Cases and authorities

EVIDENCE - relevance - tendency

PRACTICE AND PROCEDURE - notice to produce - expert's reports - draft expert reports and communications between the expert and the party retaining them and their solicitors - application to set aside notice to produce EVIDENCE - client legal privilege - privileged material - whether there is a waiver of client legal privilege for draft expert reports and communications between the expert and the party retaining the expert by the party seeking to rely on the final expert report in the proceedings

CORPORATIONS - winding up - whether trial judge erred in deciding not to exercise power conferred by s 562A(4) of the Corporations Act 2001 (Cth) - whether trial judge's exercise of discretion vitiated by material error of fact - whether determination was unreasonable or plainly unjust - whether error in quantification of amount received by insurers for purpose of determining relevant amount had discretion been exercised in favour of insured.

TORTS - personal injury - employee injured at work - whether the primary judge erred in determining the quantum of the employee's entitlements under employer's accident insurance policy - whether the employee was rendered totally disabled within the meaning of the policy - whether the employee's settlement of workers compensation and common law claims against the employer affected his entitlements under the policy PRACTICE - respondent sought to raise an argument not pleaded at trial in a notice of contention - leave to file the notice of contention refused where appellant would be prejudiced and grant of leave would be futile

CRIMINAL LAW – bail – release application – supply of prohibited drug – ex tempore judgment – s 74 of the Bail Act 2013 (NSW) – joint position of the parties with regard to s 74 – risk that the applicant will fail to appear – strong Crown case – bail refused

CORPORATIONS - managed investments - schemes of arrangement and compromise - responsible entity - application for judicial advice - second hearing - relevant considerations

CORPORATIONS - schemes of arrangement or compromise - convening of a scheme meeting under s 411 Corporations Act - proposal of cancellation of shares for a company to become a wholly owned subsidiary - Court exercising supervisory jurisdiction - compliance with statutory and procedural requirements in respect of convening a meeting - explanatory statement distributed to shareholders

EVIDENCE - admissibility - hearsay evidence - exceptions - maker available - where maker no longer has recollection of event but has provided an earlier statement EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence - application to exclude evidence where prejudice outweighs probative value

CRIMINAL LAW - sentence - murder - jury verdict - extended joint criminal enterprise - no issue of principle - parity - sentence imposed

BAIL - applicant awaiting re-trial following successful appeal to Court of Criminal Appeal - where applicant effectively in pre-trial custody since 15 November 2012 - where new date for trial unlikely before February 2015 - whether unacceptable risks identified - whether identified risks capable of mitigation by imposition of appropriate conditions

CORPORATIONS - voluntary administration - deed of company arrangement - application by deed administrators for leave to transfer shares in company under Corporations Act 2001 (Cth) s 444GA - whether transfer of shares would unfairly prejudice the interests of members of the company - whether shareholders have any residual equity in company.

CORPORATIONS - winding up - conduct and incidents of winding up - voidable transactions - preferences - time to apply - extension of time

CRIMINAL LAW - appeal - severity - plea of guilty - sexual offences - applicant sentenced pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) - whether sentencing judge erred when considering the effect of the applicant's "acquired brain injury" - whether the aggregate sentence was manifestly excessive - whether sentencing judge failed properly to consider special circumstances - no error found - leave to appeal granted - appeal dismissed

CRIMINAL LAW - Appeal - Conspiracy to defraud the Commonwealth by participation in tax evasion scheme - Conspiracy extending over more than five years - Loss to the revenue in excess of $1 million - Where applicants married and were separated following the imposition of custodial sentences - Where sentencing judge found that the effect of sentences upon the mother of one of the applicants was not exceptional - Whether sentencing judge erred in so finding - Whether sentences imposed were manifestly excessive - Necessity to have regard to seriousness of the offending - No error on the part of the sentencing judge - Sentences not manifestly excessive

COSTS - unsuccessful application to set aside default judgment - plaintiff seeking indemnity costs - where court satisfied that the proposed defence was not raised in good faith

PRACTICE AND PROCEDURE - Expert evidence - Proof of matters relied upon by expert

EQUITY - Equitable remedies - Injunctions - Interlocutory injunctions - Whether an interlocutory injunction should be granted pending outcome of further proceedings - Whether defendant is entitled to set aside $1.5 million of the profits of sale of land - Serious question on determination of enforcement of joint venture agreement to be tried in further proceedings - Serious question to be tried on amount of net profits and percent of profit share owed to defendant - Balance of convenience favoured granting of interlocutory injunction.

ADMINISTRATIVE LAW - application for direction pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW)

ADMINISTRATIVE LAW - civil - decision of Workers Compensation Commission - appeal decision of Medical Appeal Panel -procedure of Medical Appeal Panel - whether the Panel erred in failing to carry out a hearing de novo - Panel's consideration of 'fresh evidence' - whether the Panel erred in giving insufficient reasons - whether the Panel's statement of reasons complies with its statutory obligation

PROCEDURE - application for discovery - no issue of principle- relevance to a fact in issue - reg 21.2 of the Uniform Civil Procedure Rules 2005 (NSW)- s 56 of the Civil Procedure Act 2005 (NSW)

APPLICATION - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of supplying a large commercial quantity of a prohibited drug - guilty plea - Court of Criminal Appeal did not give excessive weight to standard non-parole period - application refused.

CRIMINAL LAW - sentencing - murder

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict

MORTGAGES - whether loan and mortgage transaction procured by fraud - whether signatures on loan and mortgage documentation were forged CONTRACT - Contracts Review Act 1980 (NSW) - whether loan contract and mortgage unjust due to plaintiffs' ages, economic circumstances, educational backgrounds and abilities to understand English

MORTGAGES - defence of mortgagor - Yerkey v Jones - unavailable where wife obtained financial benefit from guarantees CONTRACT - operation of Contracts Review Act 1980 (NSW), s 7 - whether implied warranty of fitness for purpose under Australian Securities and Investments Commission Act 2001 (Cth), s 12ED TORT - negligence - whether Bank owes duty of care to borrower MISLEADING OR DECEPTIVE CONDUCT - whether plaintiff's conduct in contravention of Australian Securities and Investments Commission Act 2001 (Cth), s 12DA INTEREST - whether order should be made for post-judgment interest

COSTS - failure by mortgagors to sign confidentiality document regarding certain discovered documents - failure by mortgagors to decide if they wished to apply to adduce expert evidence - wasted directions hearings

COSTS - Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) - unsuccessful appeal by prosecutor - whether Court has power to award costs - Supreme Court Act 1970 (NSW) s 23 - inherent or implied powers.

BUILDING AND CONSTRUCTION - Adjudication determinations - application for declaration that adjudicator's determination is void - whether adjudicator failed to comply with statutory obligation imposed by s 21(3) of the Building and Construction Industry Security of Payments Act 1999 (NSW) - whether determination void where as at the date by which determination was to be made not all matters in dispute had been decided PROCEDURE - costs - whether to grant indemnity costs where argument of contestable point of law and no relevant delinquency

APPLICATION - Application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offences of supplying a prohibited drug and of supplying a large commercial quantity of a prohibited drug - guilty plea - Court of Criminal Appeal did not give engage in a two stage process in sentence nor did it give the standard non-parole period determinative significance - application refused.

APPLICATION - Application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of supplying a large commercial quantity of a prohibited drug and supplying a trafficable quantity of a prohibited drug - conviction after trial - Court of Criminal Appeal did not give the standard non-parole period determinative significance - application refused.

Application - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether sentence infected by Muldrock error - offence of murder - conviction after trial - successful appeal by applicant to Court of Criminal Appeal, as a result of which sentence reduced - no Muldrock error in Court of Criminal Appeal re-sentencing process - application refused.

APPLICATION - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of murder and maliciously inflicting grievous bodily harm - applicant convicted after trial - sentence reduced after successful appeal to Court of Criminal Appeal - Court of Criminal Appeal do not engage in two stage process nor give the standard non-parole period determinative significance - application refused.

EQUITY - Priority and notice - Competition between equitable interests in land - Whether failure to lodge caveat results in loss of priority ESTOPPEL - Estoppel by deed EVIDENCE - Alleged forged signature - Onus of proof - Role of expert opinion as to handwriting - Proof of handwriting generally

CONTRACT - construction - where trustee and relevant company subject to deed of company arrangement entered into trust deeds in respect of issuing of secured and unsecured notes - where majority secured creditor provided directions to trustee after company entered into voluntary administration - where directions were made in respect of voting for variations to deed of company arrangement and the release of trustee's charge over assets of company - whether trustee was obliged to comply with relevant directions - whether trustee was justified in not complying with directions under Corporations Act 2001 (Cth) s 283HA - whether trustee is relieved from liability from having proceeded on such a basis under Trustees Act 1925 (NSW) s 85 - whether administration of company is an 'enforcement' under relevant clause - whether majority secured creditor is entitled to vote in meeting of creditors. CORPORATIONS - management and administration - application for appointment of a receiver - whether appointment should be made under Supreme Court Act 1970 (NSW) s 67 or Corporations Act s 283HB - where there exist a deadlock preventing sale of company's assets - where company's financial position is deteriorating - whether relevant factors for appointment of receiver have been satisfied - whether current deed administrator should be appointed as receiver - whether appointment of receiver entitles trustee to release relevant charge - whether relevant parties are entitled to exercise an equitable lien over assets of company. CORPORATIONS - voluntary administration - deed of company arrangement - orders sought for repayment to trustee of monies wrongly paid by deed administrator to majority secured creditor under Corporations Act s 447E - whether deed of company arrangement authorised payment of monies to creditor. EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - where trustee had failed to appoint controller in relevant decision period - where trustee had failed to appoint controller after relevant decision period - where trustee failed to comply with written directions of majority secured creditor - whether such conduct amounted to breach of trust deed or equitable duties - whether defences of waiver and acquiescence, estoppel, delay and laches can be established - whether trustee had acted honestly or reasonably in failing to appoint a controller during the decision period - where trustee had notice of appointment of deed administrators - whether trustee should be relieved from liability under Trustee Act s 85 - whether secured majority creditor suffered damage or loss arising from trustee's failure to appoint a controller.

COSTS - consent order for payment of costs on a trustee basis - directions as to meaning and effect of order

CRIMINAL LAW - summary jurisdiction - offences under Road Transport (General) Act 2005 - offence by company as an operator - offence by company director in respect of offence by operator - breach of load restraint requirements - both defendants plead guilty CRIMINAL LAW - sentencing - Road Transport (General) Act 2005 - severe risk breach - statutory requirements on sentencing - appreciable risk of harm to public safety - serious risk of harm to road infrastructure - serious risk of traffic congestion - aggravating factors - seriousness of loss caused by offence - mitigating factors - lack of relevant previous convictions - penalty

CRIMINAL LAW - appeal and new trial - appeal against conviction - appellant pleaded guilty - whether miscarriage of justice in circumstances where guilty plea made under apparent misunderstanding by appellant as to basis on which clearance permitted under exception for routine agricultural management activities exception CRIMINAL LAW - appeal and new trial - admission of new evidence - whether evidence "fresh" - whether evidence would have lead to acquittal at first instance CRIMINAL LAW - offences under the Native Vegetation Act 2003 - clearing native vegetation otherwise than in accordance with a development consent or a property vegetation plan - appeal on grounds that clearing was permitted because native vegetation was "regrowth" within meaning of section 9 of the Act or otherwise permitted under exceptions for routine agricultural management activities within meaning of section 11 of the Act CRIMINAL LAW - appeal against sentence - whether error in exercise of sentencing discretion

CRIMINAL LAW - appeal and new trial - appeal against conviction - appellant pleaded guilty - whether miscarriage of justice in circumstances where guilty plea related only to clearing in limited area - where appellant contends that prosecution for part or all of clearing may have been statute barred CRIMINAL LAW - appeal and new trial - admission of new evidence - whether evidence "fresh" - whether denial of procedural fairness arising from manner in which response to notices for production of documents was made CRIMINAL LAW - offence under the Native Vegetation Act 2003 - clearing native vegetation otherwise than in accordance with a development consent or a property vegetation plan - appeal on grounds that prosecution failed to establish that cleared vegetation was not "regrowth" within meaning of section 9 of the Act or and/or had failed to prove matters such as the number and species of trees cleared - whether prosecutor had established presence of endangered ecological community CRIMINAL LAW - offence under the Native Vegetation Act 2003 - whether clearing permitted under exceptions for routine agricultural management activities within meaning of section 11 of the Act CRIMINAL LAW - appeal against sentence - whether error in exercise of sentencing discretion

CRIMINAL LAW - use offensive weapon to intimidate in company - fire firearm in a public place - possess a prohibited firearm - sentence - offender assaulted security guard at retail store and threatened him with a pistol - offender fires pistol twice in the direction of a group of persons - purposes of sentencing - whether evidence capable of establishing that gun was wracked EVIDENCE - application to use evidence not before sentencing judge - evidence available but not used - need to show miscarriage of justice

PRACTICE AND PROCEDURE - appeal - application to extend time - decision of Administrative Decisions Tribunal - notice of intention to appeal filed out of time - summons seeking leave to appeal filed shortly out of time - notice of appeal not served until a month after filing - no explanation of delay - whether prejudice to respondent from delay - whether applicant has a fairly arguable case - Uniform Civil Procedure Rules 2005, r 51.9

ADMINISTRATIVE LAW - judicial review of specialist medical body - alleged error in identifying injury to be assessed - alleged failure to consider request for oral hearing - whether procedural unfairness in finding as to nature of injury WORKERS COMPENSATION - determination of claim - medical examination - appeal - whether claim for frank injury or injury resulting from gradual process - whether medical Appeal Panel misapprehended nature and extent of injury alleged - whether oral hearing should have been convened - whether reasons for decision inadequate

EVIDENCE - Expert opinion - Evidence of likely reaction of union members

CORPORATIONS - members rights and remedies - application for leave to bring proceedings under s 236 - whether it is probable that the company will not itself bring the proceedings - held, it is - whether there is a serious question to be tried

CORPORATIONS - voluntary administration - creditor's meeting - extension of convening period

ADMINISTRATIVE LAW - Racing Appeals Tribunal - Supreme Court's supervisory jurisdiction - Supreme Court Act 1970 (NSW) s 69 - error of law on the face of the record - jurisdictional error - order made under Evidence Act 1995 (NSW) s 136 regarding submissions and material before Tribunal ADMINISTRATIVE LAW - Racing Appeals Tribunal - successful overturning of adverse disciplinary finding - whether costs "follow the event" - application for costs by applicant rejected by Tribunal - just and "reasonable expectation" - Latoudis v Casey [1990] HCA 59; 170 CLR 534 - natural justice - right to oral hearing on costs - Wednesbury unreasonableness - reasonableness review.

CONFLICT OF LAWS - Jurisdiction - Cross-vesting - Transfer of proceedings

ADMINISTRATIVE LAW - prisoner involved in litigation - summons by prisoner seeking various orders against Commissioner of Corrective Services relating to his conditions of custody

PROCEDURE - strike out - abuse of process

PARTICULARS - request for further and better particulars of statement of claim - whether proper requests or matters for evidence

COSTS - discontinuance - application for leave to discontinue proceedings with no order as to costs - consideration of factors relevant to exercise of costs discretion