Cases and authorities

PRACTICE AND PROCEDURE – discovery – orders for discovery made – form of order in dispute –discovery between trade rivals – whether all documents sought on discovery are confidential – whether executives from the party being given discovery should be granted access to the confidential documents. COSTS – motion for review of decision of Registrar – motion for review dismissed but Registrar’s orders varied – whether unsuccessful applicant on the Motion should pay the successful respondent’s costs of the Motion – whether the applicant’s and respondent’s costs should be costs in the cause – whether variation to Registrar’s order affects the orders as to costs.

PROCEDURE – subpoena for production of recordings made by investigating police through the use of a listening device authorised by a warrant issued under the Surveillance Devices Act 2007 (the Act) – prohibition under s 40(1) of the Act against use, communication or publication of such recordings being “protected information” within s 39 of the Act – whether producing the recordings to the court could constitute a contravention of s 40(1) – whether an order can and should be made under s 43 of the Act permitting a party or parties to search the recordings “in the interests of justice” within s 43 – the procedure to be followed by a court in making a determination under s 43 – the issues to be considered in making such a determination which involves a balancing exercise

CRIMINAL LAW – non-publication – take down orders – removal of online internet articles – contamination of jury pool – pre-trial publicity – googling juror – internet searches – futility – World Wide Web – sensational and tendentious reporting – publication of “vast criminal history” – gangland violence – publication of charges severed from indictment – whether take down orders necessary –whether orders futile – where similar material published on other websites – where material published overseas – limits of jurisdiction – enforceability of orders – jurors complying with directions – examples of jury misconduct – “jurors behaving badly” – juror inquiries

CRIMINAL LAW – non-publication and suppression orders – non-publication of all evidence in first of two sequential trials – back-to-back trials – public interest in open justice – test of necessity – right of accused to fair trial – tension between fundamental principles – common features and unique identifiers between trials – possible alternatives to non-publication orders – predicting nature and extent of media coverage – unlikely to be “anodyne” – tainting of jury pool in second trial – postponing publication

INTEREST - pre-judgment interest - date from which pre-judgment interest should run - no issue of principle

PRACTICE AND PROCEDURE - Transfer of proceedings - cross-vesting scheme - interests of justice

LEGAL PRACTITIONERS — solicitors — provision of misleading and deceptive costs estimates — failure to provide updated reasonable costs estimates — breach of s 316 of Legal Profession Act 2004 (NSW) — breach of s 42 of Fair Trading Act 1987 (NSW) — breach of s 52 of Trade Practices Act 1974 (Cth) — breach of s 18 of Australian Consumer Law —breach of retainer — no damage caused by failure to provide reasonable costs estimates LEGAL PRACTITIONERS — solicitors — professional liability — failure to settle proceedings — Immunity from suit ESTOPPEL — issue estoppel — Anshun estoppel — res judicata — whether determination of a costs assessor creates any estoppel

CRIMINAL LAW – application for trial by judge alone – lonely judge sitting in chambers – interests of justice – relevant considerations – pre-trial publicity – sensational and tendentious reporting – the Googling juror – whether safeguards available to ensure fair trial – whether jury direction capable of curing prejudice – academic studies – judicial wishful thinking – where self-defence likely to be raised – reasonableness – issue requiring application of objective community standards – whether duress gives rise to questions of community standards – where five accused seek judge alone trial – significant matter to be taken into account – conflict in authorities – whether intention involves application of objective community standards – whether jury better placed to assess questions of credibility – whether where we are and what we’re doing may all be an illusion

APPEAL – application for leave – documents produced on subpoena by solicitors for former trustee – former trustee claimed documents were privileged in her personal capacity as opposed to her capacity as trustee – primary judge rejected claim – challenge to finding that no evidence supporting claim had been adduced – challenge to primary judge's declining to inspect the documents – no prospect of any different result – leave refused

CRIMINAL LAW – extended supervision orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – whether trial judge erred in construction of the phrase “unacceptable risk” in s 5E(2) – whether offender’s individual liberty relevant to the assessment of “unacceptable risk” STATUTORY CONSTRUCTION – recourse to statutory statement of objects as an aid to construction PRACTICE & PROCEDURE – appeals – summons for leave to appeal served out of time – Uniform Civil Procedure Rules 2005 (NSW), r 1.12 – whether extension of time should be granted – applicant’s liberty at stake

CONTRACT – contractual indemnity – scope and extent of indemnity – scope and extent always a question of construction CONTRACT – formation – requirement of consideration – mutual promises constitute sufficient consideration CONTRACT – construction of commercial contracts – contracts to be construed as a whole according to terms and what a reasonable business person would have understood them to mean

APPEAL – application to vacate date set for tomorrow – representatives (two directors) of corporate plaintiff able to run appeal as effectively today as tomorrow – no basis for appeal – respondent moved for dismissal on merits – vacation refused, appeal dismissed.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – decision of a medical assessor review panel – claimant involved in two accidents – review panel attributed injuries caused by first accident to subsequent accident due to lack of evidence of assessment – misapplication of Permanent Impairment Guidelines in relation to pre-existing injuries

APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise

ADMINISTRATIVE LAW – judicial review of determination of motor accidents compensation claims assessor – challenge to findings as to past and future care requirements – requirement to give reasons pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 94 and relevant guidelines – whether necessary to give reasons for accepting or rejecting particular evidence

CONTRACT – purchase of shares in company entitling exclusive use of apartment in company title building – contract requiring written consent of company to transfer of shares to purchaser – whether communication of “approval” satisfied provision of contract – whether the purchaser entitled to terminate contract by reason of breach of a condition that the company’s books not properly kept CORPORATIONS – whether member of company entitled to sue company for damages for directors’ failure to record a resolution in relation to an aspect of approval by company to install air conditioning in vendor’s unit and in part of company property

CORPORATIONS — Winding up — Application for order that company be wound up on the just and equitable ground under s 461(1)(k) of the Corporations Act – where parties consented to application – where company was formed on the basis of a personal relationship involving mutual confidence between shareholders which has subsequently broken down – whether just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth) satisfied.

PROCEDURE– person under legal incapacity- approval of settlement of liability issues- consent judgments and orders – where strongly contended appeal

CRIMINAL LAW – juror knowledge of victim and individuals associated with case – application to discharge individual juror – contamination of jury - application to discharge remainder of jury

PRACTICE AND PROCEDURE – interrogatories – medical negligence suit in which the plaintiff has no knowledge of the events in the operating theatre and the state of knowledge of each doctor – allegations that doctor thought to be performing operation did not – meaning of “necessary” in UCPR – meaning of “special reasons” in UCPR – interrogatories ordered.

ASSOCIATIONS – Association incorporated under the Associations Incorporation Act 1984 and continues under the Associations Incorporation Act 2009 – association conducts Buddhist temple with connections to the Laotian community – plaintiff dismissed from position as Public Officer of the association in June 2012 and existing management committee dissolved by resolutions in which the first defendant participated – first defendant expelled by further meeting of association held in January 2013 and a new management committee appointed. PLEADINGS AND PROCEDURE – application to amend statement of claim – whether part of amendments alleging mental anxiety are embarrassing in form – whether amendments should be allowed. EQUITY – declarations – whether making of declarations lacks utility – where not all parties served in proceedings – where other parties may need to be joined before final hearing – where two parties, the principal antagonists in the proceedings, accept that the alleged meetings of the association of June 2012 and January 2013 were not properly convened.

PROCEDURE – application for leave to appeal – pleadings struck out – statement of claim alleging novel duty of care – whether arguable matter raises issues of principle – whether arguable exercise of strike out power resulted in substantial injustice PROCEDURE – referral to a barrister for pro bono assistance

LOCAL GOVERNMENT – development consent – function of determining applications for development consent – whether local council as planning authority owed duty of care – nature of regulatory function for the purposes of Civil Liability Act 2002 (NSW) s 44 – special statutory power for the purposes of Civil Liability Act 2002 (NSW) s 43A – nature of test imposed by s 43A – whether local council liable for failing to impose conditions relating to traffic access to property NEGLIGENCE – motor vehicle collision at intersection – one driver entered intersection contrary to left turn only arrows marked on road – whether driver failed to take reasonable care – whether breach of duty caused collision – apportionment of liability STATUTORY AUTHORITIES – function of installing traffic signals – whether delay between authority’s decision to install signals and implementation of decision was a breach of duty – operation of Civil Liability Act 2002 (NSW) s 43A

APPEALS – competency – application for leave to appeal – obligation to provide local address for service – where applicant maintained entitlement to provide United Kingdom address and asserted that personal service of him in the United Kingdom was required – where Court had earlier advised that originating process without a local address for service was apt to be regarded as incompetent – application dismissed as incompetent

VALUATION OF LAND – heritage listed property – unimproved land value – relationship between s 6A(1) and s 14G(2) of the Valuation of Land Act 1916 (NSW) – Valuer-General’s determination affected by error as to gross floor area (GFA) – primary Judge makes finding that land value higher than Valuer-General’s determination on the basis of correct GFA – whether primary Judge erred in subsequently adjusting land value downwards – whether sale price of comparable property had to be adjusted to take account of value added by a development consent for that property – whether sale price of comparable property should be adjusted to take account of GST – whether primary Judge double counted “land improvements”

CORPORATIONS – where “proceeding in a Court” does not include private arbitration proceeding for purposes of (CTH) Corporations Act 2001, s 440D(1) – whether power to make order under s 447A that s 440D operates as if it does include arbitration – whether, if order can be made, whether it ought to be made as a matter of discretion – relevant considerations

PROCEDURE – discovery – where liability established and only remaining issue is damages – where extensive relevant documents have been obtained on subpoena from other sources – whether discovery necessary – whether exceptional circumstances warrant discovery before service of evidence

CRIMINAL LAW – Evidence – Evidence of protected confidence – Application by protected confider that evidence of protected confidence be excluded –Observations as to the proper approach to be adopted upon the making of such an application where the protected confidences sought to be excluded are contained in documents – Where inappropriate to seek exclusion of the entirety of the document – Application granted in respect of those parts of the documents in which there was evidence of a protected confidence

CRIMINAL LAW – suppression and non-publication orders – interests of justice – fair trial – prejudicial publicity – public interest in open justice – right of accused to receive a fair trial - prevent prejudice to the proper administration of justice – adverse media coverage during trial of other accused

CRIMINAL LAW – sentence – murder – manslaughter – joint criminal enterprise – shooter guilty of manslaughter for excessive self-defence of co-offender – co-offender guilty of murder – fact-finding – need to find facts consistent with both verdicts – prior bad relationship between co- offender and victim - different motivations of offenders for the joint criminal enterprise to kill the victim explains different verdicts - objective seriousness of both offences – importance of general deterrence where offenders took the law into their own hands CRIMINAL LAW – cause grievous bodily harm with intent - innocent party seriously injured by accident during shooting – transferred intent – offenders found guilty of causing grievous bodily harm with intent – objective seriousness – other members of the public present - recklessness – seriousness of injuries – no remorse - accumulation of sentences with murder and manslaughter sentences

CRIMINAL LAW – application to release transcript of evidence given at Crime Commission – application opposed by Crime Commission – correct procedure – submissions taken in the absence of the accused and his lawyers – factors relevant to the interests of justice – fairness of trial proceedings – danger to witness – right of witness to be heard

CRIMINAL LAW – application to release transcript of evidence given at Crime Commission – application opposed by Crime Commission – correct procedure – submissions taken in the absence of the accused and his lawyers – factors relevant to the interests of justice – fairness of trial proceedings – danger to witness – right of witness to be heard

COSTS – costs following settlement of contested probate proceedings – where offer of compromise accepted by respondents (defendants at first instance) – application of Uniform Civil Procedure Rules 2005 (NSW) r 42.13A where offer proposed both consent to grant of probate in solemn form and payment of monetary sum to respondents – characterisation of offer of compromise as “mixed offer” proposing judgment both in favour of plaintiffs and defendants – r 42.13A inapplicable – where general costs discretion under s 98 Civil Procedure Act 2005 (NSW) not exercised – whether matter should be remitted

ADMINISTRATIVE LAW – notices of motion seeking judicial review – where Court of Appeal has dismissed amended summons in underlying proceeding – where present applications not commenced by separate summons – where maker of decision to be reviewed not joined as party – motions dismissed PROCEDURE – whether Court should make orders in terms of Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324

CRIMINAL LAW – conviction appeal – murder – joint criminal enterprise – jury warned about potential unreliability of appellant’s evidence as someone who might reasonably be supposed to have been criminally concerned – warning erroneous where evidence not relied upon by Crown against co-accused – misdirection had capacity to deflect jury from its task – attempted clarification ineffective – conviction quashed CRIMINAL LAW – conviction appeal – no error in not directing as to “participation” in joint criminal enterprise – verdict not unreasonable or unsupported by evidence – ground of appeal added in anticipation of possible reconsideration by High Court of requisite mental state for extended joint criminal enterprise – court presently bound by existing authority – new ground rejected

CRIMINAL LAW – murder trial - defence to rely upon partial defences of substantial impairment and extreme provocation - subpoena issued for Accused - claim that subpoena a fishing expedition - inspection of documents by Court

EVIDENCE – Admissibility of affidavit – where affidavit of second liquidator adopted the affidavit of earlier liquidator – where affidavit of second liquidator may be inadmissible under provisions of the Evidence Act 1995 (Cth) – whether Court should admit affidavit evidence by dispensing with application of provisions of the Evidence Act 1995 (Cth) under s 190 of the Evidence Act 1995 (Cth) – whether affidavit evidence should be admitted with limiting order under 136 of the Evidence Act 1995 (Cth).

CORPORATIONS – whether under (NSW) Trustee Act 1925, s 63, independent board committee justified in announcing to ASX published documents and distributing copies to unitholders – whether appropriate to seek judicial advice – document containing director or trustee’s recommendations – independent expert advice

CRIMINAL LAW – Evidence – Expert evidence of “street deal” value of drugs – Where no evidence that either accused intended to sell drug in “street deals”- Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence excluded in part

PROCEDURE – notice of motion – applicant in custody – application for further expedited bail hearing - no basis for further expedition – other orders sought not made

FOREIGN JUDGMENT – judgment obtained in Dubai – orders sought made

DEFAMATION – damages – where matter complained of partially justified – reliance by defendants upon justified imputation in mitigation of damages for defamatory imputations – whether any damages should be awarded

PROCEDURE – failure to comply with directions on two occasions for service of evidence – guillotine order imposed

CRIMINAL LAW – sentence – offences of female genital mutilation committed against two young girls – s.45 Crimes Act 1900 – maximum penalty seven years’ imprisonment - offenders convicted following jury trial – offences committed by mother of victims and midwife – community religious leader convicted as accessory after the fact – where mutilation constitutes nick or cut to clitoris of each girl – offences of considerable objective seriousness – breach of trust – abuse of professional vocation – attempts to deflect police investigation – no evidence of permanent scarring or lasting injury – genuine remorse expressed by mother of victims – importance of general deterrence for offences of this kind – where Offenders’ community in Australia and internationally has declared after trial that FGM should no longer be practised – where proceedings have contributed to the international movement toward the eradication of FGM – sentence of imprisonment appropriate – consideration of non-custodial alternatives – offenders referred for suitability assessment for home detention

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave

JUDCIAL REVIEW – compensation for past and future economic losses – admissibility of certain evidence – whether assessor erred in failing to deal with an issue relied on by defendant – whether assessor took into account an irrelevant consideration – error established – assessor’s decision set aside – costs

PRACTICE AND PROCEDURE – absent defendant –where informal evidence suggests legal incapacity – appropriate directions PRACTICE AND PROCEDURE – absent defendant – where pleading and procedural history of proceedings suggests risk of vast disproportion between legal costs and interest at stake – whether court has authority to order plaintiff to address that issue on affidavit

REAL PROPERTY – possession of land – summary judgment – land formerly the matrimonial home of the plaintiff and defendant – family law settlement – orders of Family Court – plaintiff pays $40,000 to defendant in return for transfer of the property – defendant re-occupies property – defence and cross-claim pleaded as if no orders of Family Court made – subsequent representations on plaintiff’s part alleged – no contract giving right to occupy demonstrated – judgment for possession

CRIMINAL LAW – appeal against sentence - sexual assaults of two children - production of child abuse material – whether sentencing judge erred in failing to give practical effect to his finding of special circumstances

Criminal Law - Sentencing – serious offences merit substantial accumulation – “middle range of seriousness” for offences under Crimes Act s 112(2) practically impossible to determine