Cases and authorities

CORPORATIONS – Winding up – where appeal under s 1321 of the Corporations Act 2001 (Cth) – consequential orders giving effect to principal judgment PRODEDURE – Costs – General rule – costs follow the event – where Defendant substantially successful in primary claim but not on Cross-Claim – where evidence relating to the primary claims also informed the Cross-Claim – determination of appropriate orders as to costs.

CONSTITUTIONAL LAW – external affairs power – Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6(1)(a), 6(3)(aa), 7(1)(e) – whether law criminalising acts preparatory to entry into a foreign State with intent to engage in a hostile activity supported by external affairs power – whether law with respect to matters geographically external to Australia – whether law with respect to Australia's foreign relations – whether law with respect to matters of international concern – whether law with respect to recommendations of international agencies – law held to be valid law with respect to matters geographically external to Australia

ABORIGINAL LAND RIGHTS – claim to Crown land dedicated for public purposes – land dedicated for use as a gaol – gaol decommissioned but dedications not revoked – land and buildings secured and maintained and used on weekends by offenders serving community service orders – primary judge found the land to be lawfully occupied – whether primary judge erred in finding facts, including shifting of evidential burden – whether primary judge erred in law in finding occupation in fact – whether primary judge erred in law in failing to consider parts of the claimed land separately – whether occupation was lawful where activities were not inconsistent with dedications – whether effect of New South Wales Constitution Act 1855 was to require statutory authorisation for occupation of Crown land – Aboriginal Land Rights Act 1983 (NSW), s 36 – New South Wales Constitution Act 1855 (18 & 19 Vict c 54), s 2 APPEAL – appeal confined to question of law – requirement of errors of law to be material or operative – whether error of law in failing to address submission not made at first instance CROWN LAND – dedications – land dedicated for gaol purposes – New South Wales Constitution Act 1855, s 2 vested "entire Management and Control of the Waste Lands belonging to the Crown ... in the Legislature" – whether effect was to require statutory authorisation for occupation of Crown land on behalf of the Crown – whether s 2 in force in New South Wales – construction of s 2 – whether s 2 abrogated prerogative – relevance of land being brought under Torrens title

DEFAMATION – pleadings – application to file amended statement of claim

EQUITY - Equitable remedies – Declaration and vesting order - Equitable compensation - Plaintiff entitled to equitable relief for defendant’s appropriation of lotteries win – Plaintiff sole beneficial owner of annuity payable by NSW Lotteries GAMBLING AND LIQUOR – Gambling regulation and offences – Lotteries – Agreements relating to lottery tickets and prizes – Personal relationship between parties – Arrangement for payment of proceeds into joint account – Breakdown of personal relationship – Determination of beneficial entitlement to lottery proceeds

PROCEDURE – Vexatious Proceedings Act 2008 – application for leave to appeal apprehended violence order variation from Local Court to District Court –whether proceedings are vexatious proceedings – appeal statute barred therefore abuse of process APPEAL – source – grounded in statute – apprehended violence order appeal – right of appeal under s 84 Crimes (Domestic and Personal Violence) Act 2007 – procedure for appeal under Crimes (Appeal and Review) Act 2001

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by shareholder to bring proceedings in name of companies in Court’s inherent jurisdiction and under Corporations Act 2001 (Cth) s 237 – whether company will bring proceedings – whether Corporations Act 2001 (Cth) s 237 applies to a company in receivership – whether applicant acting in good faith in bringing proceedings – whether in the best interests of companies that applicant be granted leave – whether proposed proceedings involved serious questions to be tried – indemnity.

VEXATIOUS PROCEEDINGS – applicant seeks to file notice of motion instituting proceedings for contempt of court against defendants – where defendants are subject of previous order not to harass, assault etc applicant – applicant has been declared vexatious by Court of Appeal – notice of motion caught by Court of Appeal orders APPEAL – right of appeal – grounded in statute

CRIMINAL LAW – Sentence – Aggravated Kidnapping – Accessory after the fact to murder – Where offender previously found guilty by a jury and sentenced for specially aggravated kidnapping and murder – Where offender successfully appealed against those convictions – Where Crown accepted pleas of guilty to offences of aggravated kidnapping and accessory after the fact to murder – Application of the ceiling principle - Objective seriousness of offending – Extent of applicable discount to reflect the utilitarian value of the plea – Late expressions of remorse – Favourable prospects of rehabilitation

LOCAL COURT APPEAL – plaintiff apprehended under s 22 of the Mental Health Act 2007 (NSW) – whether Magistrate erred in determining that apprehension was lawful – whether issue of whether apprehension was lawful was raised at trial

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – principles of Crown appeals – where sentencing young offender – where young offender acting under non-exculpatory duress

CRIMINAL LAW – application for leave to appeal against sentence – accessing and possessing child pornography – full time custodial sentences – whether appropriate consideration given to alternatives to full time imprisonment

CRIMINAL LAW – conviction appeal – whether verdicts unreasonable and not supported by evidence – three accused convicted for multiple armed robberies at clubs and hotels – prosecution case circumstantial – coincidence evidence relying on common elements between last robbery where strong evidence against the accused available and the earlier robberies – whether inference linking the accused to earlier robberies properly available EVIDENCE – coincidence evidence – rejection of pre-trial application for separate trials not challenged – no pre-trial ruling on admissibility of coincidence evidence – evidence of commonalities between number of armed robberies led at joint trial – once all of the evidence had been given trial judge allowed prosecution to argue coincidence – no objection taken to jury directions – whether properly admitted – whether challenge available on appeal – Evidence Act 1995 (NSW), ss 98, 101

PROCEDURE – civil – application to amend orders – slip rule – UCPR, r 36.17 – exercise of discretion – role of delay APPEALS – date from which appellate judgment has effect INTEREST – post-judgment interest – date from which interest runs – Civil Procedure Act 2005 (NSW), s 101 INTEREST – post-judgment interest – whether parties liable for interest on total amount of liability or alternatively on lesser sum calculated having regard to apportionment between tortfeasors COSTS – costs in workplace injury proceedings – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 346

CRIMINAL LAW – appeal – murder charge - interlocutory orders – permanent or temporary stay of proceedings – where applicant examined before NSW Crime Commission – where police investigators present at examination – where prosecutors and police sent examination transcript – where examination of accused used in examination of other suspect – whether fundamental aspect of fair trial had been altered such as to warrant a stay of proceedings

PRACTICE AND PROCEDURE – application to vacate jury trial due to counsel’s illness – interests of justice – time set aside by Court for hearing - application refused – no question of principle

CORPORATIONS – liquidators – resignation of one of multiple liquidators – appointment of replacement co-liquidator – desirability of second liquidator following resignation of former liquidator – jurisdiction to appoint replacement liquidator following resignation of former co-liquidator – construction of (CTH) Corporations Act 2001, s 473(7) – Court as exclusive repository of power to appoint liquidator where former court-appointed liquidator resigns – alternative source of jurisdiction to appoint additional liquidator under s 472(1) – extensions and abridgement of time for lodging of accounts by retiring and incoming liquidators.

CORPORATIONS – insolvency – application for leave to proceed against a company subject to a deed of company arrangement – where plaintiff seeks damages and delivery up of goods – where issues in the substantive claim are reasonably complex – where there is a doubt as to whether the deed administrators have power to deliver up the goods – no sufficient evidence of prejudice to creditors by reason of delay in bringing the application – application allowed

EVIDENCE – parliamentary privilege – state parliament – where Parliamentary Privileges Act 1987 (Cth) declaratory of general law – whether statements made to parliamentary committee may be admitted into evidence – where purpose of tendering evidence is to enable consideration of what a reasonable bystander would infer from those statements – where the reasoning involved in that process might involve drawing inferences about the speaker’s state of mind or motives – contrary to the general law rule relating to parliamentary privilege – consequence that evidence is inadmissible

CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them – admissibility of evidence that accused had a tendency to cause harm to young children in his care or to be indifferent to harm caused – where evidence is already before the jury as context evidence – evidence has substantial probative value – evidence admissible CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a particular state of mind toward the deceased – an attitude of disdain dislike and disrespect – anger toward the deceased – where evidence already before the jury as context evidence – evidence has substantial probative value – evidence admissible

PROCEDURE – dismissal or stay of proceedings – abuse of process – pendency of parallel proceedings in Supreme Court of Queensland – transfer of proceedings – (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 – where proceedings have no connection to New South Wales – where Queensland is natural forum – whether weight to be given to plaintiff’s choice of forum – ability of Supreme Court of Queensland to deal with proceedings – whether transfer of proceedings will waste what has been done in New South Wales proceedings.

CRIMINAL LAW - bail following conviction by jury - two Offenders guilty of female genital mutilation contrary to s.45 Crimes Act 1900 (two counts) - third Offender found guilty of being an accessory after the fact to the s.45 offences (two counts) - maximum penalty for all offences (in 2012) seven years’ imprisonment - detention application by Crown following verdicts - s.45 offences not show cause offences - whether unacceptable risk - whether risk of flight - past compliance with bail conditions by Offenders - bail granted with more stringent conditions

PROCEDURE – costs – departing from the general rule – offer of compromise made and not accepted and judgment no less favourable to the defendant is later obtained – orders made

PROCEDURE - costs –Suitors' Fund Act 1951 – whether the defendants should have a certificate under the Suitors’ Fund Act 1951 (NSW) - whether an order should be made in favour of the defendants as to the costs of a notice to admit facts and a notice to admit authenticity of documents – refused – orders otherwise in terms agreed

PROCEDURE – notice of motion – orders sought pursuant to r 7.8 of the Uniform Civil Procedure Rules 2005 (NSW) – motion dismissed

CRIMINAL LAW – appeal from Local Court against decision to dismiss charges against defendant for contravening interim apprehended violence order – appeal upheld - matter remitted to Local Court EVIDENCE – admissibility – whether Magistrate erred in refusing to examine documents in order to rule on admissibility - whether Magistrate erred in refusing to admit documents on the basis of form EVIDENCE – admissibility – business records - matters relevant to establishing provenance of documents – National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 considered EVIDENCE – relevance – whether Magistrate erred in failing to draw inferences as to relevance as permitted by s 58 of the Evidence Act 1995 (NSW) COSTS – whether certificate under Suitors’ Fund Act 1951 (NSW) appropriate – conduct of legal representatives in court below relevant to exercise of discretion – application for certificate refused

PROCEDURE – application for leave to reopen – applicable principles – factors relevant to exercise of discretion – lengthy hearing – judgment reserved – material relevant to central question in case – explanation offered for failure to adduce evidence during hearing – prejudice to defendants – likelihood of need to re-convene hearing

CORPORATIONS – winding up – application to set aside creditors’ statutory demands under Corporations Act 2001 (Cth) s 459H and 459J — where application required consideration of interrelationship between purchase orders and invoices – whether a genuine dispute has been established – whether defects in demands gave rise to substantial injustice – whether some other reason for statutory demand to be set aside – whether to vary statutory demands under Corporations Act 2001 (Cth) s 459H(4)

EQUITY – undue influence – transfer of property by deceased to one of her two sons inter vivos – whether “special relationship” of influence – whether presumption that arises from relationship between parties has been rebutted – elderly mother and son – although relationship involved reliance, dependence and trust, this applied to both sons – deceased’s intention to make gift was also manifested in a prior will – evidence that deceased attempted to be fair to both sons – deceased had made earlier substantial gifts to plaintiff, and loans that were not repaid – defendant maintained subject property out of own pocket – defendant purchased separate property for the deceased to reside in and provided her with a life estate in that property in his will – medical evidence supports conclusion that deceased was articulate, rational and capable – solicitor advised deceased concerning prudence of gift and acted for her on the transfer – evidence of solicitor accepted – solicitor acted relevantly in the interests of the deceased – gift was not so substantial or improvident so as not to be reasonably accounted for on ordinary motives on which ordinary persons act in the circumstances of this case – no evidence deceased’s decision originated from anyone other than herself – no undue influence EQUITY – unconscionable conduct – deceased acted in accordance with her own wishes – deceased was capable, mentally acute and rational – dealt fairly with both her sons – no unconscionable conduct

REAL PROPERTY – Strata scheme – Agreement for managing common property – CONTRACT – Where one of the Defendants provided cleaning and other services to the Plaintiff – Entitled to reimbursement of all reasonable and proper fees and expenses incurred in carrying out its duties under the contract – No dispute that it carried out duties – Breach alleged related to submission of claims in writing in order to be reimbursed its costs and expenses – Whether Manager of common property of strata scheme complied with contract in submitting claims EQUITY – Remedies – RESTITUTION – Whether Plaintiff entitled to refund of all moneys reimbursed to the Defendant for work done and services provided to Plaintiff PRACTICE & PROCEDURE – Application to amend further amended Defence to rely upon s 42 Real Property Act 1900 (NSW) REAL PROPERTY – Different Defendant company registered proprietor of two different Lots in Strata Plan – Company at time of purchase of each Lot controlled by one or more directors on Executive Committee of Plaintiff – Indefeasibility – Whether in personam exception to indefeasibility arises – Whether registered proprietor knowingly received property transferred in breach of alleged fiduciary duty – Whether registered proprietor is a constructive trustee under the first limb of Barnes v Addy – In personam exception to indefeasibility does not extend to cases of a constructive trust under the first limb of Barnes v Addy at least in relation to proprietary claims

CRIMINAL LAW – appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 – plaintiff convicted in Children’s Court of aggravated breaking and entering – prosecution case dependent on finding that plaintiff’s fingerprint found at scene of break and enter – challenge to admissibility of fingerprint expert’s conclusion that plaintiff’s fingerprint found at scene – necessity for expert to set out the reasons for their conclusion – level of detail required – whether ground contending that expert certificate should not have been admitted involved a question of law alone – whether ground involved mixed question of fact and law – whether leave should be granted – expert certificate should have but did not reveal outcome of inspection of the fingerprints but no question of law alone arose – leave granted to raise ground involving mixed question of fact and law – ground failed – deficiencies in certificate rectified by expert’s oral evidence – whether Magistrate’s reasons for admitting certificate inadequate – whether Magistrate’s reasons for convicting plaintiff inadequate – complaint not made out – whether Magistrate wrongly purported to apply different standard to admission of expert evidence in Children’s Court compared to other courts – Magistrate did not apply that approach – whether Magistrate devolved decision making task to expert – complaint not made out – whether leave should be granted to challenge conviction – leave refused.

CORPORATIONS – application to set aside creditor’s statutory demand under s 459G –whether the address specified in the creditor’s statutory demand was a post office box and not the creditor’s street address – where the creditor’s statutory demand specified an address outside of Australia – whether a creditor’s statutory demand must specify an address within Australia at which payment can be made.

CONVEYANCING – construction of lease – implied covenants – breach of implied covenant requiring parties to co-operate to obtain rental determination – whether breach of implied covenant entitled lessor to terminate lease CONVEYANCING – relief against forfeiture – considerations relevant to determination of whether relief against forfeiture ought be granted for non-monetary default – breach substantial and not inadvertent – failure to comply with Notice of Breach – no explanation for failure – no evidence that forfeiture “excessively punitive” – no basis to conclude that plaintiff’s insistence on forfeiture was unjust or unconscionable – relief against forfeiture refused

HIGH RISK OFFENDER – application for extension of interim supervision order

COSTS – application by the first defendant to recover costs of legal representation – UCPR r 42.1 - impecuniosity of plaintiff –the slip rule

CIVIL LAW – work related injury – crumpets – jurisdictional error – natural justice – decision of approved medical specialist (AMS) – whole person impairment (WPI) – whether restriction in movement to right shoulder should have been subtracted from value of WPI arising from injury to left shoulder – whether employer denied procedural fairness – whether AMS failed to apply relevant guidelines – whether AMS uncritically accepted worker’s account

CRIMINAL LAW – appeal against sentence – utilitarian value of guilty plea – relevant considerations under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discretion miscarried as sentencing judge took into account level of planning in assessing the discount for the plea – general expectation that maximum discount of 25% will be applied where plea is entered at earliest available opportunity CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in failing properly to take into account the evidence relating to mental illness – purposes of sentencing – relevance of and weight to be given to mental illness in sentencing process are matters of judgment and discretion in the circumstances of the particular case CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive

TRADE PRACTICES – misleading and deceptive conduct – Franchising Code of Conduct – franchise agreement – whether cash flow projection provided prior to entry into the franchise agreement contravened Trade Practices Act 1974 (Cth), s 51AD or s 52 – whether any loss or damage suffered by reason of contraventions – no error shown in conclusion of primary judge that no loss or damage suffered by reason of conduct alleged to have been in contravention – appeal dismissed

CORPORATIONS – voluntary administration – administrator – where administrator was invalidly appointed – whether court is satisfied that amount claimed by administrator in respect of quantum meruit claim for remuneration is properly recoverable – agreement reached between plaintiff shareholder and defendant administrator.

EVIDENCE – admissibility of oral expert evidence – where plaintiff’s expert not required for cross-examination – whether leave should be granted for plaintiff to lead additional evidence in chief under r 31.28 Uniform Civil Procedure Rules 2005 (NSW)

EVIDENCE – admissibility of witness statement against serving party – where serving party does not propose to tender statement

EVIDENCE – admissibility of expert report – application of r 31.28 Uniform Civil Procedure Rules 2005

EVIDENCE – admissibility of medical report – objection to limit use of medical history in report – medical history to stand as a statement against interests where inconsistent with plaintiff’s evidence

CORPORATIONS – injunctions – dispute as to identity of shareholders and directors – application by director seeking to restrain Defendants from interfering with conduct of company

CONTRACT – offer and acceptance – whether oral communication constituted an offer capable of acceptance WITNESSES – credibility – inutility of demeanour as a primary tool – importance of contemporaneous notes and objective facts - probabilities

CONTRACTS - General contractual principles - Construction and interpretation of contracts -Proper construction and application of insurance policy – Construction of the term “total and permanent disablement” - Insurance Contracts Act 1984 (Cth) s 54 INSURANCE - General - Policies of insurance – Group policy insurance - Proper construction of policy – Claim for total and permanent disablement benefit for an insured member SUPERANNUATION - Benefits - Matters affecting entitlement to and payment of – Group policy insurance – Construction of policy – Date of occurrence of totally and permanently disabled

COSTS – whether usual rule that costs follow the event should apply – success – whether some issues were dominant – differential costs orders – whether plaintiff’s success on some but not all issues should determine where the burden of the costs should fall – whether plaintiff should pay costs of issues upon which she did not succeed COSTS – offer of compromise – no question of principle – indemnity costs – where result no less favourable than plaintiff’s offer INTEREST – Supreme Court Practice Note Gen 16 – whether plaintiff entitled to interest – whether Practice Note applies to plaintiff’s damages – whether any reason not to award interest or to limit the amounts upon which interest should be calculated

ADMINISTRATIVE LAW – acquisition of land and assets by public development corporation for the purpose of redevelopment – whether acquisition required Act of Parliament pursuant to Transport Administration Act 1988, s 99A ADMINISTRATIVE LAW – whether transfer of land or proposed removal of assets amounted to closure of a railway line ADMINISTRATIVE LAW – powers under which parties entered into agreements to transfer land and assets – whether under Transport Administration Act 1988 – whether under Growth Centres (Development Corporations) Act 1974 STATUTORY INTERPRETATION – whether assets “vested by or under” the Transport Administration Act 1988 STATUTORY INTERPRETATION – whether transfer of land by compulsory acquisition amounted to land being “otherwise disposed of” within the meaning of the Transport Administration Act 1988 WORDS AND PHRASES – “vest” – “by or under” – “close a railway line” – “sold or otherwise disposed of”

CONTRACT – construction – whether the liability provision of a deed could be enlivened otherwise than by the operation of other provisions of the deed – whether the plaintiffs at trial had pleaded that the defendant was liable on some basis other than the terms of the deed

APPEAL –– whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent