Cases and authorities

PROCEDURE – Judgments and orders – amending, varying and setting aside – application for variation of existing stay – whether material change in circumstances or discovery of new material not reasonably obtainable during trial – whether special grounds for further evidence are made out – whether additional parties should be joined as respondents to the appeal – leave for subpoenas for production of documents – where no special grounds for further evidence established – where no legitimate forensic purpose identified – application to strike out amended cross-claim – where no relevant error of primary judge identified

CRIMINAL LAW – sentence appeal – five counts of supplying a prohibited drug and one count of possessing a precursor with intent to manufacture – different discounts for pleas of guilty averaged over indicative sentences – error conceded by Crown – need for Court to re-sentence – no lesser sentence warranted in law.

Criminal law - sentencing, reckless importation of methylamphetamine - courier - parity

SUCCESSION – Family Provision – Adult daughters of testatrix – Large family, with multiple moral claims on bounty of deceased – Element of estrangement not a bar to relief – Increased provision made to meet needs – Modest allowances only

EVIDENCE – witness testified that he placed cash in envelope with Accused’s name on it – provided it to sons – cash from business owned and operated by Accused’s family – payments made after period of indictment – whether evidence relevant – whether should be rejected because of charge of unfair prejudice – evidence admitted.

PRACTICE AND PROCEDURE – application for removal of tutor – individual no longer suffering a legal incapacity

Criminal law – committal proceedings – cross-examination of victim - identification

CONTRACTS – EMPLOYMENT - RESTRAINT OF TRADE – where contract of employment contained restraints of trade – where restraints of trade were to operate during and post-employment – where employee resigned and sought employment with competitor – application to restrain employee from working for competitor – whether restraint of trade clauses reasonable and valid – legitimate and protectable interests – how long a restraint was reasonable in the circumstances to protect employee’s legitimate protectable interests – exercise of discretion as to relief sought; CONTRACTS – EMPLOYMENT –REPUDIATION/TERMINATION – where employee repudiated contract by way of early resignation – where repudiation not accepted by employer and contract affirmed – whether contract still on foot – distinction between contract of employment and relationship of employee/employer – whether employment relationship terminated by resignation; CONTRACTS – INTERPRETATION – implied terms – whether term may be implied in contract of employment that employee can terminate on reasonable notice – where contract already provides express term for termination – whether such term covers the field - whether terms may be implied which contradict express terms

CRIMINAL LAW – procedure – application for leave to appeal out of time against conviction in Local Court on a ground involving mixed question of law and fact CRIMINAL LAW – procedure – compliance of plea in Local Court with Criminal Procedure Act – legal representative entered plea on behalf of accused – whether substance of charge sufficiently stated to accused APPEALS – appeal incompetent since plaintiff sought to challenge order of Local Court which was no longer operative as District Court had dismissed application for leave to appeal JURISDICTION OF COURTS – procedure to preserve appeal rights in District Court when summons for leave to appeal filed in Supreme Court against same decision of Local Court

PLANNING AND ENVIRONMENT – clearing vegetation – whether development consent required to clear prescribed vegetation – whether an exemption for clearing native vegetation from land identified on the Clauses Map, cl 5.9(9A) Shoalhaven Local Environmental Plan 2014 – whether Shoalhaven Development Control Plan 2014, cl 5.2.3 is inconsistent or incompatible with, or overlaps Shoalhaven Local Environmental Plan 2014, cl 5.9(8) and (9A) PLANNING AND ENVIRONMENT – clearing native vegetation on land with environmental zoning – whether consent required under Shoalhaven Local Environmental Plan 2014 – whether activity exempt under Native Vegetation Act 2003 (NSW) – whether offence under Environment Planning and Assessment Act 1979 (NSW), s76A(1) STATUTORY INTERPRETATION – principles – relationship between provisions in different statutes of same polity – legislation creating hierarchy of instruments – functional approach to provisions conferring power on different authorities – legislation limiting need for dual authorisations

SUCCESSION – executors and administrators – other matters – costs of motion – where plaintiffs and defendant are executors and beneficiaries of estate – where plaintiffs sought defendant’s agreement to reimbursement from estate – where defendant delays in response – held, delay was protracted and avoidable, and motion was fundamentally caused by defendant’s failure to respond.

REAL PROPERTY – possession of land – form of defence filed – no defence disclosed – Cross-Claim with no cause of action identified – pleadings struck out – leave to re-plead

PROCEDURE – Miscellaneous procedural matters – adjournment EXPERT EVIDENCE – joint expert report – procedure – when one expert changes mind – supplementary report

EVIDENCE – affidavit – leave to lead evidence in proper form – whether further affidavit conforms to the terms of the grant of leave

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of persons under legal incapacity – whether proposed settlement is in the interests of the plaintiffs

CIVIL LAW – Crimes (Appeal and Review) Act 2001 (NSW) – appeal against interlocutory decisions of Local Court – applications to withdraw pleas of guilty – cross-examination on affidavits of prosecution witnesses refused – consent orders made setting aside orders of Local Court

REAL PROPERTY – caveats – caveat lodged without reasonable cause – what loss attributable to caveator’s refusal to remove caveat – alleged loss of a chance to purchase alternative property – whether causation shown on the balance of probabilities – whether lost opportunity was of some value

PROCEDURE – discovery – application to exclude property from forfeiture under the Proceeds of Crime Act 2002 (Cth) – whether assets wholly or partly derived or realised from commission of offences - applicants’ documents seized by the Plaintiff under search warrants – applicants seek documents in support of application to exclude – time of offending and time of purchase of assets - whether documents sought go to a fact in issue on the application – order for discovery refused.

TRUSTS – Judicial advice under Trustee Act 1925 (NSW), s 63(1) – advice in relation to compensation regime established under Part 7.5 of the Corporations Act 201 (Cth)

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where responsibility of young person transferred from Minister to Public Guardian on attainment of 18 years of age – where appropriate arrangements in place for future care.

PROCEDURE – Judgments and orders – order made granting stay pending appeal – where leave to appeal sought – where failure to grant stay would render appeal nugatory – where prospects of ultimate success in disturbing discretionary aspect of judgment appear remote – where stay will delay completion of part-heard application for enforcement of principal judgment.

CRIMINAL LAW – sentence – murder – intention to kill – knife wounds – not guilty plea – provocation – excessive self-defence – disadvantaged background – record of previous convictions – committed in presence of child – offender on conditional liberty – consideration of comparable cases for consistency

CRIMINAL LAW – Evidence – Where Crown sought extension of orders to include additional location on a view – No opposition by parties – Orders granted – No point of principle

CRIMINAL LAW – Evidence – Previous orders made restricting witness’ evidence at trial – Similar evidence sought to be elicited on cross-examination – Whether the probative value of the evidence was substantially outweighed by the danger that the evidence might be misleading or confusing – Whether witness’ account of conversations with two persons was disjointed and incomplete – Admission by witness that he could only understand part of the conversations – Evidence rejected

PROCEDURE – judgments and orders – correction of alleged misstatements of fact – alleged errors immaterial to decision – where no appeal from judgment – where judgment already reported

SUCCESSION – family provision – application by adult daughter – where claim made nearly 6 years out of time – whether time should be extended – relevant considerations – where plaintiff decides not to claim because of hope of benefit from defendant – where expectation of inheritance from defendant falsified after time expired – unconscionable conduct – held, sufficient cause for not making application within 18 months established but subsequent delay not satisfactorily explained – held, extension refused – where only available estate is notional estate – whether special circumstances established – held, special circumstances not established – whether plaintiff left with inadequate provision – where plaintiff in circumstances of financial need that was associated with failure of her company’s business – where strong competing claim of deceased’s surviving spouse – where plaintiff has received substantial benefits from deceased during lifetime and defendant – held, not left with inadequate provision and alternatively, as a matter of discretion, provision should not be made

COSTS – NCAT - r 42.1 of the UCPR – costs follow event – S 98 of the CPA - s 60 of the NCAT Act – objectives of NCAT – whether each party should pay own costs

APPEAL – Local Court – interlocutory decision of a magistrate – denial of procedural fairness – refusal to hear submissions regarding case management directions

ADMINISTRATIVE LAW – criminal proceedings – Road Transport Act 2013 (NSW) s110(3)(a) – effect of deeming provision as to alcohol concentration in blood sample – where result of sample was less than .05 and result of breath analysis was more than .05 – whether primary judge erred in denying that the deeming provision applied to the sample to discharge the applicant’s onus of proof

CORPORATIONS – winding up – winding up in insolvency – where plaintiff establishes presumption of insolvency – onus of defendant to rebut presumption falls on company – ability to pay plaintiffs’ debt does not prove solvency – inadmissibility of unaudited balance sheet based duly on hearsay statements – no other admissible evidence of financial position of company

EVIDENCE – documentary evidence – subpoenas and notice to produce – application to set aside subpoena to produce and notice to produce to court – whether issued for legitimate forensic purpose – distinction between processes of subpoenas for production and discovery – legitimate forensic purpose cannot always be defined by reference to pleadings and affidavits; EVIDENCE – privilege – client legal privilege – whether privilege waived by failure to file motion claiming privilege prior to expiry of order for first access – where claim notified by correspondence – held, no waiver.

TRUSTS – remedies – rectification of trust deed –– where deed executed by settlor and not the trustee – whether deed valid as a deed or deed poll – where settlor had no active and operative intention as to terms of the trust and acted merely on instructions of trustee and had no independent intention as to the terms of the trust – where trustee intended trust to have indefinite duration to fullest extent permitted by law - where terms of trust deed were that trust vested in 2020 – rectification ordered

PROCEDURE – discovery and inspection of documents – claim of legal professional privilege in respect of subpoenaed material – whether draft statements reasonably necessary to understand document where privilege has been waived

CRIMINAL LAW – Evidence – Cross-examination – Cross-examination as to credibility – Where witness sought to be cross-examined about previous drug possession – Whether the evidence could substantially affect the credit of the witness – Cross-examination refused

CRIMINAL LAW – Evidence – Where Crown sought to lead evidence of previous representations of two persons – Whether such persons were “not available” to give evidence - Where neither person could be positively identified - Evidence rejected CRIMINAL LAW – Evidence – Where Crown sought to lead evidence of representations made in the course of a conversation with a witness – Where language in which the conversation was conducted was only partially familiar to the witness – Whether probative value of the evidence outweighed by the danger of unfair prejudice

CRIMINAL LAW – Practice and Procedure – Accused subject to orders of Family Court freezing assets – Accused without counsel for forthcoming trial – No formal application before the Court for an adjournment of trial – Directions made – No point of principle

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 62 – injury caused by motor accident – additional information – whether proper officer erred by failing to refer matter for further medical assessment on grounds of additional relevant information – whether information capable of having material effect on previous assessment outcome WORDS AND PHRASES – “additional relevant information” – Motor Accidents Compensation Act 1999 (NSW), s 62

PRACTICE AND PROCEDURE – interlocutory application – application for judicial review of decision in District Court dismissing appeal against interim AVO – application for judicial review of decisions of Local Court concerning final AVO and costs orders –application for pro bono assistance – whether applicant lacking means to prepare written submissions – whether appropriate case to be referred for assistance – proceedings largely turning on factual issues –– appointment of amicus curiae

BAIL – detention application made by Crown – additional information becoming available after successful bail application – Crown case significantly strengthened – strong Crown case – unacceptable risk to victim and witnesses established – unacceptable risk not able to be sufficiently mitigated by bail conditions – detention application granted and bail revoked.

CRIMINAL LAW – CONVICTION APPEAL – murder – deceased and husband [AB] shot by occupants of another car as it drove past – whether applicant in other car had fired the shots – AB key Crown witness – unreliability of AB’s evidence – changes in AB’s evidence – difficulties in AB’s identification of applicant at hospital – effect of medication on AB’s identification evidence – difficulties in AB’s ability to identify applicant at time of incident, e.g. darkness, muzzle flash and speed of events – difficulties with evidence as to motive – jury in no better position than this Court in assessing hospital evidence – verdict unreasonable and cannot be supported having regard to the evidence – conviction must be quashed.

CRIMINAL LAW – sentencing – totality principle – accumulation and concurrency – two offences of drug supply – second offence committed whilst applicant on bail for first offence – three prior offences of drug supply – whether appropriate regard was had to the totality principle when accumulating sentence for second offence – whether sentences manifestly excessive – use of other cases said to be comparable

CORPORATIONS – examinations relating to insolvency – procedural matters – where arrest warrant sought for failure to attend court for examination – proving service of summons on examinee – where evidence identifying examinee was hearsay of unknown person – summons not left in presence of examinee if server merely described nature of document to examinee but failed to hand over the documents – placing documents in letterbox is not leaving it in examinee’s presence

SUCCESSION – family provision – approval of compromise - where beneficiaries affected by proposed orders are disable persons – where interest of disable persons under will is proposed to be converted into cash to be held on trusts and by trustees different from those created and appointed under will – whether such orders can be made as ancillary orders under (NSW) Succession Act s 66(2) – held, they cannot – where proposed trustee is parent of beneficiary - whether court would appoint parent as trustee for child – held, as a matter of general policy it would not but appointment of a co-trustee might resolve this – necessity for evidence that proposed trustee understands role of trustee and purpose of trust

DEFAMATION – rulings on interlocutory processes – no question of principle

CRIMINAL LAW – contempt of court – refusal to give evidence – warning – sentencing - relevant factors on sentencing – objective gravity of offence – special circumstances on the basis of need for appropriate accumulation and concurrency of pre-existing sentence and sentence to be imposed

EVIDENCE – admissibility – expert evidence – wether senior specialist surgeon has relevant specialised knowledge of general surgeon– whether opinion based on specialised knowledge

CRIMINAL LAW – sentence – separate conspiracies to import drugs – pleas of guilty – some assistance to authorities – conditions of a period of custody in Thailand taken into account

CORPORATIONS – Application for rectification of records maintained by ASIC – where change to shareholding and directors recorded in ASIC’s register of companies was invalid – whether the court has power to order rectification of registers maintained by ASIC – application of s 1322(4) of the Corporations Act 2001 (Cth). EQUITY – equitable remedies – specific performance – application for order for specific performance requiring the Plaintiff to transfer shares in a company to the Defendants.

TRADE AND COMMERCE – contract to purchase business – vendors made misrepresentation to the plaintiff concerning the turnover of the business – whether plaintiff relied upon the representation in entering into the contract to purchase the business – held plaintiff did not rely upon misrepresentation TRADE AND COMMERCE – vendors had benefit of restraints of trade deed with prior vendor that prevented prior vendor from competing with vendors – whether prior vendor had made misrepresentation to the plaintiff concerning intention to compete with the plaintiff – whether prior vendor and vendors had made misrepresentations to the plaintiff concerning the subsistence of the deed and the plaintiff’s entitlement to the benefit of the deed – held representations not made – whether prior vendor and vendors had made representations to the plaintiff by silence by failing to inform the plaintiff that the vendors had released the prior vendor’s obligations under the deed – held representations not made INTELLECTUAL PROPERTY – passing off – whether business had necessary goodwill or commercial reputation – goodwill or commercial reputation established – whether ordinary customers would be deceived by conduct of relevant defendants – conduct of relevant defendants found to be passing off RESTITUTION – plaintiff claimed order setting aside purchase of business on ground that plaintiff entered into the contract because of misleading and deceptive conduct by vendors – plaintiff claimed order for rescission under s 243 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – plaintiff delayed in claiming order – plaintiff continued to operate business – plaintiff did not elect to rescind or offer to return business to vendors – plaintiff would not have been entitled in any event to an order setting aside the purchase as restoration of the status quo had become impossible because of plaintiff’s actions DAMAGES – misleading or deceptive conduct – plaintiff not entitled to damages as claims dismissed – consideration of plaintiff’s claim for damages equal to the purchase price paid by the plaintiff for the business – plaintiff chose not to tender evidence of the difference between the purchase price and the market value of the business – applicable principles considered – plaintiff would not have been entitled to damages claimed in any event because the evidence established that the business had a value at the date of purchase and the plaintiff did not establish that it lost the benefit of the entirety of the purchase price DAMAGES – passing off – Exemplary, punitive and aggravated damages – plaintiff claimed damages instead of an account of profits – plaintiff did not prove it suffered any loss caused by the passing off – plaintiff not entitled to compensatory damages – plaintiff claimed exemplary damages for tort of passing off – applicable principles considered – plaintiff not entitled to exemplary damages

CONTRACTS – construction and interpretation – identification of debts referred to in deed – whether deed created equitable charge over property or only equitable charge over proceeds of sale of property under contract of sale – held deed created equitable charge over property by deposit of certificate of title and by consent of registered proprietor to lodge caveat against title and equitable charge over proceeds of sale under contract – determination of amount secured by deed – whether equitable charge secured payment of compensation for breach of deed – dependant on proper construction of deed – meaning of “reimburse” in charging provision – deed intended to ensure payee suffered no loss – held equitable charge secured payment of compensation EQUITY – competing equitable charge over property and equitable interest in property of a purchaser under a contract of sale – where the equities are equal the first in time prevails – equities equal – equable charge first in time – equitable charge entitled to priority – purchaser’s interest in property under contract of sale valid – purchaser entitled to completion of contract upon payment of amount secured by equitable charge DAMAGES – no express provision in deed for payment of interest on default of timely payment of amounts payable under deed – whether obligation to pay interest implied – no implied obligation to pay interest – payee entitled to compensation for breach – calculation of compensation having regard to interest rate provided for in s 100 Civil Procedure Act 2005 (NSW) – principles applicable – compensation based on statutory interest rate