Cases and authorities

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

PROCEDURE – subpoena – enforcement – procedure on non compliance – examination of witness – production of documents to court

PROCEDURE – civil – interlocutory application for stay of Local Court proceedings pending determination of Supreme Court proceedings – where Supreme Court proceedings concern an application for the Local Court Magistrate to disqualify himself due to an apprehension of bias – whether the plaintiff has a reasonably arguable case in the Supreme Court proceedings – whether the balance of convenience and the interests of justice are best served by staying the Local Court proceedings

CONTEMPT OF COURT – breaches of undertakings to the court by the defendant in relation to proceedings brought against her by the plaintiffs – whether terms of the undertaking is unambiguous because of obvious errors in the document setting them out – whether contempt motion resolved by subsequent dead of settlement of the proceedings – contempt established but no penalty imposed.

DEFAMATION - defences - defence of qualified privilege at common law - where Commissioner of police agreed with editor of major newspaper that it would be useful to have photographs of persons involved in a protest published in the newspaper to assist police to identify those persons - whether article including photographs was published on an occasion of qualified privilege DEFAMATION - damages - defamatory imputation that plaintiff as one of an angry mob took part in a riot - whether damages mitigated by truth of imputation that plaintiff participated in a violent protest - whether damages mitigated by other conduct in evidence at the trial - assessment of damages DEFAMATION - defences - defence of contextual truth - whether a plaintiff's imputation proved substantially true at trial must be available to be relied upon by a defendant as a contextual imputation - where no defence of contextual truth pleaded prior to commencement of trial PROCEDURE - mode of trial - where defendant elected to have action for defamation tried by jury - application by plaintiff for a jury of twelve - rejection of assumption that jurors will not give Muslims a fair trial - rejection of assumption that risk of prejudice or bigotry is diluted in a larger group of jurors

PROCEDURE – pleadings – notice of motion – leave sought to file a further amended statement of claim – refused – motion dismissed – costs

CRIMINAL LAW – offences of female genital mutilation – objection to leading questions in evidence in chief of C1 and C2 - where impugned questions contained in recorded interviews played as part of sworn evidence-in-chief pursuant to ss.306U and 306V Criminal Procedure Act – whether impugned questions were in fact leading questions – whether Crown should be granted leave to adduce evidence through those impugned questions properly characterised as leading questions – where jury able to view recorded interview and form a view as to significance of leading questions – leave granted – leading questions permitted CRIMINAL LAW – offences of female genital mutilation – Crown application to restrict use of leading questions in cross-examination of C1 and C2 on certain topics pursuant to s.42 Evidence Act – whether facts concerned could be better ascertained if leading questions were not used – significance of the age of C1 and C2 – Crown application granted – two-phase approach to cross-examination permitted – potential for further application to court to use leading questions if required following cross-examination using non-leading questions

CRIMINAL LAW - summing up – directions to jury – reasons for rulings given in course of trial – form of written directions on elements of the offences - whether direction under s.66 Evidence Act - whether “Murray” direction – whether circumstantial evidence direction - whether s.165A(2) warning - whether good character direction – whether direction on post offence conduct and consciousness of guilt

PROCEDURE – representative proceedings – competing proceedings – whether one proceeding should be stayed – whether other orders should be made in relation to the conduct of the proceedings

PRACTICE – preliminary discovery – application for leave to appeal from decision refusing preliminary discovery – no question of principle

TRUSTS – breach of trust – whether payments from a bank account associated with a mining project were made in breach of a contract and in breach of trust CORPORATIONS LAW – prospectuses – whether any of certain prospectuses filed in connection with the mining project were valid

CRIMINAL LAW – aggravated break and enter– application for leave to appeal against conviction and sentence – applicable principles where incompetence of trial counsel alleged – whether reasonable explanation for counsel’s conduct of trial – whether miscarriage of justice occurred – whether sentence manifestly excessive – parity – leave under r 4 Criminal Appeal Rules refused – appeal dismissed

CRIMINAL LAW – sentence – applicant convicted of murder and sentenced to life imprisonment in 1974 – existing life sentence determined in 1997 under s 13A of Sentencing Act 1989 (NSW) as minimum term of 30 years imprisonment and additional term for remainder of applicant’s natural life – application for leave to appeal against that determination – whether determination of the minimum and additional term of life was excessive – whether appropriate to consider overall criminality of other offences for which offender sentenced, and to be punished, when determining sentence under s 13A – whether Court of Criminal Appeal’s power under Criminal Appeal Act 1912 (NSW), s 6(3) to re-determine sentence of an offender subject to a non-release recommendation restricted by Sch 1, cl 4(3) of Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIMINAL LAW – evidence – tendency and co-incidence – ss 97, 98 Evidence Act – admissibility of evidence that accused had a tendency to intentionally inflict grievous bodily harm and rob victims in public parks – evidence of previous murders – no significant probative value due to lapse of 37 years between relevant events – evidence inadmissible

PRACTICE AND PROCEDURE – judgments and orders – freezing order – undertaking as to damages – claim for compensation pursuant to undertaking – alleged losses not caused by the making of freezing order

PRACTICE AND PROCEDURES – interrogatories –whether necessary – existence of special reasons – answers to interrogatories not available in existing written statements

PRODEDURE – costs – Court’s power to award costs – Law Society’s role as amicus – whether discretion to award costs should be exercised – orders made

EQUITY – equitable remedies – injunctions – injunction in aid of restraint of trade – whether serious questions to be tried are established – whether restraints likely to be void for breach of public policy – application of Restraints of Trade Act 1976 (NSW)

TORTS – legal professional negligence – property development – advice to enter into restructure scheme – whether advice negligent – whether causative of loss – appeal dismissed PROCEDURE – whether appellants able to advance new argument on appeal – parties bound by the conduct of their legal representatives COSTS – offer of compromise – whether court should “otherwise order” in accordance with UCPR r 42.14

EQUITY – trusts and trustees – judicial advice – procedure – where applicant seeks leave to intervene and file additional evidence in substantive proceedings in which judgment reserved – where applicant contends that current material before court is misleading and incomplete – role of trustee to decide what material is put before the court under (NSW) Trustee Act 1925, s 63 – held, evidence said to be misleading or incomplete not relevant to issues requiring decision – application dismissed.

PROCEDURE – settlement of proceedings – dispute as to terms – whether appropriate for the court to determine of its own motion whether and on what terms the matter was settled – where defendant offered terms as to all substantial elements of the matter before the court – where offer accepted by plaintiff "subject to your client agreeing to execute the attached deed of settlement and release" – dispute as to aspects of proposed deed – construction of agreement informed by duty of parties to advance the overriding purpose

PRACTICE AND PROCEDURE – leave to apply sought – leave refused

CIVIL LAW – damages and costs – appropriate rate of interest – where Court granted adjournment to the defendant on the basis that a particular interest rate would apply from that date – whether plaintiff entitled to damages for loss sustained in attempting to recover from a third party – third party the original borrower – defendant brokered the loan – whether damages too remote – need to expend legal costs to litigate foreseeable – indemnity costs – where offer of compromise rejected

CRIMINAL LAW – Jury – Where journalist reporting on trial proceedings had a close friendship with a member of the jury – Where journalist had only become aware of the juror’s presence upon attending court on day 2 of the trial – Necessity to ensure right to a fair trial for all parties – Juror discharged.

CRIMINAL LAW –separation of trials – joinder of counts – severance of counts – multiple shooting offences – thirty six counts - whether offences arose out of the same set of circumstances – rival chapters of the Brother for Life – differences – turf war or pre-emptive self-defence – five shooting offences (twenty four counts) arising out of dispute – remaining offences not related to dispute between chapters - whether part of a series of offences of the same or similar character – interests of justice – whether accused prejudiced or embarrassed by joinder of counts – tendency and context evidence – whether proof of one count admissible in proof of the others CRIMINAL PROCEDURE – non-homicide matters brought up from District Court – direction by Chief Justice – undertaking by Director of Public Prosecutions to recommence matters in District Court if non-homicide matters separated

CONSUMER LAW – claim in Civil and Administrative Tribunal for loss or damage for misleading or deceptive conduct in contravention of the Australian Consumer Law (NSW) – where unclear whether the defendant was the supplier of the goods – whether the Tribunal has authority to determine a “consumer claim” against a person other than the supplier

TORTS – wrongful imprisonment – plaintiffs lawfully in immigration detention – whether the plaintiffs enjoyed a right to residual liberty – content of residual liberty – plaintiffs arrested contrary to statute – arrest unlawful – whether immigration detention created an “umbrella of lawfulness” – whether legal nature of imprisonment changed as a result of the unlawful arrest – child plaintiffs treated as adults by Federal Police – disagreement between migration officers and Federal Police – red herring – plaintiffs concede period of incarceration in adult gaol not unlawful CIVIL PROCEDURE – defendants’ objection to plaintiffs conducting alternative case in the course of its reply – where alternative case pleaded in statement of claim but effectively abandoned in written submissions – no prejudice to the defendants

ESTOPPEL – Res judicata or cause of action estoppel – where order for specific performance made – condition as to payment of part purchase price not fulfilled – order not complied with – purchaser and incoming mortgagee obtain registration – on earlier appeal, vendor sought to maintain order for specific performance but vary condition as to payment on basis that amount of unpaid purchase price exceeded that found by trial judge – argument not able to be made on earlier appeal because inconsistent with basis upon which trial judge found purchaser ready, willing and able to perform – vendor obtained judgment on appeal for the outstanding purchase price and interest – vendor subsequently terminated the contract and applied to set aside order for specific performance – inconsistent remedies of enforcing order for specific performance by obtaining (and later recovering) judgment for outstanding purchase price and setting aside order for specific performance -– merger of rights and obligations under contract in money judgment obtained on earlier appeal – where relief sought before primary judge is inconsistent with judgment of the court on the earlier appeal which stands unreversed CONTRACT – where order for specific performance made ––vendor fulfils all obligations under contract – condition as to payment of part purchase price not fulfilled – vendor seeks to enforce order and obtains judgment for payment of outstanding purchase price and interest – where vendor subsequently terminates contract – application by vendor to set aside order for specific performance – whether election between inconsistent remedies – where order for specific performance not complied with – merger of rights and obligations under contract in money judgment

COSTS – offer of compromise – “walk-away” offer – no significant compromise – no basis for special costs order

COSTS – Court of Appeal allowed appeal, set aside orders made by the primary judge and ordered that the proceedings brought by the plaintiffs be dismissed with costs – plaintiffs applied for favourable costs order at first instance – plaintiffs had succeeded in summary judgment application prior to trial – plaintiffs had recovered part of amount sought from defendant prior to and during the trial – plaintiffs claimed they were forced to bring proceedings in order to recover any amount lent by them – only issues at trial were issues upon which the plaintiffs failed – no occasion to make costs order by reference to issues – plaintiffs had benefit of costs order for summary judgment application – application to vary costs order dismissed

PROCEDURE – civil – Notice of Motion to set aside subpoena to produce documents – whether the documents sought are relevant to a fact in issue – whether the scope and reach of the subpoena are oppressive COSTS – general rule that costs follow the event – whether the first defendant should pay the second defendant’s costs of the Motion

PROCEDURE – civil – application for stay of execution of writ of possession – whether in the interests of justice for stay to be granted

PROCEDURE – judgments and orders – superior courts – where deed entered into in reliance on order later set aside on appeal – whether obligations under deed validly incurred – held, they were and remain valid effective and binding notwithstanding appellate judgment CORPORATIONS – winding up – liquidators –application for directions – considerations relevant to giving directions – in respect of past conduct – in respect of uncontroversial commercial decisions – where directions sought in respect of past acts of liquidator – whether appropriate exercise of s 479(3) power to ratify past conduct – held, not appropriate –however, liquidators entitled to advice that they would be justified in acting in the future on the basis that acts and obligations were and remain valid effective and binding notwithstanding appellate judgment CORPORATIONS – winding up – liquidators – where, after appointment, related corporation of which liquidator is also liquidator obtains assignment of security over assets of corporation – whether liquidator thereby disqualified under (CTH) Corporations Act 2001, s 532(2)(c)(ii) – if so, whether leave should be granted – held, given appointment of special purpose liquidator, leave if required should be granted CORPORATIONS – winding up – liquidators – special purpose liquidators – whether powers of special purpose liquidator should be expanded, to enable independent representation of corporation in respect of all intercompany issues – held, they should. CORPORATIONS – winding up – liquidators – special purpose liquidators – where general purpose liquidators seeks direction authorising them to negotiate with a third party without reference to special purpose liquidator – where subject matter of proposed negotiation includes matter in respect of which special purpose liquidator empowered – direction refused.

EVIDENCE –privilege – legal professional privilege – subpoenas – proof of claim for legal professional privilege – onus of proof – evidentiary requirements – procedure for claiming privilege in respect of documents produced on subpoena – when objection to be taken – held, objection to be taken prior to production of documents to the court - where claimant tenders no admissible evidence of purpose for which documents created but asks court to inspect documents for which it claims privilege - uphold claim on basis of inspection – whether that course permissible - held, not permissible

COSTS – apportionment of costs between issues – where successful plaintiffs fail on a significant issue – whether severable – overall allocation of responsibility for costs of proceedings – tools for apportionment – indemnity costs – whether plaintiffs put to costs wantonly or recklessly.

CONTRACTS – construction – whether agreement grants equitable interest in property or its proceeds, or only a contractual right to proceeds of a sale or to acquire property pursuant to the call option – where agreement provides mechanisms for acquisition of equity in property with same expiry date – held, contractual right only and no equitable interest created EQUITY – remedies – injunctions – interlocutory injunctions – undertaking as to damages – where interlocutory injunction prevented acquisition of equitable interest in land pursuant to contractual right which would otherwise have been exercised – loss quantified by reference to price achieved at later mortgagee sale PROCEDURE – judgments and orders – set-off of judgments – where plaintiff entitled to damages on its claim and defendant entitled to damages pursuant to undertaking as to damages – held, judgments may be set-off COSTS – where plaintiff partly successful but fails on major part of case – held, plaintiff should pay 80% of defendants’ costs PROCEDURE – funds in court – payment out – where plaintiff prima facie entitled in equity to funds paid into court by mortgagee from proceeds of sale of property but net judgment in favour of defendant substantially exceeds those funds – held, funds should be paid out to defendant by analogy with stop order or garnishee order.

CRIMINAL LAW – appeals – sentencing – historical indecent assault by young person on 9 year old boy contrary to s 81 of the Crimes Act 1900 (NSW) – further historical indecent assault on 12 year old girl contrary to s 76 of the Crimes Act on a Form 1 – sentencing judge convicted applicant and imposed 2 year good behaviour bond – whether sentencing judge failed to into account the sentencing options under the Child Welfare Act 1939 (NSW) – whether the sentencing judge failed to sentence in accordance with standards at time of the offence – whether sentence unreasonable or plainly unjust – whether the sentencing judge erred by recording conviction – whether no lesser sentence warranted in law

CORPORATIONS – winding up – winding up in insolvency – scant evidence of insolvency; CORPORATIONS – winding up – winding up on just and equitable ground – where company has no director acting – where only shareholder has no director acting and unlikely that any director will be appointed to act; PROCEDURE – miscellaneous procedural matters – standing – where plaintiff creditor is bankrupt – held, debt vests in trustee in bankruptcy so right to bring action vests in trustee in bankruptcy of creditor; PROCEDURE – miscellaneous procedural matters – standing – inherent power of the court to wind up company of its own motion under (NSW) Supreme Court Act 1970, s 23 where there is no practicable alternative – where company and contributory director-less; PROCEDURE – miscellaneous procedural matters – where no notice given of winding up application – where company and contributory director-less.

CORPORATIONS – external administration – winding up – termination – whether state of affairs requiring or authorising the winding up of company has ceased to exist – whether company may safely be returned to control of its directors – where winding up order made in circumstances where creditors’ statutory demand and originating process did not come to attention of company – where company has no outstanding current liabilities and is trading profitably – where company has an excess of assets over liabilities

COSTS –– plaintiff successful in notice of motion – undue prejudice suffered by defendants –– plaintiff ordered to pay second to fifth defendants’ costs of motion – first defendant did not appear, ordered to pay plaintiff’s costs of motion

PRACTICE AND PROCEDURE – Claim for defective work – Notice of Motion application to rely on Amended List Statement – Whether leave should be granted to plaintiff rely on Amended List Statement and further allegations of defective work – Whether leave should be granted to rely upon further export reports – Balance of justice weighted in favour of plaintiff – Leave granted

TRUST AND TRUSTEES – judicial advice –application by a trustee for judicial advice as to whether it would be justified in defending certain proceedings brought against it in the Commercial List of this Court and as to whether the trustee would be justified in using the resources of the trust to defend the proceedings – further application for judicial advice as to whether the trustee would be justified in not commencing proceedings against an insurer in the event that it denied liability or failed to admit liability under a relevant insurance policy.

Money Counts – Account Stated – Nature of cause of action – debt – Pleading requirements Estoppel – Conventional estoppel – Elements – Detrimental reliance Practice – Applications for Summary Relief – Defective pleading struck out with leave to replead – Summary disposal not appropriate – Reasonably arguable case available

PRACTICE AND PROCEDURE – interlocutory injunction sought to prevent sale of goods pending appeal – trial judge rejected applicant’s claim to own goods – injunction refused by single judge – application to vary order of single judge – whether reasonable prospects of success on appeal – whether applicant demonstrated prejudice if injunction not granted – whether error shown on part of single judge

WILLS, PROBATE and ADMINISTRATION – Executors – Claim for Commission – Assessment of Quantum – Principles applicable – small, uncomplicated estate. PROCEDURE – Review of Registrar’s decision – Assessment of executor’s commission – Nature of review – Status of registrar’s decision – Summary procedure. COSTS – Wills, Probate and administration – Executor’s claim for commission – Costs on application for commission – Costs on application for review – Principles applicable.

ADMINISTRATIVE LAW – writ of prohibition or injunction – restraining defendant from making order under Health Practitioner Regulation National Law (NSW), section 150(1), suspending, or imposing conditions upon, plaintiff’s registration as a pharmacist – denial of procedural fairness – denial of reasonable opportunity to respond to allegations – defendant’s duty under section 150(1) – reasonableness of plaintiff’s request for additional time in context of the time of year at which defendant’s allegations were made.

CORPORATIONS – Winding up – Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where applicant offered undertaking to contribute equity to company – whether company is and will be solvent in future – whether to terminate winding up.

CORPORATIONS – receivers, controllers and managers – application for approval of costs, disbursements and expenses and remuneration of Court-appointed receivers – where application relates to remuneration of multiple Court-appointed receivers – whether costs incurred by receivers were properly incurred.

WRIT OF POSSESSION – application for stay of execution of writ – where defendant has entered into contract for sale of land – where completion of sale would satisfy plaintiff’s mortgage debt – where plaintiff doubts whether contract will be completed in timely fashion or at all – where defendant has not initiated appeal against judgment granting possession – where no reasonable or articulated ground for appeal – where plaintiff has not consented to sale on terms negotiated by defendant – where defendant has offered undertakings as to sale – where plaintiff has maintained objection to stay – held, continuation of stay refused.