Cases and authorities

CRIMINAL LAW – Sexual assault communications privilege – Application for leave to appeal against a determination that documents produced in answer to subpoenas are not protected confidences under Chapter 6, Part 5, Division 2 Criminal Procedure Act 1986 – Whether the trial judge erred in finding that documents contained in records of the Department of Family and Community Services were not protected confidences – Whether the trial judge failed to give reasons or examine the relevant material – Protected confidences under the Act are ‘counselling communications’ – Whether affidavit evidence and a Schedule of Documents was sufficient evidence to find ‘counselling communications’ – Sentencing judge in this case required to consider the contents of each document individually to determine whether it was a protected confidence – Assertions of privilege insufficient evidence to establish privilege – No error established in sentencing judge’s characterisation of protected confidences or approach to considering the documents – Application for leave to appeal dismissed.

ADMINISTRATIVE LAW – judicial review – applicant charged in Local Court with offences under Prevention of Cruelty to Animals Act 1979 (NSW) relating to horses owned by her or in her care – initial pleas of not guilty changed to guilty – Magistrate subsequently refused leave to withdraw guilty pleas and convicted applicant – applicant sought leave to appeal to District Court against convictions contending that she should be given leave to withdraw the guilty pleas – District Court refused to permit applicant to give evidence following non-compliance with pre-hearing directions – whether applicant denied procedural fairness – whether jurisdictional error occurred – by majority application dismissed

NEGLIGENCE – duty of care – liability for acts of third parties – motorcyclist injured after colliding with plastic barriers used by Council during road works – unidentified persons moved the barriers so as to obstruct both traffic lanes – whether Council owed the motorcyclist a duty of care to protect him from the unlawful conduct of third parties – whether it was reasonably foreseeable that plastic barriers could be moved – whether risk was not insignificant – Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) NSWLR 360; [2009] NSWCA 263 distinguished

APPEAL – negligence – motor vehicle accident – plaintiff pedestrian struck by car turning onto roadway – findings – whether trial judge made findings of fact sufficient to support his conclusions – whether trial judge engaged in a rational examination or analysis of the evidence EVIDENCE – expert report– whether expert possessed special or particular knowledge or understanding of the plaintiff’s pre-accident work – where expert offered opinions not based on expertise – whether trial judge erred in rejecting tender of expert report DAMAGES – economic loss – whether plaintiff’s pre-accident earnings were a genuine reflection of her earning capacity

CIVIL LAW – professional negligence – whether respondents protected from suit by advocate’s immunity CIVIL LAW – professional negligence – whether proceedings statute-barred under s 14 of the Limitation Act 1969 (NSW)

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand – genuine dispute as to the amount or existence of debt – whether directors salary not due and payable – whether defendant had abandoned employment – offsetting claim – where claim not particularised or quantified – variation of statutory demand – abuse of process – collateral purpose – no abuse – where statutory demand underpinned by debt about which there is no genuine dispute.

CORPORATIONS – winding up – liquidators – recovery of liquidator’s remuneration, costs and expenses and payment of balance from moneys paid by defendants to company – where moneys received by liquidator in satisfaction of condition imposed in prior proceedings – whether funds generally of the company in liquidation – Quistclose trust – whether defendant’s claim to retrieve funds assigned by settlement deed.

PROCEDURE – civil – application for referral to pro bono panel – whether application appropriate or necessary – overriding purpose

PROCEDURE – contempt of court – disqualification application – apprehension of bias – application not granted

PRACTICE AND PROCEDURE – application for separate determination of whether defendant breached duty of care – complex medical negligence proceedings – causation said to be complex – time taken to litigate causation exceeds breach – overlap of evidence – application dismissed – best course to allocate a hearing date.

CRIMINAL LAW – murder – cause grievous bodily harm with intent – joint criminal enterprise – no-case applications by two participants not being the principal in the first degree – whether any evidence on which jury could convict

REMEDIES – Restitution – Issue of Certificates relating to Costs Assessments and Costs Review under Legal Profession Act 2004 – Defendants compelled to pay for release of certificates relating to assessment – Costs of assessment payable by the plaintiff – Defendants entitled to restitution for payments made. COSTS – Gross sum costs order – s 98 Civil Procedure Act – Likely that referral for costs assessment would lead to further litigation – Desirable to make gross sum costs order in the interests of finality of litigation – Adequate evidence as to amount of costs incurred to make order – Defendants entitled to 70 per cent of the total costs incurred by them

PROCEDURE – Vexatious proceedings – Application made under s 8(a) Vexatious Proceedings Act 2008 seeking orders staying two proceedings instituted by the defendant – Application for order prohibiting defendant from commencing proceedings in New South Wales under s 8(b) Vexatious Proceedings Act 2008 – Meaning of vexatious proceedings – Whether defendant’s applications for Apprehended Domestic Violence Orders against the plaintiffs were vexatious – Evidence indicated applications were retaliatory to applications made by the first plaintiff – Defendant had failed to pursue and support applications with cogent and consistent evidence – Applications for Apprehended Violence Orders found to be vexatious – Orders made staying two sets of proceedings commenced against the plaintiffs – Order made prohibiting the defendant from commencing proceedings for Apprehended Violence Orders against the plaintiffs

ADMINISTRATIVE LAW – Judicial review – Where legislation mandated that particular factors be taken into account when determining whether an offender should be granted parole – Where decision of relevant authority contained no express reference to some mandatory factors – Where there was passing reference to other mandatory factors – Whether proper consideration of mandatory factors could be inferred or implied – Necessity for there to have been a proper intellectual process which gave genuine consideration of mandatory factors – Errors of law established – Matter remitted to the authority to be dealt with according to law

BAIL – jurisdiction of the Court of Appeal to hear and determine application for bail – where judicial review proceedings pending in Court of Appeal – whether judicial review proceedings are ‘proceedings on an appeal against conviction and sentence’ in s 5(1)(d) Bail Act – jurisdiction established – preferable that bail matters be heard by the Common Law Division of Supreme Court – matter referred to Common Law Division

CORPORATIONS – voluntary administration – deed of company arrangement (“DOCA”) – termination of DOCA – where parties consent to termination of DOCA – winding up of company formerly in administration – transition from DOCA to creditors’ voluntary winding up – appointment of administrators as liquidators.

CORPORATIONS – appointment of liquidator – where current liquidator had potential conflict of interest or appearance of bias – where current liquidator resigned – whether to appoint new liquidator.

BAIL – sexual assault offences – further release application – assertions of new material –– recordings by complainants withdrawing and/or denying complaints – application can be heard pursuant to s 74(3)(b) Bail Act BAIL – sexual assault offences – show cause offence – serious indictable offences committed on bail – where applicant has history of non-compliance with conditional liberty – evidence that applicant has intimidated complainants – where applicant’s trial listed within a week – credibility of applicant is questionable – unacceptable risk of applicant committing serious offence or interfering with witnesses or endangering safety of individuals – bail refused BAIL – offence of larceny as a bailee – where judicial review proceedings pending in Court of Appeal – where non-parole period to expire in a month and applicant in custody on another matter – bail refused

CIVIL LAW - application for preparation of two psychiatric reports pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 - application for interim supervision order pursuant to s 10A of the Act – all orders sought by plaintiff consented to by defendant

Trespass to land – charitable trust – postponement of eviction - injunction

TORTS - malicious prosecution - whether prosecutor acted without reasonable and probable cause – where plaintiff’s convictions quashed and new trial ordered on counts 1, 2, 5, 6 and 7 and verdict of acquittal ordered on count 9 – where nolle prosequi subsequently filed - where prosecutor had no personal knowledge of the facts underlying the charges - whether prosecutor did not honestly form the view that there were proper cases for prosecution or whether the prosecutor formed that view on an insufficient basis. TORTS - malicious prosecution - whether prosecutor acted maliciously - whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law.

BAIL – Crown detention application – respondent charged with armed robbery and firearms offences – allegedly committed while on bail for other offences – show cause offences – assessment of strength of Crown case – criminal antecedents – compelling family circumstances – likely time to trial – role and relevance of “police views” – no need to establish special or unusual circumstances to show cause – cause shown – assessment of unacceptable risks – bail refused – majority found unacceptable risk of commission of further offences.

CRIMINAL LAW – appeal against sentence – mental illness – whether error in assessment of moral culpability – whether sentences manifestly excessive

TORTS – negligence – occupier’s liability – appellant injured as result of fall at dance concert held in first respondent’s auditorium – whether primary judge erred in finding that strip lighting on steps in the auditorium was illuminated – whether steps adequately lit – appeal dismissed

ENVIRONMENT AND PLANNING – development applications – functions of local councils and regional panels – nature of the “assessment” function of a council – whether the assessment of a development application by a council is amenable to judicial review where the application is later determined by a regional panel – State Environmental Planning Policy (Major Development) 2005, cl 13F ENVIRONMENT AND PLANNING – development applications – assessment function of local council – whether the primary judge erred in finding that the council had assessed fill material intended to be placed along the boundary of the appellant’s land ENVIRONMENT AND PLANNING – development applications – mandatory considerations in s 79C of the Environmental Planning and Assessment Act 1979 (NSW) and cll 33-36 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – whether the primary judge erred in finding that the council and the regional panel had breached those provisions ENVIRONMENT AND PLANNING – development applications – notification of determination of applications – requirements of a valid notice – whether defects in such a notice should result in a declaration of invalidity – consequences of defects ENVIRONMENT AND PLANNING – development applications – relief – orders under s 25B of the Land and Environment Court Act 1979 (NSW) – whether s 25B orders should be made in respect of the impugned development consent instead of a declaration of invalidity – form of ameliorative orders

CONTRACTS – general contractual principles – formation of contract – oral contract – where claim relies on evidence of deceased which cannot be verified or contradicted – where no direct corroboration of oral contract – whether conduct of plaintiffs and defendants corroborate claimed oral contract – where plaintiff’s recollection of conversation questionable – consideration – requirement that consideration move from promisee – where plaintiff provided no consideration – absence of intention to enter into legal relations – held, no contract formed; CORPORATIONS – directors’ duties – misappropriation of funds of company for director’s personal benefit – whether breach of duty to act bona fide in good faith for the benefit of the company as a whole – absence of authority to make payments; SUCCESSION – executors and administrators – proceedings against executors and administrators – where deceased liable for breach of directors’ duties – whether liability enforceable against executor of deceased estate – where probate not yet granted – whether first defendant executor de son tort – where no evidence that first defendant intermeddled with deceased estate – where first defendant admits representative capacity on pleadings

PROCEDURE – civil – summary disposal – discontinuance – leave to file notice of discontinuance – where defendant has not appeared – where defendant is aware of listing – where terms of discontinuance provide that each party is to pay own costs

DEFAMATION – pleadings – imputations – form and capacity

DEFAMATION – pleadings – imputations – form and capacity

PROCEDURE – final orders to give effect to earlier judgment - whether the proceedings earlier transferred to the Court from the CTTT should be remitted to NCAT; COSTS – defendant successful overall but not on all claims – whether the Court should make a proportional costs order – whether Court should make an order for indemnity costs where plaintiffs had no basis to bring the proceedings and were unreasonable not to accept Calderbank offer

EQUITY - Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - Whether an administrator is justified in accepting an offer to purchase a share in a company held by the estate - Claims for family provision out of the estate under the Succession Act 2006 (NSW) - Claimants oppose the sale of the share

DEFAMATION – pleadings – imputations – capacity

CONTEMPT – defendant charged with failing to comply with freezing orders – two transfers – one to repay a credit card debt – whether that payment for ‘ordinary living expenses’ – other transfer – where half of the sum was a repayment of a sum advanced from defendant’s husband’s account in error – result that beneficial ownership of that money never passed to defendant – further result that transfer back to husband cannot constitute a diminution in the defendant’s beneficial assets – remaining half of the sum – explanation that sum transferred to allow for future payment of legal expenses – where the freezing order did not authorise payment out of a lump sum on account of anticipated expenses, but rather, expenses as they arose from time to time – whether alternative defence available that payment out not a contempt as defendant’s total assets remained above the required threshold level – where evidence shows that, on the contrary, the assets were always below the threshold – result that contempt is proved

CONTEMPT – defendant charged with failing to comply with freezing orders – application under r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW) – whether, on the evidence given, a judgment could be supported – whether the contempt properly classified as criminal or civil – whether standard of proof is criminal or civil – two grounds advanced by defendant for entering judgment in its favour – first ground – evidence of transactions does not demonstrate that they did not fall within exception for authorised spending – where that is a matter for the defendant, not the plaintiff, to demonstrate – second ground – all but two transactions occurred at a time that the orders were not in force – orders subsequently amended retrospectively ‘nunc pro tunc’ – defendant cannot be deemed to be in breach of orders that were not in force at time of alleged infringing acts – result that second ground is made out, in respect of the transactions to which it relates – consequence that defendant has no case to answer except in relation to two transactions

LANDLORD AND TENANT – Whether abandonment by tenant – Whether wrongful retaking of possession by landlord – “Reasonable steps” to mitigate damages

PROPERTY – easements – grant of an easement – construction of lease agreement – whether an easement or a licence – characteristics of an easement

CONTRACTS – abandonment or abrogation – whether ongoing intention to be bound – objective assessment of conduct – where one party purported to terminate agreement – nature of agreement CONTRACTS – breach of retainer – scope of retainer – where solicitor acting for multiple parties to transaction – conflict of interest – failure to advise CONTRACTS – rescission – rescission on basis of solicitor’s conflict of interest – divergence between parties’ interests – failure to advise – entitlement to rescind EQUITY – fiduciary duties – conflict of interest – where solicitor acting for both parties to transaction – where solicitor had personal interest in transaction – whether fully informed consent sought – whether causal relationship between loss and breach of duty – appropriate counterfactual for assessing loss PROPERTY – caveats – lodgement of caveats – refusal to withdraw caveats – caveatable interest – where contribution made to purchase price by third party – where no contractual relationship between vendor and third party – nature of interest – constructive or resulting trust – whether trust conferred a beneficial interest in land PROPERTY – caveats – whether caveator had honest belief on reasonable grounds that caveat could be lodged

GUARDIANSHIP – Person under guardianship – Suitability of guardian – Undue conflict of interest – Guardianship outside Australia

ADMINISTRATIVE LAW – judicial review – workplace injury – industrial deafness – decision of Medical Appeal Panel – assessment of whole person impairment – deduction for pre-existing injury – whether adequate evidence to make a deduction for pre-existing condition – whether too difficult or costly to assess pre-existing injury

DEFAMATION – pleadings – litigant in person – where pro bono assistance provided in settling pleadings – where plaintiff unhappy with form of amended pleadings – dictates of justice – rulings on form and capacity

PRACTICE AND PROCEDURE – application for recusal of presiding judge – applicant’s position not advanced further than stating a conflict of interest existed – no basis established for recusal – application dismissed – ADMINISTRATIVE LAW – judicial review – prerogative relief sought – certiorari – whether prosecutor lawfully entitled to commence proceedings – whether Magistrate biased – whether erroneous conclusions made by Magistrate – whether misquotation of plaintiff’s evidence – whether failure to consider relevant evidence – no ground established – no basis to set aside decision of Magistrate

SENTENCE APPEAL – assault with intent to rob while armed with a dangerous weapon – applicant drove co-offender to scene of attempted robbery – complaint that sentencing judge erred in imposing same sentences on applicant and co-offender – circumstances of applicant and co-offender said to be different – parity – co-offender’s equally culpable – circumstances not markedly different – no error – leave to appeal granted but appeal dismissed.

APPEALS – application for leave to appeal – appeal confined to question of law – whether leave should be granted in respect of point not pressed below – whether error of law demonstrated in decision below – leave refused

DAMAGES – personal injury – non-economic loss – whether the primary judge made a wholly erroneous estimate of the damages suffered – use of earlier decisions of courts for the purpose of establishing an appropriate award – Civil Liability Act 2002 (NSW), s 17A DAMAGES – personal injury – past and future economic loss – use of buffer – whether the primary judge made a wholly erroneous estimate of the damages suffered DAMAGES – personal injury – paid domestic assistance – whether the evidence established the likelihood of a future need for domestic assistance

TAX – payroll tax – Chief Commissioner’s de-grouping discretion under Payroll Tax Act 2007 (NSW), s 79 – whether Appeal Panel erred in law in concluding that precondition in s 79(2) not satisfied – whether precondition in s 79(2) satisfied when it is just and reasonable to exclude persons from a group in order to alleviate harsh consequences of grouping provisions – whether matters required to be considered when addressing that precondition include presence or absence of artificial arrangements to avoid duty; the splitting of existing business and other stratagems; and/or commercial arm’s-length terms of dealings between members

LANDLORD and TENANT - assignment of lease - whether landlord consented to assignment by tenant - assignee in actual possession of premises to knowledge of landlord - letter signed on behalf of landlord undertaking to register transfer “ASAP” - finding by primary judge that landlord had consented - landlord’s challenge to findings rejected PRACTICE - expedited final hearing of separate question - where parties chose not to litigate further issue whether assignee’s purported exercise of option valid - parties bound by the way the case was run at first instance - no error in primary judge declining to determine further issue

MOTOR VEHICLE ACCIDENT – sole question was whether at fault vehicle driven by appellant or unknown driver – eye witness to accident identified appellant’s vehicle – appellant denied involvement – trial judge accepted eye witness – trial judge did not address appellant’s denials – whether eye witness’ evidence unreliable – discrepancies in eye witness recollection of at fault vehicle – whether driver at fault must have known caused or almost caused accident – whether finding could be made against appellant without it being put to appellant that he lied in evidence. Held that primary judge erred in failing to address appellant’s denials – finding adverse to appellant could not be made without concluding he falsely denied knowledge of traffic incident – not put to him in cross examination that he lied – no such case run against appellant at trial – finding of liability of appellant set aside – no new trial – judgment entered against Nominal Defendant.

DEFAMATION – identification of plaintiff – articles published in major newspaper in print and online – imputations that female teacher had engaged in sexual misconduct with Year 12 boys at the school – plaintiff not named in matter complained of but identifiable by the inclusion of incorrect details – consideration of the principles in Baltinos – whether plaintiff can rely on extrinsic identifying facts acquired by readers after the matter complained of had been published to identify teacher – whether defendant implicitly invited readers to visit school website to ascertain identity of teacher DEFAMATION – damages – assessment of damages under sections 34 and 35 of the Defamation Act 2005 (NSW) – principles applicable in the assessment of aggravated damages – whether cross-examination unjustifiable or improper – reliance on post-publication evidence as to reputation – scope of publication

ENVIRONMENT AND PLANNING – validity of amendments to Local Environmental Plan (LEP) – gateway determination issued by delegate of Minister – whether community consultation requirements under the Environmental Planning and Assessment Act 1979 (NSW) have been complied with – whether failure to comply with requirements leads to invalidity of amending LEP – whether appellant had notice of the planning proposal - whether council officer had power to make LEP as agent of the council - whether appellant denied procedural fairness

PROCEDURE – civil – admissibility of expert evidence – challenge to independence of expert