Cases and authorities

APPLICATION – defendant/cross claimant seeks leave to amend cross claim after judgment – cross claim dismissed in judgment – ground that cross claimant had made an obvious error in framing cross claim as a claim for subrogation to a mortgage granted by the cross defendant when it should have been a claim for indemnification – cross claimant rather than cross defendant had in fact granted the mortgage – cross claimant submitted she was entitled to succeed on amended cross claim without additional evidence being required – reasons for finding in cross claimant’s favour on claim by plaintiff inconsistent with cross claimant succeeding on amended cross claim - further evidence and hearing would be necessary if leave granted – leave refused – no error by court in dismissing cross claim

LEGAL PRACTITIONERS – professional misconduct and unsatisfactory professional conduct – appeal from order removing appellant’s name from roll of legal practitioners for failure to pay counsel’s fees or account for payments made by client for counsel’s fees – whether appellant denied procedural fairness in circumstances where Commissioner did not press for order for removal of appellant’s name from roll at hearing and Tribunal did not indicate intention to assess his fitness to continue in practice – appeal allowed – order substituted for reprimand and fine

Criminal law – fitness to be tried – judge alone -

PRACTICE AND PROCEDURE – earlier order that plaintiffs may only commence proceedings seeking relief concerning 2006 mortgagee sale with leave – whether leave should be granted – whether leave should be subject to terms that plaintiffs pay all outstanding costs orders and provide security for the costs of proposed proceedings

PROCEDURE – notice of motion – orders seeking to set aside and staying judgments – motion dismissed

PRACTICE AND PROCEDURE – privilege – client legal privilege – expert report prepared in process of attempting to obtain litigation funding – expert report provided to litigation funder – client legal privilege claimed pursuant to the Evidence Act 1995 (NSW), s 119 – whether report prepared for the dominant purpose of obtaining legal advice PRACTICE AND PROCEDURE – privilege – waiver of privilege – implied waiver – what is required for implied waiver – where document referred to in affidavit – whether contents of document put in issue PRACTICE AND PROCEDURE – privilege – waiver of privilege – disclosure to third parties – document provided to litigation funder – whether document retained confidential character

APPEAL – application for leave to appeal from summary judgment for possession of farm properties and money judgment – where respondent creditor advanced monies to first applicant farmer, guaranteed by second and third applicants and secured by mortgage over properties and charge over water entitlement – where respondent served s 8 notice under Farm Debt Mediation Act 1994 (NSW) and subsequent mediation resulted in execution of Heads of Agreement by which applicants acknowledged indebtedness and released existing claims – where respondent later commenced possession proceedings and applicants claimed equitable set-offs by way of defence – where accepted that any set-off arose only if arguable that Heads of Agreement and release not binding – where primary judge found no arguable case that Heads of Agreement not valid or enforceable – whether primary judge erred in holding that it was not arguable that Agreement should be set aside for unconscionable conduct contrary to ss 12CA or 12CB of the Australian Securities and Investment Commission Act 2001 (Cth) or as “unjust” within s 7 Contracts Review Act 1980 (NSW)

CRIMINAL LAW – SENTENCE APPEAL – Applicant with psychiatric issues and cognitive disorder chose to represent himself and denied sentencing judge evidence of psychiatric and cognitive problems – miscarriage of justice – evidence allowed on appeal – appeal granted – sentence reduced.

CRIMINAL LAW - SENTENCE - conspiracy to import a commercial quantity of border controlled precursor - complaint of disproportion in the sentences imposed upon two co‑conspirators - parity principle - consideration of respective objective and subjective cases - roles of conspirators - question of whether any grievance is justified

CORPORATIONS — Arrangements and reconstructions — Schemes of arrangement or compromise — where plaintiff sought the Court’s preliminary view as to orders approving scheme of arrangement in circumstances where conditions precedent to the scheme were yet to be satisfied – matters relevant to approval of scheme of arrangement.

LEGAL PROFESSIONAL PRIVILEGE – communication with expert engineer advising on issues relevant to insurer’s liability to indemnify – waiver – inconsistency – insurer’s solicitor discloses state of mind on amendment application to raise reliance on exclusion clause – part of explanation for delay – insurer previously granted indemnity for claim based on known circumstances – whether insurer necessarily putting own state of mind in issue in substantive proceedings – whether inconsistency between disclosure on amendment application and maintenance of privilege – inconsistency not established – motion dismissed

CRIMINAL LAW – murder – trial by judge alone – alleged offence occurred in 1983 – felony murder – circumstantial case – tendency evidence – whether the accused had a tendency to rape and choke women – discussion of mitochondrial DNA and hair analysis – verdict of guilty of murder

INSURANCE – fraudulent claim – whether insurance claim for house fire was made fraudulently – whether the plaintiff, or someone with his connivance, started the fire – whether defendant knowingly made false representations to insurer or its agents – where the defendant must prove that the claim is fraudulent on the balance of probabilities – Insurance Contracts Act 1984 (Cth), s 56 EVIDENCE – admissibility – expert evidence – whether conclusions reached based on specialised knowledge – whether expert’s reasoning process disclosed - where to admit report into evidence would result in prejudice to the defendant – Evidence Act 1995 (NSW), ss 79, 135

CRIMINAL – evidence – whether representations in voir dire exhibits are admissible – whether documents fall within the business records exception to the rule against hearsay – whether danger of unfair prejudice arising from hearsay evidence outweighs probative value – one representation in one document inadmissible – one representation in other document admissible

PARTNERSHIP – dissolution – no issue of principle

WORKERS COMPENSATION – effect of 2012 amendments to Workers Compensation Act 1987 (NSW) – 2012 amendments repealed s 151P (Damages for psychological or psychiatric injury) and inserted s 151AD (No damages for nervous shock injury to non-workers) – Sch 6, Pt 19H, cl 26 preserved the operation of repealed s 151P to or in respect of an injury received by a coal miner – mother of injured coal miner commenced proceedings against worker’s employer claiming damages for nervous shock – whether cl 26 preserved operation of repealed s 151P such that s 151AD did not apply to mother’s claim STATUTORY INTERPRETATION – construction of Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26 WORDS & PHRASES – “to or in respect of” – Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26

PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – existence of credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the appeal – where company owns no property – where company has low share capital – where no financial records in evidence – security for costs ordered PRACTICE AND PROCEDURE – stay of proceedings – application for stay of execution and enforcement of costs orders – where party entitled to costs is impecunious – existence of reasonable grounds of appeal – whether stay should be made on conditions – whether payment into trust of costs appropriate – stay granted

CONTRACTS – general contractual principles – construction and interpretation of contracts – grant of “exclusive licence” to “broadcast” programs carried on licensor’s free-to-air television channels – whether restriction upon licensor implied by exclusive licence precludes methods of dissemination other than free-to-air - MEDIA LAW – broadcasting services – program supply contract grants exclusive licence to “broadcast” free-to-air television content – meaning of “broadcast”

APPEAL – application for leave to appeal from order permanently staying defamation proceedings as an abuse of process – where applicant seeks to sue on imputations including that he is a Holocaust denier and an anti-Semite – where applicant is restrained by Federal Court orders from publishing material that suggests that there is serious doubt that the Holocaust occurred – improper purpose – finding that applicant's purpose in bringing proceedings was not to vindicate his reputation but to express his views as to the Holocaust – whether this finding sufficient to sustain conclusion that proceedings were an abuse of process – whether primary judge failed to give adequate reasons for finding of improper purpose – whether primary judge erroneously made findings as to the truth of imputations APPEAL – whether denial of procedural fairness as a result of alleged failure to put truth or falsity of pleaded imputations to applicant – whether breach of rule in Browne v Dunn where applicant on notice of what respondents contended was his real purpose in bringing the proceedings

JUDICIAL REVIEW - decision of Racing NSW to warn off applicant from race courses - apprehended bias - whether fair minded observer might reasonably apprehend decision-maker might not apply impartial mind - whether logical connection between letter of demand from decision-maker's solicitors and apprehended deviation from making decision on merits - whether role in initiating warning off decision incompatible with making decision - whether claim of improper purpose established - failure to bring appeal within time - whether relief should be withheld as a matter of discretion - appeal allowed in part and decision quashed TORTS - misfeasance in public office - whether decision-maker knew, or was recklessly indifferent to, the invalidity of the warning off decision - appeal as to misfeasance in public office dismissed

CRIMINAL LAW – sentencing – application for leave to appeal against sentences imposed s 5(1)(c) Criminal Appeal Act 1912 – applicant entered guilty pleas to two counts of supplying a prohibited drug in an amount not less than the commercial quantity (Count 1 – amphetamine and Count 2 – methylamphetamine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 and offences of possess cannabis, cocaine and oxymetholone contained in certificate under s 166 Criminal Procedure Act 1986 – on sentence 25% discount for early guilty pleas – sentence of 6 years with non-parole period of 3 years in respect of Count 1 and sentence of 8 years and 6 months with non-parole period of 4 years and 6 months in respect of Count 2 – both sentences fully concurrent – finding of special circumstances – sentences imposed were not discordant with findings of facts – sentences imposed were not manifestly excessive – findings of sentencing judge included that applicant was a courier but his level of participation well above that of a street courier – leave to appeal granted – appeal dismissed

CRIMINAL LAW – sentence appeal – proceeds of crime and drug offences – errors in sentence conceded by Crown – applicant re-sentenced

CRIMINAL LAW – application by accused for directed verdict of acquittal on counts 1 and 2 – dishonest use of position as a director with intention of directly gaining a benefit – whether accused a director at the relevant time of counts 1 and 2 – whether accused came within extended definition of director under s 9 of the Corporations Act 2001 (Cth) – application rejected

PROCEDURE – COSTS – where proceedings settled after final hearing and before reserved judgment delivered – whether contract constituted by terms of settlement precludes each party from seeking costs order – where settlement six days after judgment reserved constituted by plaintiff’s acceptance of offer made by defendants 20 days before final hearing – whether capitulation – whether unreasonable conduct and relevant delinquency by plaintiff

PROCEDURE – notice of motion – order seeking proceedings to be summarily dismissed – proceeding frivolous and vexatious – no reasonable cause of action – order sought made

FIDUCIARY – bribes allegedly paid to senior IT manager – nature of bribe and remedies available at common law – ex parte hearing – payment of bribe established – demonstration of loss caused by receipt of bribe – overcharging by supplier – fiduciary deliberately failed to scrutinise accounts – overcharging established – interest – set off of settlement funds.

REAL PROPERTY - mortgages – possession of land – no defence to claim – adjournment previously granted to enable refinancing – further adjournment sought - adjournment refused – judgment for possession

HIGH RISK OFFENDER – serious violent offender – preliminary hearing – application for interim supervision order – Crimes (High Risk Offenders) Act 2006 (NSW) – where risk assessed as medium-high but consequences of further offending would be drastic – order made

TORT– medical negligence – plaintiff sufferer of epilepsy – where plaintiff a young person whose condition is by nature changeable – plaintiff underwent voluntary testing to determine whether she was a candidate for surgical intervention–test involved allowed seizure to occur in order to measure and record it – existence of duty of care accepted–breach of that duty of care admitted by Hospital by allowing seizure to continue for extended period of time TORT– medical negligence–causation– circumstantial case –whether plaintiff’s condition worsened following breach – where plaintiff’s condition debilitating prior to breach– where no definitive medical knowledge exists to measure any damage sustained or change in severity or not of condition TORT– medical negligence – damages – where condition of plaintiff poor prior to breach – where manner in which breach argued to have worsened her condition similar to how her condition would otherwise present if its natural progression as a disease was to worsen – evidence of worsening of condition prior to breach– whether plaintiff worse off because of breach PRIVATE INTERNATIONAL LAW – federal diversity jurisdiction – choice of law – torts – where action brought in New South Wales for alleged tort which occurred in Queensland – where the lex loci delicti is the law of Queensland– Civil Liability Act 2003 (Qld) applies– no question of principle

REAL PROPERTY – strata title – management and control – strata managing agent appointed to exercise all the functions of an owners corporation – whether strata managing agent owed duty of care to individual lot owners to exercise reasonable care so as to prevent economic or financial loss – whether strata managing agent negligent in carrying on functions of Owners Corporation – whether alleged negligence caused loss to plaintiff REAL PROPERTY – strata title – management and control – oppression and fraud on the minority – whether scope of powers conferred under Strata Schemes Management Act 1996 (NSW) s 162(1)(a) limited by reasons for appointment – whether powers exercised bona fide for proper purposes – whether exercise of powers of Owners Corporation operated oppressively towards or amounted to fraud on the minority against plaintiff

PROCEEDS OF CRIME – notice of motion – orders sought under s 93 of the Proceeds of Crime Act 2002 (Cth) – requirements of s 31 of the Proceeds of Crime Act – undue delay – order sought made – reasons – costs

CRIMINAL LAW – murder - Judge-alone trial - Accused charged with murder of former wife of Man Haron Monis in April 2013 - victim attacked in stairwell of apartment block and stabbed 18 times before being set on fire by attacker - Accused in close relationship with Monis at the time of killing - Crown case that Accused murdered victim at behest of Monis - Monis wished to obtain custody of two sons from his marriage to victim - Crown has proved beyond reasonable doubt that Monis planned murder and put it into effect - Monis contrived to give himself watertight alibi - Crown has proved beyond reasonable doubt that killer was a woman - circumstantial case against Accused - Accused relies on alibi - whether Crown has proved beyond reasonable doubt that Accused was killer - evidence of alibi witnesses rejected - unusual relationship between Accused and Monis - Accused displayed tendency to act in different ways to please Monis and espouse his views - Monis and Accused seeking in April 2013 to set up family unit including Monis’ sons and Accused’s daughter - Accused had motive, means and opportunity to murder victim - eye witness to killing described person of similar appearance and size as Accused - female killer wearing a hijab at time of attack - hypothesis excluded that murder was paid killing by bikie gang - hypotheses excluded that murder carried out by another female associate of Monis - found that only rational inference was that Accused committed murder - finding beyond reasonable doubt that Accused committed murder - verdict of guilty of murder

PROCEDURE – subpoena – application to set aside – where subpoena issued in relation to transcript of examination of person connected with alleged offence – where property of defendant suspected to be proceeds of crime – where Commissioner seeking forfeiture of defendant’s property – whether defendant established that the documents that were the subject of the subpoena were sufficiently relevant to justify production

ADMINISTRATIVE LAW – judicial review – appeal from Local Court – Criminal Procedure Act 1986 (NSW) ss 202, 205 and 208 – where defendant pleaded guilty to one charge but Magistrate found him guilty of a more serious charge and purported to dismiss the lesser charge as a backup – defendant successfully appealed conviction to the District Court – defendant re-charged with the lesser offence – second Magistrate ruled the Local Court had no jurisdiction to hear the fresh charge – error in one or both of the Magistrate’s decisions – orders quashed and the lesser charge remitted for determination according to law

CRIMINAL LAW – whether evidence given before Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – relevant considerations – accused charged with contract killing – where evidence suggests motive in others to kill victim – where Crime Commission objects – where witness expresses fears for safety – where witness compelled to give evidence and told the evidence would not be published – where material in the form of questions not answers – where Crime Commission undertakes to notify parties of substance of evidence while not disclosing identity of witnesses

COSTS – whether issues severable such that usual rule that costs follow the event should be departed from

CORPORATIONS LAW – financial services – whether appellant carried on a financial services business without licence – regulation deemed certain circumstances not to be providing a financial service – one element of circumstances prescribed by regulation was whether person advised was, or was likely to become, a trustee or director of trustee of superannuation fund – appellant’s business involved advising members of existing superannuation funds to exit existing fund and establish self managed superannuation funds which would make leveraged investments in real property – members would become directors of new trustee of self managed superannuation fund – whether such conduct fell within regulation and thereby deemed not to be providing a financial service – Corporations Regulation 7.1.29, considered PRACTICE – amendment – primary judge refused application to amend defence on 6th day of trial – whether House v King error established – whether amendment if allowed would give rise to contested questions of fact – whether error in failing to consider whether legal practitioner acting for defendant should pay costs thrown away – whether failure to quantify delay caused by amendment – relevance of delay where ASIC had brought expedited enforcement proceedings – whether proposed defence was bad in law – appeal dismissed STATUTORY CONSTRUCTION – importance of context – appellant’s literal construction of regulation rejected – construction which accorded with regulation’s purpose and structure and explanatory statement preferred

EQUITY – unconscionable conduct and equitable proprietary estoppel – where father and son residing in family home – where respondent son made extensive financial contributions towards cost of holding and maintaining home – where contributions made on basis of shared understanding and intention that respondent had or was entitled to an ownership interest in the home – where appellant subsequently denied respondent had or was entitled to any such interest – whether primary judge erred in finding as to shared understanding and intention – whether primary erred in finding expectation in the respondent to same effect

REAL PROPERTY – caveats – registered proprietor seeking to complete a contract for sale of subject property - whether caveatable interest demonstrated – whether defendant should be enjoined from filing further caveats. FUNDS IN COURT – no dispute that defendant entitled to funds in Court – no other claimant to funds – defendant does not wish to receive funds – whether funds should be paid out to the defendant. COSTS – gross sum costs order sought – small amount of costs – costs involved in an assessment may exceed the costs in question – whether funds in Court should be paid out after costs deducted.

COSTS- Whether there was disentitling conduct by the 1st defendant - where two of three groups of plaintiffs were granted easement by prescription and the third group of plaintiffs was granted easement by virtue of s.88K - where plaintiffs perceive themselves as a one unit HELD-1st Defendant was entitled to resist s.88K claim- defendant’s conduct not sufficient to deny her the benefit of s.88K (5)-By reason of offset and because plaintiffs succeeded on different basis each party to pay own costs REAL PROPERTY-where defendant argues that the passageway burdened by the easement should be locked by a second gate for security reasons- where plaintiffs contend second gate is no more than an obstruction HELD: The second gate is an obstacle to the prescriptive easement to which two sets of plaintiffs have been found to be entitled - gate to be removed

TRUSTEES - Judicial advice to trustee - Whether trustee should defend proceedings brought against it by former discretionary object of trust

COSTS – indemnity costs – application by plaintiff for costs on indemnity basis for stay application, the plaintiff’s successful application to set aside the stay, the defendants’ application for an extension of the stay and adjournment of exclusion application – non-disclosure by defendants of material matters when making stay application and resisting its setting aside warrants order for indemnity costs – costs orders sought forthwith – defendants ordered to pay costs forthwith on an indemnity basis COSTS – application by plaintiff for costs of exclusion application on ordinary basis – orders sought forthwith – defendants ordered to pay costs of exclusion application forthwith

PRACTICE AND PROCEDURE – judgments and orders - whether Court should make declaration as to the proper construction of an order made earlier in the proceedings; COSTS – earlier order that plaintiff pay the costs of the proceedings – where agreement between parties required expert determination of disputed issues – whether costs of the proceedings includes costs of such expert determination and an earlier unsuccessful mediation

INSURANCE – Accident and sickness insurance – “total and permanent disablement” – “unlikely ever to be able to engage in regular remunerative work” – whether insurer imposed excessively rigorous test for “unlikely ever” – whether insurer failed to take into account psychological as well as physical capacity – “reasonably fitted by education, training or experience” – where insured’s vocational history is exclusively in manual labour – whether insured is reasonably fitted by education, training and experience for non-labouring customer service occupations in which he has no vocational history but for which he has some transferable skills acquired in previous occupation – held, the clause requires a connection between the suggested future work, and the insured’s past education, training and experience – held, the insured is totally and permanently disabled within policy

PRACTICE AND PROCEDURE – amendment of pleadings –– whether amendment seeks to raise new cause of action – whether such cause of action statute barred – whether defendants irretrievably prejudiced by amendment in any event – CONTRACT – building contract – further defects alleged after expiration of limitation period – whether further building defects bespeak fresh cause of action

AGENCY – relationship between financial planner (second cross defendant), and plaintiff and related companies – whether financial planner, as the introducer, had actual authority to act on behalf of the plaintiff and related companies – court considered relationship between the parties – held actual agency relationship not established – whether financial planner had ostensible agency – held there was no holding out by the plaintiff of authority to the extent that justifies the court in finding ostensible agency – no evidence from defendant/cross claimant that he relied upon any representation constituting any holding out – relationship between plaintiff and related companies – whether agency relationship existed – held actual agency relationship not established CONTRACTS – breach of contract – whether representations in product disclosure statements incorporated as terms of contract– held representations not terms of contract TRADE PRACTICES ACT – plaintiff linked credit provider – not established that supplier to whom plaintiff was linked is liable to defendant/cross claimant – defendant/cross claimant not entitled to compensation from plaintiff CONTRACTS REVIEW ACT – whether there was procedural injustice in the manner in which loan agreements were formed – circumstances of how agreements were entered into considered – no evidence from defendant/cross claimant as to what he would have done if circumstances different – plaintiff not aware of the circumstances in which the financial planner assisted the defendant/cross claimant to apply for finance – held court found no injustice – plaintiff innocent in accepting loan application – defendant/cross claimant entitled to compensation from financial planner who is responsible for procedural injustice – held plaintiff entitled to enforce loan agreements against the defendant/cross claimant under the contracts Defendant/cross claimant’s claim in respect of all other claims fail on the facts

ADMINISTRATIVE LAW – s 69 of the Supreme Court Act 1970 (NSW) – whether Medical Appeal Panel failed to perform its statutory function – whether Medical Appeal Panel failed to give plaintiff procedural fairness – Medical Appeal Panel erred in its approach to its statutory task – Medical Appeal Panel failed to give plaintiff procedural fairness – orders setting aside Medical Appeal Panel certificate and reasons

COSTS – no issue of principle

ADMINISTRATIVE LAW - application for judicial review of decision of the Independent Liquor and Gaming Authority refusing a gaming machine threshold increase application – where Authority determined the proposed new hotel was in the “immediate vicinity” of a nearby primary school - whether Authority erred in failing to refer to the conflicting evidence and to explain its reasoning process – whether Authority took into account an irrelevant consideration – whether Authority erred in assessing “immediate vicinity” by reference to lot boundary WORDS AND PHRASES – “immediate vicinity”

COSTS – where plaintiff’s director’s evidence was knowingly untrue at the time of his cross-examination – whether costs should be awarded on an indemnity basis