Cases and authorities

CRIMINAL LAW – non-publication and suppression orders – where informant witness complains that she was identified in the press – order sought preventing publication of names of people associated with her – order sought preventing publication of her gender – where extensive publication before application –sensational reporting – prurient – whether orders necessary – whether orders futile – where another person named in the trial assassinated during the currency of the trial – assessment of risk to witness – encouraging future witnesses to co-operate – whether order necessary during the currency of extensive media coverage of the case – assessment of appropriate length of order – “no longer than reasonably necessary”

PRACTICE AND PROCEDURE – application for leave to appeal – applicant unfit to attend court –adjournment sought – applicant not consenting to leave application being dealt with on the papers – Uniform Civil Procedure Rules 2005 (NSW), r 51.15 – court empowered to dispense with requirement for parties’ consent – Civil Procedure Act 2005 (NSW), s 14

CONTRACT – construction and interpretation – agricultural investment scheme – suite of related contracts between investors, representative and manager – loan agreements to facilitate investment – construction of limited recourse provision PRACTICE – facts agreed for purpose of separate question – where defendants reserved right to contend for different facts if question resolved unfavourably to them – whether appropriate to answer questions

COURTS – jurisdiction – proceedings against bankrupt – appeal from separate question regarding leave to commence proceedings in the Equity Division – Bankruptcy Act 1966 (Cth) s 58 – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed

INJUNCTIONS – ex parte application – freezing order sought – basis for freezing order established - orders made

CORPORATIONS — Winding up — Application to set aside creditor’s statutory under ss 459G and 459H of the Corporations Act 2001 (Cth) – where plaintiff was served with creditor’s statutory demand – where defendant contended that the s 459G application was served outside the statutory 21 day period relying on s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1901 (Cth) – where plaintiff’s registered office was the premises of its accountants and mail from accountants’ street address was diverted to post office box – where factual basis for the amount of the plaintiff’s purported offsetting claim was not sufficiently established – whether presumptions under s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1901 (Cth) rebutted – whether offsetting claim under s 459H(1)(b) established.

CONSEQUENTIAL ORDERS – whether the Court should make a Benjamin order giving the plaintiff liberty to distribute the deceased’s estate among his three known sons, despite there being some uncertainty whether he may have had other children.

INJUNCTIONS – application for interlocutory injunction to restrain publication of allegedly defamatory material – caution to be exercised – public interest in free speech – weight to be given to that consideration where alleged publisher denies publishing any matter defamatory of the plaintiff

LIMITATIONS – action to recover loans – where loans not for fixed terms and repayable on demand – cause of action for recovery arises from date loan was advanced – (NSW) Limitation Act 1969, s 54 – confirmation – financial statements – composite line item for shareholders’ loans – whether acknowledgement of loans shown to be included in it – held, it is CORPORATIONS – members’ rights and remedies – minority rights – valuation of shares – discounted cash flow valuation PROCEDURE – amendment – to join additional plaintiff – where issue as to proper plaintiff emerged late

CRIMINAL LAW – admissibility of evidence – information derived from police intelligence sources – hearsay – relevant to person alleged by accused to be involved in killing – alternative hypothesis – unflattering character assessment – hearsay – source of information not known – other evidence connecting person identified by accused to Crown witness - malfeasance – hind teeth.

PROCEDURE – settlement approval – consent orders made

PROCEDURE – settlement approval – orders made

CORPORATIONS — Application by plaintiff for declarations that he is sole director of company and an order amending company’s register – where defendants contended that plaintiff had been removed as director by resolution passed at general meeting of members and that a notice of the meeting had been issued to the members – whether notice of the general meeting of members had been issued – whether declarations sought ought be granted. PRACTICE AND PROCEDURE – Application by defendants to seek leave to file amended points of defence – where defendants sought to introduce further defence and to withdraw an admission – whether amendment sought ought to be granted.

COSTS – indemnity costs - offer of compromise – plaintiff entitled to an order that the defendant pay costs on the indemnity basis - no question of principle

CRIMINAL LAW – judicial review – Local Court – application to revoke community service order – failure to attend to perform work – only two out of 100 hours completed - offender also called-up on breach of bond imposed at the same time as the community service order – magistrate revoked community service order – no consideration given to penalty to be imposed for offence for which order imposed – failure to have regard to s 115 Crimes (Administration of Sentences) Act 1999 - offender fined $500 in lieu of bond – magistrate irrelevantly considered imposition of fine in lieu of bond when revoking community service order – misapprehension by magistrate as to his jurisdiction – decision legally unreasonable - orders made in the nature of certiorari and mandamus

PROCEDURE – application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act 2008 – order sought by private citizen – defendant files multiple proceedings claiming relief from same facts – earlier proceedings dismissed – multiple appeals all unsuccessful – proceedings commenced without reasonable basis - later proceedings an abuse of process – defendant lodges repeated caveats over plaintiff’s land – whether injunction should be granted to prevent lodgement of caveats – vexatious proceedings order made – injunction granted REAL PROPERTY – Torrens title – caveats – litigant lodges repeated caveats claiming interest from same facts – proceedings to extend caveats all unsuccessful – whether injunction should be granted

CRIMINAL LAW – sentence appeal – manslaughter – guilty plea – juvenile offender – whether sentencing judge sentenced applicant on basis of factual findings not open – question of motivation for offence – whether sentence was manifestly excessive – appeal dismissed

Criminal law – manslaughter – self-defence – verdict unreasonable

CORPORATIONS – winding up – winding up in insolvency – application by liquidator for appointment as receiver of trust assets – by previous order, appointed but stay granted – application for extension of stay – whether there is sufficient reason for liquidator to be held out any longer of its legal right to have receivership proceed – arrangements made with third party, even if Commonwealth Government, irrelevant.

PROCEDURE – notice of motion – order for short service – order sought pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW) – orders made

PRACTICE AND PROCEDURE - application to strike out pleadings - defence to claim for possession of land following alleged mortgage default - cross-claim brought by defendants - whether defence and cross-claim disclose any reasonable cause of action or defence - whether pleadings embarrassing - defence and cross-claim embarrassing and struck out in their entirety - defendants and cross-claimants permitted to seek leave of Court to file further amended pleadings

PROCEDURE – personal injury – fly-in fly-out worker injured in QLD - application to transfer proceedings from NSW to QLD - cross-vesting - considerations in determining forum – interests of justice – no order made - no issue of principle.

CRIMINAL LAW – admissibility of evidence – DNA evidence – secondary transfer – where accused adduced DNA evidence – where Crown witness unable to explain presence of DNA on item associated with murder weapon – where Crown seeks to explain evidence by expert testimony – where evidence introduced on final day of crown case – whether unfair – whether evidentiary foundation laid – evidence admissible.

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – vexatious litigant seeks leave to appeal against NCAT orders – failure to disclose viable grounds of appeal – matters of personal abuse advanced – proceedings vexatious – no prima facie case disclosed

CORPORATIONS — charges, debentures and other borrowings — charges – whether the plaintiff was a secured creditor of the company at the time of a repayment by the company to the plaintiff – where liquidator contended that if plaintiff was not a secured creditor at the relevant time certain transactions involving the plaintiff were voidable transactions – whether loan agreement and any equitable charge derived from it fails for lack of sufficient certainty in circumstances where loan agreement did not identify which assets of the company were subject to the fixed charge and which were subject to the floating charge – whether ASIC Form 309 document was effective to create charge – whether loan agreement was partly written and partly oral such that it included terms for payment of certain interests and charges – whether there was collateral contract requiring payment of certain interests and charges. CORPORATIONS — Winding up — Winding up in insolvency — Insolvent trading — Claim by liquidator against cross-defendants under ss 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading – where liquidator contended that first cross-defendant was de facto director of companies – whether first cross-defendant was de facto director during relevant time period – whether companies were insolvent or became insolvent by incurring the debts – whether presumption of insolvency arises under s 588E(4) of the Corporations Act 2001 (Cth) – whether contravention of s 588G established – whether “loss or damage” in s 588M of the Corporations Act 2001 (Cth) is reduced by recoveries by the liquidator that will allow distribution to creditors – whether creditors with benefit of retention of title clause whose security vests in company due to company’s winding up fall within scope of s 588M of the Corporations Act 2001 (Cth) – Defences – whether defences under s 588H of Corporations Act 2001 (Cth) established – whether Court should relieve cross-defendants wholly or partly from liability under s 1317S of the Corporations Act 2001 (Cth) if contravention of s 588G is established.

SUCCESSION – conflict of laws – whether deceased domiciled in New South Wales or Queensland at the date of her death – whether mediation between claimants should take place before the issue of the deceased’s Australian domicile is decided.

TORTS - negligence – slip and fall – workplace injury – tiled walkway left wet and unguarded following cleaning – respondent employer paid injured employee compensation and successfully claimed indemnity from appellant cleaning company appellant in court below – Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – challenge to factual finding by primary judge – whether employee acting reasonably should have been aware the floor was wet – cleaning machine left floor damp – usual cleaning system involved placing chairs on tables and ‘wet floor’ signs around perimeter of section being cleaned – expert evidence that wetness of tiles difficult to see – where finding that ‘wet floor’ signs displayed in adjoining food court and behind rubbish bin not obvious – where finding that sign outside toilets indicated to employees toilets closed for cleaning – where employee slipped and fell when turning right into corridor towards alternative toilet – where perimeter of wet walkway left unsigned

ADMINISTRATIVE LAW – judicial review – District Court dismissal of purported appeal against Local Court convictions – where convictions entered in applicant’s absence – where applicant had not made s 4 application for annulment of Local Court convictions – Crimes (Appeal and Review) Act 2001 (NSW) s 12(2) – where purported conviction appeal dismissed by primary judge for want of jurisdiction – complaint of apprehended bias – whether fair-minded lay observer might reasonably apprehend primary judge might not bring impartial or unprejudiced mind – where alleged bias said to occur on occasion after hearing and subject decision

APPEAL – jurisdiction of District Court – where decision of statutory body to cancel rental subsidies – whether District Court has jurisdiction to hear resulting statutory debt claim and claims for unpaid rent and unpaid occupation fees – whether such claims are “in respect of” a decision of a public body for purposes of Supreme Court Act 1970 (NSW), s 53(3B)(b)(iv) – whether claims therefore would have been assigned to Common Law Division under District Court Act 1973 (NSW), s 44 and therefore within jurisdiction of District Court STATUTORY INTERPRETATION – words and phrases – Supreme Court Act 1970 (NSW), s 53(3B)(b)(iv) – appeal or application “in respect of” decisions of a public body or public officer

PRACTICE – stay of execution – judicial review of decision of District Court dismissing appeal from Local Court – statutory stay of execution of orders other than apprehended domestic violence orders – Supreme Court Act 1970 (NSW), s 69C – statutory stay extends to execution of costs orders made following applications for apprehended domestic violence orders

COSTS – application to set aside interlocutory costs order previously made – where affidavit before the Court was later conceded to be erroneous in one respect – where error was immaterial to basis on which costs order was made – application refused

PROCEDURE — Application for summary dismissal of plaintiff’s claim under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — where plaintiff brought winding up proceedings on the just and equitable ground against the defendant company – where applicant contended that winding up proceedings brought by the plaintiff were frivolous or vexatious relying upon offers made to buy out the plaintiff’s shares in the defendant – whether grounds for summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) established.

CRIMINAL LAW – application for determination of life sentences - Judge refuses Applicant leave to withdraw determination application - whether Judge who refused leave should recuse himself from final hearing of determination application - whether reasonable apprehension of bias - reasonable apprehension of bias not established - recusal application dismissed

CRIMINAL LAW – subpoena to NSW Crime Commission – whether legitimate forensic purpose – claim for public interest immunity – balancing exercise – no question of principle.

PRACTICE AND PROCEDURE – substituted service – proceedings for defamation arising from publications on social media – where defendant unable to be located in person but active on social media

EQUITY – trusts and trustees – applications to the court for advice and authority – application for judicial advice – by trustee of public trust – where issue subject of public controversy – where no contradictor – where issue in suit in other adversarial litigation – whether appropriate for judicial advice – held, inappropriate REAL PROPERTY – crown lands – New South Wales – crown reserves – reserve for public recreation – whether demise of reserve to private club consistent with public recreation – held, it is not – secondary interests – whether opinion that such demise not materially harmful to use for reserved purpose reasonably open – held, it was not – whether grant which dominates or excludes reserved purpose is a secondary interest – held, it is not – subleases – whether lessee of crown reserve can grant sublease – held, it can so long as use under sublease is for reserved purpose or not materially harmful to use for reserved purpose.

CIVIL – evidence – personal injury litigation – admissibility of expert report – whether opinions contained within report relevant – whether report based on the training, study or experience of the expert – whether report adequately set out the reasoning upon which opinions were based – report admissible

PROCEDURE – notice of motion – gross costs order sought – order made

EQUITY – trusts – charitable trusts – whether there is a valid charitable trust – where the trustee holds property which is only to be used for a specific purpose TRUSTS AND TRUSTEES – trust established for charitable purpose – whether the trustee is entitled to appoint and dismiss the manager of the trust property – whether purported termination of the manager was effective – whether the termination was in good faith and on reasonable grounds – whether upon termination of the manager the manager holds accumulated reserves on trust as part of trust property

CRIMINAL LAW – murder and related offences – whether accused fit to be tried

WORKERS COMPENSATION – worker employed by appellant – worker injured in motor accident – accident caused by truck driven and owned by respondents – respondents conceded motor accident was a “blameless motor accident” under s 7A of the Motor Accidents Compensation Act 1999 (NSW) – s 7B deems fault in blameless motor accident – worker recovered worker’s compensation payments from appellant – appellant sought indemnity from respondents under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – s 151Z(1)(d) requires “injury ... caused under circumstances creating a liability in some person other than the worker’s employer” – whether appellant entitled, in an action under s 151Z(1)(d), to rely upon the “blameless motor accident” provisions of the Motor Accidents Compensation Act

JUDICIAL REVIEW – jurisdictional error – decision of District Court to dismiss a conviction appeal for an offence of using a carriage service to cause offence – proper construction of s 474.17 of the Criminal Code (Cth) – no error in applying the same construction of a similar offence applied by the High Court in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 93 – no error established – summons dismissed

PRACTICE AND PROCEDURE – civil – application for adjournment – whether it is in the interests of justice to grant an adjournment

TAXATION – outstanding tax debts – liabilities under Notices of Amended Assessment and or Running Balance Account

DEFAMATION – application for default judgment –consideration of proper approach in respect of imputations specified by the plaintiff where defendants have taken no step in the proceedings

COSTS – Where defendants were successful in setting aside a default judgment – Whether costs should follow the event – Whether some other order should be made

CRIMINAL LAW – procedure – summons seeking leave to appeal interlocutory order of the Local Court – Local Court proceedings finalised – interlocutory order subsumed in final determination of Local Court proceedings – no utility in challenging an interlocutory order after proceedings finalised – appeal lodged to the District Court in the nature of a rehearing – leave to appeal refused COSTS – gross sum order – Calderbank letter – sufficient element of compromise – plaintiff to pay defendant’s costs

RELEASE APPLICATION – alleged murder of two-year-old child – trial listed in April 2017 – whether applicant has shown cause that his detention is not justified – where three-year period since between charge and trial - cause not shown

APPEAL AND NEW TRIAL – leave to appeal and appeal Local Court decision – extension of time application granted – leave to appeal granted – inadequate reasons given – appeal upheld – order for new trial – costs

SENTENCING – MURDER – offender convicted following judge alone trial – offender fatally stabbed ex‑girlfriend in neck – offender then stabbed himself in the neck – offender rendered himself a quadriplegic – offender suffered from borderline personality disorder – offender suffered from obsessive compulsive disorder – contribution of mental state to offending – application of objectives of sentencing to offender suffering from mental condition and quadriplegia - whether offender suffered extra curial punishment – whether prison conditions rendered more severe – whether special circumstances – HELD – imprisonment for twenty years – non parole period of fifteen years