Cases and authorities

STATUTORY CONSTRUCTION – Local Government Act 1993 (NSW), s 218E – proposals to alter the boundaries of or amalgamate local government areas – meaning of “proposal” – whether proposal document which contained information and discussion or proposal to amalgamate constituted “proposal” STATUTORY CONSTRUCTION – referral of proposal by Minister to Departmental Chief Executive for examination and report pursuant to Local Government Act 1993 (NSW), s 218F – ss 218F(2) and 263(2A) require that inquiry be held for the purpose of function of examination and report in relation to a proposal for the amalgamation of two or more areas –delegate of Department Chief Executive conducted consultations with public but did not actively ask questions – delegate met with accounting firm conducting analysis and modelling privately – whether statutory requirement of “inquiry” met – meaning of “inquiry” – role of “inquiry” in exercise of functions of examination and report by Delegate of Department Chief Executive ADMINISTRATIVE LAW – examination and report on proposal for local government amalgamation by delegate of Departmental Chief Executive pursuant to Local Government Act 1993 (NSW), s 218F – mandatory relevant considerations pursuant to ss 218F(2) and 263(3)(a)-(f) – whether delegate required to have regard to financial advantages or disadvantages of proposal for residents and ratepayers of individual local government areas concerned – whether delegate conducted examination into financial advantages or disadvantages PROCEDURAL FAIRNESS – examination and report on proposal for local government amalgamation by delegate of Departmental Chief Executive pursuant to Local Government Act 1993 (NSW), s 218F – extent of obligation to afford procedural fairness – whether delegate under a duty to notify affected local government council of key material upon which it proposed to rely in preparation of report – no absence or loss of opportunity to make submissions in relation to material PROCEDURAL FAIRNESS – review and comment by Boundaries Commission following referral of proposal for local government amalgamation to delegate of Departmental Chief Executive for examination and report pursuant to Local Government Act 1993 (NSW), s 218F – extent of obligation to afford procedural fairness – whether Boundaries Commission’s required to afford affected local government council reasonable opportunity to respond to delegate’s report ADMINISTRATIVE LAW – proposal for amalgamation of local government areas under Local Government Act 1993 (NSW), s 218E – accounting firm provided public statements regarding Minister’s proposal for amalgamation of three local government areas – statements represented that accounting firm had conducted “independent analysis and modelling” – whether accounting firm independent – whether statements misleading – whether misleading statements impugned statutory process under Local Government Act

CRIMINAL LAW – perjury – primary judge dismissed application by appellant pursuant to the Crimes Act 1900 (NSW), s 338(1)(c) to prosecute respondent for perjury – meaning of “false statement made on oath” – whether statement made by the respondent was false – allegation that the respondent had deliberately omitted material from an affidavit – whether an omission can form the basis for a charge of perjury COSTS – indemnity costs – award of indemnity costs made by primary judge – basis of award for indemnity costs – whether order of primary judge should be disturbed – whether indemnity costs should be ordered against the appellant for the costs of the appeal

APPEALS – interlocutory decision – whether party can wait for final judgment and appeal as of right – consequences of one defendant seeking leave to appeal and another not – whether other defendant estopped CONTRACTS – contract of insurance – construction – complex and lengthy clause – regard to text, context and purpose – importance of grammatical structure – significance of punctuation – reading contract as a whole – regard to legislative context – whether proposed construction leaves other clauses with work to do COSTS – appeal from adverse costs orders – whether appeal as of right from failure to obtain third party costs order – whether conduct of former director attributable to insured for purposes of exclusion clause – Sanderson order – whether necessary to show conduct which induced or encouraged plaintiff to sue defendant INSURANCE – exclusion clause – construction – avoidance of consequences which are irrational and unjust – relevance of contra proferentem maxim – rule of last resort

NEGLIGENCE – liability of occupier – liability of landscape architect – patron injured as stepped into garden bed in Club car park – true depth of garden bed obscured by vegetation – primary judge found Club liable but architect not liable – both Club and architect liable for patron's injury – no appellate interference with assessment of contributory negligence – statutory contribution between Club and architect 75% : 25%

DEFAMATION – urgent interim injunction – ex parte - power must be exercised with exceptional caution - balance of convenience – relief granted

CORPORATIONS — Winding up — Winding up of co-operative under Co-operatives National Law (NSW) – where plaintiff sought special leave to distribute surplus in the liquidation of the co-operative to another entity – whether special leave ought to be granted.

DAMAGES — Contribution and apportionment – where the Court had delivered judgment finding certain defendants liable for misleading or deceptive conduct by non-disclosure – where fifth defendant sought for an apportionment of liability as between the fourth and fifth defendants relying upon Pt 7.10 Div 2A of the Corporations Act 2001 (Cth) – whether the Court should make orders apportioning liability. PROCEDURE — Costs — where plaintiff failed against certain defendants and against other defendants succeeded in only some of its claims – whether costs orders sought should be granted.

SUCCESSION – FAMILY PROVISION - Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The first Defendant, the widow and sole beneficiary – The second Defendant the executor of the Will of the deceased – Probate granted – Actual estate consisting of real estate in which the first Defendant lives - Small amount of cash – Large amount of superannuation to whom paid is not determined - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.

CONTRACT – agreement to construct retaining walls on boundary – time within which walls required to exhibit agreed strength PRINCIPAL and agent – individual contracting without notifying capacity as agent for corporations – personally bound by agreement – corporations also bound through actual authority LIMITATION of actions – accrual of cause of action in contract

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Defendant, also an adult child of the deceased and the sole executor named in the Will –– Modest estate in value principally comprising real property, which was devised absolutely to the Defendant – No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

REAL PROPERTY – owners of one strata lot in tower complex install mirrored door on their common property in lobby – owners of another strata lot in same tower complex allege installation is in contravention of Strata Schemes (Freehold Development) Act 1973 (NSW) – construction of strata management statement – meaning of “Shared Facilities”

TAX — payroll tax — employment agents — plaintiff provided the services of experts to provide expert services in connection with litigation or in relation to some aspect of a client‘s business — experts retained by the plaintiff were independent contractors — whether payments made by the plaintiff to experts were wages pursuant to s 3C(2)(C) of the Pay-roll Tax Act 1971 and s 40 of the Payroll Tax Act 2007 — held that services provided for a client’s benefit but not provided by a service provider working in a client’s business not intended to fall within the scope of the employment agency contract provisions — work done by the experts retained by the plaintiff was not done in the conduct of a client’s business — payroll tax assessment notice set aside

EQUITY – Trusts, trustees and beneficiaries - Proceedings by beneficiary in right of trust against third party – Whether beneficiary can sue third party for common law damages that could be recovered by trustee if trustee willing and able to sue for them – Whether corporations law principle barring recovery of “reflective loss” by shareholder applies by analogy in law of trusts PRACTICE AND PROCEDURE — Pleadings — Statement of claim – Amendment to statement of claim including leave for joinder of trustee of unit trusts and the plaintiff’s co-unitholders – Purpose to bind all interested persons and to avoid multiplicity of proceedings, not assertion of a new cause of action

GUARDIANSHIP AND FINANCIAL MANAGEMENT – Plaintiff/husband seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – Tribunal dismissed the Plaintiff’s application to act as his wife’s (the third defendant) financial manager and guardian – Tribunal instead confirmed the appointment of the NSW Trustee and Guardian as financial manager and the Public Guardian as the guardian of his wife – the third defendant suffers from frontal lobe dementia, and currently lacks legal capacity – shortly before guardianship order, the third defendant made allegations against the Plaintiff that he had physically abused her - whether the Tribunal’s decision should be quashed – if the Tribunal’s decision is quashed, whether the Court should appoint the Plaintiff as the third defendant’s guardian and financial manager or should leave the Public Guardian and the NSW Trustee and Guardian acting in those roles.

Sentencing – Manslaughter – Excessive self defence

APPEAL – application for interim stay of orders at first instance – no issue of principle

PRACTICE AND PROCEDURE – case management – directions

CONTRACTS – contract between appellant and employer relating to change of work role – where alleged that contract formed at meeting or clarified and confirmed by subsequent conduct entitling appellant to increased salary for fixed term and profit share – where primary judge rejected claim as to alleged contract – where appellant sought to argue for more limited contract on appeal – whether pleaded or claimed at first instance APPEAL – limited contract claim, not raised at trial – pleadings – conduct of trial – whether appellant should be permitted to raise limited contract claim for first time on appeal

APPEALS – supervening enactment of legislation after judgment reserved rendering appellate proceedings “moot except as to costs” – whether in proceeding to judgment Court impermissibly delivered “advisory opinion” – whether Court should set aside principal judgment – appropriateness of proceeding to determination where costs at first instance remain in issue as between the parties COSTS – costs discretion under Civil Procedure Act 2005 (NSW), s 98 – usual order as to costs under Uniform Civil Procedure Rules 2005 (NSW), r 42.1 – whether proceedings “public interest litigation” such as to warrant departure from usual order as to costs – whether there should be no order as to costs on the basis that appeal rendered moot by supervening enactment of legislation

MOTOR VEHICLE ACCIDENT – personal injuries – operator of forklift at depot negligently fails to secure a stillage (partially enclosed cage) to the raised tines of the forklift – stillage slips from the tines near the end of unloading operation from the stillage to a container – worker unloading sacks injured when struck by the slipping tillage – worker placed foot on mezzanine floor of trailer – whether worker’s injuries occurred “during… the driving of a vehicle” within the meaning of s 3A(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) – whether the worker’s injuries were sustained as a consequence of driving the forklift – whether displacement of the stillage causally related to the driving of the forklift DAMAGES – whether primary judge erred in assessing damages for past and future loss of earning capacity – whether net income of the comparator properly assessed for the purpose of assessing damages

CONTRACT – concrete purportedly supplied by appellant resulted in damage to respondent – existence of contract between appellant and respondent – whether respondent’s contract was alternatively with different Boral company – importance of contemporaneous documentary evidence in determining contracting party identity – whether appellant could rely on defence where defence first raised at trial after close of evidence – where defence did not admit but did not deny critical issues in proceedings PRACTICE AND PROCEDURE – whether leave should be granted to amend statement of claim to join the different Boral company as alternative defendant – where forensic decision made to not join alternative defendant at first instance COSTS – whether appellant’s conduct at first instance has consequences for costs of trial – importance of co-operation between the parties and a “cards on the table” approach to litigation

COSTS – interest on costs – where successful appellant seeks order for interest on costs of proceedings at first instance and on appeal following appeal – where no claim to interest on costs made at first instance or on appeal – where claim to interest made after final costs orders following appeal – where successful appellant’s conduct resulted in delay in prosecution of appeal – where amount of interest on costs not substantial – motion dismissed

TRAFFIC LAW – motor accident legislation – action for damages – non-economic loss – medical assessment – medical dispute as to degree of permanent impairment of injured person as a result of injury caused by the motor accident – where incident in which claimant injured involved different phases – where some phases involved a motor vehicle and others involved driver physically assaulting claimant – whether medical assessor’s functions included determining whether claimant’s injuries were caused by “motor accident” as defined in Motor Accidents Compensation Act 1999 (NSW) – Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 58, 131, 133 STATUTORY INTERPRETATION – Motor Accidents Compensation Act 1999 (NSW), s 58(1)(d)

CRIMINAL LAW – appeal against sentence – knowingly take part in supply of prohibited drug not less than the commercial quantity – methylamphetamine – parity

CRIMINAL LAW – appeal against conviction – convicted of causing a child to participate in an act of child prostitution – convicted of exercising lawful control over premises in which a child participated in act of child prostitution – Crimes Act 1900 (NSW), ss 91D, 91F – whether duplicity – whether double jeopardy – distinction between elements of each offence – whether evidence supporting one charge was sufficient to procure conviction upon the other charge CRIMINAL LAW – appeal against sentence – whether manifest excess

PROCEDURE – interlocutory application by Plaintiff to have Defendant medically examined – an issue in the proceedings is whether the Defendant is under legal incapacity and requires a tutor to conduct certain other District Court proceedings – Defendant proposes to tender medical evidence to establish he does presently have legal capacity – Plaintiff wishes to test the Defendant’s medical evidence.

PROCEDURE – Supreme Court procedure - Uniform Civil Procedure Rules – equity - mortgagee exercised power of sale - surplus proceeds of sale paid into Court – motion for payment out of court – matters to be established - whether applicant entitled to funds - whether any competing claimants - order for payment made out

CONTRACTS – construction – plaintiff appointed agent of defendant to sell CTP policies – whether plaintiff’s entitlement to renewal commissions survived termination of the contract – whether plaintiff in breach of obligation not to sub-contract agency; REPRESENTATIONS – whether defendant represented that entitlement to renew commissions would survive termination – whether plaintiff relied on representation – whether plaintiff suffered detriment by reason of any such reliance

PRACTICE AND PROCEDURE – civil – interlocutory issues – injunctions – where plaintiff seeks an order restraining the Ombudsman from providing a report to the Parliament – whether there is a serious question to be tried – whether the balance of convenience favours granting interlocutory relief

ADMINISTRATIVE LAW – jurisdictional error – decision by Minister to close a Crown road and sell it to the plaintiff’s neighbour – whether Minister’s delegate took into account an irrelevant consideration being a purported alteration to the plaintiff’s enclosure permit over the road – where common ground that such alteration was a nullity – whether plaintiff also denied procedural fairness

PRACTICE AND PROCEDURE – application by defendants to set aside orders made in their absence – where defendants in breach of earlier orders – whether defendants entitled to be heard on application to set aside orders or on application to vary earlier orders – where plaintiff accepts defendants have arguable defence – whether explanation for not attending hearing adequate

CRIMINAL LAW – sentence – two co-offenders charged with murder – sentencing principles – one co- offender with psychiatric conditions – murder objectively well above mid-range – each co- offender with significant prior convictions – discussion of effect of psychiatric condition on general deterrence and specific deterrence and the need for protection of society – third co- offender charged with accessory after the fact – prior convictions – fully aware of the unnecessary cruelty associated with the murder – accessory offence slightly above mid-range – sentences imposed.

CRIMINAL LAW – application for discharge of jury – photographs of deceased displayed in Court during summing-up – application refused – reasons issued.

EQUITY – final relief – issues as to form of final mandatory injunctive relief to alleviate a nuisance by water – whether some matters still to be agreed will be referred to in the final relief – whether the form of final relief should dictate a particular outcome or be made to conform to a particular engineer’s plans – what should be the extent of the charges over the land to secure payment for the works over the adjoining properties.

CRIMINAL LAW – procedure – bail – application for release on bail pending appeal– whether special or exceptional circumstances exist justifying a decision to grant bail – various factors relied upon – age and ill-health – level of uncertainty in area of law that is the subject of one ground of appeal – significant proportion of custodial sentence likely to be served before appeal finalised – whether sufficient prospects of a successful appeal – majority of proposed grounds of appeal concern points that should have been raised at trial – no explanation given for failure to raise at trial – special or exceptional circumstances not shown – bail refused

CRIMINAL LAW – application for referral of convictions to Court of Criminal Appeal – Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – applicant pleaded guilty to assault with act of indecency – whether applicant could withdraw plea – whether requisite doubt about sentence – application refused

CRIME – high risk violent offender – preliminary hearing – application by the State for interim detention order or in the alternative interim supervision order – where offender opposes interim detention order but consents to interim supervision order – proper approach to determination of interim orders – primary object of statute to ensure safety and protection of community – importance of right to personal liberty

APPEAL – application for leave – where subpoena required the Commissioner to produce recordings which were “protected information” under Surveillance Devices Act 2007 (NSW) – where prohibition under s 40(1) against use, communication or publication of such information – where Commissioner applied to set aside subpoena on basis that lacked any legitimate forensic purpose because recordings could not lawfully be used in proceedings – where primary judge ordered production of recordings to Court – whether subpoena lacked legitimate forensic purpose – whether primary judge erred in ordering production – subpoena set aside COMMUNICATIONS LAW – interception of communications – Surveillance Devices Act 2007 (NSW) – where s 40(1) prohibits use of recordings that are prohibited information – whether tender of recordings in evidence or use of contents to issue further subpoena constitute use

APPEAL – applications for leave to appeal – no issue of principle

EVIDENCE – Client legal privilege – Whether privilege attached to documents produced on subpoena – Whether privilege lost

COURTS AND JUDGES – application for judge to recuse himself on basis of apprehended bias – where the judge has a previous professional relationship with the defendant – whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the proceedings

TORT – negligence - Council – maintenance of roadways – where cyclist suffered severe head and brain injuries after hitting “shove” in road – highway cases notoriously difficult – confidential advice - best interests of plaintiff - settlement approved by Court

PROFESSIONAL NEGLIGENCE - medical negligence - catastrophic occurrence whilst being treated as inpatient in defendant's hospital – settlement – best interests of plaintiff – consent judgment approved

CIVIL LAW – HIGH RISK SEX OFFENDER – application pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – application for preparation of mandatory expert reports – whether interim detention order or interim supervision order should be made

COSTS – no question of principle

COSTS – intervener who became contradictor – no question of principle

EQUITY – interests created by the deposit of money – equitable mortgages – subrogation of a mortgagee’s rights – the award of interest in equity – caveatable interests – trusts – creation of a trust – nature and purpose of a trust – mingling of trust funds – misappropriation of trust funds – accessorial liability – quantum meruit REAL PROPERTY – equitable interests in land – caveats – caveatable interests – removal of caveats PRACTICE AND PROCEDURE – judicial assessment of witnesses’ evidence – failure to cross examine a witness

GUARANTEES – where co-guarantor procured payment of debt – where debt overpaid – where part of funds used to pay debt were proceeds of professional negligence proceedings arising from entry by the co-guarantor into the guarantee – what part of amount paid by co-guarantor recoverable from remaining solvent guarantor – where other co-guarantors insolvent – whether proportion of amount recoverable dependent on solvent guarantors when proceedings commenced or when contribution determined