct – consciousness of guilt – disposal of weapon – washing of shoes – lies – whether evidence “intractably neutral” – where conduct may be explained by accused attempt to distance himself from incident – where accused produced knife during physical altercation – where accused makes formal admissions – whether admissions preclude prosecution from adducing evidence of those facts – conflict in authorities – telephone intercepts – whether discussion of offer to plead guilty demonstrates a consciousness of guilt – assessment of probative value and prejudicial effect CRIMINAL LAW – evidence – advance ruling – where accused seeks to introduce evidence of earlier assault – where evidence relevant to issue of self-defence – whether Crown entitled to lead evidence that accused threatened to stab the perpetrator – where threat unrelated to incident giving rise to charges

CRIMINAL LAW – application for trial by judge alone – murder – application of community standards – substantial impairment by abnormality of mind

JUDICIAL REVIEW – Leave to appeal from decision of NCAT on question of law – NCAT confirmed decision to remove metal coverings from tenants windows – No question of law – No question warranting grant of leave – Application for leave to appeal dismissed

PRACTICE AND PROCEDURE – application for stay pending special leave to appeal to the High Court – whether Burgundy Royale test met – stay refused

CONSTITUTIONAL LAW - Commonwealth Constitution, Chapter III - implied limitation on State legislative power - State statute validating acts undertaken by ICAC which were beyond power - statute extended to acts relevant to pending criminal appeals - whether impermissible interference in judicial process or repugnancy to integrity of judicial function STATUTORY CONSTRUCTION - statute validating past acts undertaken by ICAC - whether validation extended to acts connected with pending criminal proceedings - both applicants had pending appeals against conviction when statute commenced - evidence in Crown case against one applicant obtained pursuant to summonses issued by ICAC which were beyond power - other applicant convicted of giving false or misleading evidence to ICAC in the course of investigation which was beyond power - whether presumption against retrospectivity caused statute not to apply to validate conduct which was the subject of pending criminal proceedings - relationship between submissions on statutory construction and constitutional validity

COSTS – application for costs by respondents to proceedings commenced in NCAT – respondents were residents of different States – Court held that NCAT not authorised to exercise judicial power over respondents – submissions on jurisdiction primarily advanced by Commonwealth and State Attorneys‑General – where one respondent being prosecuted for contempt – costs order in favour of that respondent – where other respondent had commenced two proceedings in Court of Appeal – one proceeding dismissed – other proceeding was greatly expanded beyond the threshold diversity jurisdiction point – where that respondent filed thousands of pages of fresh material – where none of that material read – where all controversial submissions advanced by that respondent were rejected – where series of procedural breaches of Court’s directions by that respondent – where none of relief in terms sought by that respondent was granted – no costs order made in favour of that respondent

APPEAL – charitable trust without a trust instrument –application of property under a cy-près scheme under s 9 of the Charitable Trusts Act 1993 (NSW) –whether the primary judge erred in his application of s 9 PRACTICE AND PROCEDURE – leave sought to file amended notice of appeal on day one of the hearing –whether this would give rise to unfairness of the kind in Coulton v Holcombe (1986) 162 CLR 1

CRIMINAL LAW – appeal – appeal against sentence – dangerous driving occasioning death – leave to lead fresh evidence granted – medical evidence relating to health of family member – exceptional circumstances established – whether lesser sentence should be imposed as a matter of mercy – leave to appeal granted – appeal upheld – sentenced quashed – new sentence imposed

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – Claim for relief in the nature of certiorari quashing an adjudication determination – necessity to bring proceedings expeditiously - delay in bringing proceedings – deliberate decision to delay – discretion to deny relief for delay – HELD relief to be withheld because of unacceptable delay

CRIMINAL LAW – Evidence – Where accused made unsworn statement at conclusion of committal proceedings – Where statement of a self-serving nature – Whether statement admissible in accused’s trial

PRACTICE AND PROCEDURE – Litigant in person – Application for leave to issue subpoenas to give evidence and produce documents – Where leave opposed – Whether legitimate forensic purpose established – Leave granted in part

COSTS – party seeking monetary sum who fails to obtain judgment is unsuccessful party, even if breach established – no reason shown to depart from the general principle that costs ought follow the event

COSTS – request for an itemised bill of costs – provision of itemised bill ordered – construction of section 332A of the Legal Profession Act 2004 (NSW) – whether time limit imposed to request an itemised bill – no time limit – leave to pursue a costs assessment out of time – leave granted – application of the transitional provisions of the Legal Profession Uniform Law (NSW) – orders sought made – costs

INTERROGATORIES – negligence – breach – duty of care – notice of motion

PRACTICE AND PROCEDURE – stay of proceedings – security for costs

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – whether jurisdictional error in making Adjudicator Determination BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claim in respect of reference date CONTRACTS – construction contract – interpretation of contractual terms – “date of practical completion” – when “practical completion” occurred

APPEAL – application for leave to appeal – circumstances where grant of leave appropriate – challenge to discretionary costs order made payable forthwith and stay order following successful adjournment application – where party seeking adjournment not at fault and is impecunious – where effect of orders likely to stultify the proceedings - whether substantial injustice if leave to appeal not granted

ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – evidence relating to the applicant’s allegedly fraudulent conduct – criminal charges withdrawn but conduct established on the balance of probabilities – conduct relevant to the licence application – a lesser standard of proof than the criminal standard could be applied in making findings concerning the conduct – relevance of reasons for withdrawal of criminal prosecution ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – whether decision maker obliged to refer to relevant material where no express or implied statutory obligation to consider it and adequate reasons for the decision given

CRIMINAL LAW – sentence appeal - trafficking a commercial quantity of a controlled drug – trafficking a marketable quantity included on a s 16BA schedule – whether sentencing judge erred in the manner in which the schedule offence was taken into account – infelicitous language but no error – whether parity principle observed – comparison of objective seriousness of offending – no error – appeal dismissed.

CRIMINAL LAW - sentence appeal - 10 indecent assault offences under s.61L Crimes Act 1900 - two further offences taken into account on a Form 1 - offences committed by physiotherapist against six female patients during treatment - aggregate sentence of imprisonment for five years with non-parole period of three years and six months - claim of error in sentencing Judge’s approach to evidence of offender’s mental condition at time of offences - error not demonstrated - claim that aggregate sentence manifestly excessive - repeated offences committed against patients during treatment - abuse of trust - good character a precondition to registration as a health practitioner - offences involved gross breaches of offender’s ethical obligations - need for appropriate punishment - role of general deterrence - aggregate sentence not manifestly excessive - appeal dismissed

COST – indemnity costs – offer of compromise

Injunctions – interlocutory injunctions – identification of the status quo that is to be restored pending a final hearing

CRIMINAL LAW – Application for discharge of the jury – Whether jury infected by the apprehension of bias – Where verbal comments were made outside the court house to a juror – Application of the test in Ebner v Official Trustee in Bankruptcy as adapted to a jury – Held that a further direction to the jury sufficed

CRIMINAL LAW – remarks on sentence – verdict of guilty of murder after trial by judge alone – constructive murder – offence committed in 1983 – consideration of sentencing practices in and since 1983 – delay in sentencing – no evidence on behalf of offender – role of age of offender

ADMINISTRATIVE LAW – appeal from decision of the Civil and Administrative Tribunal that the plaintiff’s registration as a pharmacist be cancelled – where cancellation order implemented by a separate statutory agency prior to commencement of appeal – application for interlocutory restorative injunction – whether Court has power to order the agency to reinstate the plaintiff’s name to the register pending determination of the appeal – factors relevant to the exercise of any such discretion

CORPORATIONS – members’ remedies – oppression – form of relief – whether compulsory purchase order should be made – valuation of shares – valuation methodology – whether earnings-based valuation preferable to revenue-based valuation – held, in principle earnings-based valuation is ordinarily preferable – in this case, revenue-based valuation as a check indicates that earnings-based valuation is conservative

FAMILY LAW AND CHILD WELFARE – Adoption – procedure – preliminary hearings – scope of preliminary hearing – whether limited to matters prescribed pursuant to Adoption Act s 80(1) and Adoption Regulation cl 89 – held, not so limited FAMILY LAW AND CHILD WELFARE – Adoption – recognition of adoption under bilateral arrangements in prescribed overseas jurisdiction – whether Adoption Act s 113 has comparable effect to (CTH) Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998, reg 5 – meaning of “comparable effect” – held, it has PRIVATE INTERNATIONAL LAW – personal connecting factors – residence – “habitual residence” – requirement for physical presence for an appreciable time – whether NSW couple who were in Hong Kong for a period of two years for employment reasons had lost habitual residence in NSW two months after departing – held, they had.

SUCCESSION – Wills, probate and administration – Validity of Will – Testamentary incapacity – Knowledge and approval – Suspicious circumstances – Strong familial pressures – Degree of assistance provided to testator by interested parties

PRACTICE AND PROCEDURE – application for separate representation – where plaintiff as plaintiff has different interests from plaintiff as cross-defendant – difference between insurers as to pleading of set-off – order for separate representation to be made in rare circumstances – whether actual conflict required in order for grant of leave to have separate representation.

CRIMINAL LAW – appeals – sentence – whether manifestly excessive – whether the police aggravated the seriousness of the offending – whether the sentencing judge erred in considering subjective features when assessing objective gravity

CRIMINAL LAW – sentence appeal – causing loss to Commonwealth – illicit importation of tobacco without paying duty – at time of sentence offender already serving a sentence for bribery of a Commonwealth official – whether total non-parole period excessive – whether parole period inadequate to allow proper supervision and rehabilitation – whether adequate reasons for non-parole period – whether sentence manifestly excessive – the non-parole period was the minimum period to be served – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – manslaughter – unlawful and dangerous act – appeal against conviction – applicant in a group who bashed and kicked victim – whether verdict was unreasonable – reliability of identification evidence – whether sufficient evidence of motive – whether miscarriage of justice by incompetence of trial counsel – whether other evidence should have been led to detract from Crown case on motive – whether evidence should have been led of a second attack not involving applicant – whether applicant properly advised of his right to give evidence – whether miscarriage of justice by prosecutor’s remarks to jury EVIDENCE – application to lead new evidence on appeal – whether new evidence was fresh evidence – whether evidence of sufficient cogency that innocence is shown or to give rise to a reasonable doubt – whether miscarriage of justice where evidence not led

CRIMINAL LAW - appeal against conviction - plea of guilty to charge of (deemed) supply of commercial quantity of a prohibited drug - whether miscarriage of justice would result if Applicant not permitted to withdraw plea of guilty - imprudent and inappropriate advice given to Applicant - plea of guilty not attributable to consciousness of guilt - real question concerning Applicant’s guilt - Crown concession that conviction appeal should be allowed - appeal allowed and conviction quashed - new trial ordered

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – parity – whether justifiable sense of grievance – whether failure to take into account period of onerous bail conditions

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – respondents members of ‘Brothers for Life’ gang – gangland crime – offending of a serious nature – minimal accumulation in sentence structure – whether aggregate sentence manifestly inadequate from inadequacy of sentences on individual counts – where offenders subjected to non-exculpatory duress – where offenders were relatively young aged 18 and 22-23 respectively at time of offending – where deprived background – where guilty pleas and assistance to authorities

PRIVATE INTERNATIONAL LAW – service on foreign corporation – whether court should assume jurisdiction – where dispute sought to be agitated already decided by Malaysian court – whether proceedings have any prospects of success – whether court an inappropriate forum

CRIMINAL LAW – SENTENCE – murder – s 18 Crimes Act 1900 (NSW) – multiple stab wounds causing death - plea of not guilty – question of partial defence of substantial impairment at trial – defence rejected by jury - question of continuing relevance of mental illness – question of moral culpability - offender with history of violence – no evidence of motive - breach of conditional liberty – relevance of advanced age

ADMINISTRATIVE LAW – judicial review – workers compensation – seriously injured worker – work capacity assessment – chronic fatigue syndrome

CRIMINAL LAW - forensic patient – serious sexual offences - limiting period about to expire – application for interim extension order – test for “unacceptable risk” – whether test in Lynn v State of NSW applies – whether defendant poses an unacceptable risk of causing serious harm to others – whether risk can be adequately managed by less restrictive means – absence of mental illness but defendant functioning in moderate to mild range of intellectual disability – high risk of serious sexual offending – no present proposal for management by less restrictive means – interim orders made

RESTRAINT OF TRADE – partnership agreement – application for interlocutory injunction – validity of restraint of trade – whether enforcement of restraint necessary to protect legitimate interests of partnership’s confidential information, good will or workforce stability – balance of convenience – adequacy of damages as a remedy for any breach – whether parties capable of assessing their best interests at the time of contracting – strength of plaintiffs’ case

CRIMINAL LAW – Evidence – Cross-examination –Where Crown called witness and made him available for cross-examination without asking any questions in chief – Where the witness was then cross-examined by counsel for accused – Where Crown then sought leave to cross-examine the witness – Whether leave should be granted