Cases and authorities

DEFAMATION – allegation that prosecution of cause of action amounts to an abuse of process – where plaintiff seeking to re-litigate matters determined against her in other proceedings – where reputation unable to be vindicated due to statutory prohibition on identification of plaintiff. PROCEDURE – where plaintiff impecunious – conduct of proceedings in a manner oppressive to defendants – proportionality – whether procedural abuse.

CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.1(1) – directions to jury – whether jury directed as to permissible course of reasoning for the purposes of establishing intention CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.1(1) – directions to jury – whether jury misdirected as to fault element of intention with respect to the physical element of importing a substance

ESTOPPEL – Anshun estoppel – whether appellant acted unreasonably in not raising claims made in District Court in earlier proceedings in Local Court that were settled – where consent judgment in Local Court gives rise to issue estoppels – where issue estoppels resolved common factual controversies – where no risk of inconsistent judgments – where raising of later claims in earlier proceedings would have required refusal of settlement, delay of proceedings and transfer to District Court – no unreasonableness in separately pursuing later claims and settling earlier proceedings

CONTRACTS - building, engineering and related contracts - the contract – discharge, breach and defences to action for breach – where delay by the builder – whether repudiatory conduct– where purported termination by principal followed by purported termination by builder– onus on principal to prove work that could have been done – threats to suspend work made by builder in context of non-payment by principal – where builder suspended works for alleged breach by the principal – where principal did not serve a notice requiring the builder to remedy alleged breaches of contract – whether builder’s conduct evinced intention to no longer be bound or to fulfil contact in manner substantially inconsistent with its obligations CONTRACTS - building, engineering and related contracts – claims for extensions of time – where no objection by principal when claims for extensions of time first made in closing submissions at trial – validity of claimed extensions by the builder and any notice of dispute by the principal under contractual regime for giving notice of claims– calculation of extensions by calendar or working days CONTRACTS - building, engineering and related contracts – determination of contract sum/price – nature of deposit – whether fee for advice or part of contract sum – terms of contract TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – misleading and deceptive conduct – contract expressly excluded retaining walls and gave provisional sums for certain items including rock excavation – where builder aware of need for large retaining walls and did not inform principal prior to entry into contract – whether reasonable expectation of disclosure – where principal represented by its own project manager – no complaint by principal contemporaneous with need for retaining walls becoming apparent DAMAGES - General principles – causation – misleading and deceptive conduct – where failure to disclose – causation established if disclosure would have caused inaction or different action – whether recovery for discrete loss permitted – where damages claimed on a “no contract” case

PRACTICE – preliminary discovery – intended defamation proceedings against newspaper defendant and its sources of information – contested hearing of preliminary discovery application – order made compelling identification of newspaper defendants’ sources – where judgment making order subject of unsuccessful appeal and unsuccessful High Court special leave application at newspaper defendant’s behest – where following failed appellate steps newspaper defendant sought stay of preliminary discovery order – newspaper defendant undertook as condition of stay not to rely on defences of qualified privilege – where newspaper defendant conceded undertaking could have been given at first hearing – no explanation for failure to give undertaking either outright or conditionally at that hearing – stay granted following second contested hearing – whether error in granting stay PRACTICE – preliminary discovery – interlocutory orders – application to stay preliminary discovery order following trial, appeal to Court of Appeal and unsuccessful special leave application – stay application led to second contested hearing – whether stay application should have been entertained – Civil Procedure Act 2005 (NSW), ss 56 - 60 DEFAMATION – preliminary discovery – newspaper rule – whether “effective remedy” once newspaper defendant undertook not to rely on defences of qualified privilege – interests of justice COSTS – preliminary discovery – application for preliminary discovery order conducted by newspaper defendant in adversarial manner – whether primary judge’s exercise of costs discretion miscarried – whether exception to costs follow the event rule for newspaper defendant resisting discovery of sources’ identity – Civil Procedure Act 2005 (NSW), s 98 – Uniform Civil Procedure Rules 2005 (NSW), 42.1 COSTS – costs of preliminary discovery hearing – whether primary judge should have awarded applicant costs on indemnity basis – whether newspaper defendant’s conduct “plainly unreasonable” WORDS AND PHRASES – “effective remedy” – “necessary in interests of justice”

CRIMINAL LAW – leave to appeal against sentence – special circumstances – whether lesser sentence warranted – leave granted – appeal upheld – sentence quashed – resentenced

CRIMINAL LAW – appeal – conviction – miscarriage of justice – whether miscarriage resulted from admission of hearsay evidence – whether misdirection as to available use of hearsay evidence – whether miscarriage resulted from joint trial with co-accused – whether misdirection regarding plea of co-accused – whether misdirection as to matters which could be taken into account CRIMINAL LAW – appeal – conviction – evidence – whether hearsay evidence only inadmissible over objection – whether error in admitting credibility evidence – whether verdicts unreasonable or unsupported on evidence CRIMINAL LAW – appeal – sentencing – whether manifestly excessive

CRIMINAL LAW – Evidence – Circumstantial evidence – Whether there existed an essential intermediate fact which was required to be proved by the Crown beyond reasonable doubt – Whether jury should be directed that the Crown case was in the nature of a “links in the chain” case based upon circumstantial evidence – Direction not given

CRIMINAL LAW – Evidence – Where the Crown sought a direction as to use of lies as evidence of consciousness of guilt – Where the determination of whether statements were lies generally depended upon an assessment of the Crown case as a whole – Jury to be directed as to use of lies going to credit but not as evidence of a consciousness of guilt

PROCEDURE — Costs — Order sought for costs on indemnity basis — where applicant for costs order was successful in proceedings to seek leave under s 236–237 of the Corporations Act and in setting aside creditor’s statutory demand – where applicant made several offers to defendant – whether costs of application to seek leave under s 236–237 of the Corporations Act 2001 (Cth) should follow the event – whether court should differentiate between issues on which applicant was successful and those on which applicant failed in determining the costs application –whether defendant acted unreasonably in not accepting offer – whether order for indemnity costs appropriate in circumstances that plaintiffs in substantive proceedings had not succeeded on a number of grounds.

COSTS – allegations of dishonesty and serious misconduct made in proposed cross-claim without proper basis – whether solicitor should pay the costs thrown away

PRACTICE AND PROCEDURE – application to dismiss proceedings for want of prosecution – plaintiff unrepresented – statement of claim bad in form – statement of claim struck out with leave to file a further statement of claim – plaintiff to pay defendant’s costs of motion.

LANDLORD AND TENANT – rent – provisions as to rent in agreement for lease or lease – rent review provisions – where valuer nominated to undertake determination of current market rental value of ‘Demised Premises’ – whether valuer erred as to what constitutes ‘Demised Premises’ – whether valuation otherwise failed to comply with terms of lease

PRACTICE AND PROCEDURE – Notice of Motion – 15 substantive orders sought in relation to pending application for leave to appeal – additional order sought that costs be paid on indemnity basis – no legal or other basis for orders sought – Notice of Motion dismissed

CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to evidence of certain conversations being adduced - evidence of one conversation allowed - evidence of other conversations not allowed

CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to tender of document and evidence of conversation - no evidence concerning these matters from Accused who had given evidence - evidence disallowed

CIVIL PROCEDURE -- HELD extension of time for plaintiff to file her summons for leave to appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) granted CHILDREN – judgments and orders – application for leave to apply for the rescission or variation of care orders under s 90 of the Care Act – completion of proceedings the subject of the judgment in Re M (6): [2016] NSWSC 170 – HELD plaintiff has not demonstrated that her conduct is likely to change in a way that would justify the court in exploring the answers to the questions set out at [194] of the principal judgment – questions not considered – plaintiff’s application dismissed

PROCEEDS OF CRIME – where restraining order made – extension order sought extending the period before property is irrevocably forfeited – whether applications for extension made without undue delay and diligently followed up on

COST ORDERS – issues in the plaintiff’s statement of claim contested between the plaintiff and the second defendant – first defendant administrator filed submitting appearance – plaintiff succeeded on most claims in the statement of claim, but failed on others – plaintiff relied upon offer of compromise – HELD offer of compromise ineffective because it did not involve any real element of compromise – plaintiff entitled to her costs on the ordinary basis in respect of the claims in the statement of claim on which she succeeded COST ORDERS – second defendant/cross claimant succeeded on his cross claim and some claims in the statement of claim – HELD second defendant/cross claimant entitled to his costs from the plaintiff/cross defendant on the ordinary basis in respect of the claims in the cross claim and the claims in the statement of claim on which he succeeded

JUDGMENTS – default judgment – setting aside – personal injury claim – multiple defendants - default judgment for unliquidated damages to be assessed against one defendant – arguable defence demonstrated – no satisfactory explanation for long delay – costs of aborted mediation – whether should be paid by defendant seeking to set aside judgment

APPEAL – Local Court appeal – identification of capacity of plaintiff on title page of originating process – failure of Magistrate to deal with legal submission in judgment – legal question to be determined rather than remitted to Local Court – disjunction between name of respondent on title page and name of respondent in contracts of no substance – appeal dismissed

REAL PROPERTY – possession of land – failure to pay rent and option payments – notices of default and termination of rental and option agreements served – defendant has not demonstrated why agreements should be set aside – option fees, rent and mesne profits to date of judgment payable

CRIMINAL LAW – Crown appeal – s 5F(3A) Criminal Appeal Act 1912 (NSW) – evidence – exclusion of evidence weakened Crown case – whether complaint evidence and evidence of pretext conversations admissible – whether error established in excluding evidence under 66 of the Evidence Act 1995 (NSW) – whether error established in excluding evidence of pretext conversations under s 135 and s 137 of the Evidence Act 1995 (NSW) – appeal upheld – rulings set aside – evidence admissible – matter remitted for further hearing

CRIMINAL LAW – conviction appeal – murder – victim beaten to death after night of heavy drinking – whether applicant had formed an intention to inflict grievous bodily harm – whether the evidence supported a finding of that intention beyond reasonable doubt – sufficient evidence to justify a verdict – appeal dismissed.

CRIMINAL LAW - murder trial - shooting of environmental officer on 29 July 2014 - defence objection to Crown cross-examination of Accused’s son - evidence adduced in chief concerning potential cost of fencing which may form part of remedial order - Crown seeks to cross-examine using Land and Environment Court judgment on issue of possible fencing as at 29 July 2014 - defence objection - evidence allowed

CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of letter from solicitor for Accused to member of New South Wales Parliament - letter contains opinions and conclusions - tender rejected

CRIMINAL LAW – application for inquiry into conviction – Crimes (Appeal and Review) Act 2001, s 78 – where applicant convicted of possessing child abuse material under s 91H(2) of the Crimes Act 1900 – where applicant pleaded guilty on erroneous advice that “child” within the meaning of s 91H(2) is a person under the age of 18 years – where Local Court and District Court erroneously proceeded on basis that “child” within the meaning of s 91H(2) is a person under the age of 18 years – whether doubt or question as to the applicant’s guilt

SUCCESSION – FAMILY PROVISION – The Plaintiff, the mother of the deceased, applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased, to whom Probate was granted and sole beneficiary named in the Will of the deceased – Dispute that Plaintiff is an eligible person – Whole or partial dependency in issue – Also, if Plaintiff eligible, whether there are factors which warrant the making of her application – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision to be made for the Plaintiff.

COSTS – application for security for costs – impecunious corporate plaintiff – corporate plaintiff in substantive proceedings the subject of liquidation proceedings – order made but quantum of security reduced

EQUITY – accord and satisfaction – compromise agreement – effect on statutory claim for interest COSTS – discretionary entitlement to interest on costs – not available where court order for payment of costs ceases to be enforceable by reason of accord and satisfaction

APPEAL – debt recovery proceedings in District Court – debt involved costs payable to solicitors acting in Family Court proceedings – defence and cross-claim alleging failure to carry out instructions – payment said to be contingent on events which did not occur – construction of costs agreement – challenge to findings of fact – no issue of principle

TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of surgical procedure with reasonable care – non-English speaking patient – scope of duty of care where effective communication reliant on translation – whether failure to warn of potential risks of surgery which eventuated TORTS – causation – whether alleged failure to warn of material risks affected decision to undergo surgery – decision of patient based on misunderstanding for which defendants not responsible – Civil Liability Act 2002 (NSW), s 5D EVIDENCE – expert – medical practitioners – evidence of usual practice – supported by notes – unsupported by notes – patient’s denial of any warning of relevant material risk – limited cross-examination of experts – whether evidence properly assessed CIVIL PROCEDURE – expert witness’ expenses – reasonable expenses of expert witness procured for cross-examination under subpoena – liability for loss incurred in reviewing evidence given for instructing party – liability for loss incurred in relation to attendance on a date when not required where instructing party in control of case – calculation of loss where no direct evidence

PROCEDURE – application for dismissal or striking out originating process brought in name of company in liquidation – where liquidator unaware of proceedings and does not consent to their institution – where proceedings purportedly brought pursuant to assignment of chose in action by company – held, company in liquidation is not a proper plaintiff

CORPORATIONS – winding up – liquidators – application for directions – where Family Court orders provided for entitlements as between shareholders – where effect also be given to Family Court order consistent with liquidator’s obligations

EVIDENCE – conspiracy – whether handwritten note of alleged co-conspirator admissible to prove accused’s involvement in conspiracy – Ahern v R – use of evidence restricted – discretion to exclude – whether admissible to prove what was discussed with the accused – use of document restricted.

EVIDENCE – defamation – admissibility

CRIMINAL LAW – Evidence – Crown case in reply – Whether evidence ought be excluded – Danger of unfair prejudice

APPEAL – statutory appeal – District Court Act 1973 (NSW), s 142N – whether appellant aggrieved by award in point of law – whether primary judge determined appellant not an aggrieved person within meaning of s 21(1), Police Regulation (Superannuation) Act 1906 (NSW) STATUTORY INTERPRETATION – construing statute conferring jurisdiction on court – whether jurisdiction dependent on satisfaction of judge of court concerned – construing facultative provision SUPERANNUATION – police superannuation – application to District Court for determination by person aggrieved by decision made by SAS Trustee Corporation (STC) – nature of jurisdiction – Police Regulation (Superannuation) Act 1906 (NSW), s 21(1) SUPERANNUATION – police superannuation – entitlement to backdating of additional amount of annual superannuation allowance – where appellant did not seek backdating of additional amount in application for that payment – where STC determined additional amount payable from date application was received – application to District Court for determination in relation to STC’s decision as to commencement date of additional payment – Police Regulation (Superannuation) Act 1906 (NSW), s 10(1A)(b), s 10(1D) WORDS AND PHRASES – “person aggrieved” – “decision” – “point of law” – “real merits and justice of the case” – Police Regulation (Superannuation) Act 1906 (NSW), s 21(1); District Court Act 1973 (NSW), s 142J, s 142N

TORTS – conversion – unauthorised sale of companies’ goods to bona fide purchasers – controllers of companies deprived of control of companies’ affairs and assets by physical duress of third party – companies’ goods sold to appellants by that third party – claim subsequently brought against appellants for conversion ESTOPPEL – conversion – estoppel by omission – whether owner companies were under a duty to make known or discoverable by the appellants their claim to the goods – whether companies breached this duty by failing to notify authorities of the attack, threats of violence and deprivation of control of the companies – whether this inaction or silence was conduct sufficient to give rise to an estoppel by omission – whether appellants relied on this conduct – whether owners otherwise precluded from reliance on the protection afforded by the defence in s 26(1) of the Sale of Goods Act 1923 (NSW) – relevance of common law concepts of estoppel in formulating the ambit of s 26 – relevance of need for equivalence of knowledge as to factual circumstances surrounding the transaction

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessor – scope of statutory duty to give reasons – extent of reference to large volume of material supplied by parties – relevant consideration – obligation to consider matters identified by statute – obligation to consider material supplied by parties – irrelevant consideration – whether “unreliable” evidence to be completely disregarded TORTS – motor vehicle accident – assessment of damages – claim for non-economic loss – certificate as to degree of permanent impairment – assessment by medical assessor – operation of Part 3.4, Motor Accidents Compensation Act 1999 (NSW) STATUTES – legal status of Motor Accident Authority Guidelines – whether the Guidelines have the force of delegated legislation – whether a breach of the Guidelines amounts to judicially reviewable error

CRIMINAL LAW – appeal – errors in judgment – correction pursuant to r 50C

CRIMINAL LAW – sentence appeal – murder – where appellant pleaded guilty after psychiatrist withdrew opinion as to availability of mental illness defence – whether sentencing judge erred in finding plea not entered at earliest reasonable opportunity – exceptional case where reason for delay in entering guilty plea must be taken into account

JUDICIAL REVIEW – application pursuant to s 69 of the Supreme Court Act 1970 for orders in the nature of certiorari – orders of a Local Court Magistrate refusing to adjourn criminal proceedings and ordering a permanent stay of proceedings - question of whether there had been contempt of court by police who arrested defendant within the precincts of the court – no privilege against arrest - procedural unfairness by the Magistrate – discretionary nature of decision to grant adjournment – discretion to be exercised judicially – exceptional nature of power to grant a permanent stay of proceedings – not justified in circumstances of this case – errors of procedure and law by the Magistrate

Parens patriae – Capacity to refuse medical treatment – Appeal from NCAT – Duress or undue influence in decision-making process

CRIMINAL LAW – ex parte – application for criminal assets restraining order

CRIMINAL LAW – Evidence – Crown case in reply – Where Crown sought to lead evidence of facts contrary to assertions made by the accused in such evidence – No suggestion Crown splitting its case – Whether evidence should be excluded – Where accused had effectively conceded that the evidence he gave was in incorrect – Where accused asserted he was mistaken – Evidence allowed

CONTRACTS – Construction and interpretation – Whether director signatory personally bound – Whether unjust where director familiar with the type of transaction and plaintiff’s requirement for personal liability – Whether guarantor bound by statement of indebtedness of principal - Contracts Review Act 1988

REAL PROPERTY – possession of land – mortgages - mortgagor in default – sale of properties by mortgagee in possession – GST gross-up clauses in sale contracts – mortgagee required to pay GST on sales – whether gross-up clauses should have been enforced – whether any duty owed in that regard to guarantor of mortgagor – guarantee not called upon – undertaking by mortgagee not to call on guarantor – whether guarantor suffered loss by failure to enforce gross-up clauses REAL PROPERTY – mortgages – rights of mortgagor – to discharge the mortgage – whether loan and mortgage regulated under the Consumer Credit Code – Business Purpose Declaration signed by mortgagor – whether lender knew or had to reason to believe the loan was wholly or predominantly for personal, domestic or household purposes – refusal by mortgagee to discharge mortgage on the basis that mortgage secured other loans – whether mortgagee acted unreasonably – whether obligation on mortgagor’s part to tender amount owing to mortgagee in the face of refusal to discharge

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under s 459H(1)(a) and (b) of the Corporations Act 2001 (Cth) – where Plaintiff alleged that a debt could only arise after reconciliation of amounts due primarily to another company – where Plaintiff’s offsetting claim was substantially based on alleged assignment of a debt owed to another company – whether there was genuine dispute as to existence or amount of debt – whether there is genuine offsetting claim.