Cases and authorities

CIVIL – application to transfer proceedings from NSW Civil and Administrative Tribunal and Local to Supreme Court – single justiciable controversy over deficient building works and rectification required – longstanding dispute – order for mediation – if mediation fails, preliminary view that court order for expedited hearing at Supreme Court or Tribunal

TORTS – negligence – personal injury – back injury sustained while working as trades assistant at steelworks – question whether injury sustained as plaintiff claimed

EQUITY- Settlement agreement reached by parties in earlier proceedings - Defendant (in these proceedings) had entered into a Funding Agreement for examination summonses of defendants - Alleged breach of the general release term of the settlement agreement - Alleged breach of implied duty of good faith - Misleading and deceptive conduct claims - Whether loss or damage as a result of impugned conduct established

TORTS – negligence – negligence of airline operator – whether injuries compensable under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - damages - non-economic loss – economic loss – superannuation – out-of-pocket expenses – past and future care - STATUTORY CONSTRUCTION – relevant rules of statutory construction - construing International Conventions - the purpose of the Montreal Convention – proper construction of s 9E of the Civil Aviation (Carriers’ Liability) Act – post traumatic stress disorder (‘PTSD’) claim – PTSD and the proper construction of Article 17 of the Montreal Convention – evidence establishes that plaintiff’s PTSD is a compensable “bodily injury”

PRACTICE AND PROCEDURE – request for particulars – unduly burdensome – abuse of process – no obligation to answer questions – insufficient particulars in statement of claim – liberty to amend

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW), s 8(1) – whether, on referral by the Court of the parties to arbitration, the action should be stayed or dismissed – HELD: proceedings should be stayed. COSTS – whether there is a presumption that a party who unsuccessfully challenges an order for referral or stay where there is an arbitration or other dispute resolution agreement should pay costs on the indemnity basis – HELD: there is no such presumption – in the present case the appropriate costs order is on the ordinary basis.

CRIMINAL - sentence - murder - joint criminal enterprise - verdict of guilty following trial - plea of guilty to alternative count of break, enter and commit indictable offence rejected - offender not person of prior good character - whether offender likely to re-offend - no remorse shown by offender - crime perpetrated in home of deceased and result of considerable planning - whether crime in worst category of case - whether offender manipulated or influenced by co-offender - whether offender intended to kill deceased - whether sentence should take account of the need for general deterrence

CRIMINAL LAW - sentence appeal - 16 offences relating to the possession and transmission of child pornography - using a carriage service to cause offence - whether sentencing judge erred in assessing objective seriousness of offences - whether sentences are manifestly excessive

EVIDENCE – orders to produce – legitimate forensic purpose – where conviction appeal based on fresh evidence - where witness unavailable for cross-examination – where documents relate to credibility of witness – legitimate forensic purpose established EVIDENCE – orders to produce – claim of client legal privilege – Evidence Act 1995 (NSW) s 119

APPEAL – New South Wales Civil and Administrative Tribunal – judicial review under s 69 of the Supreme Court Act 1970 (NSW) – whether Tribunal had jurisdiction to hear an application under s 84 of the Residential Tenancies Act 2010 (NSW) STATUTORY INTERPRETATION – plain reading – general purpose and policy - extrinsic material – prior statutory provisions – construction of s 8(1)(f) of the Residential Tenancies Act 2010 (NSW) CONTRACT – construction – contract for sale of land - tenancy agreement – whether agreement was an agreement for the sale of land that conferred a right to occupy residential premises on a party to the agreement under s 8(1)(f) of the Residential Tenancies Act 2010 (NSW) CONTRACT – construction – principles – implied term not to hamper performance of contract – implied term to co-operate in carrying out agreement MORTAGAGES – common law mortgage – conveyance and option to repurchase - intention of parties – extrinsic evidence – whether agreement was agreement under a term of a mortgage that conferred a right to occupy residential premises on a party to the mortgage under s 8(1)(g) of the Residential Tenancies Act 2010 (NSW)

CONTEMPT OF COURT – application to vary directions– directions concerning undertaking given as to costs of a medical examination – examination as to fitness to be tried – no basis for order sought – application refused

CRIMINAL LAW – juries – juror becomes emotional during graphic evidence – application to discharge the whole jury – assertion that the whole jury may be so affected by the juror’s emotional reaction that it could not perform its role dispassionately – trial in its fourth week – no prior indication or emotional reaction – application refused.

CRIMINAL LAW – sentence – accused unfit to be tried – special hearing - recklessly causing grievous bodily harm –accused guilty on limited evidence available – where term of imprisonment would have been imposed – limiting term nominated – Mental Health (Forensic Provisions) Act s 23

SUCCESSION – wills, probate and administration – construction and effect of testamentary disposition – construction of will – where executor had solely occupied estate property left to beneficiary before that beneficiary’s death – whether will created a life estate or a right of residence for beneficiary – whether beneficiary was therefore responsible for expenses incurred in relation to estate property – whether payment of proceeds from sale of estate property to beneficiary authorised by will – whether alleged payments for maintenance of estate property were in fact made – whether beneficiary failed to earn income on estate property to detriment of subsequent beneficiaries – whether executor entitled to commission.

ADMINISTRATIVE LAW – judicial review – medical assessment under Pt 3.4 Motor Accidents Compensation Act – error of law by Medical Review Panel on issue of causation

CRIMINAL LAW – appeal – appeal against sentence – wound with intent to cause grievous bodily harm – aggravated kidnapping – where applicant seeks to have fresh evidence considered on appeal – appellate court’s jurisdiction to review findings of fact – open to trial judge to find limited prospects of rehabilitation on evidence available at sentence hearing – no error established permitting fresh evidence to be considered – no substantial miscarriage of justice

PRACTICE AND PROCEDURE – vexatious proceedings orders – whether available with respect to a person subject to the Felons (Civil Proceedings) Act 1981 (NSW) – whether application for leave under Felons Act could require leave under Vexatious Proceedings Act 2008 (NSW) PRACTICE AND PROCEDURE – person in custody in relation to a serious indictable offence – application of requirement for leave with respect to all such persons – operation of Felons (Civil Proceedings) Act 1981 (NSW), s 4 PRACTICE AND PROCEDURE – vexatious proceedings orders – formulation of orders – need to consider temporal limit – need to consider proper scope – need to consider effect on defence of criminal proceedings – whether “blanket” orders desirable STATUTORY INTERPRETATION – overlapping statutes of same polity – reconciliation of potential conflict – avoiding circularity WORDS AND PHRASES – “frequently” – Vexatious Proceedings Act 2008 (NSW) – “civil proceedings” – “person who is in custody as a result of … a serious indictable offence” – Felons (Civil Proceedings) Act 1981 (NSW)

INTERNATIONAL ARBITRATION – application for stay of court proceedings and referral to arbitration – whether claims pertain to disputes or differences arising out of or in connection with joint venture documents – where some but not all relief claimed cannot be granted by arbitrator – held, stay granted and certain matters referred to arbitration.

CORPORATIONS – interlocutory relief under (Cth) Corporations Act 2001, s 1324 – injunction restraining directors from contravening Corporations Act – breach of directors’ duties – whether seriously arguable case as to past or threatened future contraventions of directors’ duties – held, no seriously arguable case as to threatened contraventions to warrant interlocutory relief.

CIVIL LAW – separate hearings to be conducted to determine issues of liability and quantum- no point of principle

COSTS – plaintiff’s claim for relief under s 59 of the Succession Act 2006 (NSW) was unsuccessful – whether plaintiff should pay the defendants’ costs on an ordinary or indemnity basis – Calderbank offer held to be ineffective as it included a term involving a separate claim and the Court cannot assess the value of that compromise – plaintiff’s claim did not have strong prospects of success at the commencement of proceedings and this diminished throughout the hearing – held plaintiff pay defendants’ costs on the ordinary basis from the date of the defendants’ distribution of part of the deceased’s estate to the plaintiff

PROCEDURE – judgments and orders – application for stay of orders pending appeal to Full Court of the Federal Court – where orders for disclosure of documents and costs – where disclosure orders not complied with – whether stay of orders in the interest of justice.

COSTS – determination of costs of third, fourth and fifth cross-claim – cross-claims necessary for proper apportionment of liability following settlement between plaintiff and first defendant – cross-defendant successful in defence of cross-claims despite unsuccessful issue – order that parties pay half of cross-defendant’s costs on an ordinary basis

CRIMINAL LAW – appeal against sentence – aggravated sexual assault – whether error in assessment of objective seriousness and leniency

COMPULSORY ACQUISITION – Land Acquisition (Just Terms) Act 1991 (NSW), s 66 – jurisdiction of the Land and Environment Court – no question of law

APPEAL – extension of time to appeal – applicants convicted of contempt seek to appeal from orders disobeyed – whether proposed grounds arguable and material – effect of successful appeal on contempt convictions PLANNING AND ENVIRONMENT – order that applicants remove cars unlawfully stored on property – only one applicant owned property, both were owners of business which owned the cars – whether judge erred in stating both applicants “owned and occupied” the property – whether error material – Ross v Lane Cove Council [2014] NSWCA 50 applied CONSTITUTIONAL LAW – whether laws establishing local councils invalid – The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 applied JUDGMENTS AND ORDERS – effect of orders of superior court of record – contempt of court – whether variation of substantive order on appeal affects contempt of court – State of New South Wales v Kable [2013] HCA 26; 252 CLR 118 applied LOCAL GOVERNMENT – powers of councils – whether council has power to constrain unlawful use of land

TORTS – negligence – duty of care – whether primary judge erred in not finding duty of care contended for on appeal though not pleaded at trial and inconsistent with manner in which appellants’ case was conducted at first instance TORTS – negligence – breach of duty – whether primary judge erred in finding that there was no breach of duty to carry out inspection complying with relevant Australian Standard and that the respondent had not provided negligent advice to the appellants CAUSATION – whether primary judge erred in formulating the test for causation of damage in a pure economic loss claim APPEAL – evidence - challenge to factual findings – adequacy of reasons given for findings – credibility of witnesses – whether error in assessing credibility

CRIMINAL LAW – admissibility – relevance under s 56 Evidence Act – tender of multiple surveillance device transcripts

CONTRACT – contract for sale of land – purchaser unable to settle – whether vendor terminated contract – no notice of termination – whether contract was terminated when settlement did not take place, when mortgagee took possession of the property, or when purchaser vacated the property – whether vendor ready willing and able to settle – whether purchaser entitled to return of deposit – proper construction of special condition of contract – whether by reason of that special condition director of purchaser personally liable

Practice and procedure – costs – appeal against costs order

COSTS – assessment – whether Plaintiff should only have costs from the date of amendment of its statement of claim – whether fifth defendant should pay full costs of plaintiff in circumstances where much of those costs were incurred establishing fraudulent activity in which the fifth defendant had no involvement

CORPORATIONS – winding up – winding up in insolvency – application for leave under s 459S of the Corporations Act – where company seeks to rely on dispute as to the existence of the debt the subject of a statutory demand – whether requirements for leave under s 459S are satisfied

APPEAL – appeal from decision of Local Court Magistrate pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) – contract to build swimming pool – whether purported errors are errors of fact or errors of mixed fact and law – whether leave should be granted

APPEAL - sentencing - murder - robbery in company - “Muldrock error” - consideration of subjective circumstances and rehabilitation of applicant - appeal allowed - applicant re-sentenced

PRACTICE - pro bono referral - whether referral in interests of justice - need to conserve limits resources provided by members of the Bar - UCPR r 7.36 - application refused PRACTICE - trial by jury - application for appeal to be heard by jury - Supreme Court Act 1970 (NSW), s 85 a code - Court of Appeal not a Division to which s 85 applies - whether determination by jury required in the interests of justice - trial by jury of an appeal antithetical to the interests of justice - application refused

APPEALS - notice of contention - whether respondent permitted to raise defences not run at trial - Council not permitted to run defences of causation or change of position - Council permitted to run defence of good consideration - whether question of law which was not fully argued, not determined by primary judge and not necessary to decide should be decided LOCAL GOVERNMENT - power to fix fee for services - whether Council obliged to comply with Chapter 15 Part 10 of Local Government Act 1993 (NSW) when entering into contract for holding of motor racing events - whether general power to contract - Mount Panorama Motor Racing Act 1989 (NSW) - Council obliged to comply with Local Government Act RESTITUTION - recovery of money paid under mistake - defence of good consideration - appellant not entitled to recover payments made having received the consideration for which it had bargained - Ovideo Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6; V ConvR 54-713, followed STATUTORY CONSTRUCTION - multiple sources of power - where some sources of power expressly qualified - Anthony Hordern principle - relevance of belief of Council officers - relevance of text and structure of Act

PROCEDURE – notice to produce – application to set aside notice to produce – where notice imposes unreasonable time for production – abuse of process – held, notice to produce set aside; PROCEDURE – filing of amended originating process and cross-claim – where hearing set down for following week – whether issues raised in amended process and cross-claim to be determined at hearing – desirability of resolution of issues prior to annual general meeting – held, leave to file amended process and cross-claim given.

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – presumption of insolvency – application for leave to oppose winding up application – failure to lodge evidence to support opposition – held, winding up order made.

CORPORATIONS – membership, rights and remedies – shareholders’ rights to distribution out of assets of company on winding up – memorandum and articles of association – whether rights to distribution of surplus differ as between different classes of shares – held, all classes of shares entitled to equal share in surplus.

APPEAL – appeal from Local Court to Supreme Court – motor vehicle accident – hire vehicle - rental company claiming the defendant drove vehicle whilst in excess of prescribed alcohol limit – defendant’s plea of guilty to offence of Drive Under Influence – whether admitted into evidence as admission – unchallenged explanation for the plea – particulars and pleadings – matter confined to its own facts and circumstances – not appropriate case for a principle of wider application APPEAL – costs – defendant’s application for indemnity costs

PROCEDURE – civil – confiscation of criminal proceeds – objection to consent orders made by another party – whether party can object before consent orders are made – whether other party is a person “whose interest in property will be subject to” the order – appropriate steps for Court to take - whether consent orders should be made without hearing from the other party as to their interest STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – interaction of ss 23, 24, 25 with making of consent orders under s 62

CRIMINAL LAW – parole – decision of State Parole Authority to refuse parole – whether decision made on basis of false, misleading or irrelevant information – no question of principle – application dismissed

ADMINISTRATIVE APPEAL – adult persons residing with authorised carer must hold a working with children check clearance – plaintiff’s wife is carer for grandson – plaintiff disqualified from obtaining clearance from the Office of the Guardian due to convictions in 1968 and 1970 – applied to NCAT for enabling order and clearance – assessment of risk – application refused based on finding that event subject of charge laid in 2000 for which he was acquitted happened. JUDICIAL REVIEW – appeal on a question of law – procedural fairness – finding that applicant committed offence for which he was acquitted – clear notice required – statutory requirement to consider information provided by applicant in relation to application for review – failure to consider applicant’s explanation of incident – review of fact finding by NCAT – standard to be applied – whether findings illogical or had no evidentiary support . HELD: NCAT decision set aside – matter to be re-heard before NCAT

APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant re-sentenced APPEAL - severity of sentence - victim’s underlying heart condition not a mitigating circumstance - R v Matthews [2013] NSWSC 659 - LAL v R; RPN v R [2007] NSWSC 445 - R v Todd Munter [2009] NSWSC 158 - objective criminality of the act causing death - ground rejected - Criminal Appeal Act 1912, s 6(3) - meaning of “some other sentence is warranted in law” - obligation of Court of Criminal Appeal re-sentencing after error found - relevance sentence imposed at first instance - Kentwell v The Queen [2014] HCA 37 - applicant re-sentenced

CRIMINAL LAW - appeal - appeal against severity of sentence - ongoing supply of amphetamine - firearms offence related to possession of taser - whether the objective criminality of the applicant was approximately equivalent to that of his co-offender – whether sentence was manifestly excessive – applicable standard of proof in determining the applicant’s (lack of) remorse – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeal against sentence – aggravated sexual assault – if incongruity between aggregate sentence and indicated sentence – whether sentence manifestly excessive

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) – false or misleading representations – unconscionable conduct – accessorial liability – whether appellant involved in a contravention – statements made by appellant’s husband – whether appellant knew representations made and of facts which made them false or misleading or unconscionable – appellant lacked requisite knowledge – appellant not involved in a contravention

CONTRACT – relief – rectification – where the appellant leased equipment to the respondent pursuant to lease agreements – whether there was sufficient evidence of the parties’ actual common intention to order rectification – whether the parties’ intended to charge interest on a flat or reducible basis – whether the parties’ intended that leases achieve the effect of charging GST correctly – whether the parties’ intended that the payment of bank fees was required

PROCEDURE – application to vacate hearing – balance of prejudice to parties of granting adjournment – where defendants’ case entirely unprepared – whether defendants authors of own prejudice – reasons explaining unpreparedness.