Cases and authorities

PRACTICE AND PROCEDURE – cross-vesting – application to remove proceedings from Dust Diseases Tribunal and to transfer proceedings to Supreme Court of Queensland

PROCEEDS OF CRIME – forfeiture orders – where person from whom cash seized makes no claim

CRIMINAL LAW – appeal against conviction – whether error in finding that offence of intimidation under s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) is not an offence of specific intent – whether offender’s intoxication at time of offence able to be taken into account in determination of guilt – whether conviction to be set aside if found guilty on alternative basis CRIMINAL LAW – leave to appeal against conviction – challenge to findings of fact – whether offence elements were made out when offender’s intoxication taken into account CRIMINAL LAW – appeal against sentence – whether error in failing to find “special circumstances” – whether offender’s long history of incarceration and drug use constituted “special circumstances” – whether sentence should be reduced as a result STATUTORY INTERPRETATION – purposive interpretation – whether offence provision should be given differential operation depending on mental element involved – consequence of potential complexity of required jury directions

CORPORATIONS — Debentures, charges and mortgages — Registration — Extension of time for registration – where collateral inadvertently not registered against grantor’s Australian company number – where grantor consents to extension – where extension would not prejudice other creditors

ADMINISTRATIVE LAW – further amended summons seeking relief in nature of certiorari – application proceedings in Local Court – application notice under s 45 of Local Court Act – application under s 267 Road Traffic Act – appealable matters – review of penalty notice sought by defendant– proceedings in Local Court constitutes appeal against offence – orders under s 10(1)(a) Crimes (Sentencing Procedure) Act – defendant’s purpose of application proceedings removal of suspension of driving licence – suspension not appealable – application proceedings not permit review of imposition of penalty for an offence – no Court Attendance Notice – contrary to s 6 of Criminal Procedure Act – exclusion of criminal proceedings under Pt 4 of Local Court Act – jurisdictional error – errors of law – partly acting outside general area of jurisdiction – misconstruing statutes – misconceiving role or function of Court in application proceedings – direction for filing of draft orders

CRIMINAL LAW – application for extended supervision order – Crimes (High Risk Offenders) Act 2006 s 5E – whether offender is a high risk violent offender

APPEAL – application for leave to appeal – circumstances where grant of leave appropriate – important matters of principle raised by proposed appeal – underlying proceedings in District Court seeking equitable compensation for breach of trust and/or fiduciary duty – dispute as to jurisdiction of District Court to entertain claim

PROCEDURE - application for leave to appeal – findings of trial judge based on credit – claim below statutory threshold – whether leave to appeal should be granted

PROCEDURE – application for leave to appeal from single judge of Supreme Court’s refusal of application to amend statement of claim – applicant sought to annexe affidavit to statement of claim – no discernible error by primary judge – whether leave to appeal should be granted.

PROCEDURE – application to amend cross claim to add new parties – where no hearing date fixed – potential delay ameliorated by serendipity

EMPLOYER AND EMPLOYEE – breach of trust and confidence – whether summary dismissal of defendant justified MEETING – informal – no notice – 95% of shareholders agreed – court’s discretion under Section 1322(4)(a) of the Corporations Act (Cth) RESTITUTION – whether payments paid by mistake to the defendant – no adequate evidence of decision maker’s state of mind

CRIMINAL LAW – Evidence – Cross-examination – Credibility rule – Whether evidence substantially affected the credibility of the witness

CRIMINAL LAW – appeal against conviction – whether trial judge’s refusal to discharge the jury occasioned a miscarriage of justice – whether a miscarriage was occasioned by appellant’s trial counsel’s failure to seek a forensic disadvantage direction – whether trial judge could give a forensic disadvantage direction on her own volition – whether a forensic disadvantage direction was required – whether verdicts of guilty unreasonable or unable to be supported – whether the Court should view the JIRT interviews and the appellant’s ERISP CRIMINAL LAW – sentence appeal – whether Muldrock error – appellant resentenced

CORPORATIONS — Winding up — Statutory demand —Offsetting claim – where demand made for amounts alleged to be due for building work – where Plaintiff’s allegation of defective building work supported by contemporaneous evidence – whether statutory demand should be set aside COSTS — Party/Party — Bases of quantification — Indemnity basis – where evidence for setting aside statutory demand substantial and known to the Defendant – where Defendant did not appear or lead evidence – whether order for indemnity costs should be made

CORPORATIONS – whether leave, pursuant to s 500(2) of the Corporations Act 2001 (Cth) should be granted to the plaintiff to proceed against a company in liquidation

DEFAMATION – pleadings – form of imputations – specificity of imputations – where the term “improper” is used in an imputation – where an imputation is merely a rhetorical re-expression of the defamatory impact of a separate imputation – imputations struck out with leave to re-plead

DEFAMATION – defences – contextual truth –application to amend defence to include additional contextual imputation – where imputation pleads a general condition from a single act – whether capable of arising – whether capable of arising in addition to plaintiff’s imputation

DEFAMATION – slander – newspaper article attributing certain remarks to defendant – publication of attributed words admitted in part – consideration of appropriateness of granting leave to plaintiff at an early stage of the proceedings to interrogate that defendant to determine the precise words said

CONTRACTS – Whether parties intended settlement agreement to be immediately binding – Whether enforcement should be stayed

PRACTICE AND PROCEDURE – pleadings – proceedings on foot for two years without plaintiff’s pleadings being finalised – sixth iteration of proposed pleading – pleading still deficient; COSTS – specification of costs at a gross sum – proceedings to be dismissed if those costs not paid within time ordered; TORTS – whether cause of action can be assigned

Judgment and Orders – Appeal – Stay pending appeal – Stay granted on terms

REAL PROPERTY – possession of land – mortgages – whether Defence discloses any defence to the claim – defence struck out

PRACTICE AND PROCEDURE – second application for leave to file further amended statement of claim –breach of confidence alleged for the first time – lack of specificity in pleadings of nature of confidential information – prejudice to the parties - application refused PRACTICE AND PROCEDURE - application to dismiss proceedings because no reasonable cause of action disclosed

SUCCESSION – Probate and letters of administration – Application for grant of probate in solemn form – Application made by executor named in will made fifteen days before death of the deceased – Application opposed and cross claim brought by executor and beneficiary of will made fifteen years earlier – Whether deceased had testamentary capacity to make second will – Whether deceased knew and approved of terms of second will

NEGLIGENCE – breach of duty – damages – occupational health and safety - Workers Compensation Act 1987 (NSW) s 151Z (2)

PROCEDURE – costs – where no hearing on the merits – consent order that statutory demand be set aside – what costs order should be made in the particular circumstances – no matter of principle

TORTS – negligence – duty of care – liability for mental harm – whether recognised psychiatric illness reasonably foreseeable in the circumstances of the case – whether plaintiff established existence of duty owed by defendant – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – non-delegable duty – vicarious liability – attribution to employer of knowledge of non-supervisory employees – no finding of duty as to mental harm on part of any employee – no finding of negligence on part of any employee – whether employer liable

PROCEDURE – application for leave to appeal from judgment of the District Court – where damages awarded for breach of lessor’s painting and repairing covenants under a lease – matter less than $100,000 – where no issue of principle, question of general importance or injustice which is reasonably clear – leave to appeal refused. LANDLORD AND TENANT – covenants – as to painting and repair – breach of landlord’s covenant to maintain motel premises in good condition and serviceable repair – breach of landlord’s covenant to paint and varnish parts of premises – tenant has not yet incurred expense in remedying landlord’s defaults – whether cost of remedying landlord’s default is the appropriate measure of damages. DAMAGES – general principles – breach of landlord’s painting and repairing covenants – where tenant has not yet incurred expense in remedying lessor’s defaults – where landlord asserted no actual loss suffered by tenant – whether damages properly awarded on ‘costs of cure’ basis rather than ‘difference in value’ basis.

CRIMINAL LAW – defrauding the Commonwealth – accountant charged with causing client’s tax return to be lodged without disclosing all of client’s income – client controlled offshore company which owned large parcel of shares – client caused offshore company to sell shares and directed proceeds to be received by client and his family and companies associated with them – after conclusion of evidence, trial judge permitted Crown to advance a case that offshore company held shares as bare trustee for client – Crown addressed jury that it was sufficient in order to conclude that client was beneficiary of bare trust to find that client controlled offshore company – trial judge left jury to determine correct legal test for existence of trust – evidence did not entitle jury to conclude that client was beneficiary of bare trust – convictions quashed and verdicts of acquittal entered

CRIMINAL PROCEDURE – application to discharge jury – publicity as to bikie violence – publicity not related to offences before the Court – directions to issue – application refused

Evidence – relevance – admissibility

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening a meeting of members to consider and if thought fit to agree to a proposed scheme of arrangement – where scheme proposed to replace current scheme – where current scheme difficult to administer

APPEAL FROM LOCAL COURT – error of law – Magistrate failed to consider s 56-58 Civil Procedure Act, dictates of justice

LEGAL PRACTITIONERS - liens - general lien - change of solicitors - documents required for continued conduct of proceeding – court’s general discretion to release files – satisfactory security for costs – significant element of compromise by solicitors

DEFAMATION – fair report – plaintiff seeks to defeat defence by arguing report not made honestly for the information of the pubic – Defamation Act, s 29(3) – plaintiff relied on errors in report to prove lack of honesty – if established fair report defence would fail –reliance on s 29(3) would never arise – question withdrawn from Jury

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

HIGH RISK OFFENDER - serious violent offender - interim supervision order made on 14 December 2016 together with order for psychiatric examination - Defendant with significant psychiatric illness - Defendant’s mental condition deteriorated and now held in mental health facility - Plaintiff seeks interim detention order in light of changed circumstances - interim detention order made

CONTRACTS – contract for accounting and business advisory services – general contractual principles – offer and acceptance – whether contract made and if so on what terms – construction and interpretation of contracts – construing the terms of a contract from the whole of the material – construing the terms of a contract where it is partly written and partly oral – uncertainty of terms – the use of post contractual conduct

DEFAMATION – claim in defamation summarily dismissed – whether imputations specified – whether particulars of identification given – whether plaintiff given notice of issue relied on by primary judge – whether imputation capable of arising – decision of primary judge to dismiss defamation claim set aside NEGLIGENCE – duty of care – whether novel duties of care amenable to summary dismissal – circumstances in which novel claims may be dismissed in advance of trial – where novel duty cuts across or subverts other legal principles – alleged duty inconsistent with torts based on misuse of legal process – alleged duty inconsistent with absence of care owed by one litigant to another – decision of primary judge to dismiss negligence claims upheld

DEFAMATION – application for leave to appeal against interlocutory decision – alleged defamations arose out of evidence given to the Royal Commission into Institutional Responses to Child Sexual Abuse – primary judge refused leave to amend statement of claim – proposed statement of claim would have reinstated claims that were previously abandoned and did not include necessary particulars – new claim sought to be added held to be statute barred – s 65(2) Civil Procedure Act – whether original statement of claim pleaded a cause of action arising from the same or substantially the same facts

APPEAL FROM LOCAL COURT – question of law – error of law – failure to give adequate reasons – leave to appeal granted – appeal upheld

PRACTICE AND PROCEDURE – application to adduce evidence in reply – case splitting – plaintiff sought to rebut defence of substantial truth in case in chief – matter emerged in defence case that could not have been anticipated by plaintiff – limited leave granted to adduce evidence in reply

CORPORATIONS – whether leave to amend pleadings should be granted – statutory derivative action where Plaintiff, formerly the trustee of a trust, was placed in liquidation following judgment against it in favour of creditors, and shares in the Second Defendant held by the trustee were transferred to the First Defendant and diluted by the issue of new shares in the Second Defendant – whether leave under s237 of the Corporations Act should be given – whether the proceedings amount to an abuse of process – whether there is a serious question to be tried – whether it is in the best interests of the Second Defendant that the Plaintiff be entitled to maintain its derivative claims – whether a company can be both a plaintiff and a defendant in the same proceedings

PROCEDURE – leave to amend granted – amended statement of claim – amended cross claim – Civil Procedure Act

PROCEDURE – application for summary dismissal adjournment application of plaintiff – granted

PROCEDURE – pleadings – strike-out – part of pleading dealing with matters already determined adversely to pleader

JUDGMENTS – setting aside – registration of foreign judgment – application to set aside – foreign judgment said to have been obtained by fraud – absence of evidence of fraud – foreign judgment extant – intention to set foreign judgment aside – circumstances when registered foreign judgment can be set aside

BUILDING AND CONSTRUCTION – challenge to adjudication determination – money paid into court as price for interlocutory injunction – application not pursued – proceedings to be instituted in District Court – whether funds in court should be paid to party with benefit of determination; PRACTICE AND PROCEDURE – funds in court – whether should be paid out to defendant; COSTS – Calderbank offer – whether unreasonable of plaintiff to not accept offer

PRACTICE AND PROCEDURE - application for leave to file further amended statement of claim on first day of trial – significant changes to plaintiff’s case – considerable delay already occasioned – case management principles – assessment of strength of the plaintiff’s case – prejudice to the parties – leave refused