Cases and authorities

MENTAL HEALTH – effect of magistrate’s order for mental health assessment – subsequent order for detention in prison – whether imprisonment unlawful – ss 17, 34 Mental Health Act 2007 (NSW) MENTAL HEALTH – order for transfer to mental health facility – delay in transfer – Mental Health Review Tribunal review required – failure of Director-General and Commissioner to provide reports required as to delay – whether failure to fulfil statutory requirements renders subsequent detention unlawful – ss 55, 58 Mental Health (Forensic Provisions) Act 1990 (NSW) TORTS – unlawful imprisonment – magistrate ordered mental health assessment – subsequent order for detention in correctional facility – whether detention unlawful following certification as mentally ill person – s 33 Mental Health (Forensic Provisions) Act 1990 (NSW) TORTS – misfeasance in public office – whether “authorised medical officer” holder of public office – mental health assessment – whether medical officer under an obligation to detain mentally ill person in mental health facility – whether exercise of statutory duty sufficient to constitute person holder of public office – mental element of intending foreseeable harm

CRIMINAL LAW – sentence appeal – aggravated break enter and commit serious indictable offence – s 112(2) Crimes Act 1900 (NSW) – question of manifest excess – utility in considering notional “starting point” of sentence – relevance of sentencing statistics to determining manifest excess – other asserted errors raised in support of ground asserting manifest excess – assessment of objective gravity – weight given to subjective case

CORPORATIONS – Winding up – Application for directions under s 511 of the Corporations Act 2001 (Cth) – Whether liquidators justified in causing distributions to unitholders on the basis that the purported cancellation of units was invalid and of no effect – Application for judicial advice under s 63 of the Trustee Act 1925 (NSW) – Whether trustee justified in making distributions to unitholders on the basis that the purported cancellation of units was invalid and of no effect.

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth) — whether genuine dispute as to existence or amount of debt is established.

PRACTICE AND PROCEDURE – interlocutory issues – statement of claim – late amendments – alleged delay – no prejudice – new proposed causes of action fall within the existing factual substratum of the case as previously pleaded – withdrawal of certain statements made by the plaintiff not a reason to refuse amendment sought – amendments to the statement of claim allowed – PRACTICE AND PROCEDURE – interlocutory issues – setting aside subpoena – relevance – subpoena was not a substitute for discovery – was not impermissible “fishing” – it was “on the cards” that the documents sought had relevance to the loan transaction the subject of the proceedings – application refused – COSTS

COST ORDERS – third defendant sought indemnity from the first defendant owners corporation for her costs of the proceedings – first defendant was not initially capable of opposing plaintiffs’ application for leave to take proceedings in the name of the first defendant – court of its own motion joined the third defendant as a party to plaintiffs’ application – exceptional circumstances – principles of justice and fairness considered – court had already ordered the first defendant to indemnify the plaintiffs for their costs HELD court exercised discretion as to costs under Civil Procedure Act 2005 (NSW), s 98 – first defendant to pay third defendant indemnity costs properly related to the third defendant responding to the plaintiffs’ application

CONVEYANCING – Matters arising after completion – other matters – deposit – second defendant purchaser entitled to credit for balance of deposit held in trust by first defendant administrator of the estate of the vendor – second defendant had been ordered to complete the contract for sale following an order for specific performance sought by the second defendant without being given credit for the balance of the deposit – first defendant ordered to return balance of deposit to second defendant – no issue of principle COST ORDERS – entitlement of first defendant administrator to his fees and expenses as administrator and as first defendant in the proceedings – first defendant had accepted appointment on the basis of a promise by the plaintiff that any shortfall in the capacity of the estate to meet his fees and expenses would be paid in priority to any obligation of the estate to the plaintiff – orders made to ensure plaintiff responsible for first defendant’s fees and expenses – no issue of principle

REAL PROPERTY – mortgages – possession of land – no defence disclosed in Defence filed – Defence struck out – leave given to Plaintiff to obtain default judgment

COSTS – indemnity costs – where offer of Calderbank letter – reasonableness of rejection – rejection was unreasonable

PRACTICE AND PROCEDURE – subpoenas – legal professional privilege – onus of proof – allegation of joint client and therefore privilege does not run – joint client in some respects and in other respects a wholly independent relationship – documents inspected and rulings on documents given.

PRACTICE AND PROCEDURE – apprehension of bias – conduct – whether judge should recuse himself – questions directed to applicant as witness – applicant convicted – trial judge’s duty to afford fair hearing to parties – admissible evidence – whether pre-judgment of issues to be resolved in sentencing proceedings – actual bias

EQUITY - General principles – Unconscionability, unconscionable dealings and other forms of equitable fraud – Execution of deed of gift under mistaken belief operation of deed conditional upon marriage – Unilateral mistake – Gift in contemplation of marriage – No marriage, no gift

PROCEDURE – subpoena for production – privilege – whether director entitled to privilege in communications between company and its solicitors

CRIMINAL LAW– expert evidence– adjournment to provide time for Crown to qualify an expert

CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – where evidence not led in chief emerge during cross-examination after conclusion of cross-examination – fairness to accused required opportunity to put his case – no unfairness to co-accused – application granted CRIMINAL LAW – joint trial – application to ask further questions in cross-examination – where co-accused raising defence of duress – when counsel puts one version and co-accused puts alternative version – where both versions contained in statement – where evidence left in state of uncertainty and confusion – whether unfair – application granted

CRIMINAL LAW – objection by accused to cross-examination of roll-over witness by co-accused – witness participated in shooting – questioning concerning witness’s belief as to person on whose behalf he was acting – question not asked to establish truth of witness’s belief – whether relevant to co-accused defence of duress – evidence not relevant – if relevant, evidence would be excluded in exercise of discretion

BAIL – application for bail – Crimes Act 1914 (Cth) – terrorism offences – whether offences serious examples of the particular offending – access to proscribed online content – alleged breach of control order –where applicant required to show the existence of exceptional circumstances – where applicant held in harsh custodial conditions – where applicant in custody for first time – whether Crown case strong – whether unacceptable delay likely – exceptional circumstances not shown

PRACTICE & PROCEDURE – appeals – judgment of the Court omitted to address application for leave to file further amended notice of cross-appeal – Uniform Civil Procedure Rules r 37.17 – whether matter appropriately addressed by the Court pursuant to the slip rule COSTS – costs of notice of motion seeking consequential orders under Uniform Civil Procedure Rules r 37.17 – whether cross-respondent entitled to costs “as the usual order on such applications”

COSTS – judicial review of decision of District Court judge on appeal from costs assessor – calculation of maximum costs recoverable in personal injury cases pursuant to Legal Profession Act 2004 (NSW), s 338 – whether “amount recovered on a claim” is calculated having regard to amounts attributable to pre-judgment interest pursuant to Legal Profession Act 2004 (NSW), s 343(2) – meaning of “addition of interest”

WORKERS COMPENSATION – jurisdiction of the Workers Compensation Commission – whether an insurer’s decision to terminate weekly compensation payments after 130 weeks was a “work capacity decision” – whether Commission deprived of jurisdiction to determine the Worker’s challenge to the decision by s 43(1) and (3) of the Workers Compensation Act 1987 (NSW) (WC Act) – whether insurer was authorised to make the decision – whether the decision was a “decision to dispute liability” within s 43(2)(a) of the WC Act or a “decision that can be the subject of a medical dispute” within s 43(2)(b)

COSTS – unsuccessful party to litigation seeks costs orders against his legal representatives – whether primary judge erred in concluding that there was no basis for orders under Legal Profession Act 2004 (NSW) s 348 or Civil Procedure Act 2005 (NSW) s 99 – leave to appeal refused

CRIMINAL LAW – sentencing – guilty plea – application for leave to appeal against sentence – young offender – supply prohibited drug – drug supply related to death of young woman – whether ongoing supply – whether a non-custodial penalty appropriate – general deterrence – rehabilitation considered – special circumstances considered – aggregate sentence manifestly excessive – application of Ellis discount

EQUITY- Injunction- whether equity should restrain publication of information surreptitiously obtained- CHILDREN- where potential use in Family Court proceedings of the information obtained was a reason to preclude the grant of relief-whether as a matter of fact the 1st defendant had relevant concerns for welfare of the children.

DEFAMATION – procedure – where plaintiff seeks to appropriate defendant’s contextual imputations – where plaintiff submits imputations are capable of arising but not in fact conveyed

DEFAMATION – procedure – defendant unprepared for first listing in accordance with practice note – parties both individuals – appropriateness of referring to mediation before pleadings closed

COSTS – indemnity costs order sought - Calderbank offer – whether offer involved a genuine compromise - whether rejection of offer was unreasonable – no departure from usual costs order

ADMINISTRATIVE LAW – probation and parole – no question of principle

APPEAL – civil – appeal from decision of New South Wales Civil and Administrative Tribunal – granting of working with children check clearance to person convicted of manslaughter of child

PRODEDURE — Costs — where proceedings by the plaintiff against a company and the liquidator of that company were dismissed by consent – where plaintiff sought costs orders against the liquidator personally – whether liquidator had acted unreasonably such that costs orders against the liquidator personally are warranted.

CRIMINAL LAW – application for interim relief pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW), s 7(4) – whether Court satisfied that the material would, if proved, justify the making of an extended supervision order – whether Court satisfied to a high degree of probability that offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision

CRIME – sentence – conspiracy to commit an offence of insider procuring – where offending assessed to be of high objective seriousness – significance of delay – primacy to be given to punishment and general deterrence

TORTS – negligence – medical negligence – nervous shock – breach of duty of care admitted – whether psychiatric injuries suffered – nature and extent of injuries – assessment of non-economic loss and past and future economic losses – judgment in favour of plaintiff in each case – costs

SUCCESSION – family provision – plaintiff is daughter of deceased and his second wife – the plaintiff’s mother dies when the plaintiff is very young – deceased reconciles with first wife to a degree - application filed out of time – whether an extension of time should be given to permit the plaintiff’s application to proceed out of time – small specific gifts to plaintiff under the will – the estate has few assets – claim for an order designating notional estate – whether notional estate should be designated – whether an order for provision should be made in the plaintiff’s favour out of the deceased’s estate – if an order for provision were to be made, what provision is appropriate for the plaintiff in the circumstances. NOTIONAL ESTATE – Succession Act, Part 3.3 – claim that two items of the deceased’s property be designated as notional estate, real estate and an interest in a superannuation fund – as to the real estate, the deceased was a joint tenant with his first wife in real estate held under the Real Property Act 1900 – before his death deceased lodges for registration a Transfer Severing Joint Tenancy – but deceased died before the Transfer becomes effective – whole of property passes to first wife by survivorship – property sold – proceeds retained – whether deceased’s interest in the co-owned property should be designated as notional estate – as to the superannuation fund, in July 2008 deceased made binding nomination over his interest in a self-managed superannuation fund in favour of his estate, as required by the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”) – nomination is for three years until July 2011, the maximum period permitted by the SIS Act – deceased does not renew the nomination under the SIS Act, although the SIS Act requires a valid current nomination – trustee resolves to pay the assets of the Superannuation fund to the first wife – whether the deceased’s interest in the superannuation fund should be designated as notional estate.

PRODEDURE - Costs - Interlocutory proceedings – application by respondents for security of costs and stay of application for leave to appeal until costs of earlier proceedings paid – where two costs orders of earlier proceedings in Court of Appeal unpaid by applicant – where application for leave to appeal concerns same subject-matter and parties as earlier proceedings – where applicant and respondents have costs orders against each other from earlier Supreme Court proceedings – where respondents’ unassessed costs well exceed amount of applicant’s unassessed costs in earlier Supreme Court proceedings – whether stay for proceedings brought on the same cause of action – where same facts, evidence and parties – security for costs – exercise of discretion under UCPR r 51.50 – whether “special circumstances” exist – where applicant requires extension of time for leave to appeal after misunderstanding procedure – prospects of success of proposed appeal – credit-based factual findings – where amount sought not excessive

APPEAL – criminal appeal – sentence – large commercial quantity of prohibited drugs – where Muldrock error identified – strong post-sentence subjective case

CRIMINAL LAW – evidence – motive – admissibility

CRIMINAL LAW – practice and procedure – unrepresented client obtains representation – serious criminal offences charged – undoubted benefit of representation – Crown not opposed – adjournment granted.

Contracts – breach – damages – medical practitioner and medical centre – claim for lost profits – no evidence income reduced

CONTEMPT OF COURT – alleged contempt before Local Court– vexatious litigant – application for an adjournment – refused

PROCEDURE – application to commence proceedings by plaintiff using a pseudonym and for suppression of the plaintiff’s identity – plaintiff physically and emotionally abused as a minor by defendants – claims made in respect of abuse

PROCEDURE – application to commence proceedings by plaintiff using a pseudonym and for suppression of the plaintiff’s identity – plaintiff sexually abused as a minor by defendants – claims made in respect of abuse

PROCEDURE – application to commence proceedings by plaintiff using a pseudonym and for suppression of the plaintiff’s identity – plaintiff sexually abused as a minor by defendants – claims made in respect of abuse

CRIMINAL LAW – application for stay of trial – applicants charged with criminal offences following finding of corrupt conduct by Independent Commission Against Corruption (ICAC) – Director of Public Prosecutions (DPP) downloaded transcripts from public inquiry from ICAC’s website, which contained the applicants’ compelled evidence – DPP and others involved in prosecution read compelled evidence before formulating charges against accused – companion principle and privilege against self-incrimination can be affected if legislative intention is clear – duty of law enforcement officers, including ICAC, to provide DPP with information assisting prosecution or defence except where privileged or covered by immunity – privileges abrogated by ICAC Act and compelled evidence made public – compelled evidence, whilst inadmissible in trial, can be used by DPP for purposes of prosecution at least where given or tendered in public CRIMINAL LAW – application for permanent stay of trial – permanent stay only granted in exceptional circumstances – where potential unfairness can be remedied temporary stay may be granted or evidence excluded – potential prejudice identified contemplated and permitted by statute – no unlawful prejudice – application dismissed CRIMINAL LAW – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus of proof and cannot compel accused to assist – evidence taken under compulsion before charges were laid – analysis of principles in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; Lee v The Queen [2014] HCA 20; 253 CLR 455 and R v OC (Oliver Curtis)[2015] NSWCCA 212; 90 NSWLR 134 – objects and purpose of ICAC Act – disclosure of compelled evidence permitted by and part of purpose of ICAC Act – evidence inadmissible in trial but can be used by prosecution – no evidence compelled from accused after charges laid

PRACTICE AND PROCEDURE – application for determination of separate question – whether decision amenable to judicial review – whether issue should be determined prior to trial – whether plaintiff should be compelled to proceed by way of pleadings – whether notice to produce should be set aside

COSTS – indemnity costs – party/party costs – whether gross sum costs order should be made

CRIMINAL LAW – application to discharge juror – apprehended bias – smiling juror – whether interaction constituted flirting – observations of police officers and solicitor – whether observations capable of being made – shortest view in Supreme Court history – whether conduct gave rise to reasonable apprehension of bias – whether conduct “persistent” –what is wrong with smiling? CRIMINAL LAW – application to discharge juror – whether juror disobeyed direction – where no allegation of misconduct leading to mandatory discharge – proper inferences to be drawn from snippet of conversation overheard in street – whether constitutes “other reason affecting the juror’s ability to perform the functions of a juror”

Contracts — Application of Contracts Review Act 1980 (NSW) — General contractual principles – where a settlement agreement was reached which required the defendant to guarantee payments by others to the plaintiff – where the potential liability of the defendant under its guarantee was significantly greater than the plaintiff’s actual loss – where the defendant contended that the agreement should be set aside under the Contracts Review Act – whether section 6(2) applies to exclude the application of the Contracts Review Act in circumstances that the relevant business was carried on by a company as opposed to the defendant who entered into the settlement agreement – whether the agreement should be set aside or varied under the Contracts Review Act – whether the contract fails for lack of consideration. TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law – where a settlement agreement was reached which required the defendant to guarantee payments by others to the plaintiff – where one of the persons whose liability the defendant guaranteed had previously failed to make promised payments to the plaintiff – where the defendant contended that failure of plaintiff to disclose the previous failures by that person to make payments to the plaintiff amounted to misleading and deceptive conduct under s 18 of the Australian Consumer Law – whether misleading or deceptive conduct claim is established. EQUITY - general principles - innocent misrepresentation – where defendant sought to set aside settlement agreement reached with the plaintiff on basis that the provisions of the settlement agreement misrepresented the amount of the plaintiff’s loss – whether innocent misrepresentation claim is established. EQUITY — Second limb of Barnes v Addy – where there was an initial public offering and the share subscription funds of investors were deposited to a bank account controlled by the defendant – where payments were later made out of that bank account in breach of trust – where plaintiff contended that the defendant was liable for knowing assistance in breach of trust – whether the relevant breach of trust was dishonest and fraudulent in character – whether knowing assistance claim is established.

CONTEMPT OF COURT – alleged contempt before Local Court – examination order – refusal to obey order to enter witness box to be examined – validity of order – whether defendant suffers mental illness – whether defence of mental illness established – defence not established – contempt of Local Court established

FAMILY LAW AND CHILD WELFARE – Care and Protection – plaintiffs are parents of two children – both children suffer physical injuries in mid-2013 - plaintiffs appeal against orders of a Presidential Children’s Court pursuant to Children and Young Persons (Care and Protection) Act 1998, s 91 removing the two young children from the plaintiffs’ parents’ home and placing them in the care of the Minister – cause of injuries unexplained – parents say injuries were an accident – medical evidence suggests injuries may have been the result of intentional acts whist the children were in the care of the parents - whether the injuries were caused intentionally or recklessly by one or both of the parents – whether restoration of the children to their parents would give rise to an unacceptable risk of harm to them – whether a reasonable possibility of restoration of the children to the plaintiffs exists – whether the children should remain in the care of the Minister or in the care of their great grandparents.

TRESPASS TO LAND – Whether land dedicated for public use – Whether implied licence to enter revoked – Whether protected by Protocol for Homeless People in Public Places – Whether permanent injunction appropriate – Relevance of hardship