Cases and authorities

PRACTICE AND PROCEDURE – application by insured plaintiff for leave for separate legal representation in order to defend the first cross-claim – legal representatives for insured plaintiff in recovery proceedings instructed by compulsory third-party insurer under Motor Accidents Compensation Act 1999 (NSW) – cross-claim against first plaintiff – actual conflict of interest between position of first cross-defendant and its insurer would prevent legal representative acting on behalf of the first cross-defendant if also instructed by the compulsory third party insurer in the principal proceedings – order allowing separate legal representation for same party only made under exceptional circumstances – inherent jurisdiction of the Supreme Court – interests of justice favour orders – leave granted INSURANCE – statutory insurer dominus litis in proceedings brought in insured’s name for recovery of monies paid to claimants injured as a result of negligence of owner or driver – s 78 Motor Accidents Compensation Act

PRACTICE AND PROCEDURE – application for further orders to give effect to orders made in principal proceedings – applicant in notice of motion formerly tenant in common in equal shares with respondent in property that was sold in possession proceedings commenced by the bank as mortgagee – bank retained monies in the Common Fund which were drawn down in payment for litigation continued by the respondent – orders made in principal proceedings for respondent to indemnify applicant in respect of these costs – costs incurred exceeded respondent’s share of Common Fund – Common Fund effectively exhausted by hearing date – judgment for applicant in the amount of its share of the surplus of the proceeds of sale plus interest

TORT – negligence – personal injury – jockey injured in fall from horse during country race meeting – whether defendant negligently caused or permitted his horse to take plaintiff’s running – whether plaintiff’s horse advanced into a position of danger – Civil Liability Act 2002 s 5K – dangerous recreational activity – whether recreational activity includes professional horseracing

COSTS – claim by successful defendant for interest on costs paid – whether evidence is required to support application for interest on costs – relevant discretionary considerations.

PROCEDURE – Application by defendants for dismissal of appeal proceedings pursuant to rule 13.4 of the UCPR in respect of Local Court decision –negligence proceedings in Local Court in favour of defendants – alleged mislabelling of products distributed by defendants – incompetency of appeal – appeal out of time – no question of law – no error of law or fact identified by plaintiff to appeal

CRIMINAL LAW – Evidence – admission – offer by accused to provide police with guns in exchange for reduced charges – “massacre guns” – not recorded electronically – whether “in the course of official questioning” – whether spontaneous utterance – where accused declined to participate in recorded interview – whether evidence relevant other than as tendency evidence – where accused’s case involved a denial of having access to guns – whether evidence should be excluded in the exercise of discretion under various provisions of the Evidence Act 1995 (NSW).

DAMAGES – trespass to the person – battery – plaintiff ejected from club – plaintiff struck on head from behind by security guard – claim against security guard – default judgment with damages to be assessed – assault caused subarachnoid haemorrhage – ongoing migraines – post traumatic stress disorder – maximum medical improvement of psychiatric injury reached at 30 months - breakdown of marriage – partial capacity for work after 18 months – consent judgment for damages against two other defendants

CHARITIES – Charitable gifts and trusts – When applied cy-pres – Where general charitable intention – Gift to specifically named charity which ceased to exist before death of testatrix – Analysis of Court’s jurisdiction over charitable trusts and gifts - Charitable Trusts Act as legislative framework for administrative arrangements, not displace Court’s general jurisdiction SUCCESSION - Construction and effect of testamentary dispositions - Construction of gift to dissolved corporation

TRADE PRACTICES – misleading and deceptive conduct – whether representations made during the course of negotiations for an agreement concerning terms to be included in the agreement was misleading or deceptive EQUITY – whether fiduciary relationship exists in connection with the negotiation of a commercial agreement CONTRACTS – general contractual principles – construction and interpretation of contracts – prior agreement inconsistent with existence of entire agreement clause EQUITY – estoppel – lack of relevant detriment CONTRACTS – termination of contract – whether party in breach of contract entitled to terminate it for breach or repudiation by the other party – whether terminating party entitled to claim damages TRADE PRACTICES – unconscionability – operation of s 51AC TPA DAMAGES – pre-contractual representations – difference in damages where a transaction occurs as against a ‘no transaction’ case

CRIMINAL LAW – conviction appeal – four counts of aggravated sexual intercourse with child between 14 and 16 years – one count of indecent assault on child under 16 years - multiple grounds of appeal – whether ‘fresh evidence’ ought to be admitted on appeal - whether trial counsel incompetent – whether verdicts unreasonable – appeal dismissed CRIMINAL LAW – sentence appeal – leave required – leave refused

CRIMINAL LAW – application for leave to appeal sentence – parity of sentence between co-offenders – justifiable sense of grievance – leave granted – appeal allowed

INJUNCTIONS – where interim injunction granted restraining receivers from performing their functions in accordance with their appointment on conditions calculated to provide transparency as to the ongoing conduct of the business as a going concern pending expedited final hearing – where each party alleged breaches of the interim regime – receivers seeking order requiring defendants to respond “fully and honestly to questions reasonably asked” during inspections of the property and not to engage in “intimidatory tactics such as following delegates around with a video camera” – inappropriateness of involving court in ongoing supervision of unhappy commercial relationship

PRACTICE AND PROCEDURE – Vacation of hearing dates – Necessity to follow practice note

PRACTICE AND PROCEDURE – Pro Bono referral – No point of principle

DEFAMATION – where proceedings tried with a jury – desirability of having jury determine defamatory meaning before hearing other evidence in the proceedings DEFAMATION – television broadcast – undesirability of providing transcript to the jury COSTS – where plaintiff unsuccessful after refusing Calderbank offer – whether unreasonable not to accept offer – difficulty of assessing value of offer

EVIDENCE – admissibility – hearsay - statement by the deceased while events fresh in the memory – evidence of statement by person who heard the representation from the accused - statement containing implied admission and exculpatory material – implied admission not an issue in the trial – whether statement admissible – admission not adverse to accused’s interests – statement admissible under s 66(2) Evidence Act – accused to give evidence in trial – events fresh in the accused’s memory EVIDENCE – admissibility – lay opinion – evidence of witness of accused’s reaction to information conveyed to him – whether witness could give conclusionary evidence of accused’s emotional state – whether evidence relevant – whether evidence could rationally affect assessment of fact in issue – evidence rejected

PROCEDURE – notices of motion – both parties seeking access to claimed privileged material produced under subpoena by third parties – client legal privilege – where objection taken by legal representatives, not parties that produced the documents – whether Evidence Act or common law applies – “dominant purpose” test – whether evidence justifies the claim for privilege

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether contracts were construction contracts within the meaning of the Act – whether Adjudicator denied natural justice to plaintiff – failure to deal with claim of defective work

INJUNCTIONS – where interim injunction granted restraining receivers from performing their functions in accordance with their appointment on conditions calculated to provide transparency as to the ongoing conduct of the business as a going concern pending expedited final hearing – where each party alleged breaches of the interim regime – receivers seeking order requiring defendants to respond “fully and honestly to questions reasonably asked” during inspections of the property and not to engage in “intimidatory tactics such as following delegates around with a video camera” – inappropriateness of involving court in ongoing supervision of unhappy commercial relationship

PRACTICE AND PROCEDURE – Application for injunction to restrain hearing before the Local Court – No evidence to support the making of such an order – Application dismissed

PRACTICE AND PROCEDURE – application for security for costs on behalf of defendants – plaintiff unable to obtain legal representation – concession plaintiff may have arguable case – risk of prejudice to defendants if security for costs not provided – gross costs order appropriate – adjournment granted – stay of proceedings pending payment of costs by plaintiff of defendants’ application

RESTRICTED PREMISES – Declaration – No point of principle

PRACTICE AND PROCEDURE – Duty to give reasons – Where defendant charged with an offence before the Local Court – Where matter proceeded to hearing – Where Magistrate found that he was not satisfied beyond reasonable doubt of the elements of the charge – Where charge was dismissed – No identification of the elements of the offence – No factual findings expressed - No identification of which element(s) had not been established beyond reasonable doubt – No exposition of path of reasoning which led to the conclusion that the charge should be dismissed – Reasons inadequate – Error of law established – Matter remitted to the Local Court PRACTICE AND PROCEDURE – Where error of law established – Whether matter should be remitted to the Local Court – Where issues were properly determined by the Local Court and not by the Supreme Court on a limited statutory appeal – Matter remitted

CRIMINAL LAW – appeal – conviction – conspiracy to defraud – whether verdict unreasonable – whether conspiracy to defraud where applicant had an intention to harvest credit card information and onsell to third party CRIMINAL LAW – appeal – sentencing – whether error in failure to mitigate sentence for manner in which trial was conducted – whether justifiable sense of grievance regarding sentencing of co-offender – whether manifestly excessive

CRIMINAL LAW – hearsay evidence in telephone intercepts – whether representation made in furtherance of common purpose – narrative of past events – evidence excluded

CRIMINAL LAW – objection to evidence – evidence of increased lead levels in victim’s blood – expert evidence that lead levels caused by shotgun pellets lodged in body of the victims – whether evidence speculative or reasoning circular – whether improper assumptions made - risk of infertility from lead toxicity – whether unfairly prejudicial – extent of probative value to issue of whether injuries constituted grievous bodily harm – gender balance of jury – high probative value – evidence allowed

PRACTICE AND PROCEDURE – application for leave to appeal – primary Judge determined pursuant to s 73(1) of the Civil Procedure Act 2005 (NSW) that a matter had settled – determination made on Judge’s own motion – whether Judge had power to do so – whether matter in dispute warrants leave being granted

CONTRACT – contractual construction – commercial credit facility and supply agreement – deed of guarantee signed by appellant – whether documents effective to create either primary liability on company’s part or liability as guarantor on appellant’s part – whether strictissimi juris principle of construction enlivened CONTRACT – execution of document by individual holding offices of both director and company secretary – whether execution complied with Corporations Act 2001 (Cth), s 127(1) – whether creditor entitled to make assumption credit facility duly executed – Corporations Act 2001 (Cth), s 129(5)

LANDLORD AND TENANT – long term lease – primary judge found tenant abandoned premises and rejected claim that landlord had repudiated lease – whether landlord wrongfully retook possession – whether landlord repudiated lease – whether landlord mitigated loss PRACTICE – overseas witness – required to attend for cross-examination – late application for witness to give evidence by audio-visual link – no appellable error in refusing application

CORPORATIONS – voluntary administration – second meeting of creditors – application by administrators for extension of convening period – where receivers in office are working towards orderly sale as a going concern – no matter of principle

CRIMINAL LAW – Crimes (High Risk Offenders Act) – application for interim supervision order (ISO) – defendant a high risk sex offender – defendant did not oppose order but reserved position in regards to extended supervision order – ISO made having regard to factors in s 9 of the Act – order made under s 7(4) requiring the defendant to undergo psychiatric examinations by 2 qualified psychiatrists

PRACTICE AND PROCEDURE – concerns directions to implement reasons for judgment on principal application –format of estate accounts in dispute – beneficiaries want trustees to reformat accounts from accounts prepared in accordance with current accounting standards to accounts prepared in a form suitable to be passed in probate – desirability of real issues in dispute being identified – whether beneficiaries could identify transactions of concern using accounts in current format – held court not satisfied that the annual financial statements are inadequate for the purpose of beneficiaries identifying real issues in dispute– form of short minutes of order proposed – no issue of principle

Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

ADMINISTRATIVE LAW – appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – decision cancelling licences and a security clearance pursuant to the Explosives Act 2003 (NSW) – whether denial of procedural fairness based on lack of particularisation of alleged “offences” – whether failure to apply the “Briginshaw test” – making of factual findings by an Appeal Panel of the New South Wales Civil and Administrative Tribunal – interpretation of “storage” for the purposes of s 6(1) of the Explosives Act 2003 (NSW) – whether an irrelevant matter taken into account – appeal dismissed

CORPORATIONS – meetings – voting – responsible entity and associates – construction of (CTH) Corporations Act 2001, s 253E – where responsible entity has interest in resolution other than as a member – whether associate of responsible entity permitted to vote

CRIMINAL LAW – appeal against sentence – possess unauthorised pistol and prohibited firearm – whether error in assessment of offence as in the middle of the range of seriousness where the pistol was an imitation – assessment was one reasonably open to be made – aggregate sentence not manifestly excessive – appeal dismissed

EQUITY – right to rectification – whether mistake required EQUITY – estoppel – promissory estoppel – whether reliance on representation that rent charged in first three years would be less than that for which agreement provided CONTRACT – construction – lease – whether respondent liable to make payments for outgoings in accordance with disclosure statement – whether respondent entitled to recover electricity expenses

CORPORATIONS – application for leave to bring statutory derivative action under s 237 Corporations Act 2001 – whether proceedings were in the company’s best interests – where constructive trust sought in derivative proceedings, whether evidence required of capacity to do equity – whether the company could in fact do equity

TRUSTS – lost deed – evidence of contents – judicial advice as to basis for management and administration of trust

CIVIL – Crimes (High Risk Offenders) Act 2006 – application for continuing detention order – whether the defendant is a high risk sex offender – application not opposed by the defendant – length of continuing detention order

FAMILY PROVISION AND MAINTENANCE – Notional estate – Claim by 63 year old adult child – Insolvent estate – Only possible notional estate family property held by deceased and second defendant as joint tenants – Second defendant’s reasonable expectations in relation to family property because he had built home on property and otherwise contributed to costs of acquisition – Succession Act 2006, s 87

EQUITY – Adoption of referee report – Proposed modification – Whether referee erred in failing to take into account outstanding levies in determining reasonable Owners Corporation budget – Failure to draw referee’s attention to outstanding levies – Costs of proceedings before referee when neither party is successful – Costs of notices of motion – Whether second defendant “surrendered”

CRIMINAL LAW - wilful misconduct in public office - mens rea - whether offence made out if public officer reckless as to whether his or her conduct in breach of the duties of their office

INSURANCE – reinsurance – whether addendum operates back to back with reinsurance treaty – whether presumption that reinsurance is back to back with underlying insurance is relevant CONTRACT – interpretation and construction of commercial contracts – general principles of construction applied – interpretation of “Initial Event Sentence” – whether Initial Event Sentence operates as a condition of or exclusion from the reinsurance cover

PRACTICE AND PROCEDURE – Notice of Motion – order sought setting aside decision of the Registrar to dismiss proceedings – costs dispute

CRIMINAL LAW – appeal against conviction for offence of break enter and steal in company – whether verdict was unreasonable having regard to the evidence at trial – jury entitled not to accept accused’s version of events – whether trial judge erred in directions about withdrawal from joint criminal enterprise – no error established – leave to appeal granted but appeal dismissed

CRIMINAL LAW – appeal – conviction and sentence –applicant convicted of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the primary judge gave undue weight to the Crown case and failed properly to describe the applicant’s case in his summing up – whether evidence concerning the smell of cannabis plants should not have been admitted in circumstances where that evidence had not been foreshadowed prior to the trial – whether the applicant suffered a miscarriage of justice as a result of advice from his barrister that he not give evidence in his own defence – whether the primary judge erred in imposing a two-year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether to admit new evidence on the appeal

CRIMINAL LAW - appeal – appeal against sentence – cultivate and supply prohibited drugs – ongoing supply – whether engaging in supply for financial reward is aggravating factor – whether applicant disentitled to the benefit of prior good character by reference to present offending – whether error in considering sentences of offenders connected to applicant but not co-offenders – re-sentence – no lesser sentence warranted

CRIMINAL LAW – sentence – multiple sexual offences committed by offender against step-daughter – victim aged 12 to 17 years – intercourse resulting in pregnancy – offender arrested but not charged after one incident – continuation of offending - challenges to factual findings by sentencing judge – good character apart from offending – whether such good character could be disregarded - aggregate sentence – whether sentence manifestly excessive – whether offences occurring in family home was an aggravating factor – discussion concerning whether cases holding that commission of offence by family members in the victim’s home is not an aggravating factor should be reconsidered – errors established – sentence not manifestly excessive - no lesser sentence warranted