Cases and authorities

PROCEDURE – evidence – application for leave – where evidence only relevant on case not so far advanced.

EVIDENCE – admissibility – relevance – client legal privilege – s 118 of the Evidence Act 1995 (NSW) – dominant purpose was to seek legal advice – s 125 of the Evidence Act 1995 (NSW) – alleged loss of client legal privilege on the basis of misconduct – whether misconduct substantial issue in trial – privilege not displaced

EVIDENCE – admissibility – alleged risk of unfair prejudice – s 137 of the Evidence Act 1995 (NSW) – danger of unfair prejudice did not outweigh considerable probative value – reasons behind enactment of s 69 of the Evidence Act 1995 (NSW)

EVIDENCE – admissibility – relevance – establishing provenance of an undated document – wording of summons to produce insufficient to indicate date of document – risk of unfair prejudice insufficiently ameliorated

CIVIL PROCEDURE – production of documents – notice to produce – where informal discovery has taken place – notice of motion seeking an adjournment of the hearing – consideration of compliance by the plaintiff with its obligations of production – whether notice to produce was employed by the cross-claimants to obtain further discovery – adjournment refused

PROCEDURE – leave to appeal from interlocutory decisions – whether stay order final or interlocutory PROCEDURE – Service and Execution of Process Act 1992 (Cth) – s 20 – whether court of another state is a more appropriate forum PROCEDURE – reasons for judgment – requirement of reasons for interlocutory discretionary decision

PRACTICE AND PROCEDURE – cross-vesting – transfer of proceedings – “special federal matter” – matter “in bankruptcy” - whether application seeking a declaration that property is held on constructive trust by trustee in bankruptcy is a special federal matter within the meaning of s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) – whether matter in bankruptcy is a special federal matter - whether Supreme Court required to order transfer of matter to the Federal Court –matter transferred to Federal Court

REAL PROPERTY - Torrens title - Caveats against dealings – Removal – Whether defendant has a caveatable interest - Whether defendant’s equitable interest has priority over mortgagee’s right to sell – Whether serious question that fraud established pursuant to s 42 of Real Property Act 1900 (NSW) – Balance of convenience favours withdrawal of caveat - No question of principle

RESTRAINT OF TRADE – whether there is a protectable interest - “goodwill” capable of being protected by a reasonable post-employment contractual restraint of trade CONTRACTS – contract of employment – whether restraint of trade clause reasonable

TAXES AND DUTIES – Land Tax – Land Tax Management Act 1956 s 10AA(3) – Whether primary production use of land was the dominant use – Identification of relevant land – Significance of use of land by consultants – Whether use of land to produce feed for taxpayer’s cattle on other land a primary production use – Meaning of dominant use

TAXES AND DUTIES – Mortgage duty – Duties Act 1997 ss 213 and 215 – Application of State Revenue Legislation Further Amendment Act 2009 – Application of changes to mortgage duty provisions, cl 76 of Schedule 1 – Refinancing using a “deferred purchase price loan structure” – Whether 2009 amendments applied - Whether unsecured advance made under an agreement, arrangement or understanding for which mortgage was security (s 213) – Whether mortgage capable of being used to recover an amount contingently payable in connection with an advance by a guarantor (s 215) – Assessment confirmed

PROCEDURE – civil – appeal from dismissal of proceedings seeking to re-open earlier judgment – whether leave required – application by undischarged bankrupt to represent wife PROCEDURE – civil – appeal – standing of director and shareholder to re-open judgment in proceedings brought by company since deregistered – no application to reinstate company PROCEDURE – civil – appeal – whether open standing rule for setting aside judgment – Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1) PROCEDURE – civil – appeal – application to call further evidence – whether evidence unavailable at trial – claim that available evidence misplaced

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

PRODEDURE - application for variation of orders made on appeal – where appeal court awarded damages contingently assessed by trial judge – back-dating of judgment – pre-judgment interest – indemnity costs – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) and (3C) – where notice of motion out of time – delay caused by oversight in solicitor’s office – whether power to dispense with the requirements of the rules – Civil Procedure Act 2005 (NSW) s 14 – limited exceptions to finality of judgments – slip rule – UCPR r 36.17 – back-dating of judgment – UCPR r 36.4(3) – interests of justice DEFAMATION – Defamation Act 2005 (NSW) s 40 – indemnity costs sought by plaintiff – defamation proceedings successful on appeal – where defendant’s offers of amends not reasonable at time they were made – whether failure to make settlement offer unreasonable – whether s 40 applies to an appeal

Leave to appeal against conviction – referral to Court of Criminal Appeal – possession of child pornography – Federal and State jurisdiction – error as to relevant law – conviction quashed.

SUCCESSION – Family Provision – application by former wife – where relationship arose in course of professional doctor/patient relationship – cohabitation of 18 months – application made 25 years after separation and 23 years after final matrimonial financial settlement – where applicant had care responsibility for 6 year old child until 21 – where applicant embarked on course of hostile action against deceased – where applicant’s earning capacity subsequently affected by motor vehicle accident – where deceased prospered financially – where deceased dies intestate with daughter only beneficiary of $5 million estate – whether factors warranting application – held, enduring impact of relationship on applicant, applicant’s indirect contribution to deceased’s estate, size of estate and absence of competing claim provide factors warranting – proper provision would enable acquisition of reasonably appropriate home, living expenses for life expectancy, and small fund for contingencies

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration not proposed - where placement with applicants well-established and beneficial – where one child has history of disrupted attachments and insecurity – where children identify with proposed adoptive family – where real potential for beneficial relationship with birth family including siblings – whether adoption would involve unacceptable risk to relationship with siblings - held, risk can be mitigated by registered adoption plan and is acceptable in light of benefits of adoption - adoption is clearly preferable to any other order that could be made with respect to their care FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – whether consent of birth parents should be dispensed with - where children in care of approved carers with whom they have established relationship – where adoption would promote children's welfare – held, necessarily also in children's best interests to make consent dispense order so as to allow adoption order to be made FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – adoption plans - registration – where provisions are agreed between all parties - where registration would mitigate residual risk in respect of birth family contact – held, plan registered.

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – application for injunction to restrain disclosure that child is in care – nature of parental jurisdiction – custodial aspect – protective aspect – where proposed disclosure would refer directly to child - whether disclosure would contravene (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105, and thereby infringe justiciable public or private right under parental responsibility of Minister – whether disclosure would be injurious to child’s welfare – stigmatization of children in care – evaluation and balancing of jeopardy to child’s welfare in context of child already in public spotlight and defendant’s and public interest in freedom of expression and scrutiny of care system - held, on balance potential jeopardy to child’s welfare insufficient to trump right of free expression.

BAIL – bail refused upon arrest – bail application pending hearing – where case fixed for committal – bail application adjourned to date after the date fixed for committal – whether mandamus should issue commanding the Local Court to exercise its power to consider bail application – meaning of Bail Act 2013 (NSW) s 41 – meaning of Bail Act 2013 (NSW) s 71 ADMINISTRATIVE LAW – supervisory jurisdiction – courts of ordinary jurisdiction – Local Court fixing bail application for hearing to date after date fixed for committal – Local Court’s jury to determine bail application expeditiously – does mandamus lie WORDS AND PHRASES – meaning of “matter” – meaning of “bail application” – does “matter” in Bail Act 2013 (NSW) s 41 include “bail application”

PUBLIC ASSEMBLY – Protest against State Government “lock-out” laws affecting licensed premises – Application by Police Commissioner for Order under Summary Offences Act 1988 NSW, section 25(1) – Order made

SUCCESSION – Intestacy and distribution on intestacy – Indigenous intestate – Intestate never married; died without partner, issue, dependants or debts – Contest between Aboriginal half-sisters and adoptive half-sisters – Explanation and application of Succession Act 2006 NSW, Part 4.4 – Distribution order made under Succession Act, section 134

MENTAL HEALTH – forensic patient - Mental Health (Forensic Provisions) Act 1990 - whether final order should be made to extend status as a forensic patient - whether unacceptable risk of causing serious harm to others - whether less restrictive means available – whether (involuntary) civil patient status under Mental Health Act 2007 would adequately manage risk – extension order made PRACTICE AND PROCEDURE – application for anonymisation of the defendant’s name - s 162 Mental Health Act 2007 does not apply to proceedings – no order made

REAL PROPERTY – notice of motion – urgent application to stay execution of writ for possession – where applicant in adverse possession of property – motion dismissed – no question of principle

PRACTICE AND PROCEDURE – Costs – Security for costs – Cross-claimants resident overseas – Whether cross-claimants impecunious – Whether order for security would stultify the proceedings

CRIMINAL LAW – sentence – procedure – Criminal Appeal Act s 14A – crown appeal allowed – sentence indicated in absence of respondent – sentence to commence when respondent appears before the court – respondent now in custody - commencement date specified

PRACTICE AND PROCEDURE – claim by plaintiffs for extension of interlocutory injunction – held interlocutory injunction should not be extended because the balance of convenience does not favour the extension – plaintiffs had established serious question to be tried in relation to their claims for relief – no question of principle

Not Applicable

DEFAMATION – interlocutory injunction - ex parte -defendant properly served and aware of listing – absence of any defence of justification – freedom of speech - where defendant continues to defy previous orders for removal by court – substituted performance order – interlocutory relief granted PROCEDURE – contempt of court - referral to registrar pursuant to Supreme Court Rules

Practice and procedure — Amendment application — where applicant sought leave under r 6.21 of the Uniform Civil Procedure Rules 2005 (NSW) to join additional persons as defendants – where applicant sought leave under s 64 of the Civil Procedure Act 2005 (NSW) to file and serve an Amended Originating Process and Further Amended Statement of Claim – where several defendants directly affected by the proposed amendments did not oppose the amendments – whether pleading in Further Amended Statement of Claim has tendency to cause embarrassment or cause prejudice – whether the Court should exercise discretion to allow amendments. Practice and procedure — Costs — where the Court previously dismissed the first defendant’s application for security for costs – where the plaintiff unreasonably put the first defendant to proof of the plaintiff’s impecuniosity in the application for security for costs – where parties were in dispute as to the costs order sought by the plaintiff – whether issues in proceedings clearly dominant or separable – whether cost orders sought should be made.

PRACTICE AND PROCEDURE – civil – representative proceedings – application for order barring group members from making or pursuing claims following settlement of the proceedings – whether the Court has the power to make such an order

TORTS – negligence – workplace incident – TNT v Christie - heavy labouring work in maintenance of Sydney railways - worker suffered back injury whilst jackhammering – system of task rotation - whether evidence as to injury true or fabricated DAMAGES – torts – negligence – workers compensation – damages awarded

PROTECTIVE JURISDICTION – Protected estate management order - Voluntary transfer determination made by ASIC under the Corporations Act 2001 Cth Part 5D.6 does not, of itself, displace an order made by Court for ongoing management of a protected estate – Remedial orders made on exercise of protective jurisdiction MENTAL HEALTH - Guardians, committees, administrators, managers and receivers – Financial management orders - Revocation

CORPORATIONS — rectification of share register — first cross-defendant and his brother each held half of the shares in the fourth cross-defendant — second cross-defendant, daughter of first cross-defendant, became the holder of all shares in the fourth cross-defendant — first cross-defendant entered into an agreement to settle earlier legal proceedings to do all things necessary to ensure that half of the shares in the fourth cross-defendant were transferred to his brother — brother of first cross-defendant now deceased — cross claimant seeks to enforce first cross-defendant’s promise to do all things necessary to ensure that half of the shares in the fourth cross-defendant were transferred to his brother — whether first cross-defendant entered into the agreement with his brother under duress — held that he had not — first cross-defendant having elected to confirm the agreement by taking positive steps to enforce it cannot avoid the agreement in any event — whether first cross-defendant’s brother transferred his shares in the fourth cross-defendant to the first cross-defendant — held that he had not — whether first cross-defendant’s brother abandoned his shares in the fourth cross-defendant — passive shareholder does no lose his or her rights to a share by not asserting any interest in the share — that a member of a company can cease to be entitled to shares by abandonment doubted — whether second cross-defendant held half of the shares in the fourth cross-defendant on trust for brother of first cross-defendant — second cross-defendant became registered holder of shares pursuant either to a forged transfer or in the absence of a transfer — second cross-defendant had actual notice of first cross-defendant’s brother’s interest in shares — second cross-defendant did not acquire shares for value — at all times second cross-defendant held half of the shares in the fourth cross-defendant on constructive trust for first cross-defendant’s brother — cross-claimant entitled to have the share register of the fourth cross-defendant rectified so as to record the cross-claimant as the hold of half of the shares in the fourth cross-defendant

PROCEDURE – civil – stay of appeal judgment – proposed application for special leave to appeal – issue of general importance – protection of subject matter of dispute – balance of convenience – offer to pay sum into court

APPEAL – stay of proceedings pending High Court special leave application – principles to be applied – equitable jurisdiction to intervene in relation to unconscionable bargains – partial stay granted

BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether review available for non-jurisdictional error of law on the face of the record CIVIL PROCEDURE – application to reopen earlier judgment of Court – decision as to scope of supervisory jurisdiction – consideration of subsequent authorities – resolving uncertainty in reasoning STATUTES – scope of supervisory jurisdiction of Supreme Court – whether jurisdiction restricted absent an express privative clause – whether jurisdiction limited to non-jurisdictional errors of law on face of record – inter-relationship of Supreme Court Act 1970 (NSW), s 69 and Building and Construction Industry Security of Payment Act 1999 (NSW)

CRMINAL LAW – Sentence – child sexual assault – child abuse material – offences against extended family member over extended period – blanket assessment of objective seriousness without assessment of individual offences – taking into account abuse of a position of trust where the victim being under the authority of the offender was an element of some offences – offences committed in a home as an aggravating factor – failure to explain by factors are aggravating – error established – applicant resentenced

Sentence – juvenile offender – multiple offences – armed robbery in company – approach to sentencing youthful offenders – cognitive impairment – emotional immaturity – prospects of rehabilitation – whether sentence manifestly excessive.

CORPORATIONS – Winding up – Liquidators – where liquidator seeks direction or declaration as to certain taxi licences or taxi plates – where company entered into agreements expressed to be for the lease of taxi plates – where order made for the winding up of the company – whether taxi licences or taxi plates vested in the company pursuant to s 267 of the Personal Property Securities Act 2009 (Cth) – whether the agreements constituted “PPS leases” for the purposes of that Act PERSONAL PROPERTY – Definition and classification – whether taxi licences are “goods” for the purposes of the Personal Property Securities Act 2009 (Cth)

CONTRACTS – building and engineering and related contracts – statutory right to progress payments – Building and Construction Industry Security of Payment Act 1999 (“the Act”) – the Plaintiff head contractor is the subject of an adverse determination by an adjudicator under the Act in favour of the First Defendant – Plaintiff alleges that the adjudicator, the Second Defendant, denied the Plaintiff procedural fairness by not having regard to the Plaintiff’s response submissions in the adjudication process – adjudicator found that Plaintiff’s response was out of time under the Act, ss 20 and 21 – Plaintiff seeks interlocutory injunction restraining the First Defendant from applying for an adjudication certificate as a result of the adjudicator’s determination or from filing any adjudication certificate that may have been obtained – whether there is a serious question to be tried – considerations of the balance of convenience.

TRADE PRACTICES- Statute-Plaintiff sought recovery from the Defendant pursuant to s.74B, s.74D, and s.74H of the Trade Practices Act and s.54, s.55 and s.274 of the Australian Consumer Law of the cost of service calls and replacement parts for a satellite kit imported by the defendant - equipment said to be not reasonably fit for purpose, not of merchantable quality, not of acceptable quality. HELD: Plaintiff established that almost all of the subject items were not functioning for reasons inherent with the equipment and were therefore not fit for purpose, not of merchantable quality, not of acceptable quality; issue of high failure rate of equipment discussed; TRADE PRACTICES-Statute- Where Plaintiff claimed it was forced by reason of the defective equipment imported by defendant to engage additional support staff to deal with the high number of complaints that resulted from the defective goods resulting in a loss of money spent on wages HELD: The factual basis for the claim not established; also the indemnity provided for by s.74H is for cost or damage suffered by the consumer for which the intermediate seller has compensated the consumer and not the costs of the intermediate seller itself. Plaintiff’s claim rejected. TRADE PRACTICES- Statute -Unconscionable conduct of supplier to internet service provider- Plaintiff claims that a price increase imposed on it by defendant, a satellite service provider, involved unconscionable conduct on the part of the defendant in breach of s.21 and s.22 of the Australian Consumer Law HELD: The Defendant had engaged in unconscionable conduct principally by requiring the Plaintiff to pay to it an amount equivalent to the defendant’s assessment of what it would cost to meet the statutory indemnity imposed by s.74H and s.274 ACL, as a result of claims made by the Plaintiff on the defendant for defective goods.

COSTS – application for interest on costs – date from which to be paid

TRUSTS – Reliance on right of indemnity for trustee’s costs of examinations and seeking legal advice.

DEFAMATION – defences – defence of fair report – whether defence so obviously able to be established that the plaintiff’s claim should be summarily dismissed – where plaintiff gave evidence before Royal Commission – nuances in evidence arguably not captured in report

DEFAMATION – defences – defence of contextual truth – contextual imputation pleaded in general terms – whether liable to be struck out on case management principles – whether so general as to be likely to cause difficulty in the interlocutory stages or at the trial

BANKRUPTCY – judicial review – whether proceedings stayed by operation of s 60(2) of Bankruptcy Act – where trustee indicates not to pursue matter in writing but does not file notice of discontinuance – where plaintiff seeks to continue proceedings in his own name BANKRUPTCY - whether plaintiff’s proceedings is an “action” within s 60(2) – whether the “action” is “in respect of any personal injury or wrong done” within s 60(4) – where adverse administrative decision finds plaintiff’s character “not fit and proper”

ADMINISTRATIVE LAW – Motor Accidents Compensation Act - judicial review of medical assessment and application for review – whether pre-existing mental condition – whether failure to assess pre-existing impairment – whether compliance with Permanent Impairment Guidelines – adequacy of reasons – whether legal unreasonableness – no reviewable error established