Cases and authorities

PROCEDURE - civil - pleadings - amendment - statement of claim - leave to file a proposed further amended statement of claim; application to - cause of action - misleading and deceptive representations - Fair Trading Act 1987 - State interests -engaged in 'carrying on a business'; whether - statutory duties - pleading inadequate, whether - multiple reformulations of pleading - prejudice, whether - additional costs - delay - STATUTORY INTERPRETATION - Fair Trading Act 1987, s 3 - carries on a business

Evidence - Admissibility - Relevance - Admission of evidence will cause undue waste of time - Evidence Act 1995 (NSW), s 135(c)

Evidence - Privilege - Client legal privilege - Issue waiver - Evidence Act 1995 (NSW), s 122(2)

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Nominee ordinarily resident outside the jurisdiction - Best interests of protected person served by appointment of joint managers - Locally resident manager appointed with non-resident. PRACTICE - NSW Trustee and Guardian Act - Appointment of estate manager - Nominee ordinarily resident outside jurisdiction - Best interests of protected person consulted - Locally resident manager and non-resident appointed to act jointly

TORTS - negligence - joint tortfeasors - plaintiff independent contractor suffered an electric shock after coming into contact with an uninsulated high voltage power line while unloading sheep from a trailer - duty of electricity authority to take reasonable care with respect to construction of power lines to achieve appropriate ground clearance having regard to its design, applicable guidelines and the known and expected use of the land - risk of significant harm from contact with power lines - electricity authority did not construct line in accordance with Guidelines or its own design - duty of occupier of property to take reasonable care not to expose entrant to an unreasonable risk of injury - duty extends to considering the possibility that some entrants may be careless for their own safety - occupier ought to have controlled the plaintiff's selection of location to unload away from the area under the power line - CONTRIBUTORY NEGLIGENCE - contributory negligence of plaintiff considerable in selection of location in which to unload - failed to take reasonable care for his own safety- reduction of 40% DAMAGES - joint expert report on past economic loss not accepted due to unproved assumptions - buffer warranted - future economic loss based on plaintiff's need to obtain assistance from others and cost of such assistance -

PRACTICE AND PROCEDURE - appeals - application for leave to appeal from interlocutory decision - whether the primary judge erred in the formulation of an interlocutory regime relating to a property owned by the respondent

PRACTICE - application to vary final judgment - sufficient cause not shown - application dismissed

DEFAMATION – interlocutory steps – application of Practice Note SC CL 4 – whether interrogatories proposed by plaintiff necessary

PROCEDURE - interlocutory issues - plaintiff seeks injunction to restrain defendant, a former employee, from using confidential information and from breaching a restraint in a contract of employment - whether a serious question to be tried - whether the balance of convenience favours the grant of an injunction.

CRIMINAL LAW - Crimes (High Risk Offenders) Act - two victims - multiple offences committed against each victim - offender sentenced to 15 years non-parole with additional term of 8 years - offender serves whole sentence less one month - extended supervision order not opposed - issues on conditions and period of order

PRACTICE AND PROCEDURE - Notice of Motion by Crown to vacate hearing date - fresh evidence ground raised by appellants - need for Crown to make further inquires - effect of delay - hearing date vacated.

PRACTICE AND PROCEDURE - extension of stay pending application for special leave to appeal to High Court - factors relevant in extending stay - whether application for special leave has any prospects of success - whether stay necessary to protect subject matter of litigation - where the balance of convenience lies - undertaking by the applicant to pursue application for special leave expeditiously

APPEAL - leave to appeal - where in proceedings before Industrial Court contract declared unfair and order made varying the contract - whether matter of such public importance that, in the public interest, leave to appeal should be granted. INDUSTRIAL LAW - New South Wales - unfair contracts - particular contract, arrangement or circumstance - unusual circumstances of case - no issue of general importance

TORTS - negligence - duty of care - pure economic loss - respondent Council was consent authority in relation to development application and authority having care and management of sewerage works - appellant sought allocation of sewerage capacity for purpose of obtaining consent to development application - whether Council owed duty of care when implementing earlier decision as to allocation of spare sewerage capacity - whether existence of asserted duty compatible with Council's statutory functions and obligations - whether other features of relationship between parties justified subjecting Council to duty of care - relevance of distinction between policy and operational decisions

APPEAL - Costs - Whether successful party should nevertheless pay a portion of unsuccessful party's costs in light of the conduct of the appeal - Costs of the proceedings in the court below

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where Calderbank offer made - where Calderbank offer ignored - whether failure to engage with Calderbank offer was unreasonable - whether unreasonable for plaintiff to have commenced proceedings without engaging with the defendants' reasoning in letter sent prior to Calderbank offer was made - where defendants failed to engage with further offers

SUPERANNUATION - Insurance - Claim for a total and permanent disablement benefit - Whether plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Whether plaintiff is unlikely ever to be able to engage in any regular remuneration work for which the plaintiff is reasonably fitted by education, training or experience - Trustee and insurer declined the plaintiff's claim on three occasions - Duty on a trustee of a superannuation fund in determining a claim for a total and permanent disablement benefit - Duty on an insurer in determining a claim for a total and permanent disablement benefit - Whether the trustee and insurer unreasonably declined the plaintiff's claim for a total and permanent disablement benefit - Review of decisions made by the trustee and insurer

SUCCESSION – family provision – approval of settlement – where approval sought of party who has not obtained independent advice – whether independent advice is prerequisite for approval – held, it is not

REAL PROPERTY - sale of land - whether contract for sale of land validly terminated - whether notice of termination effective - where notice to complete authorised by special condition of contract - where first defendant failed to complete contract in accordance with notice to complete - where first defendant had not put on any evidence - where first defendant unable to attend hearing - where leave refused to adjourn hearing REAL PROPERTY - writ for possession - where plaintiff sought judgment for possession of property and leave to issue writ for possession - where proceedings heard in absence of first defendant - where choice not to defend proceedings was late and unexplained - application of r 36.8 Uniform Civil Procedure Rules 2005 (NSW) - where the only people in occupation of property are the first defendant and family members of the first defendant - where first defendant was validly served - whether to dispense with requirements in r 36.8

PROCEDURE - Interlocutory issues - judgments and orders - enforcement of orders made 6 December 2013 - trustees for sale appointed to Torrens title property in which plaintiff and defendant have an interest - defendant refuses to grant access to the property to the trustees and their agents - whether order for possession of the property should be granted to the trustees for sale - defendant seeks removal of trustees - whether trustees should be removed

DEFAMATION - defences - defence of contextual truth

COSTS - order that costs be costs in the cause

PRACTICE AND PROCEDURE - application for stay of execution of writs of possession pending an appeal in the Equity Division - whether there is a serious question to be tried - whether the balance of convenience supports the grant of a stay

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers - Appointment - Application for appointment of a protected estate manager - Orders for management of the whole, or part, of a protected estate - Principles governing partial management (and exclusion) orders. PRACTICE - NSW Trustee & Guardian Act - Appointment of estate manager - Orders for management of the whole, or part, of a protected estate - Principles governing partial management (and exclusion) orders .

CORPORATIONS - winding up - statutory demand - application to set aside a creditor's statutory demand under Corporations Act 2001 (Cth) ss 459H and 459J - whether there is a genuine dispute as to the existence or amount of debt - whether an offsetting claim has been established - whether debt claimed was due and payable when demand was served - whether substantial injustice will be caused unless the demand is set aside - whether there is some other reason why the demand should be set aside.

COSTS – costs of successful application to join party solely for purpose of seeking cost order against it

PROCEDURE – separate question – quantification of compensation – where there is a claim for an inquiry or account

PROCEDURE - civil - jurisdiction - transfer of proceedings to District Court of NSW; application for - Civil Procedure Act 2005; s 146(1) - proceedings could properly have been commenced in the District Court, whether - damages would not exceed jurisdictional limit of District Court - related proceedings in District Court - Civil Procedure Act 2005; s146(4)(b)(ii) - other sufficient reason for hearing the proceedings in the Supreme Court, whether - substantial past history in Supreme Court - expedited trial - appeal - original judgment set aside - new trial ordered - complexity of issues and interests - previous evidentiary rulings - balancing exercise - interests of justice - PROCEDURE - civil - pleadings - statement of claim - amendments; application for - delay - prejudice, whether - cause of action sufficiently pleaded, whether - interests of justice - COSTS - costs in the cause

CORPORATIONS - receivers, controllers and managers - where applicants seeks orders and directions in respect of delivery up and adjudication of claims of relevant stock held by first and second respondents as receivers and managers - whether first and second respondents should be ordered to deliver up stock - whether applicants should be appointed as receivers and managers of relevant stock - whether applicants are justified in dealing with and adjudicating claims in respect of stock - whether applicants are justified in imposing a recovery charge in respect of adjudication of claims to stock - whether first respondents entitled to indemnity in respect of costs incurred in previous application.

CRIMINAL LAW – Prasad directions – conspiracy – Crown Case largely documentary – Prasad direction not appropriate.

PROCEDURE - application seeking transfer of District Court Proceedings to Supreme Court - where two sets of proceedings in different courts - where two sets of proceedings deal with same factual and legal issue - where separate proceedings would mean that the same issue would be determined by different judges in different courts - whether transfer of proceedings is likely to delay hearing PROCEDURE - application for consolidation of proceedings - where District Court proceedings on same factual issues transferred to Supreme Court - whether any benefit to reconstituting two sets of proceedings and repleading claims - whether sufficient to hear cases together with evidence in one to be evidence in both PROCEDURE - costs - whether costs should follow the event - where respondent took the risk as to costs in opposing the motion - where warning given that costs would be sought if motion was opposed

DISCOVERY - client legal privilege - proceedings for professional negligence against accountant, solicitors - whether implied waiver of privilege by the nature of the case pleaded

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - whether proposed amendments to particular form of orders as to costs should be made.

PROCEDURE - Supreme court procedure - New South Wales - Jurisdiction and generally - Jurisdiction to determine under s 73 of the Civil Procedure Act 2005 (NSW) whether, and on what terms, proceedings have been settled CONTRACT - General contractual principles - Construction and interpretation of contracts - Agreement to settle litigation - Terms of agreement to settle litigation FAMILY LAW AND CHILD WELFARE - Property and maintenance of parties - General - Maintenance and alteration of property interests - proceedings under s 20(1) of the Property (Relationships) Act 1984 (NSW) - Disagreement between parties as to existence and nature of purported settlement of proceedings

CRIMINAL LAW - remarks on sentence - plea of not guilty to murder - offender found guilty of manslaughter by jury - offender the moving party in fatal assault with weapons - offender motivated by vengeance - offender suffered grossly deprived upbringing - offender on conditional liberty at time of offence and had a lengthy criminal record for violence

PRACTICE AND PROCEDURE - application to dismiss proceedings - in the alternative, application to strike out amended statement of claim - whether amended statement of claim is defective - whether claim of the plaintiff is doomed to failure

EQUITY - whether plaintiff should be declared to be an inventor - whether misuse of confidential information - whether plaintiff made a material contribution to final form of invention - extent to which information sought to be protected can properly be regarded as confidential in nature - whether parties in fiduciary relationship

DEFAMATION - defences - defence of contextual truth - requirement that a contextual imputation be one carried in addition to the defamatory imputations complained of by the plaintiff - whether satisfied in this case - whether matter capable of carrying contextual imputation -appropriateness of striking out contextual imputations at the interlocutory stage

CRIMINAL LAW - sentence - grievous bodily harm with intent - judge alone trial - intention to inflict serious harm formed spontaneously - use of weapon elevates seriousness - objective seriousness slightly below mid-range - substantial criminal record - offender on parole when offence committed - personal deterrence and retribution emphasised - signs of remorse - three year delay in resolution of proceeding - long state of uncertainty - offer to plead guilty rejected by Crown - low prospects of rehabilitation

STATUTORY INTERPRETATION – principles - implied repeal of earlier statute - whether inconsistency between provisions concerning service - Foreign States Immunities Act 1985 (Cth) and Foreign Judgments Act 1991 (Cth) - whether provision was a code - scope of each Act - consideration of pre-existing equivalent state legislation WORDS AND PHRASES – “judgment” - Foreign States Immunities Act 1985 (Cth), s 27 - whether order to register judgment is a judgment JURISDICTION – sovereign immunity - application of immunity - whether application to register foreign judgment is a proceeding - Foreign States Immunities Act 1985 (Cth), s 9 WORDS AND PHRASES – “proceeding” - Foreign States Immunities Act 1985 (Cth), s 9 - whether application to register a foreign judgment is a proceeding JURISDICTION – sovereign immunity - waiver - submission to jurisdiction - exception - whether step in proceeding was for the purpose of asserting immunity - Foreign States Immunities Act 1985 (Cth), s 10 JURISDICTION – sovereign immunity - exceptions – whether proceeding “concerns” a commercial transaction - whether application to register a foreign judgment under Foreign Judgments Act 1991 (Cth) is a proceeding concerning a commercial transaction - Foreign States Immunities Act 1985 (Cth), ss 11(1), (3) STATUTORY INTERPRETATION – principles - consideration of text - consequences of particular interpretation - whether legislature intended provision to have an ambulatory meaning - whether principle of developing meaning of term in enactment with developing circumstances should be applied - role of legislature EVIDENCE – proof - sufficiency - Blatch v Archer (1774) 1 Cowper 63; (1774) 98 ER 969 - urgency of proceedings - lack of findings of fact by trial judge - certificate under Foreign States Immunities Act 1985 (Cth), s 41 - evidence of senior member of government JURISIDICTION – sovereign immunity from execution - exceptions - funds in bank accounts - whether commercial property - whether funds in use - whether in use for substantially commercial purposes PUBLIC INTERNATIONAL LAW – sovereign immunity - nature of sovereign immunity - whether the Foreign States Immunities Act 1985 (Cth) should be construed in light of international developments in the doctrine of sovereign immunity

CRIMINAL LAW - SENTENCING - appeal - agreed facts contained error as to purity affecting one smaller quantity of drugs in one offence - two offences - no error disclosed - no real possibility that error impacted on aggregate sentence imposed, nor relevant indicative sentence - applicant conceded could not have affected non-parole period - error by counsel did not affect result

CRIMINAL LAW - SENTENCING - appeal - onerous conditions of employment not sufficiently considered - express reference - evidence sought to be adduced particularising conditions- no suggestion sentencing judge unaware of conditions - insufficient discount for assistance and plea of guilty - no Ellis factors - no arguable point

CRIMINAL LAW - appeal against inadequacy of sentence - serious children's indictable offence - objective seriousness of offending - protection of community and general deterrence - whether the sentencing judge erred in structuring the non-parole period to ensure total non-parole period would be served in a Juvenile Justice facility

APPEAL - sentence - applicant convicted of break and enter in company and recklessly damage property - application for leave to appeal - assertion of manifest excess based solely upon sentencing statistics - application for leave refused APPEAL - sentence - use of sentencing statistics - where primary submission of manifest excess relied solely upon sentencing statistics - necessity to determine sentence according to principle and not numerical equivalence

PRACTICE - summary dismissal - appellate proceedings commenced by person subject to order under Vexatious Proceedings Act 2008 (NSW) - whether Act applied - whether Act was waived by reason of hearing at first instance - whether Act applied to application for writ of habeas corpus - proceedings dismissed

APPEAL - appellants sought to rely on argument not raised at trial - whether the respondent could have adduced evidence to meet argument had it been raised at trial - leave to raise the argument refused

ASSOCIATIONS AND CLUBS - jurisdiction of the courts - application for short service - plaintiff participant in touch football competition sought to set aside decisions of defendant competition manager - no contractual relationship between plaintiff and defendant - held claim not justiciable - summons dismissed

EQUITY - Property - Breach of Deed of Settlement - Where the District Court made orders in accordance with terms of the Deed of Settlement requiring payment of monies upon the sale of property - Ex parte hearing - Where the Court is satisfied that the defendant has been served - Where funds obtained from the sale have been disbursed by the defendant - Order for damages for breach of contract constituted by the Deed

EQUITY - general principles - equitable charges and liens - whether defendant entitled to constructive trust or equitable charge over plaintiff's property - where defendant assured plaintiff he would not make claim on property - where defendant constructed or substantially constructed residence on property - whether work was done on the basis of an expectation of gaining an interest in the property EQUITY - equitable remedies - accounts and inquiries - who is entitled to proceeds of sale of property which was jointly owned - whether agreement that equitable title be held solely by defendant - where agreement made after property was purchased in joint names - where defendant paid all mortgage repayments and outgoings in relation to property - whether rent and expenses should be apportioned between the parties as co-owners - whether plaintiff entitled to occupation fee for occupation of the property by the defendant - whether there was actual or constructive ouster of the plaintiff - where domestic relationship has broken down - where ouster not in relation to joint residence PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where offer made under Uniform Civil Procedure Rules 2005 (NSW) - whether real element of compromise in offer - where logic of offer follows reasoning of judgment

REAL PROPERTY - application for appointment of trustees for sale - Conveyancing Act 1919 (NSW) s 66G; EQUITY - trusts and trustees - resulting trusts - presumption of advancement - where defendant wife sole registered proprietor of land purchased by plaintiff and defendant as married couple - where proceedings commenced by summons and did not seek declaration that plaintiff had any beneficial interest in property - where related proceedings currently before Family Court of Australia - application dismissed