Cases and authorities

PRACTICE – removal into Court of Appeal – application to vary vesting date in trust deed – plaintiff wishes to challenge recent decision of Court of Appeal – absence of contradictor – no special circumstances

APPEAL – whether leave required for appeal/cross-appeal – respective complaints by appellants/cross-appellants as to ambit of injunctive relief granted by primary judge – complaint by appellants as to apportionment of costs – leave required for both appeal and cross-appeal – leave refused CONFIDENTIAL INFORMATION – whether respondents’ software, business manuals and other documents were confidential DIRECTORS – duties owed to companies – whether use by third appellant of respondents’ documents amounted to breach of statutory and fiduciary duties

SECURITY FOR COSTS – the plaintiff company negotiates for the sale of a retail business to the first to third defendants – the fourth defendant acts as a solicitor for the plaintiff in the negotiations with the purchasers – the landlord of the premises grants a new 3 year lease to the purchasers – the contract for sale from the plaintiff/vendor to the purchasers falls through – purchasers are alleged to represent to the vendor that they will purchase the business and complete a sale on 1 April 2016 – whether the purchasers are estopped from departing from their alleged representation that they would purchase the business – whether the fourth defendant, solicitor, was negligent in advising the vendor on the sale of the business thereby leaving the vendor without any lease to sell with the business – plaintiff cannot repay order for costs if unsuccessful – whether plaintiff’s impecuniosity caused by the defendant’s conduct – whether an order for security would stultify the proceedings – whether the plaintiff has reasonable prospects of success – whether security for costs should be ordered - if so, what quantum of security should be ordered.

EQUITY – adoption – whether adoption by the proposed applicants will promote the welfare of the child – whether dispensing with the birth parents’ consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action that could be taken by law in relation to their care – whether the Paternal and Maternal Adoption Plans should be registered – whether the court should order the child’s surname to be changed

DAMAGES – exemplary damages – whether trial judge erred in awarding exemplary damages – basis for award of exemplary damages – where conduct has been subject to sanction by the criminal law – whether “substantial punishment” – whether separate basis existed for award of exemplary damages – conduct of civil proceedings after plea of guilty – whether conduct of civil proceedings formed appropriate basis for award of exemplary damages DAMAGES – out-of-pocket expenses – award made for future out-of-pocket expenses – whether proper basis in evidence for award TORTS – intentional torts – assault and battery – altercation between plaintiff and defendant – whether trial judge erred in relation to factual findings

APPEAL – sentence – appeal against sentence – whether manifestly excessive – whether sentencing judge failed to have proper regard for offender’s remorse and contrition – assistance – whether a miscarriage of justice occurred by reason of a failure to adduce evidence of assistance – whether evidence would have led to a different sentencing outcome EVIDENCE – application for leave to adduce evidence on appeal – where a forensic decision made in court below not to call evidence of assistance – whether miscarriage of justice

DEFAMATION – pleadings – form of imputations – article about the conduct of an art collector – consideration of imputations that include evaluative terms – imputation that the plaintiff is unsuitable to be an art collector – difficulty of identifying characteristics expected of art collectors

CRIMINAL LAW – Shepherd direction

DEFAMATION – defences – defence of justification – application by plaintiff to have particulars in defence struck out – where imputation broadly framed – whether private conduct capable of informing question of fitness to be a religious leader

WORKERS COMPENSATION – application for leave to revoke election to receive permanent loss compensation – whether no reasonable cause to believe further deterioration would occur – Workers Compensation Act 1987 (NSW), s 151A WORKERS COMPENSATION – limitation period – extension of time – claim 19 years out of time – prejudice to defendant – whether delay made the chances of a fair trial unlikely – Workers Compensation Act 1987 (NSW), s 151D

CRIMINAL LAW – sentence – cultivation of prohibited plants being not less than the large commercial quantity – cannabis – guilty plea – special circumstances

PRACTICE AND PROCEDURE – pleadings – whether proceedings should be dismissed – whether pleadings should be struck out – whether plaintiff should provide further particulars – SUBPOENAS whether plaintiff should be permitted to serve subpoenas before pleadings closed and before serving evidence – whether subpoenas should be set aside – relevance of Practice Note SC Eq 11

CORPORATIONS – external administration – winding up – termination of winding up – whether condition requiring company to go into liquidation no longer exists – where voluntary winding up and no interested person opposes termination – where balance sheet solvency barely if at all established – where applicants offer to subscribe share capital – commercial morality – where directors withdrew support when faced with claim against company but reinstated support when claim resolved – where no other claims against company – held, winding up terminated upon undertaking to subscribe share capital – direction for meeting to elect directors prior to reinstatement where current director has not consented to resume office

JUDICIAL REVIEW – notice of motion – orders seeking judicial review of conditions of imprisonment – application for expedition not granted – application for pro bono legal referral granted – notice of motion seeking summons to be struck out for want of due dispatch – amended summons struck out – costs

ADMINISTRATIVE LAW – leave to appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – s 27 of the Child Protection (Working with Children) Act 2012 – leave to commence proceedings out of time – leave granted – whether Tribunal failed to apply the Briginshaw standard – whether plaintiff was denied procedural fairness because possible offending under the Criminal Code Act 1995 (Cth) was not raised for consideration - whether Tribunal misconstrued the applicable statutory provisions – whether plaintiff was denied procedural fairness by receipt of opinions expressed by an unidentified doctor in School’s report to Ombudsman – whether Tribunal failed to give adequate reasons – whether Tribunal’s decision was legally unreasonable – appeal dismissed

PRACTICE AND PROCEDURE – interlocutory injunction – application to restrain the defendant from continuing with costs assessment applications – where defendant claims to be owed a significant amount of money for work undertaken by the defendant on the instructions of the plaintiff – whether there is a serious question to be tried – whether the balance of convenience favours determination by a court or by the individual assessors EVIDENCE – admissibility of evidence – whether evidence should be excluded as a “protected confidence” – alternatively, whether evidence was obtained illegally or improperly – whether non-publication order should be made to allow evidence to be received whilst protecting public interest in protection of confidences

CRIMINAL LAW – sentence – manslaughter - guilty plea – substantial impairment

PROCEDURE – subpoenas – costs – costs of compliance with subpoena – workplace injury proceedings - subpoena issued by defendant to non-party to proceedings – non-party subsequently joined by plaintiff – first subpoena abandoned – second subpoena issued – whether UCPR 33.11 applied – large number of documents examined by subpoenaed party – lengthy delays by subpoenaed party – documents not produced – third subpoena issued for single class of documents – defendant abandons reliance on second subpoena – costs claimed of $23,000 – whether costs should be costs in the cause – no order made under UCPR 33.11

CRIMINAL LAW – sentence – murder – offender drinking at hotel for 10 hours - offender involved in altercation with victim in hotel – offender swings punch at victim – security guard intervenes – victim leaves hotel to walk home – offender drives van from hotel – blood alcohol concentration estimated between .2 and .3 – van mounts gutter onto nature strip and strikes victim at 50 to 60kph – victim killed almost instantly – offender with prior record including violence and drink-driving – no psychological or psychiatric issues – absence of remorse - general deterrence

PRACTICE AND PROCEDURE – Application to set aside default judgments – Where default explained – Whether triable issue made out – No point of principle PRACTICE AND PROCEDURE – Where voluminous documentary material provided to the Court – Where there was no reference in argument to the vast majority of that material

APPEAL – against Supreme Court dismissal of appeal from Local Court decision – Local Court dismissal of damages claim against State for alleged assault by police officer – whether lawful justification for police officer’s use of Taser on plaintiff-applicant – ss 22 and 81 Mental Health Act 2007 (NSW) – whether reasonable force exercised in apprehension and detention of mentally ill person – where applicant sought on first-level appeal to rely on new point of unlawful apprehension or detention – whether joinder of issue on pleadings as to lawfulness of apprehension – Uniform Civil Procedure Rules 2004 (NSW) r 14.27(2) – party’s obligation to plead any matter which may take other party by surprise – UCPR r 14.14 – Civil Procedure Act 2005 (NSW) s 66(3) – where compliance with common law principles of arrest (requiring provision of warning and reasons) not raised by applicant in Local Court pleadings or hearing – where issue of warnings first raised in applicant’s supplementary submissions following trial’s conclusion – where respondent prejudiced by denial of opportunity to make different forensic decisions PROCEDURE – appeal – requirement of leave – Supreme Court Act 1970 (NSW) s 101(2)(r) – where relatively small amount in issue in second-level appeal – where applicant seeking remittal for assessment of damages CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers – application of common law principles of arrest to exercise of power to apprehend/detain under Mental Health Act – whether apprehension/detention unlawful in absence of police provision of warning or reasons – where finding by magistrate that police’s intention to apprehend and detain applicant was clear to applicant and he resisted – finding that police officer continually offered to take plaintiff to mental health facility – finding that warning and reasons would likely have led to reaction and violence by applicant – effect of exclusion of codified requirements of warning and reasons under Law Enforcement (Powers and Responsibility) Act 2002 (NSW) s 201(3)

CRIMINAL LAW – appeal against sentence – serious drug offences – whether applicant has justifiable sense of grievance based on sentence imposed on co-offender – whether sentencing judge erred by finding that evidence that was not the subject of cross-examination was “untested” – whether sentencing judge erred in finding that the drug use of the applicant was not to a detrimental degree – whether sentencing judge erred by finding the effect on family of the accused was not exceptional – whether sentence manifestly excessive

CRIMINAL LAW – appeal – sentencing – where error in according procedural fairness as to extent of discount applied for guilty plea – whether appellate court must re-exercise sentencing discretion generally or only in respect of discrete component affected by error – whether manifestly excessive

CRIMINAL LAW – murder trial - Accused relies on partial defence of substantial impairment by abnormality of mind - evidence of forensic psychiatrist - permissible areas of opinion evidence - medical opinion open on matters in s.23A(1)(a) Crimes Act 1900 - opinion may be expressed concerning degree of impairment and whether substantial - statutory prohibition upon medical opinion of matters in s.23A(1)(b) - whether impairment so substantial as to warrant liability for murder being reduced to manslaughter a question solely for the jury

PRACTICE AND PROCEDURE – whether plaintiffs should be released from implied undertaking concerning documents disclosed pursuant to order for preliminary discovery – where second defendant has commenced proceedings in the Federal Court against the first plaintiff – where first plaintiff as trustee obliged to seek judicial advice as to whether she should defend those proceedings – where documents in question likely to be discoverable in Federal Court proceedings in any event – where all parties producing the documents in these proceedings consent to leave being granted

TRUSTS AND TRUSTEES – Application for advice – Whether discretionary beneficiaries persons “whose rights as beneficiary may be prejudiced” to be notified of proposed distribution – Trustee Act 1925 (NSW) s 63(8)

COURTS AND JUDGES – apprehended bias – where judge had acted for one of the parties when at the bar – where relative of judge currently employed by that party – whether fair minded observer might think judge might not bring impartial mind to resolution of issues between the parties

COSTS – where plaintiff achieved only partial success on application for leave to amend – where defendants substantially successful – where plaintiff accepted some order for costs should be made in favour of defendants – whether defendants should be permitted to have such costs assessed immediately – whether Court should otherwise order under relevant Practice Note – practical effect of permitting assessment of costs forthwith

REAL PROPERTY – mortgages – redemption – mortgagee unable to be found – whether all amounts due under mortgage have been paid – Conveyancing Act 1919 (NSW), s 98

UNINCORPORATED ASSOCIATIONS - requirement for procedural fairness in constitution of defendant - such requirement able to be waived in specified circumstances - where State Executive of defendant formed opinion that those circumstances existed - whether State Executive acted bona fide in forming that opinion - whether plaintiff sustained onus of showing State Executive did not act bona fide - in any event whether as a matter of discretion any relief should be granted

COSTS – security for costs – whether defendant is entitled to security for costs when corporate plaintiff is not domiciled in Australia – whether defendant is entitled to costs when individual plaintiff is ordinarily resident outside of Australia

LEGAL PRACTITIONER – appeal from decision of Legal Profession Admissions Board to refuse applicant a “compliance certificate” – applicant admitted as solicitor in 1966 – convicted of conspiracy to bribe Minister for Corrective Services – removed from roll of solicitors in 1988 – whether fit and proper person – good fame and character – contrition – reason for offending – testimonial evidence – onus of establishing fit and proper person not discharged – appeal dismissed.

ADMINISTRATIVE LAW – power of NSW Crime Commission and effect of statutory secrecy provisions discussed. STATUTORY CONSTRUCTION – the scheme and purposes of the Crime Commission Act 2012 – the interpretation of the secrecy provisions. LEGAL PROFESSIONAL PRIVILEGE – some documents created as a result of illegality – privilege does not apply – but illegality limited and some documents (or parts of documents) privileged. PRACTICE AND PROCEDURE – abuse of process on account of illegality underpinning commencement of proceedings – discussion – motion to dismiss refused.

Loan advance – subrogation – defendant’s father approached second plaintiff seeking funds to discharge security over defendant’s property – source of funds was second plaintiff’s cousin – funds advanced – funds used to discharge security – whether second plaintiff loaned funds to defendant – whether second plaintiff subrogated to rights of creditor – found that cousin lent funds to defendant’s father – subrogation claim fails

COSTS – costs of interlocutory proceedings – costs follow event – no question of principle

CRIME – appeal – application by offender for adjournment of prosecution appeals against inadequacy of sentences – pending application for removal of proceedings to High Court – whether High Court application raised an arguable issue – whether current proceedings should be adjourned until removal application considered by High Court

PRACTICE AND PROCEDURE — costs — plaintiff succeeded on one of two alternative bases — alternative bases did not give rise to severable issues — no alternative basis dominant over another — defendant enjoyed a measure of success on cross claim — plaintiff made an offer of compromise — offer of compromise included term that all existing cost orders made in the proceedings be vacated — defendant did not accept offer of compromise — whether plaintiff entitled to an order that the defendant pay costs on the indemnity basis — plaintiff obtained judgment no less favourable to the plaintiff than the terms of the offer — whether offer valid under r 20.26 of the Uniform Civil Procedure Rules 2005 not decided — offer valid as a Calderbank offer — defendant did not act reasonably in rejecting the plaintiff’s offer — defendant to pay 80 per cent of plaintiff’s costs up to the date on which the offer of compromise was made and pay plaintiff’s costs on the indemnity basis thereafter

SUCCESSION – testamentary capacity – whether deceased had testamentary capacity at the time the deceased made her last three wills leaving her estate to two charities; SUCCESSION – family provision – claim by adult grandchild – assuming deceased had testamentary capacity whether no provision was proper provision for grandchild’s adequate maintenance and benefit – what provision should be made

PRACTICE AND PROCEDURE – striking out pleadings – UCPR, rr 13.4 and 14.28 – whether a reasonable cause of action is disclosed – whether pleading is embarrassing – application to restrain counsel from acting in proceedings – whether there is a conflict of interest and whether counsel should be permitted to continue to act – the plaintiff has been bankrupt in the past and may go bankrupt again - whether security for costs should be ordered against the plaintiff – proceedings involving litigants in person – application of Practice Note Supreme Court Eq 11.

PRACTICE AND PROCEDURE – motion seeking the determination of separate questions – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) – separate determination agreed by parties CONTRACT – construction of contract – grant of accreditation – whether obligations imposed by By-Laws constitute consideration

PRACTICE AND PROCEDURE – applicant granted leave to file amended statement of claim subject to certain conditions – judge of Common Law Division refused leave to file amended statement of claim which did not comply with conditions imposed – applicant filed notice of motion seeking review of decision – motion dismissed by judge of appeal – applicant filed summons seeking leave to appeal from both decisions – whether leave should be granted

PRACTICE AND PROCEDURE – stay – application to stay enforcement of judgment debt pending appeal – whether reasonably arguable basis for seeking leave to appeal – whether stay prejudicial to judgment creditor – judgment debt basis of bankruptcy proceedings in Federal Court – whether balance of prejudice favours stay

PRACTICE AND PROCEDURE – appeal from judgment of Associate Judge – appeal competent but irregularly commenced – whether matter should be remitted to Common Law Division – where hearing date allocated – where parties wish to proceed

TRADE AND COMMERCE – contract for sale of business – whether purchaser relied on vendor’s representations concerning the business’ sales figures – bargain struck on basis that price discounted in return for purchaser’s non-reliance on representations TRADE AND COMMERCE – contract for sale of business – whether representations by silence that earlier owner of the business did not intend to compete with it – any expectation that that intention would be disclosed not reasonable

CORPORATIONS — Winding up — Voluntary winding up – Application for leave nunc pro tunc pursuant to Corporations Act 2001 (Cth) s 490(1)(a) for company to be wound up voluntarily – where application for company to be wound up in insolvency filed by creditor one day before resolution for voluntary winding up passed – where creditor consents to grant of leave

CORPORATIONS – Receivers, controllers and managers – Remuneration and expenses – whether meeting of creditors or the Court can determine former administrator’s remuneration after the end of the administration pursuant to Corporations Act 2001 (Cth) s 449E – whether and to whom notice of the former administrator’s application should be given.

PRACTICE AND PROCEDURE – plaintiff/employer brings application for summary judgment pursuant to UCPR, r 13.1 – plaintiff claims that defendant/employee disseminated the employer’s confidential information to two competitors in breach of his contract of employment – whether the defendant breached his contract of employment and his equitable obligation of confidence to the plaintiff – whether the defendant should be restrained from using, copying or further disseminating confidential materials.

REAL PROPERTY – possession of land – stay of sale of land – registered proprietor of land is company in liquidation – applicant sole director and shareholder of company – applicant provided guarantee for debt secured on land – order for possession made – writ executed – auction of land imminent – applicant seeks stay – debt not paid by guarantor – liquidator not opposing sale – applicant lacks standing – stay refused

PRACTICE – Stay of orders for sale – No issue of principle – Case management of complex family dispute – Conveyancing Act 1919, s 66G

TRADE PRACTICES – misleading or deceptive conduct – whether first and second defendants engaged in misleading or deceptive conduct by over-invoicing for amounts owed – where representations as to payment practice were made by the first and second defendants – whether the representations were relied upon by the plaintiff – whether the third defendant was involved in the contravention – Australian Consumer Law, ss 2, 18 CONTRACT – building and construction – whether there was an established payment practice which applied to all project management contracts – where payment practice differed from process of certification and payment different from written contracts entered into – whether contract or arrangement in place that permitted defendants to over-invoice – whether first and second defendants under-paid contracts for work completed EQUITY – trusts – whether second defendant was a trustee of the monies paid by the plaintiff into a trust account – whether the particular account is a trust account – whether second defendant breached its obligations as trustee – whether third defendant procured any breaches CORPORATIONS – insolvent trading – whether first and second defendant was insolvent during the relevant period – whether first and second defendants incurred a debt during the relevant time period