Cases and authorities

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act - future economic loss - awarded by way of 'buffer' - whether damages for future economic loss of earnings were excessive - whether CARS Assessor failed to give adequate reasons - whether CARS Assessor complied with s 126 of the Motor Accidents Compensation Act 1999 (NSW)

PRACTICE AND PROCEDURE - whether to grant leave to file further amended cross claim - time already expired - delay in seeking leave to file further amended cross claim

PRACTICE AND PROCEDURE - Application for stay of execution of writs of possession - Where applicant alleged that lender had known of, and participated in, a fraud - whether evidence sufficient to establish such knowing participation - whether delay in bringing application adequately explained - application for stay dismissed PRACTICE AND PROCEDURE - Application for stay of execution of writs of possession - Evidence necessary to establish arguable case - Whether pleadings alone establish arguable case

TRADE PRACTICES - misleading and deceptive conduct - Beijing-based plaintiff seeks to invest in Korean restaurant in Sydney to assist the grant of a business migration visa to Australia - proposal for partnership in the acquisition of the restaurant with a Sydney-based partner- plaintiff has judgment against Sydney-based partner - remaining defendant an intermediary - alleged misrepresentation by intermediary in restaurant as to the quantum of funds the Sydney-based partner proposed to invest in the restaurant - whether defendant engaged in the conduct alleged - whether the conduct was misleading and deceptive - whether the plaintiff relied upon any representations made - whether any loss suffered as a result of misleading and deceptive conduct. EQUITY - fiduciary duty - whether intermediary undertook to act as the representative in Australia of the Beijing-cased plaintiff - whether fiduciary duty owed to plaintiff - whether the intermediary breached her fiduciary duty to the plaintiff.

APPEAL - application to amend notice of appeal - extension of time - significance of unexplained delay BUILDING AND ENGINEERING CONTRACTS - "turnkey" contract - descriptive label unhelpful in determining questions of construction - "global claim" for delay and disruption - applicable principles CONTRACTS - construction and interpretation - commercial contract - role of context and surrounding circumstances and purpose - role of "ambiguity" and "plain meaning" - significance of Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 88 ALJR 447 at [35] - relevance of grammatical errors - relevance of punctuation - incorporation by reference - contractual rectification PRACTICE AND PROCEDURE - reference - adoption of referees' report - discretionary decision of primary judge to adopt or reject report - applicable principles on appeal from - extent of obligation to give reasons

LIMITATION OF ACTIONS - equitable claims - claim brought by company in liquidation against its directors for breaches of equitable duties in transferring away company’s assets and business undertaking - six year limitation period under s 1317K of Corporations Act (Cth) applying to claim for contravention of equivalent statutory duties - principles by reference to which equity applies statutory limitation period by analogy - whether does so as part of the law of laches so that if delay during limitation period would not constitute laches equity would not apply statute by analogy or by inquiring if there are special circumstances such as concealed fraud that would make it unconscionable for the defendant to rely on the statute

COSTS - departing from the general rule - Uniform Civil Procedure Rules 2005, r 42.1 - conduct of parties - misconduct - adverse credibility findings DAMAGES - measure of damages in actions for tort - assessment of future possibilities or probabilities - evaluative assessment DAMAGES - measure of damages in actions for tort - deductibility of collateral benefits - where benefit derives from private arrangement with a third party APPEALS - interference with discretion of court below - need to establish error APPEALS - general principles - interference with judge's findings of fact - functions of appellate court - where findings based on credibility of witnesses INTEREST - pre-judgment interest - rate of interest - principles guiding award of interest - Supreme Court Practice Note 16

PRACTICE AND PROCEDURE - summons for leave to appeal from interlocutory orders filed out of time - application to dismiss summons - whether in interests of justice to extend time - proposed appeals have no real prospects of success - applications for leave to appeal dismissed

PRACTICE AND PROCEDURE - representative orders - Council claims developer breached development consents in its construction of a commercial and residential building - Council seeks orders that the developer conduct rectification works that would require developer access to strata lots owned and occupied by parties not joined to the proceedings - lot owners and occupiers are necessary parties to the Council's appeal - whether the lot owners and occupiers should be joined by way of representative orders - whether the Court has jurisdiction to make representative orders - form of representative orders

CONTRACTS - general contractual principles - construction and interpretation of contracts - whether government charges imposed under the national carbon pricing scheme on methane emissions were charges "attributable to" coal sold by the respondent and purchased by the appellant

COSTS - Claim for provision from mother's estate - Calderbank letter - No issue of principle

SENTENCING - murder - separate proceedings arising out of the same set of facts - application for separate sentencing hearing - whether in the interests of justice for the proceedings to be heard concurrently

PROCEDURE - civil - interlocutory issues - application to reopen - whether party at fault by failing to address issues in submissions PROCEDURE - civil - judgments and orders - stay pending appeal COSTS - agreements - construction - whether contractual provisions provide for costs on indemnity basis COSTS - exception to the general rule that costs follow the event - multiple issues - whether defences raised dominant or severable

LANDLORD AND TENANT - residential tenancy - proceedings commenced in Consumer Trader and Tenancy Tribunal - proceedings transferred to Supreme Court by Tribunal member - whether Supreme Court has jurisdiction - claim by tenant for unconscionable conduct contrary to Australian Consumer Law - whether Tribunal has jurisdiction for claim for unconscionable conduct

EVIDENCE - admissibility - relevance - whether material not appearing on the record relevant for the purposes of judicial review

PROCEDURE - civil - UCPR r 42.21 - plaintiff's failure to pay security for costs instalment - application for order that plaintiff's claim for relief be dismissed - factors to be considered by the Court in determining whether to dismiss proceedings

COSTS - application by third party to recover its costs of complying with subpoena issued by plaintiff - UCPR r 33.11 - whether costs incurred reasonable

DEFAMATION - application by defendant to consolidate proceedings - whether the proceedings meet the threshold requirement of r 28.5 - whether the two proceedings should be tried at the same time - whether the plaintiffs would be unfairly prejudiced if the matter was heard at the same time - whether the proceedings should 'travel together' for the purpose of case management and interlocutory issues - whether the two proceedings should be heard consecutively by the same judge

DEFAMATION - pleading and particulars - application for order for further and better particulars of claim for aggravated damages

CORPORATIONS - deregistration - reinstatement - to place company into liquidation in order to avoid consequence of directors' penalty notice

COSTS - costs to follow the event - plaintiff to pay defendants' costs; PROCEDURE - judgments and orders - final orders

COSTS - costs awarded on the ordinary basis - finding of false and misleading conduct within the meaning of s 118 Motor Accidents Compensation Act 1999 in the principal judgment - exercise of discretion as to costs - costs awarded in respect of both trials at a reduced rate INTEREST - interest awarded at a reduced rate - interest rate previously prescribed in settlement agreement - exercise of discretion to award interest at half the rate provided for in the settlement agreement

TORTS - Negligence - Causation - two immediate causes of injury - additional force on plaintiff's shoulder due to her working overhead which ought to have been mitigated by provision of a ladder by employer -additional force required to be exerted to obtain a connection between aircraft and ground power unit due to third defendant's incorrect orientation of bulge -presumptive inference of causation from sequence of events open - fact that plaintiff had inserted incorrectly configured connectors in the past or the fact that other workers would not have been injured when inserting connectors not determinative - No contributory negligence - Second defendant discharged duty to plaintiff by engaging a reputable and well-qualified contractor (the third defendant) to perform work and maintenance on airport ground power units CIVIL PROCEDURE - Limitations - plaintiff's cause of action not time-barred - Whether the plaintiff knew or ought to have known that the injury was caused by the fault of the third defendant - Plaintiff's solicitor's constructive knowledge not to be imputed to plaintiff- Plaintiff's engagement of reputable solicitors sufficient to show that plaintiff had not failed to take reasonable steps - Plaintiff's lack of knowledge that third defendant was at fault not a result of any failure on her part to take reasonable steps

EQUITY - contract - terms said to be partly written, partly oral and partly implied - where parties entered put and call options in relation to adjacent lots separated by common property - where agreement to create penetrations between lots - nature of that agreement and relationship to options - where purchaser alleges oral representations - where penetrations completed without relevant consents and approvals - where purchaser subsequently occupied property pursuant to licences and traded for a significant period - where purchaser failed to complete contract - consideration of principle in Flight v Booth - whether vendor entitled to retain deposit and whether entitled to damages for deficiency on resale and loss of rent

COSTS - defamation proceedings - award of pre-judgment interest at 3% per annum - defendant unreasonably failed to make a settlement offer - costs of and incidental to the proceedings to be assessed on an indemnity basis

COSTS - whether plaintiff entitled to interest of unpaid portion of judgment sum under s 101(3) Civil Procedure Act - whether defendant entitled to costs under s 98(4)(c) Civil Procedure Act

CRIMINAL LAW - possession of child pornography - Crimes Act 1900, s 91H(3) - defence under Crimes Act 1900, s 91H(4)(c) - meaning of "genuine scientific purpose" - whether scientific method necessary - reasonableness of conduct CRIMINAL LAW - accessing child pornography using a carriage service - Criminal Code 1995 (Cth), s 474.19(1)(a)(i) CRIMINAL LAW - judge alone trial - Criminal Procedure Act 1986, s 133 - appeal against conviction - Criminal Appeal Act 1912, s 6(1) CRIMINAL LAW - sentence - irrelevant considerations - Crimes (Sentencing Procedure) Act 1999, s 24A - registration under the Child Protection (Offenders Registration) Act 2000 - application to federal offenders - Judiciary Act 1903, ss 68(1), 79(1) CRIMINAL LAW - sentence - adverse social consequences as extra-curial punishment - irrelevant consideration in child pornography offences CRIMINAL LAW - sentence - interpretation of sentencing provisions - Crimes Act 1914 (Cth), s 19B - discharge of offenders without proceeding to conviction - nature of the enquiry CRIMINAL LAW - sentence - purpose of sentence - deterrence - child pornography offences

CRIMINAL LAW - appeal against conviction - whether defence counsel implicitly relied upon s 137 Evidence Act at trial - whether trial judge obliged to consider application of s 137 in the absence of reliance on that section - whether leave required pursuant to r 4 Criminal Appeal Rules where objection to admission of evidence is taken on one basis at trial and on a different basis on appeal - leave under r 4 refused - whether trial judge failed to advise jury of limitations on use of the evidence and to properly direct jury on motive to lie

CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - murder - above mid range of objective seriousness - determining effect of standard non-parole period absent error - whether lesser sentence warranted at law - relevance of post-offence conduct

PRACTICE and PROCEDURE - application for extension of time - summons filed three days late - no prejudice alleged by respondent PRACTICE and PROCEDURE - application for leave to appeal - default judgment entered without notice - application to set aside judgment dismissed because filed out of time - whether arguable defence - issue as to construction of rule prohibiting variation of order more than 14 days after entry where notice of judgment given nine days after entry - leave subject to condition as to proposed defence

PRACTICE AND PROCEDURE - application for leave to appeal - whether primary judge applied statute correctly - whether reasons for rejecting explanation for delay in making claim adequate - whether inconsistent decisions of court of appeal TORTS - motor accident claim - failure to make claim within six month period - whether full and satisfactory explanation given for delay - whether relevant delay from date of accident to making of claim or to date of court hearing - Motor Accidents Compensation Act 1999 (NSW), ss 66, 73

JURISDICTION - service outside jurisdiction - whether jurisdiction of the Industrial Court permits service of its originating process outside Australia - substituted service unavailable where personal service not permitted - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1) PRACTICE AND PROCEDURE - service of originating process - proceedings commenced in the Industrial Court - order for substituted service made to defendant outside Australia - whether originating process from Industrial Court can be served outside Australia - whether Industrial Court has equivalent powers to Supreme Court in providing for service of originating process outside Australia - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1)

PROCEDURE - striking out of paragraphs in defence - whether the matter asserted in those paragraphs had been conceded in earlier criminal proceedings - whether there had been a trial on the facts in respect of the matter - whether it would be an abuse of process to persist in asserting the matter

JURISDICTION - civil - immunity of foreign state - submission to jurisdiction - accession by People's Republic of China to Torture Convention - whether conferral of universal civil jurisdiction by Art 14 - whether submission for purposes of Foreign States Immunities Act 1985 (Cth), s 10. PUBLIC INTERNATIONAL LAW - effect of entry into treaty - submission to jurisdiction of domestic courts of other State Party - effect of accession to the Torture Convention - construction of Art 14 - whether Art 14 provides for universal civil jurisdiction - application of Vienna Convention, Arts 31 and 32

LEGAL PRACTITIONERS - removal from Roll of Local Lawyers - whether fit and proper person to remain on the Roll - whether person of good fame and character - attempt to cheat in Ethics examination - dishonest explanation to Bar Association - breaches of obligations of candour to Bar Association - nature and quality of conduct established present unfitness to practise

INSURANCE - home warranty insurance - proceedings for recovery from directors of building company pursuant to deeds of indemnity - no question of principle

WILLS AND ESTATES - charitable gift to unincorporated association - lapse - association subsequently becomes incorporated - incorporated body subsequently becomes a branch of a national incorporated body and is then wound-up - objects and activities remain the same throughout - whether organisation the subject of gift ceased to exist - gift over if organisation has ceased to exist - charitable gift does not lapse EQUITY - trusts - charitable trusts - gift to unincorporated association - lapse - association subsequently becomes incorporated - incorporated body subsequently becomes a branch of a national incorporated body and is then wound-up - objects and activities remain the same throughout - whether organisation the subject of gift ceased to exist - gift over if organisation has ceased to exist - charitable gift does not lapse

COSTS - party ultimately successful fails on one issue - whether costs should be apportioned

CRIMINAL LAW – bail

CRIMINAL LAW - bail

CRIMINAL LAW - bail

CRIMINAL LAW - bail

INTEREST ON COSTS - sufficiency of evidence - effect of delay in applying for interest on costs where family provision orders made in favour of parties liable to pay costs without regard to liability to pay interest on costs - where costs incurred but not paid

EQUITY - trusts and trustees - application for judicial advice - defence of claim and prosecution of cross claim - trustee responsible entity of numerous substantial commercial managed investment schemes - trustee professional manager of such schemes - whether trustee obliged to apply for judicial advice before defending claim or commencing cross claim - proceedings consequential to calling of meetings of members of listed public companies - proposed amendment of constitutions of companies - objective to achieve divesting of cross shareholding between two public companies - release value to shareholders - counsel providing advice to trustee given limited instructions - trustee authorised to conduct litigation for a short period to give counsel an opportunity to provide a considered opinion on whether trustee's prospects of success are sufficient to warrant continuation of litigation.

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

BUILDING AND CONSTRUCTION - building contracts - adjudication determinations - whether plaintiff can appropriate payment made in respect of an earlier adjudication determination against a later payment claim PROCEDURE - interlocutory injunctive relief - whether as a matter of discretion relief should be granted PROCEDURE - costs - general rule costs follow the event

DEFAMATION - multiple proceedings commenced by same plaintiff against different publishers of same allegedly defamatory matter - where purpose of duplication of proceedings to attract application of statutory cap on damages in each set of proceedings - whether an abuse of process - whether duplicate proceedings should be consolidated into one

GUARDIANSHIP - protected person - financial management - application for revocation of management order - whether plaintiff capable of managing financial affairs

SUCCESSION - family provision - application under Succession Act 2006, s 59 - deceased divorced during his lifetime leaves five children, three sons and two daughters - deceased conducts successful business conglomerate in which some of his sons were involved - deceased leaves the whole of his estate to two sons, with 85 percent to one of them - nothing left to either daughter - lengthy period of estrangement between each daughter and her father arising out of deceased's divorce from their mother - plaintiffs owe minor debts to the estate - whether adequate provision made for the proper maintenance, education and advancement of life of the plaintiffs - whether an order for provision should be made in the plaintiffs' favour, and if so in what form.