Cases and authorities

EQUITY - Directors indemnity interpretation - Whether indemnity only commences when proceedings are actually commenced - Whether directors have established no other source of indemnity - Whether a finding in favour of director in proceedings required before indemnity can be called on

CIVIL PROCEDURE – application for declaratory relief by non-party to proceedings – whether Court has jurisdiction to grant declarations in favour of non-party – whether non-party has right to joinder in proceedings for the purpose of seeking declarations – whether the Supreme Court of New South Wales has jurisdiction to make declarations as to what matters will be binding on the AAT – discretionary factors relevant to making of declarations

PROCEDURE – judgments and orders – in general – application for stay of proceedings – where defendant has obtained judgment against plaintiff regarding progress payments pursuant to adjudication determination – where plaintiff has offsetting claim within the meaning of Corporations Act 2001 (Cth) s 459H – whether failing to grant a stay of proceedings until judgment debt is paid would be contrary to the policy of the Building and Construction Industry Security of Payment Act 1999 (NSW) PROCEDURE – costs – security for costs – quantum – reasonability of costs estimates

JUDICIAL REVIEW – application to set aside judgment in District Court – applicant failed to appear on appeal from Local Court – appeal dismissed – application to set aside order dismissing appeal – applicant failed to attend on second day of hearing and failed to proffer evidence in support of application – review sought of order dismissing application to reinstate appeal – whether jurisdictional error – whether reasonable apprehension of bias – whether procedural unfairness – whether failure to give reasons

PROCEDURE – civil – interlocutory issues – application to vacate hearing date – where defendant requires spinal surgery

FAMILY LAW AND CHILD WELFARE – parental responsibility – application for consent dispense order in respect of birth father – where birth father cannot, after reasonable inquiries, be found or identified – no requirement to serve application for consent dispense order on birth father – where in best interests of child to make dispense consent order – continuation of interim parental responsibility order.

CORPORATIONS – Insolvency – Notice of creditor’s meeting – where the administrators of a company sought orders permitting notice of a meeting of creditors, and documents for the purpose of that meeting, to be sent to creditors by email – application of s 447A of the Corporations Act 2001 (Cth).

CRIMINAL LAW - jury trial - juror experiencing persistent illness - whether juror should be discharged - s.53B(a) and (d) Jury Act 1977 applied - juror discharged - whether trial to continue with jury of 11 - s.53C applied - order that trial continue with jury of 11

PROCEDURE – Costs – Order for costs on indemnity basis – Where Calderbank offer was rejected by unsuccessful Plaintiff – Whether it was unreasonable for the Plaintiff to reject the offer.

PROCEDURE – interlocutory orders – ex parte application – freezing and substituted service orders

EQUITY – trusts and trustees – charitable trusts – whether trust created in will a valid charitable trust – application for judicial advice as to proper construction of will and ambit of trustee’s powers

CONTRACTS – general contractual principles – where contracts for acquisition of shares by the Plaintiff and her appointment as a director of two companies – where Defendants allegedly breached the contracts – where Defendants did not lead any evidence – where limited evidence as to quantification of damages – whether damages established – whether restitution for total failure of consideration.

CIVIL PROCEDURE – application to transfer proceedings from District Court to Supreme Court – whether there is sufficient reason to transfer – whether there are complex issues to be determined – complexity of determining whether police officers owed a duty of care to plaintiff during arrest and detention in police vehicle - whether the proceedings involve issues of public importance

CIVIL PROCEDURE – application for summary dismissal – whether claim statute barred pursuant to s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and Article 35 of the Montreal Convention 1999 – wrong defendant named – whether pleadings disclose a reasonable cause of action, are embarrassing or are an abuse of process

DEFAMATION – defences – application on first day of trial to amend particulars of truth defence – where plaintiff claiming prejudice – whether proof required – whether defendants should be permitted to call the plaintiff to disprove the alleged prejudice – whether prejudice manifest

SECURITY FOR COSTS - threshold issue – relevant considerations under UCPR 42.21(1A) – stultification – whether those standing behind the company are also without means to satisfy an adverse costs order – whether there has been full and frank disclosure of assets and liabilities – whether the plaintiff’s impecuniosity was caused by the defendant’s actions

APPEAL – civil – application for leave – decision of judge of Land and Environment Court on appeal from decision of Commissioner in Class 1 jurisdiction – whether arguable error – whether issue of principle – whether procedural unfairness – whether detailed landscape plan required – whether “concession” by Council that plan could form part of conditions of consent PLANNING AND ENVIRONMENT – development prohibited unless consistent with objectives of zone – onus on applicant to satisfy Court that condition complied with – preparation of draft conditions if consent forthcoming

CIVIL – urgent injunction to prevent broadcast of story on ABC’s 7:30 Report – where VCAT proceedings are commencing the following day between Ms Ingram, the subject of the story and QBE – whether broadcast will effect fairness of hearing – whether broadcast a contempt of court by Ms Ingram CIVIL – jurisdiction – interim injunction – power of this Court to grant injunction with respect to proceedings in an interstate tribunal

SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration – Jurisdiction and discretion of court – Controversy attaching to validity of final will – Passing over final will - Grant of probate in common form of penultimate will – Reservation of liberty to apply for revocation of grant – Time to make such application limited

REAL PROPERTY – possession of land – defendant made bankrupt – defendant remains in possession of land owned by her – action by Trustee in bankruptcy for possession of land – no standing by defendant to oppose orders – no defence to Trustee’s claim

CRIMINAL LAW – release application – bail conditions – large commercial supply of methylamphetamine – applicant required to show cause – severely disabled son – whether necessary to bring disabled child in the court room – illness of applicant’s parents required to care for child – show cause requirement satisfied – risk of flight – substantial cash security available – electronic monitoring – not available as a pre-release requirement – otherwise not prohibited by statute – conditions capable of mitigating risk of flight

PROCEDURE – judgments and orders – whether orders should be stayed pending appeal – whether applicant has arguable case – stay granted subject to conditions – undertakings to the Court

ENVIRONMENT AND PLANNING – environmental offences – appeal – challenge to validity of Tree and Bushland Preservation Order the subject of four criminal charges – whether Council purported to make the Order – whether the Order lawfully made by Council under relevant environmental planning instrument – whether, by purporting to prohibit certain conduct, the Order was outside the authority conferred on the Council by the planning instrument – whether the Order was impliedly repealed by the repeal of the relevant planning instrument by a later environmental planning instrument – appeal dismissed

PROCEDURE – adjournment of appeal – application made at commencement of hearing of appeal – no written submissions filed by appellants – legal aid sought but unavailable

TORTS – negligence – duty of care – breach of duty – occupier’s liability – plaintiff slipped on wet tiled surface at night after rain – whether primary judge erred in characterising risk – whether primary judge erred in finding occupiers not negligent – whether primary judge erred in finding of contributory negligence TORTS – negligence – duty of care – whether risk of harm that materialised an “obvious risk” within Civil Liability Act 2002 (NSW), s 5F(1) such that occupier did not owe plaintiff duty of care to warn of it TORTS – negligence – damages – whether primary judge erred in assessment of domestic assistance claim

TORTS – defamation – defence of contextual truth – s 26, Defamation Act 2005 (NSW) – plaintiffs pleaded imputations of not returning profits, withholding returns and dishonouring distribution commitments –defendants pleaded contextual imputations of general financial default – whether contextual imputations must differ from plaintiff’s imputations in kind as well as in substance – whether “differ in substance test” is a sufficient exposition of s 26 – whether defendants’ imputations capable of being “other imputations” carried “in addition to” appellants’ imputations TORTS – defamation – defence of contextual truth under s 26, Defamation Act 2005 (NSW) – whether imputation capable of being carried – imputation of “reasonable suspicion” – holder of “reasonable suspicion” not identified – matters complained of did not refer to any person or authority holding “reasonable suspicion” TORTS – defamation – practice and procedure – whether appropriate to strike out contextual imputations prior to trial

EQUITY - Claim for beneficial interest in property pursuant to constructive trust - plaintiff’s claim arose as a result of having lived with the defendant in a father/son relationship where the plaintiff made extensive financial contributions to the family home - Funds provided by plaintiff used to pay the mortgage and or assist the defendant to pay the mortgage - Whether common intention that plaintiff had beneficial interest in property - Whether unconscionable for the defendant to retain full beneficial ownership of property - Equitable proprietary estoppel claim

CORPORATIONS – Schemes of arrangement – Application under s 411 Corporations Act 2001 (Cth) for orders convening a meeting of members to consider proposed schemes of arrangement and for approval of the proposed schemes of arrangement – where schemes of arrangement involved the merger of businesses operated by the four Plaintiffs – where merger involves the responsible entity for two trusts – whether to convene meeting of the members – judicial advice sought by responsible entities pursuant to Trustee Act 1925 (NSW) s 63.

PRACTICE AND PROCEDURE – suppression and non-publication orders – redaction of Court’s published reasons for decision – identification of complainant in sexual abuse offence proceedings – plaintiff had adduced evidence relating to her physical and sexual abuse while in foster care in support of her family provision application – no suppression or non-publication orders were sought at trial – plaintiff sought removal or redaction of Court’s reasons after they had been published – reasons identified the plaintiff and the circumstances surrounding her foster care, but not the alleged offender – where police are investigating the plaintiff’s allegations of abuse, but no criminal proceedings have been commenced – where defendants’ counsel published a copy of the Court’s reasons on his website – whether it is necessary to remove or redact the Court’s reasons in order to prevent prejudice to the proper administration of justice – consideration of principles of open justice – consideration of the policy underlying s 578A of the Crimes Act 1900 (NSW) in relation to publication of information identifying complainants in sexual abuse offence proceedings – held, allowing the application in part and ordering the removal of the Court’s reasons and their replacement with redacted reasons, that while s 578A does not apply, the policy underlying that section informs what is necessary for the proper administration of justice

COSTS – application for indemnity costs – Calderbank letter – whether proposal contained a real and genuine element of compromise – late amendment to pleading – whether late amendment caused defendant any disadvantage – cost consequences of unjustifiable failure to bring proceedings under Strata Schemes Management Act 1996 (NSW)

CONTRACTS – existence of a binding agreement – intention of parties to be bound – language of proposal – context of the agreement – history of formal documentation – subsequent conduct of parties EQUITY – estoppel – whether representations made – whether representations relied upon – reasonableness of reliance – whether representations relied upon to the detriment of a party CONSUMER LAW – misleading or deceptive conduct – whether representations were made – whether representations were misleading or deceptive

CONTRACT – whether contract for indemnity remained in force and binding on parties after expiry of agreement – whether conduct of parties such that they ought be taken to have extended agreement after expiry and ought be bound by terms – whether sufficient evidence to conclude that performance of the arrangement between the parties continued in the same way following expiry of agreement – lack of evidence CONTRACT – construction of indemnity clause – context to be determined as at date of contract – indemnities to be construed against the indemnified CONTRACT – power of courts to make informal rectification of documents that contain obvious errors

PRACTICE AND PROCEDURE – interlocutory injunctions – application to compel defendant to prevent access to internet blog posts, and to restrain defendant from publishing injurious falsehoods – consideration of undesirability of framing injunctions in terms of the elements of the tort TORTS – injurious falsehood – elements of the tort – relevance of the principle of free speech to interlocutory injunction to restrain injurious falsehoods – held, refusing the application, that insufficient evidence was adduced to establish a serious question to be tried as to the falsity of the statements TRADE PRACTICES – misleading or deceptive conduct – application for interlocutory injunction – held, refusing the application, that insufficient evidence was adduced to establish a serious question to be tried as to the representations being misleading or deceptive, or as to their being made in trade or commerce

CRIMINAL LAW – Offences – Murder – Where accused charged with murder – Where psychiatrists qualified on behalf of the Crown and the accused each expressed the view that a defence of mental illness was available – Accused found not guilty on the grounds of mental illness PRACTICE AND PROCEDURE – Legal practitioners – Duties and responsibilities of counsel – Where medical evidence established the availability of a defence of mental illness – Where the accused asserted in evidence that he was not mentally ill – Where the accused had instructed his Counsel not to pursue a defence of mental illness – Where defence was raised on the evidence – Responsibility of the Court to consider the issue

LOCAL GOVERNMENT - enforcement of order to remove waste - whether order invalid - whether order served - whether denial of procedural fairness - no error shown - Local Government Act 1993 (NSW) s 678 PRACTICE - appeal - adjournment - application for further adjournment refused where history of noncompliance with court directions and application unsupported by evidence

CORPORATIONS – winding up – liquidators – approval of liquidators’ remuneration – whether remuneration sought is reasonable – court-ordered winding up – requirement that remuneration is approved by creditors at creditors’ meeting – where no external creditors – (CTH) Corporations Act 2001, s 1322 – declaration that failure to hold meeting does not invalidate remuneration – destruction of books and records – where ASIC does not oppose destruction.

CRIMINAL LAW – evidence – admissibility of certain questions and answers in accused’s police interview that reveal accused made deceased eat his own excrement – s 137 Evidence Act – whether probative value outweighed by danger of unfair prejudice – evidence of accused’s state of mind – where evidence has significant probative value – evidence admissible

CRIMINAL LAW – evidence – application for a view – s 53 Evidence Act – unopposed by defence – where accused does not wish to be present – where alternations to premises can be sufficiently explained to the jury – application granted

PARTNERSHIP –Partnership property – Dealings with partnership property - Appointment of receivers - Adoption of receivers’ reports –Uniform Civil Procedure Rules 2005 NSW rule 20.24

Practice & Procedure - transfer from District Court to Supreme Court – re-transfer impossible and abuse of process

PRACTICE & PROCEDURE – Application made by Plaintiff for adjournment and to re-open the case – Application to re-open made prior to conclusion of hearing, after evidence read and cross-examination concluded – Leave granted to re-open the case – Adjournment not granted SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 – The Defendant is also an adult child of the deceased and brother of the Plaintiff – Deceased left Will giving Plaintiff a weekly benefit of $250 for his life and left the residue of her estate to the Defendant – Reasonably large estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made

EQUITY - Whether shares were held in trust - Whether directors breached fiduciary duties owed to company - Remedy available to company against director in relation to transfer of business to another entity controlled by director for no consideration - Claim of trespass and conversion of goods

ADOPTION - Child over 18 years - Adoption Act 2000 (NSW) - Section 101(1)(a) - Whether with child's consent the court can change the child’s name in making an adoption order

PRACTICE AND PROCEDURE – Hearing vacated due to illness of plaintiff – No issue of principle

CRIMINAL LAW – Practice and procedure – Application to vacate trial – Application based upon service by the Crown of voluminous material by way of disclosure – Where concession made by the Crown that the material was served at a stage which would not give the accused’s representatives a proper opportunity to consider its content and obtain instructions – Trial vacated

SUMMARY DISMISSAL – plaintiff prosecuted in Local Court for failing to lodge tax returns – commences proceedings in Supreme Court – alleges s 8C of Taxation Administration Act 1953 unconstitutional – alleges no power to require tax return on “approved form” from plaintiff as information would be provided to child support registrar – jurisdiction – whether Supreme Court can entertain claim that s 8C unconstitutional – whether Court can consider application for writ against Commonwealth officer in relation to prosecution pending in State Court – cross-vesting jurisdiction in relation to writ against federal officer – “special federal matter” – whether “special reasons” for not transferring proceedings to Federal Court – proceedings frivolous and Federal Court should not be burdened – whether constitutional guarantee of freedom of contract – whether s 8C of Taxation Administration Act unconstitutional – whether plaintiff had right to his own approved form of tax return – all claims untenable – proceedings dismissed.

CIVIL LAW – final orders – matter remitted to NCAT – defendant to pay plaintiff’s costs

CLIENT LEGAL PRIVILEGE – misfeasance in public office claim - privilege claimed by the Director of Public Prosecutions – dominant purpose test – whether obligation of confidentiality existed – whether privilege waived – documents knowingly and voluntarily disclosed to Crown Solicitor – whether joint clients – whether common interest existed – considerations of fairness

ADMINISTRATIVE LAW – judicial review – medical assessment under Motor Accidents Compensation Act 1999 (NSW), Ch 3, Pt 3.4 – statutory task of Review Panel under s 63(3A) – whether Review Panel failed to undertake a new assessment of matters concerned – whether Review Panel limited its assessment to asserted errors of original assessor – whether denial of procedural fairness where respondent not given opportunity to address Review Panel on conflicting evidence from which an inference adverse to her was drawn

PROFESSIONAL NEGLIGENCE – legal practitioners – whether elements of negligence established – whether any loss suffered