Cases and authorities

CRIME – sentencing – manslaughter on basis of substantial impairment – serious offence involving multiple stab wounds – where offender offered plea of guilty to manslaughter at earliest opportunity – underlying condition of severe, post-traumatic stress disorder, depression and cognitive impairment as survivor of torture while political prisoner in Ethiopia and trauma in refugee camps – unanimous psychiatric evidence that offender’s capacity to control himself substantially impaired – significant degree of impairment of offender’s ability to control himself

CIVIL – COSTS – application for costs assessment after expiration of statutory time limit – statutory interpretation of point of commencement of time limit – whether costs assessment would be just and fair

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of New South Wales – claim for damages may exceed jurisdictional limit of the District Court – whether transfer in the interests of justice

TORTS – malicious prosecution – false imprisonment –battery – misfeasance in public office– whether arrest unlawful– where prosecutor at time unaware of nature of alleged offending moments earlier– where all charges against applicant withdrawn and dismissed TORTS – Malicious prosecution – Whether prosecutor acted maliciously – Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law– whether prosecutor had reasonable or probable cause

EVIDENCE – shooting murder – where accused in a possession of a bulletproof vest at the time of execution of a search warrant – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice - danger that jury would engage in impermissible tendency reasoning –- evidence excluded under s 137 EVIDENCE – telephone intercept – where accused makes reference to a firearm in casual conversation – where Crown contends that evidence demonstrates that the accused is a person familiar with firearms – evidence irrelevant and therefore inadmissible

PROCEDURE — Contempt of court — where order sought that director of company be punished for contempt under Part 55 r 13 of the Supreme Court Rules 1970 (NSW) – where company gave undertaking to the Court that a certain amount of monies from proceeds of sale of units would be paid into a controlled money account to be held on trust – where it was contended that the director had caused company to act contrary to that undertaking thereby knowingly impeding the administration of justice – whether it was established beyond reasonable doubt that alleged contemnor had requisite knowledge of undertaking – whether r 36.5 of the Uniform Civil Procedure Rules 2005 (NSW) applies to undertakings voluntarily offered to court – whether undertaking was not sufficiently precise to ground a charge of contempt – whether charge of contempt established.

CONTRACTS – construction of commercial contracts – meaning of “for the benefit of” – meaning of “third party” – meaning of “on behalf of” INSURANCE – construction of insurance contracts – interpreting exclusion clauses TRUSTS – meaning of “present entitlement” – for the benefit of – discretionary trusts – unit trusts

PROCEDURE – costs – departing from the general rule – proceedings brought by a company to determine the validity of appointment of voluntary administrator of that company – where the court declared that the appointment was invalid – role of purported administrator in such proceedings –CORPORATIONS – liquidators and administrators – role in proceedings brought by another challenging appointment – duty of essential neutrality, to provide relevant facts and to assist determination on the merits – whether such duty discharged in the circumstances of the case.

EVIDENCE – Expert opinion – Lay opinion – Whether admissible

EQUITY – interlocutory injunction – serious question to be tried – whether contract excludes right to set-off in equity – whether defendant is entitled to call upon the guarantee for non-payment of rent by payment – where plaintiff claims that there is a right to set-off for breach of the covenant of quiet enjoyment EQUITY – interlocutory injunction – balance of convenience – whether damages are an adequate remedy – whether there is a real risk that defendant cannot meet a claim for damages

CRIMINAL LAW – Pt 7 of the Crimes (Appeal and Review) Act 2001 – whether “Muldrock error” at first instance – error conceded by Attorney-General

ADMINISTRATIVE LAW – judicial review – where plaintiff claims that he was denied procedural fairness – whether plaintiff received notice of application to Adjudicator – question of fact – unnecessary to consider ground ADMINISTRATIVE LAW – judicial review of decision of Strata Schemes Adjudicator – whether decision affected by jurisdictional error – whether Adjudicator purported to exercise the wrong power – where Adjudicator did not comply with statutory pre-conditions to exercise of correct power – jurisdictional error made out - relief granted

DEFAMATION – Media Watch programme analysing articles written by a journalist about the results of tests for toxic substances – imputations that the journalist engaged in trickery by misrepresenting the location of the tests and that she created unnecessary concern in the community by irresponsibly failing to consult experts in the preparation of her article – defences of fair comment at common law and statutory defence of honest opinion – whether defamation conveyed as the comment or opinion of the presenter – defence of truth – whether imputations substantially true – defence of contextual truth – whether open to defendant to rely on an alternative, fall-back imputation pleaded by the plaintiff – whether open to plaintiff to rely on an imputation of which she complained but which was proved true – consideration of the decision of the Queensland Court of Appeal in Mizikovsky – whether because of the substantial truth of the contextual imputations the (untrue) defamatory imputation did not further harm the plaintiff’s reputation – defence of qualified privilege at common law – whether the Media Watch programme was published on an occasion of qualified privilege at common law

CORPORATIONS – winding up – order setting aside creditor’s statutory demand – not capable of genuine dispute where debt founded on judgment debt – where offsetting claims intertwined with matters subject of judgment debt – issue estoppel – Anshun estoppel – where motion filed to pay judgment debt by instalments filed last minute – “some other reason” for setting aside demand under (CTH) Corporations Act 2001, s 459J(1)(b)

DEFAMATION – ex parte application for injunction to restrain publication - defamatory website with name similar to plaintiff’s professional website – where suspected publisher subject to apprehended violence order prohibiting creation of a website that harasses the plaintiff – where breach of AVO would also breach a bond entered into upon suspension of term of imprisonment – no response by defendant to letter of demand.

CRIMINAL LAW – Judge-alone murder trial - Crown tenders recorded conversations between Accused and Man Monis - discussions occur after Accused informed of police application to obtain forensic samples from her - conversations include discussions concerning possible explanations for presence of Accused’s blood and hair at crime scene - whether conversations admissible as evidence of consciousness of guilt - evidence admitted

PRACTICE AND PROCEDURE – notices to produce – client legal privilege – whether documents are privileged under s 119 of the Evidence Act 1995 (NSW) – whether any privilege attaches to documents relating to searches for litigation funding – whether privilege has been waived under s 122 of the Evidence Act –Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 21.10, 34.1

REAL PROPERTY – possession of land – application for stay of execution of writ of possession – proceedings settled by way of deed of settlement – undertakings to court not complied with – stay refused

EVIDENCE – Evidence of plaintiff’s son as to observations made of the plaintiff before and after the accident the subject of proceedings – Whether probative value of the evidence was substantially outweighed by the danger of unfair prejudice – Where unfair prejudice said to stem from the fact that the evidence was of a kind already adduced in the plaintiff’s case – Where unfair prejudice was said to stem from the fact that “sheer weight” of the number of witnesses giving such evidence would compel the court to make findings favourable to the plaintiff – Where such a submission overlooked the fact that the evidence would be assessed and analysed EVIDENCE – Evidence of plaintiff’s son as to observations made of the plaintiff before and after the accident the subject of proceedings – Whether probative value of the evidence was substantially outweighed by the danger that it would be misleading or confusing or result in an undue waste of time – Where the evidence was clear and in short compass – Evidence admitted

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk sex offender – preliminary hearing

CORPORATIONS — unregistered managed investment schemes — where liquidators of several unregistered managed investment schemes sought approval under s 601EE(2) of the Corporations Act 2001 (Cth) of their existing and anticipated future remuneration in respect of the winding up of the schemes on a time-based approach – where liquidators sought directions that they would be justified in distributing assets of the schemes on a basis giving liquidators’ claims first priority – whether the Court should grant remuneration on a time-based approach as sought by the liquidators – whether the Court should approve prospective remuneration sought by the liquidators – whether liquidators’ claims in respect of their remuneration and costs be given first priority – whether liquidators’ costs of the proceedings be paid out of the assets of the respective schemes.

CRIMINAL LAW – murder – deceased infant daughter of accused – judge alone trial – not disputed that deliberate act of the accused caused the death – where sole issue is defence of mental illness – expert evidence unanimously indicates defence available – accused suffered from major depressive illness with psychotic features – not guilty by reason of mental illness

PRACTICE AND PROCEDURE - pre-judgment interest - Civil Procedure Act 2005, s 100(1) - calculation of interest - period for which pre-judgment interest should run - whether proceedings were relevantly for damages - whether “appropriate settlement sum” offered - whether “special circumstances” demonstrated COSTS - appeal costs - application for indemnity costs - offers of compromise made prior to trial - relevance when not renewed before or during appeal proceedings - whether offers at first instance may be relied on for purpose of special costs order on appeal COSTS - interests on costs - partial success enjoyed by all parties - appropriate costs award - whether interest on costs should be awarded under Civil Procedure Act 2005, s 101(4) - application refused APPEAL - judgment already paid reversed in part on appeal - order for restitution - appropriate rate of interest - whether interest to be calculated at rate other than in accordance with that legislatively prescribed

CONTRACT – oral agreement for sale of prime mover – purchaser paid $350,000 at settlement and a further $50,000 over the following twelve months – trial judge found purchase price was $400,000 for a “truck with work”, with a “side deal” that $50,000 be paid in instalments after settlement – whether “side deal” was a collateral agreement inconsistent with main contract and therefore invalid – whether vendor promised to sell goodwill – appeal dismissed

EVIDENCE – Opinion – Lay opinion – Whether admissible to obtain adequate account of a witness’ perception or understanding of an event

EQUITY – equitable remedies – injunctions – whether freezing order should continue until hearing or further order – whether there is a good arguable case – personal claim to recover moneys advanced by way of loan – execution of agreement relating to that loan – agreement deliberately altered by plaintiff – prima facie, debt still due – removal and replacement of trustee – mere disagreements insufficient to justify removal – reasonable inference that those controlling trustee may not be able or willing to discharge duties with impartiality – trustee of company may not enforce its rights to recover loan – held, there is a good arguable case – whether there is risk of dissipation – defendants’ conduct in inflicting economic damage on plaintiff or trust assets – unexplained ongoing expenditure of large round sums – held, reasonable apprehension that assets of trust may not be preserved – general discretionary considerations – prejudice and inconvenience of injunction relatively slight COSTS – where defendants made open offers – where it is presently unknown whether plaintiff has bettered offer – whether plaintiff acted unreasonably in rejecting offer

PRACTICE AND PROCEDURE – application for summary dismissal – plaintiff in 2016 proceedings (Compton) seeks an order that judgment in 2014 proceedings be stayed or set aside – defendant (Ramsay) applies for summary dismissal of the 2016 proceedings – where there was a hearing on the merits and judgment in favour of Ramsay in 2014 proceedings – whether interests of justice dictate that the judgment be set aside, UCPR r 36.15 – principle of finality of litigation – where there are ongoing proceedings in the Federal Court – whether judgment should be stayed pending the outcome of those proceedings – balance of competing considerations – stay granted on limited basis

CORPORATIONS – interlocutory injunction – injunction to restrain certain items on the agenda being put to members of company at annual general meeting – whether there is sufficient information for members to make a properly informed decision on the resolution – whether there is a serious question to be tried – balance of convenience

PRACTICE AND PROCEDURE – pleadings – whether leave should be granted to cross-claimants to file proposed amended cross-claim

CRIMINAL LAW – Judge-alone trial for murder - tender of photographs of Man Monis wearing headband with extreme religious content - sufficient nexus with Accused - photographs admitted

BAIL – where first applicant charged with murder and second applicant charged with being an accessory after the fact to murder – show cause offences – Bail Act 2013, s 16B – whether applicants have shown cause why their detention is not justified

BAIL – where applicant convicted and sentenced to term of imprisonment for being an accessory after the fact to female genital mutilation – Crimes Act 1900, ss 45(1) and 347 – where applicant has lodged Notice of Intention to Appeal against conviction to the Court of Criminal Appeal – where proposed ground of appeal raises a question of statutory interpretation – whether the proposed ground of appeal is arguable or has reasonable prospects of success – whether “special or exceptional circumstances” exist justifying a grant of bail – Bail Act 2013, s 22

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of Queensland – claim for damages arising from negligence – whether transfer in the interests of justice

DISCOVERY – order for production of hydraulic model and associated data – whether implied undertaking sufficient protection for owners of model – whether production of material should be subject to written confidentiality undertaking – form of undertaking – whether undertaking should be proffered to owners of model – whether undertaking should require recipients to acknowledge confidentiality and commercial value of hydraulic model – HELD: written undertaking required but not in form required by plaintiff

TRUSTS AND TRUSTEES – JUDICIAL ADVICE – charitable trust in a will – whether trustee justified in forming opinion that beneficiary has ceased to operate under its fundamental objects and purposes or has not applied funds distributed for relevant charitable purpose – proper construction of the relevant parts of the will

CONTRACT – contract for search engine optimisation services – where scope and terms of retainer not fully expressed – implied contractual and common law duty to use reasonable care and skill – whether duty extended to duty to warn – whether scope and terms informed by subsequent conduct and performance of retainer – whether plaintiff or defendants responsible for design of search engine optimisation strategy – whether defendants used reasonable care and skill in the performance of the retainer DAMAGES – pure economic loss – whether breach of retainer results in loss – where direct correlation between alleged breach and loss – assessment of expert evidence – whether discount should be allowed if damages awarded

CRIMINAL LAW – defence of duress – the domain of the common law – whether defence applies to offences of attempted murder – Brothers for Life – where accused voluntarily joins criminal group – where group involved in violent activity – where leaders use intimidation to assert authority over members – whether defence available to accused involved in a criminal gang – whether defence available to accused who voluntarily places himself where he may be subject to coercion – whether test is objective or subjective – nature of limitation – absence of authority in Australia – whether United Kingdom authority should be followed – where UK approach might operately harshly – more flexible approach preferred.

COSTS – Departing from general rule – Global costs order where multiple actions heard together with different measures of success but overall interests of parties clear COSTS – Interest on costs – Interest ordered at rate of interest paid on litigation loan from date costs paid - Civil Procedure Act 2005 (NSW), s 101(4) and (5) REAL PROPERTY – Tenancy in common created pursuant to property relationships application – Whether usual principles in relation to appointment of trustees for sale apply - Conveyancing Act 1919 (NSW), s 66G PRACTICE – Stay of proceedings – Pending appeal – Necessity for formulated grounds of appeal where first instance judgment substantially based on credit findings and application of discretion

SUCCESSION — Probate — Grant of probate — Testamentary capacity – Knowledge and approval – No issue of principle — Probate granted in solemn form of the latter will; SUCCESSION — Family provision — Application for family provision order under Pt 3.2 of the Succession Act 2006 (NSW) — Applicant provided with right to reside in house and one-third of the estate under the terms of the will —Applicant’s provision adequate for applicant’s proper maintenance and advancement in life — Claim for provision dismissed – No issue of principle

PROCEDURE – amendment – further application to amend cross-claim – claim by mortgagor against mortgagee for exercise of power of sale – application to plead a further basis for breach of mortgagee’s duty – breach if established would give mortgagee right against third parties – mortgagee out of time for bringing third party actions – mortgagee aware of facts forming basis for further claim for previous four years – no explanation for delay in seeking to amend – Civil Procedure Act s 58 – not just and reasonable to permit amendment LIMITATION OF ACTIONS – third party claims – third party not joint tortfeasors with defendant – Limitation Act 1969 – inter-relationship between ss 26 and 74 – whether defendant barred from making third party claim LIMITATION OF ACTIONS – postponement of the bar – fraud or mistake – third party claim by defendant for negligence and breach of contract - assertion of fraud or mistake on third parties’ part by plaintiff – defendant not claiming fraud or mistake – negligence not equated with mistake – no postponement of the bar

PRACTICE AND PROCEDURE – application for stay of execution of primary judgment granting possession of property and leave for issue of writ of possession – whether arguable ground of appeal – where success on grounds of appeal would not entitle appellant to have judgment for possession set aside in full – stay refused

PRACTICE AND PROCEDURE – notice to produce – where defendant has produced redacted and incomplete copies of documents – whether defendant is entitled to rely on redacted copies of documents – where defendant claims that redacted entries are confidential

PROCEDURE – judgments and orders – Enforcement of judgments and orders – where defendant holds plaintiff’s money in trust account – where garnishee order purportedly served on defendant requiring payment of that money to respondents – where garnishee order later set aside – where plaintiff claims payment of remainder of money held in trust – interpleader application requiring payment of claimed amount into court – respondents and defendant do not oppose judgment in favour of plaintiff – interpleader application dismissed COSTS – which of defendant and respondents should bear costs where plaintiff totally succeeds – where respondent contributed to claim for interpleader relief – held, respondents equally responsible with defendant

GUARANTEES AND INDEMNITIES – guarantors’ liability for enforcement costs under loan facility – where whole debt repaid to lender by three out of five guarantors – subrogation to lender’s rights against remaining two guarantors and substitution as plaintiffs in possession proceedings – consideration of proper approach to calculation of costs payable by remaining guarantors

CRIMINAL LAW – Judge-alone trial for murder - tender of letter from Accused to Man Monis - letter written one year after murder of Monis’ ex-wife - Crown case that there was a close romantic relationship with religious overtones between Accused and Monis before and after murder - letter admitted

EVIDENCE – Expert evidence – No exposition of reasoning process leading to expression of opinion PRACTICE AND PROCEDURE – Application to call oral evidence from expert – Where passages of report rules inadmissible – Whether circumstances exceptional so as to allow oral evidence to be called

PRACTICE AND PROCEDURE – expert evidence – where plaintiff seeks to rely on expert report – where non-party to proceedings seeks to prevent the plaintiff from relying on that report, or suppression orders in respect of certain documents relied upon in that report – balancing of competing considerations – where hearing date is imminent – limited suppression orders made

COSTS – whether costs should follow the substantive event – where unsuccessful plaintiff seeking costs – where plaintiff claims partial success and claims that those issues are clearly dominant or separable – whether it is appropriate to divide up relevant issues - r 42.1 Uniform Civil Procedure Rules 2005 (NSW) COSTS – whether costs should be awarded on the indemnity basis – Calderbank offer made by the defendants – offer not accepted – whether relevantly unreasonable for plaintiff not to accept offer

CONVEYANCING – Breach of contract for sale and remedies – Repudiation – Delay in completion of contract – Pursuit by parties of options in relation to property other than completion of contract – Whether conduct of purchaser amounted to repudiation of contract – Whether vendor entitled to terminate contract CONVEYANCING – Breach of contract for sale and remedies – Repudiation by vendor – Whether purchaser ready, willing and able to complete contract at time of repudiation REAL PROPERTY – Valuation of land – Methods of valuation – Use of offers as evidence of market value – Whether offers capable of use to establish floor in market value – Whether valuer’s reasoning adequately disclosed in valuation report

Malicious prosecution – false imprisonment