Cases and authorities

CONTRACT – conditional call option – contractual right granted by a purchaser to a third party – whether equitable interest in land acquired by third party before purchaser completes purchase CONTRACT – conditional call option – whether equitable interest in land acquired before event of default or exercise of option PRIORITY – competing equitable interests – test for resolution of priority – merits not equal – better equity – general and flexible principle – not dependent on conduct of holder of prior interest being causative of acquisition of later interest PENALTY – a question of construction and characterisation – evidence of value of land irrelevant PENALTY – to be assessed at time of making contract VALUATION – hypothetical development methodology – judicial recognition of weakness of approach – uncertainties inherent in method EVIDENCE – credibility – utmost importance of contemporaneous documents AFFIDAVITS – credibility – limited utility – utmost importance of contemporaneous documents SPECIFIC PERFORMANCE – hardship to defendant – no reason to ameliorate consequences – self-induced conduct

PRACTICE AND PROCEDURE – application to make vexatious proceedings orders – deficiencies in filed notices of appeal – whether leave should be granted to file a third amended notice of appeal

CIVIL PROCEDURE – application for leave to appeal – supervisory jurisdiction – new issue raised as to validity of proceedings in Local Court – whether leave should be refused CRIMINAL PROCEDURE – commencing summary prosecution – authority of officer of Independent Commission Against Corruption to issue court attendance notice – no statutory restriction of common law right to commence prosecution

PRACTICE AND PROCEDURE – civil – subpoenas – documents produced to court in redacted form – unredacted copies required – protection of confidential information to be regulated by order for access – suppression and non-publication orders sufficient to protect confidentiality – Uniform Civil Procedure Rules, r 33.8 – Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

COSTS — Application for alternative costs order — Rule 42.20(1) Uniform Civil Procedure Rules 2005 — Plaintiff’s proceedings dismissed against defendants save in relation to costs — Plaintiff achieved substantial success —Plaintiff acted reasonably in joining a company director as the second defendant where director responsible for the first defendant being in apparent contempt — Plaintiff acted reasonably in joining the incorrect corporate entity as the third defendant — Second defendant to pay plaintiff’s costs of proceedings and submissions concerning costs — Third defendant to pay plaintiff’s costs of the costs application

CRIMINAL LAW – insider trader offences – sections 1043A(1)(d) and 1311(1) Corporations Act 2001 (Cth) – two rolled-up charges with a further rolled-up insider trading offence to be taken into account pursuant to s 16BA Crimes Act 1914 (Cth) – offender a foreign national – managing director of Hanlong Mining Investments Pty Ltd (Hanlong Mining) – exploited inside information concerning two separate takeover targets of Hanlong Mining – breach of trust – quality of inside information was high – offender a true insider – share purchases and use of leveraged products (CFDs) using inside information – high level of premeditation and planning present and disguise of illegal transactions – amounts invested towards high end of the scale – Charge 2 offence involved a joint criminal enterprise – role of the offender – early guilty pleas – sentencing principles – parity issues – specific and general deterrence – principles – joint criminal enterprise

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 employee of defendant – 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

LEGAL AID – pro bono assistance – second application within three years – law graduate seeking to challenge a magistrate’s refusal to waive a $99 parking fine – special reasons – errors of fact or law not sufficient to constitute special reasons – limited resources of pro bono schemes – interests of justice

COSTS – appeal from NSW Civil and Administrative Tribunal dismissed – no error in costs order in the Tribunal – costs order made against plaintiff

COSTS – where plaintiff succeeded on one of four allegedly defamatory publications – overlap in the evidence between the issues raised in respect of each publication – consideration of appropriate costs order

Manslaughter – unlawful and dangerous act

PROCEDURE – Costs – Interlocutory proceedings – departure from general rule that costs follow event – appropriateness to order otherwise PRACTICE AND PROCEDURE – judgments and orders – whether jurisdiction to make costs order of Court of Appeal to be payable forthwith

FAMILY PROVISION – two of three adult children of deceased seek orders for family provision – claimants are eligible persons - whether adequate provision made for plaintiffs in deceased’s will – if so, what provision should be made for the plaintiffs.

DAMAGES – funds management damages – calculation – NSW Trustee and Guardian Act 2009 (NSW) – managed person – method of assessment – quantum of damages for funds management otherwise agreed – final orders to be filed including as to costs

APPEAL – bias – interlocutory appeal – pre-trial management in relation to trial on indictment – judge drew authorities to parties’ attention before hearing – whether that conduct indicated pre-judgment PRACTICE AND PROCEDURE – criminal appeal – application to stay trial pending committal hearing – committal hearing waived – application to waive signed by applicant’s solicitor – DPP finds bill – applicant arraigned – no indication as to purpose of committal – whether application futile – Criminal Procedure Act 1986 (NSW), s 68, s 91 PRACTICE AND PROCEDURE – criminal appeal – application for change of venue due to pre-trial publicity – whether jury selection likely to fail to produce impartial jury - Jury Act 1977 (NSW), s 38; Criminal Procedure Act 1986, s 30

CRIMINAL LAW – Crown appeal against sentence – eleven offences against five victims including sexual assaults and kidnapping – aggregate sentence imposed – historical offences occurring 22 years before sentence imposed – offender suffering from schizophrenia not related to offending – seriousness of offending to be balanced against strong subjective case – use of indicative sentences to understand reasoning behind aggregate sentence – Crown appeal successful – sentence increased.

PRACTICE AND PROCEDURE - criminal appeal – court bound by authority to dismiss ground of appeal – authority to be challenged in proceedings pending in High Court – special leave application referred to Full Court for hearing – application to amend grounds to raise issue – application to vacate hearing of appeal pending determination in High Court

CRIMINAL LAW – breach of duty of employer under former OHS Act – whether employer failed to ensure the health, safety and welfare at work of its employees – whether failure to take steps that only minimise or manage risk can constitute breach of duty – whether particularised measure would have prevented exposure to risk – whether causal nexus between omission and risk CRIMINAL LAW – appeal – where appeal under s 5AA Criminal Appeal Act – where appellate court finds error in proving charge on one particular, whether court can find appellant should have been convicted on a different particular – whether court has power to order a retrial SENTENCE APPEAL – whether failure to consider objective seriousness of offence – whether trial judge erred in measuring quantum of fine against extent of employee’s injury – whether failure to include in fine components for specific and general deterrence – whether trial judge wrongly took into account defendant’s remorse – whether court should resentence COSTS – whether error in apportioning costs

CRIMINAL LAW – sentence – possess unauthorised firearm – challenge to assessment of objective seriousness –applicant a member of a criminal organisation – inference that weapon could be used in connection with criminal activities – objective seriousness assessed at upper end of mid-range – no error demonstrated – whether sentence manifestly excessive – use of statistics – use of comparative cases – sentence not manifestly excessive

CRIMINAL LAW – sentence appeal – offences of supply prohibited drug and ongoing supply - whether an extension of time to seek leave to appeal should be granted – whether sentencing judge failed to apply the principle of totality – whether sentence is manifestly excessive

CRIMINAL LAW – proceeds of crime – forfeiture orders

CRIMINAL LAW – proceeds of crime – forfeiture orders

ORDERS

CRIMINAL LAW – murder – trial by judge alone – agreed facts – defence of mental illness – accused suffers from schizophrenia – special verdict of not guilty by virtue of mental illness

PROCEEDINGS FOR DAMAGES – Application for summary dismissal of medical negligence proceedings relating to treatment of injuries said to have been sustained by the plaintiff in a motor vehicle accident – settlement of separate proceedings relating to the accident itself – whether consent judgment in those proceedings concluded the issue of damage in the medical negligence proceedings – issues of res judicata, estoppel, abuse of process and double satisfaction

CRIMINAL LAW – proceeds of crime – restraining orders

MORTGAGES – Mortgage contract – Estate, rights and liabilities of mortgagor and mortgagee – Penalty – Clog on equity of redemption – Higher interest rate and enforcement costs on breach – Nature of a mortgage as security EQUITY - Penalty – Clog on equity of redemption - Construction of contractual documents – Substance – Characterisation of stipulations – Primary and collateral – Nature and purpose of transaction – Mortgage – Loan on security for repayment PRACTICE AND PROCEDURE – Default judgment – Res judicata – Issue estoppel – Nature and extent of binding operation on rights and obligations

BAIL – bail pending appeal to Court of Criminal Appeal – whether special or exceptional circumstances shown

CRIMINAL LAW – procedure – appropriate venue for trial – alleged offence of murder in rural NSW – whether trial should proceed in district in which offence occurred – s. 30 Criminal Procedure Act 1989 – need for a fair trial for Crown and Accused – Accused charged with murder of environmental officer who has prosecuted him for breach of native vegetation laws – evidence of strong community feelings concerning native vegetation laws in local district – issues of expediency – evidence of difficulty empanelling a jury in district in which offence occurred – consideration of factors relevant to venue – venue for trial to be Sydney

TORT – negligence – guest falling from first floor verandah as a result of balustrade giving way – proceedings brought against owners of premises – content of duty of care – building inspection report obtained before purchase of property – extent to which owners were on notice of defect in balustrade before accident – extent to which owners should have been on notice of defect – whether response by owners reasonable – breach of duty and causation – appeal by owners allowed.

EVIDENCE – privilege – client legal privilege – whether defendants were the clients entitled to claim privilege – where chain of emails sent from company computer with official company signature used – where action which advice sought could only be taken by company, not individuals – held, defendants were the clients EVIDENCE – privilege – client legal privilege – whether privilege had been lost – whether secondary evidence can be given by tender of emails – common law position would admit evidence regardless of any waiver – (NSW) Evidence Act 1995, s 118 and s 119 overturns common law position so that secondary evidence is not admissible – whether defendants have waived privilege under Evidence Act, s 122(2) – held, privilege was waived by delay

ADMINISTRATIVE LAW – judicial review – appeal from Local Court – magistrate refused application to direct witnesses to give evidence at committal proceedings – determination made using an incomplete brief that omitted documents relied upon in submissions – plaintiff concedes orders quashing the decision and remitting the matter

APPEAL – Local Court – interlocutory decision to dismiss a statement of claim for want of prosecution – leave to appeal declined – plaintiff can recommence proceedings – no issue of principle – no question of public importance – injustice not reasonably clear APPEAL – Local Court – plaintiff’s solicitor sought extra time to file evidence – defendant’s solicitor submitted the statement of claim should be struck out – no failure to afford procedural fairness – no lack of evidentiary basis for decision – no incorrect findings – defendant’s solicitor did not mislead court – no consideration of irrelevant matters – appeal dismissed

CRIMINAL LAW – serious sex offender – where offender a high risk sex offender – whether an extended supervision order should be made for 5 years or some other lesser period – nature of necessary conditions of supervision to be imposed

CONTRACTS – contracts of employment – retrenchment on the ground of redundancy – whether employer’s redundancy policy expressly incorporated into contract of employment – whether employer otherwise promised contractually that it would continue to apply its redundancy policy – whether takeover bidder for employer contractually promised employees that employer’s redundancy policy would continue to be applied – whether promises made with contractual intention – whether consideration given – whether requests by bidder for employees to do acts and whether acts done in reliance – whether employer entitled to withhold payment of ex gratia bonuses under redundancy policy unless deeds of release were signed by employees PRACTICE AND PROCEDURE – contract of employment – retrenchment on the ground of redundancy – employee alleged that employer’s redundancy policy incorporated into contract of employment by a course of dealing – not necessary to plead expressly that contract varied when effect of pleaded allegation clear

STATUTORY INTERPRETATION – Retail Leases Act 1994 (NSW), s 6(1)(b) – meaning of “leases for a term of 25 years or more” where applicant’s registered lease had resulted from the exercise of an option contained in an earlier lease

CONTRACTS – general contractual principles –interpretation of contracts – proper construction of release and indemnity clause in respective agreements – whether contractual right to withdraw moneys from funds held in trust gave rise to, or had same incidents and operation as, equitable lien CORPORATIONS – right to rescind agreements under s 925A Corporations Act 2001 (Cth) – entitling facts for purposes of s 925A(2) COSTS – whether appellant entitled to costs of defending proceedings where appellant a trustee – whether proceedings defended substantially in own interest rather than in capacity as trustee – whether indemnity clause released appellant from liability or indemnified it in relation to costs

CRIMINAL LAW – appeal against sentence - whether sentence is manifestly excessive – recklessly cause grievous bodily harm – whether sentencing judge failed to have regard to the applicant’s background (alcohol exposure from youth) – whether sentencing judge erred in imposing a parole condition that the applicant enter into full-time rehabilitation

CRIMINAL LAW – conviction appeal – murder – where ballistics experts conferred and agreed as to parts of evidence – where Crown sought to adduce evidence from expert beyond that agreement – whether Supreme Court Rules 1970 (NSW), Pt 75, Div 1, r 3K applied, notwithstanding no direction made pursuant to r 3K(1) – whether trial judge erred in permitting Crown to adduce evidence inconsistent with agreement CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – where error conceded in Crown Prosecutor’s closing address by reference to ‘reasonable grounds’ for belief as to necessity of actions – where no objection by appellant’s counsel at trial – whether use of description ‘genuine belief’ exacerbated error by suggesting requirement of reasonable grounds for belief – whether error caused trial to miscarry – whether error remedied by trial judge’s directions CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – whether Crown case in closing as to events of shooting materially different to that in opening and conduct of case – whether open to jury to reject self-defence if reasonably possible that shooting occurred in sequence described by appellant – whether open to jury to be satisfied beyond reasonable doubt as to appellant’s guilt if appellant’s evidence of belief as to necessity of actions rejected – whether verdict unreasonable or unsafe CRIMINAL LAW – sentence appeal – murder – whether sentencing judge erred in finding intention to kill on basis not put to the jury by Crown – whether sentencing judge erred in finding seriousness of offence aggravated by premeditation or planning – whether sentencing judge failed to take provocation into account – whether sentence manifestly excessive

CORPORATIONS – managed investments – schemes of arrangement – judicial advice sought pursuant to (NSW) Trustee Act 1925, s 66 for matters related to proposed trust scheme – whether distribution of explanatory memorandum would be justified – whether proposed amendments to constitutions of AJO Fund and PCP Trust within power of amendment in (CTH) Corporations Act, s 601GC

CRIMINAL LAW – evidence – expert evidence – whether within the expertise of the witness to answer question directed to them

SUCCESSION – Family Provision order sought – Plaintiff was spouse of the deceased for 28 years – Plaintiff was left only life estate in the matrimonial home – remainder of estate to be given to three children of deceased from former marriages – whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life – provision to be made for Plaintiff by way of Crisp order and small capital sum

CRIMINAL LAW – bail after pleas of guilty to serious offences – where lengthy custodial sentence inevitable – show cause offences – lawlessness –pleas of guilty removed presumption of innocence – offender on stringent bail conditions for almost 2 years – no breaches – very large surety deposited – where delay in sentencing would delay trial of five offenders – where incarceration would cause delay – whether a factor in determination of the show cause requirement – not appropriate to refuse bail because “sensible or expedient” for the offender commence to serve inevitable gaol sentence

INTERLOCUTORY INJUNCTION – plaintiff regional television broadcaster seeks to restrain, pendente lite, the alleged breach by the defendant national television broadcaster of an exclusive licence given to the plaintiff to broadcast the defendant’s channels in live streaming of programming into the area said to be covered by the licence – HELD balance of convenience does not favour the grant of injunctive relief. Accordingly, such relief refused.

ADMINISTRATIVE LAW – claim for relief under s 69 Supreme Court Act – certificate of assessment of damages under Motor Accidents Compensation Act by assessor – damages for future economic loss calculated on basis of capitalised weekly sum rather than buffer - no reviewable error established

Corporations Act 2001 (Cth) – bank loan – all money guarantee – loan agreement with forged signatures of one director – whether statutory assumptions apply Contracts Review Act 1980 (NSW) - whether notice of increased facility necessary

Motor accidents claim – assessor’s certificate that neck injury not caused by accident because of lack of contemporaneous complaint – issue not brought to claimant’s attention – whether breach of procedural fairness – whether unfair – referred for reassessment – whether affected by legal error

PRACTICE AND PROCEDURE – discovery – Practice Note SC Eq 11 – whether categories of documents sought on discovery are relevant to the Cross Claim – whether exceptional circumstances exist to necessitate disclosure of the documents sought before the parties have served evidence in the proceedings – whether documents necessary to resolve the real questions in dispute. APPEAL – appeal from Registrar – Registrar orders discovery before evidence served - grounds of review – whether on review any error must be shown in the Registrar’s decision – whether any error shown in the Registrar’s decision.