Cases and authorities

PRACTICE AND PROCEDURE –dismissal for want of prosecution – plaintiff under legal disability with no acceptable tutor available – plaintiff’s rights to recommence proceedings not extinguished – defendant at unfair disadvantage - permanent stay inappropriate in the circumstances

EVIDENCE – defamation proceedings – tender of judgment from Land and Environment Court proceedings – Evidence Act, s 91 – contents of judgment relevant to fair report defence – contents of judgment evidence of issues in dispute in Land and Environment Court proceedings – tender allowed

CRIMINAL LAW – Procedure – Accused charged with murder – Where witness giving evidence for the Crown against the accused had previously pleaded guilty to his role in the murder and had been sentenced – Where witness had been charged shortly before the commencement of the accused’s trial with conspiracy to extort money from the accused in return for not giving evidence – Where witness objected to questions going to those charges but then willingly answered the questions with the benefit of a certificate to be issued pursuant to s. 128 of the Evidence Act – Where application was then made on behalf of the witness that his evidence in cross-examination in relation to the most recent charges not be published – Whether such an order necessary to prevent prejudice to the proper administration of justice – Order not necessary – Interim order discharged

COSTS – plaintiff lodges caveat claiming interest under a constructive trust – lapsing notice served in respect of caveat – plaintiff commences proceedings seeking extension of caveat – plaintiff subsequently commences proceedings in Federal Circuit Court – orders made for extension of caveat – whether unreasonable of plaintiff to commence proceedings in Supreme Court

TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – whether relief available under s 1041H of the Corporations Act 2001 (Cth) – where plaintiff asserted various misleading or deceptive conduct claims against defendants in respect of the plaintiff’s subscription for shares in company – whether any representations were misleading or deceptive and if so whether they were causative of plaintiff’s loss.

CORPORATIONS – winding up – application to set aside creditors’ statutory demands under Corporations Act 2001 (Cth) ss 459H and 459J – whether a genuine dispute has been established – whether defects in demands gave rise to substantial injustice – whether some other reason for statutory demand to be set aside – whether to vary statutory demands under Corporations Act 2001 (Cth) s 459H(4)

APPEAL AND NEW TRIAL – magistrates - defendant charged with assaulting and resisting police officer in the execution of his duty – police officer attempted to pull defendant away from burning building after requesting him to move – police officer asserts defendant punched him multiple times – defendant denies assault - defendant found not guilty – self-defence raised by magistrate - appeal by prosecutor – no findings of fact on critical issue of assault – whether defence of self-defence engaged – s 418(2)(c) Crimes Act – whether defendant protecting property from unlawful, taking destruction, damage or interference – whether police officer acting in the execution of his duty – failure to provide adequate reasons – no basis for self-defence – proceedings remitted to the Local Court

APPEAL AND REVIEW – judicial review – supervisory jurisdiction – whether relief limited to that available under prerogative writs – whether court can make order replacing determination of court below if only result legally available in accordance with reasons of court CONTRACTS – construction and interpretation of contracts – purposive interpretation – whether terms imposing procedural requirements and time limits for notices of breach and termination were mandatory – effect of non-compliance JUDGMENTS – recoverability of interest – award of interest on amount payable for breach of contract – power of tribunal to order pre-determination interest JUDICIAL REVIEW – grounds of review –discretion not to intervene on finding error of law – amount in issue not warranting remittal – conduct of party seeking review

CIVIL PROCEDURE – expert evidence – experts’ reports – whether leave is to be granted for the tender of a supplementary expert report served out of time – consideration of Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – the meaning of “merely updates” in Rule 31.28 (4)(b) – held that supplementary report merely updates previous report – held that leave is to be granted for the tender of supplementary expert report EVIDENCE – opinions based on specialised knowledge – s 79 of the Evidence Act 1995 (NSW) – whether opinions are wholly or substantially based on the expert’s specialised knowledge – held that opinion based wholly or substantially on expert’s specialised knowledge EVIDENCE – the Court’s discretion to grant leave – s 192 of the Evidence Act 1995 (NSW) – whether leave is to be granted for the tender of a supplementary expert report served out of time - held that leave is to be granted for the tender of supplementary expert report

CIVIL PROCEDURE – counsel cross-examining his instructing solicitor – whether leading questions are permitted in cross-examination in consideration of s 42 of the Evidence Act 1995 (NSW) – whether the witness has an interest consistent with an interest of the cross-examiner – whether the witness is sympathetic to the party conducting the cross-examination – held that leading questions are to be disallowed in cross-examination EVIDENCE – cross-examination – leading questions in cross-examination – the Court’s discretion to disallow leading questions in cross-examination – consideration of s 42 of the Evidence Act 1995 (NSW) – held that leading questions are to be disallowed

BUILDING & CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – application for interlocutory relief – whether to restrain enforcement of adjudication determination – delay in seeking relief – injunction not granted

BUILDING AND CONSTRUCTION – claim for failure to perform work and defective work – withdrawal by defendant’s solicitor – defects in residential building work result of builder’s work – cost of rectification – cost of further home warranty insurance – no question of principle

CORPORATIONS – winding up in insolvency – no matter of principle

CORPORATIONS – winding up in insolvency – application for substitution as applicant for winding up – whether person seeking to be substituted in a creditor with a debt not subject to bona fide dispute

CONSUMER LAW – measure of damages as a result of purchase of aircraft in reliance on misleading representation – amount paid exceeded estimate given wrongdoer – value of aircraft exceeded amount paid DAMAGES – wronged party to be compensated only if suffered actual loss – no actual loss as aircraft’s value exceeded amounts paid – judgment entered in favour of wronged party set aside ADMINISTRATIVE LAW – no utility in remitting matter to Local Court as application of correct principles produced a single result

CONTRACTS - Construction and Interpretation of Contracts – construction and interpretation of Deed of Release – where interlocutory costs orders made – where Deed of Release settled proceedings – where orders made by the Court giving effect to settlement terms in Deed of Release – where costs assessment application made in relation to interlocutory costs orders - whether costs assessment application falls within the meaning of “claim” in Deed of Release, so as to preclude further steps being taken in the costs assessment process.

PERSONAL PROPERTY SECURITIES LAW – Personal Property Securities Act 2009 (Cth) ss 8(1)(j), 10, 13(2)(a), 267 – meaning of fixtures and land in s 10 – whether lease of mobile gas turbines was a PPS lease as defined in s 13 – whether “affixed to land” in s 10 imported common law concepts or a bespoke test REAL PROPERTY – fixtures to land – intention of parties – purpose of annexation – whether turbines connected for better enjoyment of turbines themselves or for better enjoyment of land – where lessee contractually obliged to return turbines – temporary nature of annexation – whether analogy with tenant’s fixtures appropriate – degree of annexation - resting by own weight – where removal of turbines would cause no damage to land – where cost of removal does not exceed value of the turbines – where contract includes express term that property in turbines does not pass to owner of land STATUTORY INTERPRETATION – general principles – use of extrinsic materials

REVENUE – Whether declarations should be made

CORPORATIONS — Winding up — Grounds for winding up – Application under s 459S of the Corporations Act 2001 (Cth) for leave to oppose winding up application on ground not relied on in application to set aside statutory demand – where Applicant alleges that debt is genuinely disputed – where Applicant’s solvency depends on support from associated persons and entities – whether ground material to proving solvency of company

DEFAMATION – application for interlocutory injunction – significance of the value of free speech – requirement to establish a viable claim for more than nominal damages – where matter complained of inaccurately described plaintiff as a person against whom orders had been made under the Vexatious Proceedings Act – orders subsequently made against the plaintiff under that Act – basis for interlocutory relief not established

PRODEDURE - Costs - General rule - Costs follow the event - Whether reason shown to depart from the general rule – Where both parties were partially successful and partially unsuccessful – No order as to costs

TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925 (NSW) – superannuation fund – conditional consent to non-lapsing direction revoked where trustee had actual knowledge that the deceased and his widow were permanently separated – trustee not compelled to pay death benefit to deceased’s widow as provided in the direction – direction then treated as a request

PROCEDURE – notice of motion – order sought setting aside the leave to issue a subpoena on Telstra – order revoked

TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925 (NSW) – where beneficiary of life interest wishes to surrender that interest in favour of remaindermen – whether interests of remaindermen are thereby accelerated – whether class of remaindermen be closed upon surrender of beneficiary’s life interest – proper construction of the will

CRIMINAL LAW – Procedure – Discharge of member of the jury – Where jury given an estimate of 3 months for the trial – Where note received from a member of the jury – Where that member’s employer was said to be seeking “legal advice” about the juror’s continued participation in the trial – Where the note expressed the juror’s concerns about potential ramifications upon his employment if he were required to continue to serve – Juror discharged

CRIMINAL LAW – murder trial - Accused stabbed victim 20 times - whether defence of mental illness should be left to the jury - Accused using methylamphetamine (“Ice”) for about 12 months before killing - Accused had no family history of mental illness - Accused smoked significant quantity of “Ice” before killing - psychiatric evidence that Accused was subject to a defect of reason (a delusion) by reason of a disease of the mind (drug-induced psychosis) at the time of the killing - no other psychiatric condition present at the time - whether there was evidence of “disease of the mind” - held that no evidence of a “disease of the mind” in these circumstances - in any event, condition of Accused was substantially affected by substantial ingestion of “Ice” before the killing - defence of mental illness not left to the jury

CRIMINAL LAW – manslaughter – sentence – guilty plea – unprovoked attack – older victim unknown to offender – offence in public place – genuine contrition and remorse – young offender with no history of violence – fear of re-incarceration – prospect of psychological counselling for anger management issues – good prospects of rehabilitation – need for general deterrence – special deterrence

TORTS – negligence – motor vehicles – respondent found injured near his bicycle on unsealed road – whether fall caused by push from behind by unidentified motor vehicle or due to bicycle striking a pothole – whether requirement for appellate intervention in respect of credit-based finding satisfied - Fox v Percy (2003) 214 CLR 118 – whether primary judge erred in analysis of contemporaneous documents

CRIMINAL LAW - Procedure – confiscation of criminal assets – Proceeds of Crime Act 2002 (Cth) – restraining order – where sworn statement and examination orders made ex parte against respondent requiring provision of information concerning property, liabilities and dealings with property – where subject matter of orders same as pending criminal charge – where primary judge granted stay of orders – whether in absence of stay respondent at risk of prejudice in conduct of defence in criminal trial by potential prior disclosure to prosecuting authority of information obtained by compulsory processes

CONSTITUTIONAL LAW – federal jurisdiction – diversity jurisdiction – dispute between residents of two States arising under State law determined by State tribunal – common ground that State tribunal was exercising judicial power but was not a Chapter III court – whether implied limitation on State legislative power to confer judicial power in respect of a matter specified in ss 75 and 76 of the Constitution on a body which was not a Chapter III court – whether a State law conferring judicial power on such a body was inconsistent with Judiciary Act 1903 (Cth), s 39 – submission as to implied limitation of State legislative power rejected, but submission as to inconsistency accepted CONSTITUTIONAL LAW – inconsistency of Commonwealth and State laws – whether conditional investment of federal jurisdiction in matters specified in ss 75 and 76 of the Constitution in State courts inconsistent with State law conferring judicial power in respect of the same matters on a body which was not a State court – whether State law altered, impaired or detracted from federal investment of jurisdiction – consequences of finding of inconsistency

REAL PROPERTY - Torrens title - caveats against dealings – application for extension of caveat – serious question to be tried as to whether plaintiff has an enforceable equitable charge over the subject property – not necessary to resolve issues of construction at interlocutory stage - balance of convenience does not favour extension of caveat – removal of caveat would not defeat or derogate plaintiff’s claim - plaintiff unlikely on evidence to be able to satisfy undertaking as to damages

PRACTICE AND PROCEDURE – urgent application to transfer proceedings from District Court to Supreme Court – proceedings listed for hearing in District Court – if successful plaintiff likely to exceed jurisdictional limit of District Court – prejudice to defendant – costs – delay – proceedings transferred

SUMMARY DISMISSAL – no question of principle

REAL PROPERTY – contracts for the sale of land – deposits – series of contracts – vendor terminates contracts on ground that purchaser failed to pay deposits – whether amount paid at time of entry into initial contract satisfied obligation to pay deposit under last contract CONTRACTS – illegality – whether contract associated with or in furtherance of illegal purposes – series of contracts – last contract entered into as part of transaction designed to avoid an immediate liability for stamp duty and defer payment of duty – legislative regime does not provide for contract to be unenforceable – whether Court should nonetheless hold the contract to be unenforceable

CRIMINAL LAW - high risk offenders – extended supervision orders – order made in 2009 – defendant subsequently incarcerated for breaches of conditions and for further offending – revival of the ESO after release from further custody – application by the State to vary the conditions of the ESO – whether appropriate to include search and seizure provisions in the conditions – defendant had psychopathic and paraphiliac diagnoses – assessed as moderately high risk of future offending - defendant had purchased additional mobile telephones and SIM cards and failed to provide details to supervising officer – telephones used in offending – search and seizure conditions appropriate

TORTS – negligence – road authority – physical injury – injury suffered as a result of a fall – concussion – actual knowledge of risk – vegetative barrier to risk – contributory negligence – Post-Traumatic Stress Disorder – pre-existing mental impairment – limited capacity to work – life expectancy reduced.

APPEAL – criminal law –whether dextromethorphan was a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) – Crown concession – indictment quashed CRIMINAL LAW – costs – application for certificate under s 2(1)(a) of Costs in Criminal Cases Act 1967 (NSW) – whether applicant was “discharged in relation to offence concerned” – certificate granted

APPEAL – criminal – supply of drugs – circumstantial evidence – silence of accused – deemed supply charge – adequacy of directions to jury – absence of request for further directions – leave required EVIDENCE – identification evidence – expert opinion – voice recognition – comparison of voices on telephone intercepts and electronically recorded interview – whether admissible as identification evidence – whether subject to exclusion as opinion evidence – whether experience of repeated listening results in ad hoc expertise – whether admissible as expert evidence

APPEAL – criminal – judge alone trial – nature of appeal – constraints on challenges to findings of fact based on credibility assessments – appeal not in nature of rehearing CRIME – appeal – steal money property of employer – judge alone trial – challenge to admission of evidence – challenge to reasons – whether verdicts unreasonable or cannot be supported on the evidence EVIDENCE – admissions – responses to questioning by investigator hired by employer of accused – whether investigator an “investigating official” – whether investigator capable of influencing decision to prosecute – Evidence Act 1995, s 85 EVIDENCE – admissions – whether deed by which accused agreed to repay money contained an admission – whether deed admissible – whether letter explaining failure to make repayment under deed admissible

EVIDENCE – admissibility of evidence – relevance – evidence pertaining to parties’ background and life achievements – held that evidence is relevant and admissible

EVIDENCE – opinions based on specialised knowledge – s 79 Evidence Act 1995 (NSW) – whether opinion wholly or substantially based on specialised knowledge – consideration of agronomics as a field of specialised knowledge – held that opinions expressed not based wholly or substantially on specialised knowledge

CRIMINAL LAW - sentence after trial - murder - Offender in relationship with Man Haron Monis - Offender murders former wife of Monis - murder planned by Monis and carried out by Offender - victim attacked in stairwell of apartment block and stabbed 18 times before being set on fire by Offender - motive to secure custody of Monis’ two sons and for Offender and Monis to live as a family with their respective children - highly unusual and longstanding relationship between the Offender and Monis - very substantial objective gravity of offence - consideration of prospects of rehabilitation, specific deterrence and future dangerousness - whether sentence of life imprisonment should be imposed in accordance with s.61(1) Crimes (Sentencing Procedure) Act 1999 - relevance on sentence of Monis’ role and the nature of the relationship between the Offender and Monis - not demonstrated to criminal standard that life sentence should be imposed - very lengthy determinate sentence passed - sentence of imprisonment for 44 years - non-parole period of 33 years with balance of term of 11 years

PROCEDURE – costs – application for gross sum costs order – application for indemnity costs following Calderbank letter – whether offer capable of acceptance – whether to apportion costs between unsuccessful plaintiffs PROCEDURE – security for costs – whether to order partial release of security

APPEAL – application for leave to appeal – refusal of application for judicial review of decisions of NCAT – refusal of adjournment by NCAT – refusal of leave to proceed with complaint of discrimination referred at request of applicant – whether arguable case of procedural unfairness or other error of law JUDICIAL REVIEW – whether Tribunal properly constituted by qualified member – whether application engaged a “substantive Division function” – whether bias – whether reasons adequate – whether challenges to fact-finding available PROCEDURE – failure to supply written statement of reasons within time specified – whether decision rendered invalid – failure to name correct party as respondent in Tribunal – failure to record decisions clearly in Tribunal records

PROCEDURE – stay of judgment pending appeal – applicable principles – whether evidence establishes a risk that the judgment will not be repaid if not stayed

EVIDENCE – admissibility – authenticity of documents – duplicate bank records – consideration of Evidence Act 1995 (NSW) ss 48(1)(e), 51 and 133 – consideration of relevance – document admitted

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 it thought fit to agree to a proposed scheme of arrangement – where scheme of arrangement involved the plaintiff’s shareholders transferring their shares to another company for cash consideration – whether requirements to order scheme meeting are satisfied.

SECURITIES – personal property – registration – where financing statements did not include grantor’s ACN but ABN – whether registrations defective – whether search of PPS register by reference only to grantor’s ACN would not reveal the registrations – held, it would not – where defect was such that searchers using one of the authorised modes of search would not discover the registration – whether defect was seriously misleading – held, it was – held, registrations were ineffective CONSTITUTIONAL LAW – legislative power – compulsory acquisition of property – Constitution s 51(xxxi) – whether PPSA s 267 is disapplied pursuant to PPSA s 252B – whether s 267 effects an acquisition of property within s 51(xxxi) – held, it does not effects an acquisition of property, but if it does it is not one within the meaning of s 51(xxxi), because it is not an acquisition for any purpose in respect of which the Commonwealth has power to make laws, but for the grantor’s own purposes, and represents a genuine adjustment of the competing rights, claims and obligations between owners of interests in personal property – whether s 267 would be a valid exercise of power under Constitution s 51(xvii) and s 51(xxxvii) if it effected an acquisition of property within the meaning of s 51(xxxi) other than on just terms – held, although the heads of power that support s 267 sufficiently manifest an intention that at least to that extent they not be constrained by the indirect operation of s 51(xxxi), PPSA s 252B nonetheless would disapply a provision of PPSA if effects an acquisition of property within the meaning of s 51(xxxi) other than on just terms regardless of its constitutional validity – PPSA s 252B is not engaged, and so does not affect the operation of s 267. CORPORATIONS – securities – personal property securities – registration and perfection of security interests – where security interest not perfected by registration or otherwise before grantor has administrators appointed – where no effective registration within time referred to in s 588FL – application to fix later time under s 588FM – whether relief under Corporations Act s 588FM is available – held, it is not, because the relevant security interest was unperfected at the “critical time” – whether relief under s 588FM if available would reverse vesting under s 267 – held, even if relief could be given under s 588FM, it would not divest an unperfected security interest that has already vested under s 267 SECURITIES – personal property – perfection of security interests – vesting of unperfected security interest in grantor upon insolvency event – where security interest not perfected by registration or otherwise when grantor has administrators appointed – whether extension under PPSA s 293(1)(a) of period for registration referred to in s 62(3)(b) would divest vested unperfected security interest – held, it would not.

COSTS – departing from general rule – whether unsuccessful defendant/cross-claimant acted unreasonably in relation to litigation – failure to accept offers of compromise made by successful plaintiff/cross-defendant – prima facie entitlement to indemnity costs – whether Court should order otherwise – Uniform Civil Procedure Rules 2005 (NSW) r 42.14, 42.15A