Cases and authorities

CRIMINAL LAW – evidence – admissibility of context evidence – admissibility of relationship evidence – relevance – where that evidence is said to inform the mental element of the charge – where that evidence is said to go to proof of the dangerousness of the act in question – where that evidence is said to go to a proper assessment by the jury of the accounts that the accused has given to others - whether probative value of evidence outweighed by the danger of unfair prejudice

COSTS – indemnity costs – offer of compromise – where plaintiff obtains an order no more favourable than defendant’s offer of compromise – whether non-admission and non-disclosure terms invalidate offer of compromise – whether the value of a favourable finding on the question of liability can be brought to account in the assessment of whether the result in proceedings was more or less favourable than the terms of the offer COSTS – UCPR 42.34 – where plaintiff recovers less than amount sued for and less than $500,000 – whether commencement and continuation of the proceedings in the Supreme Court rather than the District Court was warranted

ADMINISTRATIVE LAW – judicial review – summary dismissal – summons seeking review pursuant to s 69 Supreme Court Act 1970 (NSW) – power to summarily dismiss proceedings – s 46(1)(b) Supreme Court Act – power only exercised where high degree of uncertainty about the outcome of the proceedings – orders of Supreme Court judge not amenable to judicial review under s 69

PROCEDURAL – adjournment due to lack of legal representation

CRIMINAL LAW – evidence – admissibility of expert evidence – where opinion not substantially based on expert’s specialised knowledge

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude evidence – application for a view – where changes over time since time of incident – where no demonstration or experiment to be conducted

GUARANTEE AND INDEMNITY – enforcement of guarantees – default on loan facility – claim made out by plaintiff – no appearance by defendant

CONTRACTS – interpretation – whether an implied term that performance subject to obtaining finance; EQUITY – specific performance – contract for sale of unlisted shares – defendant willing to perform contract but allegedly unable to obtain finance – whether damages an adequate remedy – whether specific performance should be refused on discretionary grounds by reason of impossibility or hardship

CRIMINAL LAW – Evidence – Where Counsel for accused sought to elicit evidence of a witness’ belief in cross-examination – Objection to the form of the question – Question rejected CRIMINAL LAW – Practice and Procedure – Where objection to question on cross-examination was upheld – Where consequent application to discharge jury – Whether such question of itself was prejudicial – Any prejudice could be cured by direction to jury – Application rejected CRIMINAL LAW – Evidence – Where Counsel for accused sought to cross-examine witness as to credibility on the basis of his criminal history – Whether such history could rationally affect the assessment of the witness’ credibility – Where criminal history more than 20 years old – Evidence incapable of bearing upon assessment of witness’ credit – Application rejected CRIMINAL LAW – Evidence – Where Crown sought leave to cross-examine unfavourable witness – Application granted

DEFAMATION – trial with a jury – authority to make directions as to the order in which questions are determined – where defences of truth and contextual truth are pleaded – undue complexity of questions for the jury

ENVIRONMENT LAW – Town planning – Whether development consent lapsed – “physically commenced” – Environmental Planning and Assessment Act 1979, s 95(4)

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – where Plaintiff alleged offsetting claim against only some of the joint creditors – whether offsetting claim must be available against all joint creditors that served demand – whether Court should determine questions of construction of contract in application to set aside demand – whether there is some other reason demand should be set aside.

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1900 – forensic patient – limiting term expired – extension under supervision – application for further extension – whether patient poses continuing unacceptable risk – meaning of unacceptable risk – need for continued medication and supervision in relation thereto – patient has improved but not sufficiently to allow self-medication on a voluntary basis – extension granted for 12 months so that more frequent assessments may be made

PROCEDURE – civil proceedings commenced and carried on by company – where director authorised to commence and carry on proceedings on behalf of company – whether Uniform Civil Procedure Rules 2005, r 7.1(3) requires authorised director also be a plaintiff having a cause of action against defendant – whether that director a plaintiff merely because a person by whom proceedings commenced – whether that director a plaintiff because company a “person under legal incapacity” under Civil Procedure Act 2005 (NSW), s 3(1) and authorised director a tutor commencing proceedings on its behalf

CRIMINAL LAW – appeal against sentence – drug supply offences – challenge to drug proceeds order made pursuant to Confiscation of Proceeds of Crime Act 1989 – alleged error in calculation of sum of order – whether failure to consider suggested involvement of other persons in the chain of drug supply – where point not raised below – no error demonstrated – appeal dismissed

CRIMINAL LAW – application for a change of venue – whether accused will receive a fair trial – question of whether jury panel may be prejudiced by social media publications – possibility of bias or apprehended bias

PROCEDURE – application for leave to issue notice to produce or order for discovery – where Practice Note No. SQ Eq 11 applies – whether order necessary for just, quick and cheap resolution of real issues in dispute – no question of principle

CRIMINAL LAW – Practice and Procedure – Member of the jury falling asleep during the evidence – Risk of substantial miscarriage of justice – Juror discharged

PROCEDURE – civil – application to vacate hearing – counsel returned brief week prior to hearing – opportunity to find and brief alternative counsel – adjournment for one week

REAL PROPERTY – possession of land – early judicial directions – filed Defence discloses no defence to the claim – defence struck out

LEGAL PRACTITIONERS – unsatisfactory professional conduct – no disciplinary action taken - whether Tribunal erred in finding unsatisfactory professional conduct where conduct arose out of psychiatric disorder – mental element did not alter characterisation of unsatisfactory professional conduct – no error in Tribunal’s approach

CRIMINAL LAW – brief of evidence served outside time set by direction made by Local Court Magistrate – evidence not admitted and proceedings against two accused dismissed – Magistrate erred in not admitting evidence – non-compliance with direction did not constitute non-compliance under s 188(1) Criminal Procedure Act 1986 (NSW) – order dismissing proceedings set aside – matter remitted to Local Court to be dealt with according to law

CONTRACTS — loan agreement — claim that signatures on loan agreement are forgeries rejected — agreement not properly executed — agreement ratified by the commencement of proceedings to enforce the agreement — cause of action confirmed pursuant to s 54 Limitation Act 1969 (NSW) — cause of action not barred by s 14 Limitation Act 1969 (NSW) —defendant liable to the plaintiff under the agreement; MORTAGES — agreement contains promise to execute mortgage

PRACTICE AND PROCEDURE — application for leave to further amend statement of claim — application to dismiss proceedings — dispute concerning a will and various other agreements and representations — numerous previous attempts to identify a cause of action unsuccessful — no arguable cause of action identified — no arguable breach of agreements relied on — leave to further amend statement of claim refused — proceedings dismissed save as to claim under the Succession Act

CORPORATIONS – winding up – status of liquidation and liquidator – where interests of creditors better served by deferring winding up – whether procedure to terminate deed and transition to winding up was defective – availability of (CTH) Corporations Act 2001, s 445C – where circumstances specified in deed did not exist, and deed not terminated so that company was not wound up and deed administrator remained, whether that should be rectified – application of (CTH) Corporations Act 2001, s 447A

CORPORATIONS – Appointment of liquidator – where person currently acting as official liquidator of certain entities and voluntary liquidator of other entities sought to retire – where applicants sought orders replacing current liquidator with persons from the same firm as that of current liquidator – where that firm was a creditor of some of the relevant entities in liquidation of amounts in excess of $5,000 – where replacement of official liquidator sought in respect of an association incorporated under the Associations Incorporation Act 1984 (NSW) – whether court should appoint replacement liquidators from same firm as that of current liquidator where that would result in costs savings – whether leave should be granted under s 532(2) of the Corporations Act 2000 (Cth) – whether the Court has jurisdiction to appoint a replacement liquidator of an association incorporated under the Associations Incorporation Act 1984 (NSW).

PROCEDURE– vacation of hearing–where plaintiff failed to comply with dates for service of submissions– where plaintiff failed to comply with dates for service of evidence

PROCEDURE – vacation of hearing date – failure to serve plaintiff submissions until two weeks before trial – where plaintiff is government department

PROCEDURE – application for giving of evidence by way of audiovisual link – where witness is wanted for lengthy cross-examination – where notice not given of requirement of witness for cross-examination – where trial to begin the following week

PRODEDURE – Costs – Security for costs – where plaintiff ordinarily resident outside of Australia

PRODEDURE – admissibility of evidence of expert – where no mention of awareness of code of conduct– where expert is experienced foreign lawyer giving evidence about law in that jurisdiction PRODEDURE – admissibility of evidence of expert – whether wholly or substantially based on expert’s specialised knowledge

PROCEDURE – short service of summons – where prompt resolution necessary

DEFAMATION – interlocutory steps – whether necessary for the resolution of the issues in the proceedings – no question of principle

DEFAMATION – defences – defence of contextual truth – content of requirement that a contextual imputation be an “other” imputation carried “in addition to” the defamatory imputations of which the plaintiff complains – Fairfax Media Publications v Zeccola [2015] NSWCA 329 applied

EVIDENCE – preliminary question – whether party competent to give evidence at trial – whether party capable of understanding a question about a fact or giving an answer to such a question that can be understood – whether affidavit made by tutor on information and belief admissible at the trial

APPEAL – appeal against decision of NCAT – Civil and Administrative Tribunal Act 2013, sch 5 cl 29(2) – whether NCAT committed an error of law in holding that the plaintiff was obliged to disclose his pecuniary interest in property – Local Government Act 1993 (NSW), s 451 STATUTORY INTERPRETATION – words and phrases – “change of the permissible uses” – Local Government Act 1993 (NSW), s 448(g)

CRIMINAL LAW – Evidence – Admissions by accused – Where nature of the admissions equivocal and ambiguous – Limited probative value substantially outweighed by the danger of unfair prejudice – Evidence excluded

COSTS – Claim for specific performance of a call option granting the option to acquire shares in a quarrying company – Cross Claim for construction of the call option and claim for an injunction restraining a call upon security over the quarrying company’s assets - proceedings resolved by consent without agreement as to final costs orders - disagreement about the consideration payable upon the exercise of the call option – reference out to a referee to determine the amount of the consideration – referee finds that the plaintiff’s claim for the amount of consideration payable by the defendant purchaser is almost wholly justified – principles for the assessment of costs, where parties have agreed upon the outcome of the proceedings – whether one or other party was certain to succeed – whether the plaintiff was successful on the outcome of the reference – whether one or both parties conducted themselves reasonably.

CIVIL – application to set aside default judgment – construction and interpretation of Uniform Civil Procedure Rules 2005 – whether lack of courtesy in litigation justifies the setting aside of a default judgment – whether principles about vitiation of assignment apply – unconscionability – whether the entry of default judgment constitutes a denial of natural justice – whether the presence of tenants prohibits a mortgagee taking possession of a property

Practice and procedure – joint hearing – preferable to consolidation “Crown” includes Ministers

JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 69 – order sought to set aside order of magistrate in the Children’s Court committing applicant for trial – order sought to set aside judgment or order of the District Court refusing stay of proceedings – whether Court of Appeal has jurisdiction to grant the orders – effect of Supreme Court Act s 17(1) and Third Schedule – whether proceedings fell into category of exclusion provided by cll (a1) and (a2) of Third Schedule – order concerning the District Court proceedings not excluded JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 48 – proceedings under s 69 concerning orders of a specified tribunal – District Court a specified tribunal under s 48(1) – Children’s Court not a specified tribunal under s 48(1) JURISDICTION – Court of Appeal – single judge sitting alone – jurisdiction of single judge of Court of Appeal to set aside judgment or order of District Court refusing stay of proceedings – Supreme Court Act 1970 (NSW), s 46(2)(b) PRACTICE AND PROCEDURE – application for stay of District Court proceedings – deficiencies in committal of applicant to trial in District Court – stay granted

PRACTICE AND PROCEDURE – leave to appeal – no question of principle

JURISDICTION – Court of Criminal Appeal – Criminal Appeal Act 1912 (NSW), s 5F – order sought for stay of criminal proceedings in the District Court – order sought to set aside interlocutory judgement or order of District Court – order sought to remit criminal proceedings to the Children’s Court – single judge sitting alone – Criminal Appeal Act 1912 (NSW), s 22 – whether a single judge sitting alone in the Court of Criminal Appeal has jurisdiction to make the interim orders sought – orders sought do not come within the powers under s 22 – Notion of Motion dismissed

APPEAL – conviction – voice identification evidence – admissibility of opinion evidence – Evidence Act 1995 (NSW), ss 76, 79 – whether ad hoc expert evidence within s 79 – no objection raised at trial regarding characterisation of opinion as ad hoc expert evidence – no determination made by trial judge – no error found APPEAL – conviction – Criminal Appeal Rules (NSW), r 4 – no objection taken at trial – no basis for the grant of leave – appeal against conviction dismissed

CRIMINAL LAW – appellant charged with multiple counts of sexual offences and assault offences against young children – evidence of uncharged acts not opposed – tendency evidence – whether evidence of significant probative value – whether probative value outweighed by prejudicial effect – whether inconsistent verdicts – whether verdicts unreasonable EVIDENCE - tendency evidence – whether acts relied on lacked similarity

CRIMINAL LAW – appeal against sentence – supply of prohibited drug – supply of cocaine in nightclub – intensive correction orders – whether ICO manifestly excessive.

PRODEDURE – application for evidence by way of audio visual link – where witness is key expert witness to be a part of a conclave – where unopposed

PROCEDURE – application for an adjournment to allow finalisation of a severance application in the District Court – where already significant delay in proceedings – where pending application has limited prospects of success PROCEDURE – jurisdiction – unlimited jurisdiction of District Court for workplace injury claims – application for transfer to Supreme Court – cross-claim likely to exceed jurisdictional limitation of District Court