Cases and authorities

CIVIL – vexatious proceedings – application by vexatious litigant to seek leave to commence proceedings – non-compliance with requirements of s 14(3) Vexatious Proceedings Act 2008 – where facts essentially mirror previous proceedings – application dismissed under s 15 Vexatious Proceedings Act

COSTS – where application for removal of liquidator dismissed – where applicants claim disentitling conduct by liquidator justifies departure from usual costs order following the event – where liquidator claims indemnity costs for the whole of proceedings or from date of Calderbank offer.

CIVIL – practice and procedure – separate question – whether appropriate – whether breach issues should be separated from all other issues

ADMINISTRATIVE LAW – workers compensation – weekly payments – after second entitlement period - work capacity decision by insurer – procedural review by Independent Reviewer – judicial review of procedural review – whether reasons of insurer capable of procedural review – whether insurer had failed to follow Workers Compensation Guidelines – whether breaches of Guidelines result in the setting aside of work capacity decision – errors of law by reviewer – legally unreasonable conclusion – reviewer’s decision quashed

LEASES – retail leases – New South Wales Civil and Administrative Tribunal – jurisdiction of courts to hear disputes concerning retail leases – dispute concerning existence of lease – proceedings commenced in Tribunal transferred to District Court – whether District Court has jurisdiction – jurisdiction of Supreme Court – whether proceedings should be transferred to Supreme Court – whether proceedings should thereafter be transferred to the Tribunal

PRACTICE AND PROCEDURE – application to re-open orders granting the applicant leave to appeal on a limited basis – review of post-judgment directions by Registrar – whether applicant entitled to a hearing in open court – scope of reasons in refusing leave to appeal – limiting time for oral submissions – whether arguable basis for re-opening – whether the Court granting leave acted under misapprehension as to the facts or relevant law – Uniform Civil Procedure Rules 2005 (NSW), r 36.16

TORTS – negligent advice – causation – conveyancer defendant advised plaintiffs in relation to purchase of property – plaintiffs signed option for twelve months – plaintiffs did not exercise option in time and forfeited the option fee – conveyancer admitted breach of duty with respect to advice on option – whether trial judge made findings with respect to causation – whether but for the negligent advice the plaintiffs would have entered into the option agreement – whether but for the negligent advice the plaintiff would have exercised option – whether loss of option fee caused by negligent advice – whether evidence sufficient to dispose of the matter on appeal

CRIMINAL LAW – conviction appeal – judge only trial – whether trial judge failed to inform self-represented accused about right to seek adjournment to arrange for legal representation – no omission established – no question of principle raised CRIMINAL LAW – sentence appeal – whether sentencing judge erred in not backdating sentence in consideration of prior lengthy period of conditional liberty – whether impact of full term imprisonment on the female offender did not properly considered the impact on her child – whether circumstances were exceptional EVIDENCE – incomplete copies of contracts admitted into evidence – whether inference as to the content of missing pages properly made – whether miscarriage of justice – no question of principle raised EVIDENCE – tendency and coincidence evidence – evidence of previous convictions – whether used for tendency or coincidence reasoning – whether ruling on the admission of such evidence in the final judgment prejudiced the accused

EQUITY - Proceedings relating to contested fee agreements between solicitor and client - Application for indemnity costs - Where a party (who is also a solicitor) has acted unreasonably in the conduct of litigation - Application for costs payable forthwith - Application for interest on costs - Application to amend summons - Application for security for costs - Where an individual is a plaintiff together with corporate plaintiffs - Application to have injunction dissolved - No funds on which the injunction can operate - Assertion of a “fruits of litigation” lien over the proceeds of a settlement to secure unpaid fees - Absence of a fund and application for order for reinstatement of the fund

MOTOR ACCIDENT – assessment of future economic loss and commercial care – whether Assessor able to determine one component of a claim for future economic loss using a buffer and otherwise rely on calculations – whether strict demarcation between buffer approach and approach based on calculations is required – whether sufficient compliance with s 126(3) of Motor Accidents Compensation Act 1999 to refer to one party’s calculations – whether reasons adequate – whether decision illogical or irrational – error of law on face of record established – decision set aside.

APPEAL – stay pending determination of appeal – preliminary assessment of appeal’s prospects of success as not strong – no evidence that respondent in financial difficulties – stay refused

LAND AND ENVIRONMENT – approval of an open-cut coal mine under the Environmental Planning and Assessment Act 1979, Part 3A – conditions of approval – project as approved required use of a parcel of land owned by a third party – condition imposed that the appellant must not carry out any development work on the project site until the appellant had purchased, leased or licensed that property – whether condition could be lawfully imposed – whether condition was an unreasonable exercise of the power to impose conditions – whether condition was inconsistent with the Environmental Planning and Assessment Regulation 2000, s 8F(1)(c) – whether condition was contrary to the public interest – whether condition was contrary to the Newbury test of reasonableness

CRIMINAL LAW – appeal against conviction – whether trial judge erred in admitting tendency evidence – evidence of a single incident – significant probative value – s 97, Evidence Act 1995 (NSW) – whether probative value of the evidence substantially outweighs prejudicial effect – s 101, Evidence Act 1995 (NSW) CRIMINAL LAW – appeal against conviction – whether trial judge failed to put defence case to the jury – whether leave should be granted under Criminal Appeal Rules, r 4

COSTS – where costs order already made – lengthy litigation – application for gross sum costs orders – where costs previously referred for mediation – whether mediation has run its course

REAL PROPERTY – withdrawal of caveats – restraint on distribution of proceeds of sale – shareholders in plaintiff company had engaged in a business venture to acquire, develop and sell property and to share in the profits of sale – plaintiff entered contract of sale for the property, with completion due imminently – plaintiff seeks withdrawal of defendant’s caveats over the property – defendant seeks orders to restrain plaintiff from distributing the proceeds of sale – held: (1) the caveats must be withdrawn and (2) there is no proper basis for restraining the plaintiff from distributing the proceeds of sale

PRACTICE AND PROCEDURE – Whether Supreme Court has power to transfer Land and Environment Court proceedings to Supreme Court – Civil Procedure Act 2005 (NSW), s 149B

CIVIL – extended supervision orders – making of final violent offender orders – where defendant’s criminal responsibility for the murder of 5 people reduced to manslaughter by reason of “diminished responsibility” – where defendant’s schizophrenia incurable – whether certain conditions sought to be imposed are necessary to manage unacceptable risk identified

APPEAL – application for leave to appeal – proceedings brought against mortgagee of properties with respect to sale – proceedings brought against trustees of bankrupts’ estates – claims in earlier dismissed proceedings repeated – no arguable case of error on part of trial judge

TORTS – damages – personal injury damages – apportionment between defendants – operation of statutory cap – damage to property – apportionment – proportionate liability principle WORKERS’ COMPENSATION – indemnity – recovery by employer from other tortfeasors – where employer sued by worker but no judgment entered against employer – whether employer can only recover excess over its liability to contribute to the amount of damages

APPEAL – amended notice of appeal filed pursuant to grant of leave to appeal – self-represented appellant – the form of the notice of appeal irregular – notice of motion to strike out the amended notice of appeal – whether motion should be granted NEGLIGENCE – proceedings brought by son alleging harm suffered as a result of a negligent medical treatment of his father – elements of secondary or derivative claim – Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233; [2015] Aust Torts Reports 82-194 referred to PRACTICE AND PROCEDURE – negligence proceedings – amended statement of claim struck out and proceedings summarily dismissed – decision upheld on review – amended statement of claim properly stuck out – whether proceedings properly dismissed – whether plaintiff should have been given an opportunity to replead – whether plaintiff able to articulate an available cause of action – whether other reasons to refuse leave to replead

CORPORATIONS – construction of Company’s Constitution and Regulations – whether member entitled to registration of cloned horse under Regulations CONTRACTS – implication of terms – Company Constitution as a contract between Company and its members – whether Constitution a formal contract APPEAL – general principles – points and objections not taken below – party bound by conduct of case

CRIMINAL LAW – appeal against sentence – Drug Misuse & Trafficking Act 1985 (NSW) – objective seriousness of offence – offender involved in transport of drugs for syndicate CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether primary judge failed to distinguish between two offenders and to give sufficient recognition to differences between respective situations

CRIMINAL LAW – EVIDENCE – conversations between the deceased and witness regarding a sexual assault against the deceased – admissibility – relevance – interests of the accused

COSTS – application for specified gross sum costs order – relevant factors to be considered in exercise of discretion – plaintiff failed on each significant issue during course of litigation – disproportion between issues litigated and costs incurred – desirability of bringing costs dispute to finality – specified gross sum costs order made

WILLS AND ESTATES – whether deceased had testamentary capacity – whether she knew and approved of contents of the will – whether she executed will under undue influence; WILLS AND ESTATES – family provision – adult child of deceased – will left all of estate to other adult child – such provision not adequate – nature of further provision to be made

CRIMINAL LAW – Basha inquiry – consent by Crown – dispute as to scope of pre-trial cross-examination – multiple accused charged on 36 counts – roll-over witnesses – twelve informant witnesses – onus on the accused to establish that cross-examination necessary to secure a fair trial – inconsistencies in brief insufficient to discharge onus – ambiguity as to case the accused required to meet sufficient to discharge onus – dress-rehearsal

BANKING AND FINANCE – provision of finance for acquisition of macadamia farms – whether lender made representations about macadamia industry and proposed acquisition that were misleading or deceptive – whether lender assumed role as advisor to borrower and guarantors – whether misleading or deceptive of lender to fail to disclose its concerns about serviceability of loans – whether lender owed a duty of care to borrower and guarantors – Australian Securities and Investments Commission Act 2001 (Cth), s 12DA

CRIMINAL LAW – audio-visual link – application for informant witnesses to give evidence by AVL – evidence of risk to witnesses – evidence of violence perpetrated by accused – motive for accused to harm witnesses – fears and anxiety expressed by witnesses – onus on party seeking order – administration of justice – relevant considerations – encouragement of future witnesses to assist police – prejudice to accused – right to confront accuser – submission that application "melodramatic" - where the informants in previous cases "out in the suburbs growing old with their mortgages and their ungrateful children" - necessity to consider individual circumstances of witnesses – whether court security sufficient – assessment of extent of risk – allegation that evidence orchestrated –allegation the police had conflict of interest CRIMINAL LAW – suppression and non-publication orders – closure of court – informant witnesses – public interest in protection of such witnesses

PROCEDURE – costs – departure from usual costs order – offers of compromise – claim for indemnity costs – costs as agreed or assessed – orders made

CIVIL LAW – misleading or deceptive conduct –financial services – whether conduct caused plaintiff’s loss – concurrent wrongdoers – apportionment of liability – whether statutory provisions in ASIC Act applied – whether “apportionable claim” under Act – where plaintiff failed to take reasonable care – reduction in damages – whether defendant’s conduct fraudulent – whether fraud pleaded properly or at all

CONSTITUTIONAL LAW – judicial review – constitutional validity of legislation – whether conferral of power on magistrate under s 3ZQZB of the Crimes Act 1914 (Cth) in a personal capacity was an invalid conferral of the judicial power of the Commonwealth – whether the destruction of property in s 3ZQZB(4)(d) of the Crimes Act 1914 (Cth) involved an acquisition of property other than on just terms, contrary to s 51(xxxi) of the Constitution

PROCEDURE – application for leave to appeal against order allowing joinder application and adjourning proceedings – where matter of practice and procedure, no question of general importance, no apparent utility in event appeal allowed, no reasons given or sought and transcript did not reveal obvious error in exercise of discretion – leave to appeal refused PROCEDURE – application for leave to appeal against dismissal of application for disqualification for apprehended or actual bias – no articulation of connection between conduct relied on and possible departure from impartial decision-making – leave to appeal refused

CRIMINAL LAW – EVIDENCE – admission to witness by deceased that she had been raped – admissibility – probative value of the evidence

PRACTICE AND PROCEDURE – apprehended bias – hypothetical fair minded observer assumed to be aware of the actual circumstance of case – whether refusal of four adjournment applications capable of forming basis for reasonable apprehension of bias – application refused

PRACTICE AND PROCEDURE – application for adjournment of hearing pending determination of application of leave to appeal to Court of Appeal from interlocutory decision – whether waste of time to continue hearing – whether plaintiff prejudiced if adjournment is refused on basis that transcript of evidence would be available at any rehearing – application refused

SUCCESSION – Family Provision – Eligible applicants – Adult child –Requirement for adequate and proper maintenance – Whether applicant left with insufficient provision – Claims by children – Minimal provision made out of estate for plaintiff - Provision made out of estate for maintenance, education and advancement in life of plaintiff - Succession Act 2006 (NSW) s59

JUDICAL REVIEW – actual bias – apprehended bias – unreasonableness – whether bad faith or improper purpose – whether decisions of Racing NSW to suspend trainer’s licence and to warn plaintiff off racetracks could be impugned TORT – misfeasance in public office – whether invalid or unauthorised act – requisite intention not established – loss not proved

STATUTORY DEMANDS – application under s 459H of the Corporations Act 2001 (Cth) to vary statutory demand – where no complaint of the kind made in application made prior to service of statutory demand – whether genuine dispute in respect of amount in demand.

CRIMINAL LAW - separate trial application - applicant charged with aiding and abetting misconduct in public office (two counts) - seeks to be tried separately from co-accused charged with misconduct in public office (two counts) - application based upon suggested prejudice flowing to applicant from adverse media publicity surrounding co-accused - applicant has not demonstrated real risk of positive injustice if joint trial proceeds - application refused

DEFAMATION – application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury – defendants elected for a jury trial but purported to withdraw election shortly before hearing

CRIMINAL LAW – conviction – leave to appeal out of time – miscarriage of justice – offence of breaking and entering dwelling-house and committing serious indictable offence “therein” in circumstances of aggravation under s 112(2) of Crimes Act 1900 (NSW) – serious indictable offence not committed in dwelling-house – agreed facts cannot in law support conviction of offence charged – error conceded by Crown

SUCCESSION – family provision – where deceased’s estate consists only of real property – where plaintiff left with household contents and life estate in family home – whether and what provision should be made for plaintiff – obligation of testator towards surviving spouse – provision of security in home, income sufficient to live in reasonable degree of comfort and fund for modest luxuries and contingencies – applicability of principle where marriage was unhappy – financial and non-financial contributions of plaintiff to deceased’s estate – plaintiff’s future needs and health concerns – where no competing need amongst beneficiaries – appropriateness of Crisp Order as alternative to life estate – how liabilities of estate may be met without sale of house.

PROCEDURE – expert evidence – application by defendants for leave to adduce expert evidence – where expert evidence to be adduced to challenge Court expert’s report – Court should be relatively ready to grant such leave where some arguable basis for challenging Court expert’s report shown – whether belatedness of application militates against grant of leave – whether grant of leave would subject plaintiff to financial hardship in funding independent expert – whether difficulty of plaintiff’s lawyers in approaching Court expert to discuss issues militates against granting leave.

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), ss 459H and 459J – where documents in affidavits were out of order - where affidavit verifying statutory demand incorrectly stated that no proceedings had been commenced in respect of the debt – where Plaintiff’s alleged the underlying judgment creating the debt was obtained by fraud – whether there is defect in statutory demand – whether there is some other reason demand should be set aside.

CRIMINAL LAW – directions to jury – manslaughter – whether judge should inquire as to basis of verdict of manslaughter – where manslaughter by criminal negligence and manslaughter by unlawful and dangerous act left to jury – The Queen v Isaacs (1997) 41 NSWLR 374 considered – exceptional cases – not an exceptional case – request refused

PRACTICE AND PROCEDURE – application for adjournment of hearing pending the convening of a Court of Appeal – application refused - no question of principle

CORPORATIONS – application to set aside creditor’s statutory demand – where company seeks to be represented by director – where orders previously made staying proceedings to allow the company to seek legal representation – where company not represented by legal practitioner – whether proceedings should be dismissed.

DEFAMATION – notice of election for trial by jury – substantive right vests or accrues upon filing of notice of election – whether vested and accrued right can be waived unilaterally by party to whom right accrued – Kencian v Watney [2015] QCA 212 followed – right can be waived – party who wishes to preserve right to trial by jury in defamation action must serve notice of intention and notice of election irrespective of whether other party does so DEFAMATION – whether plaintiff entitled to trial by jury having failed to serve notice of election in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 29.2A – no power to permit election for trial by jury where non-compliance with Defamation Act 2005 and relevant rules – Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110 followed ESTOPPEL – Waltons v Maher estoppel - whether defendants estopped from withdrawing election for trial by jury – whether reliance by plaintiff on defendants’ election for trial by jury was reasonable – whether defendants’ conduct in waiving right to trial by jury unconscionable – elements of estoppel not established

REAL PROPERTY – possession of land – defence not disclosing any defence to the claim – reliance on cross-claim - failure to file cross-claim within time directed – claimed inability to pay filing fees – extension of time granted – if cross-claim not filed by extended date defence struck out

REAL PROPERTY – possession of land – hearing of proceedings vacated on two occasions by reasons of problems related to the first defendant – desire by first defendant to cross-claim against solicitor and finance broker – failure to serve cross-defendants promptly – application by Plaintiff to sever the cross-claims