Cases and authorities

CONTRACT – Share Issue Agreements – warranty that subscribed shares in first defendant would triple in value in two years – proper construction of the agreements – whether they specify exclusive remedy in event shares did not triple in value – whether shares did triple in value – value of patents owned by wholly owned subsidiary of first defendant; INTELLECTUAL PROPERTY – value of such patents; MISLEADING OR DECEPTIVE CONDUCT – admitted representation that shares would triple in value in two years – whether defendants had reasonable grounds to make representation

PRACTICE AND PROCEDURE – application to be substituted as plaintiff – applicant claims to be assignee of the assignee of the cause of action – applicant evidently without means to meet past costs orders and future costs of the proceedings

LIMITATION OF ACTIONS – application for extension of limitation period – defamation – whether it was not reasonable in the circumstances for the plaintiffs to have commenced action within one year from the date of the publication

APPEAL – application for leave to appeal ‑ taxation debt recovery proceedings ‑ amended defence struck out – pleading of “conscious maladministration”– combined effect of s 175 of the Income Tax Assessment Act 1936 (Cth) and s 350-10(1) of Sch 1 of the Taxation Administration Act 1953 (Cth) APPEAL ‑ jurisdiction of Court in taxation debt recovery proceedings

PRACTICE AND PROCEDURE – vexatious proceedings orders – formulation of orders – need to consider effect on defence of criminal proceedings – whether “blanket” orders desirable PRACTICE AND PROCEDURE – vexatious proceedings orders –need to identify which proceedings were in fact vexatious

PROCEDURE – review of single judge of Court of Appeal; security for costs

CRIMINAL LAW – appeal against sentence – erroneous reference to standard non-parole period when sentencing for attempted aggravated break, enter and steal – appeal allowed – offender re-sentenced CRIMINAL LAW – appeal against sentence – finding of “special circumstances” – variation of period of mandatory custody when sentences accumulated – whether appropriate on re-sentence where non-parole period has already expired – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

EQUITY - trusts and trustees – testamentary trusts – where trustee has lost capacity – trustee a life tenant – attorneys of life tenant under enduring power of attorney seek appointment as new trustees – attorneys also contingent remaindermen – conflict of duty and duty – whether court should appoint a beneficiary as trustee – whether court should appoint a relative as trustee – whether court should appoint a sole trustee – conflict of duty and duty – appointment of NSW Trustee and Guardian as trustee and administrator

EVIDENCE – admissibility – actions of one accused admitted against both accused – no objection taken – objection taken during closing address – flexibility in procedure during Judge alone trial – evidence of one accused moving murder weapon some weeks after the murder – whether act done in furtherance of common purpose – co-conspirators’ rule – circumstantial case – evidence linking accused to murder weapon – evidence admissible for a limited purpose – evidence not admissible to prove consciousness of guilt against accused not present

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – Evidence – Where evidence elicited in cross-examination was adverse to the accused – Where Crown sought to re-examine the witness in respect of that evidence – Whether the probative value of the evidence sought to be elicited in re-examination was outweighed by the danger of unfair prejudice to the accused – Where the effect of the proposed re-examination was to do little more than re-state the evidence already given - Re-examination not permitted

PRACTICE & PROCEDURE – s 146 Civil Procedure Act 2005 – transfer of proceedings to District Court – costs – whether UCPR 42.34 likely to apply – application refused

APPEAL – Local Court order to set aside a subpoena – subpoena issued to solicitor – legal professional privilege – Division 1, Part 3.10 of the Evidence Act 1995 (NSW) – section 118 – section 119 – section 122 – section 123 – interim and final orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – appeal allowed – order setting aside subpoena quashed – matter remitted

BAIL – “show cause” requirement – whether applicant has demonstrated why his continued detention is not justified

EQUITY - equitable remedies - accounts and inquiries – whether defendant in capacity as attorney of deceased should be ordered to account to deceased’s estate – whether attorney acting under power of attorney after the principal has become incapable has obligation to account – inability of attorney to account for expenditure will not necessarily require attorney to pay moneys to estate – defendant concedes that estate moneys were spent for defendant’s own benefit – account of expenditure ordered

COSTS – Whether costs thrown away by reason of amendments should be paid on the indemnity basis and forthwith – No issue of principle

COSTS – security for costs – costs of motion – where defendant ultimately successful – whether costs should follow that event

PROCEDURE – costs – application for costs order against non-party to the proceedings – where the proceedings were brought by a company to obtain removal of a voluntary administrator installed by purported resolution of the respondent and his co-director – such relief granted – adverse findings about the respondent made in the proceedings – where the respondent non-party played no role in the initiation or conduct of the proceedings – whether a costs order should be made against him in the proceedings on the basis that he “caused” the proceedings.

SENTENCE – five counts of murder – worst case category – life imprisonment

PROCEDURE – grant of leave to file cross-claim – order to vacate hearing – whether prejudice caused by delayed hearing – where dispute as to who should pay costs of motion and costs thrown away or occasioned by adjournment

APPEAL – practice and procedure – appeal dismissed by single appeal judge for non-compliance with procedural directions – application for review by three judge bench – matters relevant to dismissal application include appellant’s explanations and impact of dismissal on appellant – need for court’s orders to be proportionate to appellant’s defaults

CRIMINAL LAW – sentencing – principle of totality – accumulation of sentences – where sentences for supply of drugs accumulated on long sentence for a murder conviction subsequently set aside – whether sentence should be varied once other sentence quashed – whether non-parole period manifestly inadequate when murder sentence removed CRIMINAL LAW – sentencing – supply of drugs – two offences involving different drugs – relevance of quantity as a factor of prescribed large commercial quantities – proportionality CRIMINAL LAW – sentencing – resentencing – prospects of rehabilitation – examination of subjective circumstances – weight to be given to expert psychological report – discount to be applied for providing assistance to police authorities

CRIMINAL LAW – appeal against conviction – jury irregularity – juror sends note indicating “bullying” – no investigation of substance of juror’s note – juror subsequently fails to attend court –juror discharged – trial continued with reduced number of jurors – whether error in not investigating whether juror(s) guilty of bullying – whether error in asking balance of jurors to self-assess ability to properly perform duty as juror – whether error in not applying test in Webb v The Queen; Hay v The Queen (1983) 181 CLR 41 – significance of stance adopted by appellant at first instance – no error of law or miscarriage of justice

DEFAMATION – requirement of specificity of imputations – where broadcast more amenable to specific imputations – imputations struck out with leave to replead

DEFAMATION – application for leave to file amended statement of claim naming correct defendant – no issue of principle

TRUST AND TRUSTEES – trust property registered in the name of First Defendant as trustee – whether trustee was validly removed – whether subsequent trustees were validly appointed – whether the trustee provided a “service” to the trust in the administration of the trust by entering into a loan contract with a bank and whether the trustee can, under the trust deed or pursuant to the inherent jurisdiction of the Court, recover a share of the benefit that was thereby produced – whether mortgage debt to another lender had been repaid and hence mortgage relied on by Second Defendant should be discharged

EQUITY – Equitable remedies – Accounts and inquiries – Accounting in equity – Orders sought by beneficiaries of testamentary trust that trustees account for legal expenses of trust – Whether beneficiaries acted reasonably – Whether beneficiaries must claim breach of trust to obtain detailed explanation of expenses incurred by trustee – Extent of right of trustee not to disclose reasoning process and reasons for exercising discretionary powers PRACTICE AND PROCEDURE – Case management – Application for accounting in equity – Where beneficiaries may be entitled to a full accounting – Extent to which court can direct parties to adopt efficient and cost effective means of satisfying right to an accounting

CIVIL PROCEDURE – application for adjournment refused – breach – terms of deed of settlement and release

APPEAL AND NEW TRIAL – appeal to the Supreme Court from the Civil and Administrative Tribunal NSW – occupational decision – appeal as of right on question of law – disciplinary proceedings – osteopath – allegation of sexual assault of patient during treatment – denial of assault by osteopath – finding by tribunal that assault occurred – patient’s evidence preferred by tribunal – whether grounds of appeal raised an error of law – tribunal not bound by rules of evidence - whether tribunal satisfied to the Briginshaw standard – whether Briginshaw standard applicable – grounds of appeal challenging weight given to evidence – no errors of law demonstrated

CRIMINAL LAW – sentence – 24 counts of dishonestly using position of director to gain a benefit – impact on shareholders and investing public at large – no remorse – minimal if any reparation – offender’s efforts to disguise illegitimate payments – prior good character of limited weight when pre-requisite to opportunity to commit relevant offences and offending continued for over two years – delay not mitigating where offender thwarted investigation and delayed trial – objective seriousness very high – need for lengthy custodial sentence – importance of general deterrence

CONTEMPT – contempt of the District Court of New South Wales – sentence – solicitor also a shareholder and director of a mining company – transferring shares to a third party in breach of a District Court order – early plea – discount – sincere contrition – prior good record – character – age – mitigating factors – aggravating factors – deterrence – personal circumstances – convicted of admitted contempt – penalty imposed – community service order – s 92 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – costs

DEFAMATION – defences – defence of contextual truth – whether able to be pleaded in the future subjunctive – whether open to a defendant at trial to rely upon an imputation relied upon by the plaintiff but proved true as a contextual imputation DEFAMATION – damages – particulars of mitigation –general particulars relating to the plaintiff’s “family” said to be directly relevant to “the contextual background against which the alleged defamatory publications were made” – tenuous connection with the reputation of the plaintiff – whether particulars liable to be struck out COSTS – discontinuance against a party after late objection to pleading of the issue of publication – court’s expectation that defendants will comply with the spirit of the Defamation List Practice Note SC CL 4

EQUITY – General principles – Fiduciary relationships – Whether defendants were fiduciaries of the deceased – Where first defendant was the daughter of the deceased – Where second defendant was the son in law of the deceased – Where both defendants were duly appointed attorneys and agents of the deceased – Where deceased was elderly and in a nursing home – Where first defendant had access to deceased’s bank and building society accounts EQUITY – Equitable remedies – Accounts and inquiries – Orders sought by beneficiary under deceased estate – Orders sought that defendants account for dealings with accounts of the deceased SUCCESSION – Administration of estate – Other matters – Where defendants were executors of deceased’s will but had not sought a grant of probate – Whether defendants guilty of wilful default or as executors de son tort

TAXES AND DUTIES – land tax – exemption of land the “dominant use” of which is “for” certain primary production activities – Land Tax Management Act 1956 (NSW) s 10AA(3) – where farmland acquired with a view to residential development and subdivision – where some steps taken toward realisation of that purpose – cattle raising activities conducted on the land – certain areas also the site of tenanted houses – whether land subject to any present “use” by way of “land banking” or “residential development” – whether residential use or cattle raising use was the “dominant use” of certain areas – whether the concept of “use” relevant to s 10AA(3) is confined to physical use or extends to “intangible use”.

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

ADMINISTRATIVE LAW – application for stay of inquiry by Professional Standards Committee – whether reasonable apprehension of bias – whether member ought to have recused himself in circumstances where member and expert did not have a professional relationship and degree of association was insubstantial – not open to infer that member would bring an open mind only in relation to preference of evidence between expert witnesses - no reasonable layperson would reasonably apprehend that member might not bring an impartial mind

INDUSTRIAL LAW – s 139 Industrial Relations Act 1996 (NSW) – show cause summons – dispute orders require industrial organisation to cease encouraging strike – whether dispute orders contravened – whether s 139 Industrial Relations Act permits Supreme Court to order additional injunction – penalty to be determined after impacts of strike ascertained

EVIDENCE – documents recording incidents at plaintiff’s nightclub – business records – exception for documents relating to proceedings – exception for documents prepared for or in connection with an Australian or overseas proceeding or made in connection with an investigation relating to or leading to a criminal proceeding – “in connection with”

CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Whether non-publication order should be made - Witness compelled to give the evidence

APPEAL AND REVIEW – judicial review – review of District Court judgment dismissing application for annulment of penalty notice enforcement order – whether jurisdictional error by District Court in failing to be satisfied that applicant “hindered” from taking action in relation to the penalty notice WORDS AND PHRASES – “hindered” –Fines Act 1996 (NSW) s 49(1)(a)(ii)

APPEAL – applicant to show cause why his application for leave to appeal should not be dismissed – failure to file amended summary of argument – issue of subpoenas – extension of time to file documents

PROCEDURE – Application for leave to file further amended statement of claim – where amendment would remove company in liquidation as a defendant – whether the company is a necessary party to the proceedings – whether further amended statement of claim is adequately pleaded. PROCEDURE – Costs – Application for leave to file further amended statement of claim – where applicant is refused leave to file proposed amended statement of claim but leave would be granted if it were partly repleaded – where application said to be consequential on an external event – where motion not yet substantively determined.

EVIDENCE – adducing evidence solely concerned with credit – Evidence Act, s 106 – necessity for witness to deny or not admit substance of evidence – evidence rejected

CONTEMPT – application under Part 55 rule 11(1) of Supreme Court Rules – direction to Registrar to commence proceedings for contempt – notice given to defendant of proposed orders – defendant did not attend –orders made

REAL PROPERTY - Torrens title - Caveats against dealings – Application for withdrawal of caveat – Whether defendant’s claim is a caveatable interest – Plaintiff’s promise to pay money to builder from proceeds of sale – Interest in proceeds from sale not a caveatable interest – Plaintiff required to do equity by transferring money from proceeds of sale to a controlled money account – Proceeding transferred to Local Court

ADMINISTRATIVE LAW – judicial review – whether orders under Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a), made under jurisdictional error – failure to find that defendant appeared “mentally ill” ADMINISTRATIVE LAW – judicial review – procedural fairness – obligation to give parties a hearing when making orders under Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a) MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a) – whether order under s 33 of defendant for assessment finally disposes of charges – relationship between Mental Health Act 2007 (NSW), Pt 2, Ch 3 and Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(2)

CRIMINAL LAW – application for leave to appeal sentence – detain for advantage – applicant not responsible for criminal acts of co-offenders beyond his presence and contemplation – vigilante purpose of detention to enforce perceived claim of right – whether sentence manifestly excessive

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – attempted sexual intercourse without consent – intent to commit assault armed with a weapon – whether guilty verdict unreasonable having regard to the evidence – mishandling and contamination of DNA – whether improper assessment of reliability of scientific evidence – whether inconsistent verdict – evidence of previous accusations of sexual intercourse without consent – inconsistencies in regard to evidence – appeal dismissed

PROCEDURE – cross-claimants seek leave to read affidavit annexing expert report – where guillotine order has been made – consideration of Uniform Civil Procedure Rules 2005 (NSW) r 31.28(4) – whether exceptional circumstances exist – whether opinions expressed by the expert are wholly or substantially based upon his branch of specialised knowledge – chartered accountancy and expert valuation – held that the change of a legal advisor is not an exceptional circumstance per se – held that exceptional circumstances have not been established