Cases and authorities

CRIME — murder — constructive murder — joint criminal enterprise to commit the foundational offence of attempted robbery whilst armed with a dangerous weapon — trial by Judge alone — whether the accused withdrew from the joint criminal enterprise — offender found guilty

EVIDENCE – Evidence on commission – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – request from the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye for examination of witnesses

COSTS – where applicant on motion ultimately sought relief already consented to by respondents – whether applicant liable for respondents’ costs of the motion

CIVIL PROCEDURE – notices to produce – before hearing CIVIL PROCEDURE – discovery – classes or categories of documents

PLEADINGS — summary dismissal — whether statement of claim discloses reasonable causes of action — whether causes of action clearly time-barred — whether there has been fraudulent concealment of the causes of action or the identity of the defendant — whether grant of leave to amend would be futile — proceedings summarily dismissed

CONTRACT — share sale agreement construed in earlier judgment, in respect of which the parties had sought declaratory relief and rectification — amount plaintiff is required to pay given that construction — effect of side letter on operation of share sale agreement — different parties to each contract — side letter to be construed harmoniously with share sale agreement — side letter does not alter obligations under share sale agreement. QUANTUM — calculation of amounts for period post-dating expert reports — parties proceeded on a particular basis in the conduct of the litigation and quantification methodology — plaintiff now contends that vendors should have gone about it differently — parties must plead a matter which might take their opponent by surprise — this is one such matter — assessment of damages on available evidence. INTEREST — pre-judgment interest — s 100(1) Civil Procedure Act 2005 (NSW) — principles at [89]-[92] — whether interest to be awarded at contractual rate — whether interest clause applied to debt but not damages — whether interest should be at rate actually earned — whether interest should cease on offer to pay substantial portion of anticipated judgment sum — offer to pay conditional on vendors not using funds —contractual rate appropriate until payment.

PRACTICE AND PROCEDURE – extension of time – judicial review proceedings – proceedings commenced 10 months after decision – alternative proceedings initially commenced in the IRC 20 days after decision – proceedings failed due to jurisdictional issue taken by the State of New South Wales – jurisdictional issue resolved by Court of Appeal against Ms Ashton and contrary to decision of Full Court of Federal Court, but delay entailed – time limits – basis for extension of time established – extension granted

CONTRACTS – construction – whether plaintiff as lender entitled to approval fee set out in loan contract – no issue of principle

CONTEMPT – fitness to plead – primary judge found applicant to have committed contempt – whether real and substantial question of fitness arose before primary judge – significance of proceedings being civil and contempt being civil – significance of appointment of a tutor PROCEDURE – appeals – fresh evidence – obligations in Supreme Court Act 1970 (NSW), s 75A(8) and UCPR, r 51.51 – failure to include transcript of hearings – documents sought to be relied on wrongly dated – importance of attending to obligation of preparing appeal papers

CRIME – appeals – appeal against sentence – whether head sentence was manifestly excessive – whether indicative sentences were manifestly excessive – where one of four indicative sentences manifestly excessive – materiality – whether length of indicative sentence indicates error in aggregate sentence – appeal allowed – applicant re-sentenced. CRIME – appeals – appeal against sentence – parity principle – where co-accused had committed similar offences but facts disclosed different level of involvement – where applicant held senior and extensive role vis-à-vis co-accused – substantial difference in sentence objectively justified.

CIVIL PROCEDURE –application for adjournment of hearing – application refused

CIVIL PROCEDURE — commencement of proceedings — leave to commence action — where plaintiff has been convicted of a serious indictable offence

EQUITY — Fiduciary duties — Fiduciary relationships — Employee and employer — Whether unauthorised profit made in the course of employment — Consideration of whether profit ‘unauthorised’ made by reference to scope of fiduciary duty EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Whether plaintiff company has provided fully informed consented to putative breaches of duty — Principles to be applied EMPLOYMENT AND INDUSTRIAL LAW — Nature of employment relationship — Whether defendant can be characterised as an employee of the plaintiff so as to be entitled to long service leave under the Long Service Leave Act 1955 (NSW) — Multifactorial approach not applied

EVIDENCE – privilege – whether plaintiffs have established their claims of privilege – whether privilege has been waived by reason of the manner in which proceedings have been conducted

PRACTICE AND PROCEDURE — Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — substitution of public liability insurer and workers compensation insurer in circumstances where alleged tortfeasors are respectively in liquidation and deregistered NEGLIGENCE — workplace injury — worker injured at industrial premises when excavator bucket detached from forklift tines — breach of duty conceded by both defendants subject to first defendant’s reliance on insurance policy excluding liability for employees — identification of true employer — whether worker an employee or supplied under labour hire agreement — assessment of contributory negligence NEGLIGENCE — damages — personal injury damages — non-economic loss — past and future economic loss – past and future medical expenses — claim against second defendant limited by Workers Compensation Act 1987 (NSW), s 151G — assessment of damages where uncertainty as to whether plaintiff’s lower back injury caused by subject accident — conflicting medical opinions — where doctors provided with inaccurate medical history by plaintiff that materially impacted upon expert opinions — second defendant estopped from denying lower back condition caused by subject accident due to agreement made pursuant to s 66A of the Workers Compensation Act 1987 (NSW) — apportionment of liability between employer and occupier INSURANCE — amount recoverable from insurer limited to the amount of indemnity payable under the contract of insurance — Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4 and 7 — damages against first defendant reduced by excess payable under the contract of insurance

EVIDENCE ON COMMISSION – application for assistance in obtaining evidence for proceedings in the Nineteenth Circuit Court of Illinois – oral examination – discovery deposition

APPEALS — practice and procedure — appellant unrepresented — consideration of extent of court’s role in relation to unrepresented parties APPEALS — procedural fairness — where primary judge refused to allow cross-examination of lay witness present in court — where no prejudice to witness in allowing cross-examination — denial of procedural fairness CONSUMER LAW — misleading or deceptive conduct — liability of intermediaries — where employee personally made misleading oral statements — where employee personally gave misleading document signed by employee on behalf of employer to representee — employee liable

PRIVATE INTERNATIONAL LAW — foreign judgments and orders — service of statutory registration of judgments — application for substituted service

COSTS — security for costs — where plaintiff is corporate trustee — defendant seeking security for costs — where a personal undertaking has been proffered for the costs of proceedings — whether jurisdictional threshold has been satisfied — discretionary principles for ordering security for costs — broad-brush approach to quantum

CORPORATIONS — Constitution and replaceable rules — Alteration of company’s constitution — Irregularities in conversion from incorporated association to company limited by guarantee — Powers of court in respect of irregularity — Corporations Act 2001 (Cth), s 1322(4)

COSTS – where plaintiffs withdrew claim for substantive relief – where plaintiffs’ withdrawal amounts to surrender – where there is no hearing on the merits – Calderbank offer – whether costs should be awarded on an indemnity basis

CONTRACT — Loans — Discernment of arrangements between parties — Initial and ongoing multiple discrete loans — Subsequent arrangements for the defendant to repay the plaintiff a larger amount than the amount actually advanced as a form of compensation for delayed repayment of funds to him and in consideration for the plaintiff's ongoing provision of amounts to the defendant personally and in part to fund legal fees for the defendant's claim against a third party — Evolvement of arrangements led to increasingly larger sums proffered by the defendant and eventually a sum of $1.2 million recorded in a debt agreement PLEADINGS — Admissions — Contention that absence of a defence leads to deemed admissions — Conflicting authorities as to effect of absence of a defence — Provisionally, the better view is that the absence of a defence does not give rise to “deemed admissions”, rather it leads to the consequence that the plaintiff may apply for default judgment CONTRACT — Rectification — Common mistake —No requirement for communication of common intention by express statement, but it must established to be the parties' actual intention mutually held, viewed objectively from their words or actions CONTRACT — Enforceability – Consideration of alleged impugning factors being penalty, “oppressive and unconscionable term”, “reading down” (an amount) and “financial stress” — Impugning factors rejected WORDS & PHRASES – ‘oppressive’, ‘unconscionable’, ‘financial stress’

EQUITY – equitable compensation – breach of trust – where monies paid over by the plaintiffs to the second defendant company to be invested by depositing it into an account of a third party company (as it happened, the operator of a fraudulent Ponzi scheme) were paid into a different account but of an entity which was part of the Ponzi scheme – where the monies would have been lost anyway had they been paid to the correct account number – where had the trustee immediately recovered the money it would have been obliged to have paid it to the second account where it would have been lost – equitable compensation not payable CONSUMER LAW – misleading or deceptive conduct – Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12GF – where defendants represented to the plaintiffs that an investment is safe and they would do much better out of it than if they put their money in the bank – where the investment turns out to be one in a fraudulent Ponzi scheme and they lose their money but only after they receive some payments in the guise of returns – HELD: liability made out – plaintiffs entitled to damages equivalent to the difference between the position in which they are and the position in which they would have been had the conduct complained of not occurred which must take account of what they received but otherwise would not have

CRIME — Appeal against conviction — application for leave to appeal — whether miscarriage of justice by the refusal of an adjournment — where applicant asserts he was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel — whether trial judge erred in allowing the trial to continue after the applicant contends the severity, extent and the implications of his psychopathology (a bipolar condition and a “voice confrontation” condition) made it apparent that he could no longer receive a fair trial in the absence of legal representation — leave to appeal granted and appeal dismissed CRIME — Appeal against conviction — application to adduce fresh or new evidence on appeal — whether trial judge erred in refusing application further to recall the complainant to be cross-examined as to the allegation of photoshopping images — application refused and no error by trial judge CRIME - Appeal against sentence – application for leave to appeal – where contended that there was a striking discrepancy between the custodial conditions the sentencing judge had been led to believe would be applicable and the actual conditions experienced by the applicant — where proposed ground of appeal raised events occurring post-sentence — leave to appeal against sentence refused

JUDGMENTS AND ORDERS − no remaining controversy between the parties – whether the Court should nonetheless make orders and provide reasons – whether the appeal involved an issue of general importance favouring formal determination – potential to provide guidance where a similar issue may arise deemed insufficient reason to determine an appeal CRIME − whether the general principle against issuing advisory opinions regarding issues not in controversy applies in the context of criminal proceedings

CRIME – appeals – appeal against sentence – drug manufacturing – State and federal offences – whether sentence for State offence was manifestly excessive – consideration of sentences imposed in broadly comparable circumstances – appeal allowed

CRIME — miscarriage of justice — where applicant did not give evidence at trial — whether applicant was “adequately” advised by defence counsel whether or not to give evidence — whether applicant deprived of chance of acquittal that was “fairly open” CRIME — appeals — where applicant challenges conviction of sexual touching without consent and sexual intercourse without consent — where significant context and background of relationship between parties

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual intercourse without consent — whether complaint evidence was reliable — where applicant’s DNA was not found by investigators — whether CCTV evidence supported inferences alleged by the Crown CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — where touching occurred during medical examination — whether touching was sexual in nature — whether touching was solely for a proper medical purpose CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — whether touching occurred as alleged — whether complaint evidence was reliable

ADMINISTRATIVE LAW – procedural fairness –University student – allegations of student misconduct – nature of relationship between plaintiff and defendant – whether interlocutory or final orders sought – justiciability – failure by defendant to adhere to misconduct procedure – jurisdictional error established – question of the plaintiff’s entitlement to relief – defendant’s decision to continue to restrict the plaintiff’s access to the University invalid – relief granted

COSTS – interlocutory dispute over security for costs – where defendant largely successful – where plaintiff admitted liability but disputed quantum – whether costs ought to follow the event – whether gross sum costs order should be made – whether costs be payable forthwith

COSTS – indemnity costs – where claims abandoned in closing submissions and remaining claims dismissed – Calderbank offers – where numerous offers made – whether unreasonable to reject offers

ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal — Appeal Panel — where leave sought to appeal on question of law under s 83 of Civil and Administrative Tribunal Act 2013 (NSW) against decision of Appeal Panel — whether Appeal Panel exceeded its jurisdiction in deciding that the Tribunal at first instance had erred in law — whether Appeal Panel denied applicant procedural fairness — whether Appeal Panel misconstrued contract — where leave to appeal refused — where grounds do not go beyond the merely arguable — where no question of public importance raised by the grounds of appeal

CONTRACTS — express terms — construction and interpretation — general rule of construction CONTRACTS — implied terms — construction and interpretation — terms implied in law — general rule of construction — implied duty to cooperate — HELD — no breach of the implied duty to cooperate CONTRACTS — implied terms — construction and interpretation — terms implied in law or in fact — general rule of construction — implied duty of good faith — HELD — not necessary to imply a duty of good faith in particular contracts in law or in fact CONTRACTS — implied terms — construction and interpretation — terms implied in law or in fact — general rule of construction — implied duty to use reasonable endeavours — HELD — not necessary to imply a duty to use reasonable endeavours to give business efficacy to particular contracts — not so obvious that it goes without saying — inconsistent with the express terms of particular contracts — implied term would impose an obligation on defendant to exercise a power it did not have ESTOPPEL — promissory estoppel — statement of principles — whether a positive obligation can be enforced through a promissory estoppel — HELD — promissory estoppel cannot create a positive right capable of enforcement by giving contractual force to a pre-contractual representation of intention ESTOPPEL — promissory estoppel — nature of the representation — detrimental reliance — departure from the assumption and unconscionability — HELD — no occasion for either detriment or unconscionability to attract the intervention of equity ESTOPPEL — conventional estoppel — statement of principles — whether a conventional estoppel may be founded on pre-contractual conduct — HELD — evidence of pre-contractual conduct cannot be relied upon to prove a claim of conventional estoppel ESTOPPEL — conventional estoppel — nature of the representation — detrimental reliance — unjust departure from the assumption — HELD — failure to establish any assumption so as to affect legal relations, no actual nor reasonable reliance, no detriment suffered and no unjust departure from the assumption CORPORATIONS — Oppression — statement of principles — meaning of “legitimate expectation” — HELD — denial of “legitimate expectation”, of itself, does not attract the statutory jurisdiction in s 232 of the Corporations Act CORPORATIONS — Oppression — whether the defendant engaged in oppressive conduct — HELD — no commercial unfairness in the manner in which the defendant conducted itself by adherence to the terms of two complex contracts CONTRACTS — remedies — damages — remedies for breach of an implied term — statement of principles — whether the doctrine of “deemed fulfilment” in Mackay v Dick applied — HELD — unnecessary to resolve whether the doctrine of “deemed fulfilment” was applicable in the absence of submissions on the issue CONTRACTS — remedies — damages — remedies for breach of an implied term — loss of opportunity — plaintiff proved that it already had a valuable opportunity — facilitation principle does not apply — whether the plaintiff proved the prospects of the valuable opportunity being realised — HELD — the plaintiff failed to prove the prospects that the valuable opportunity might be realised had the defendant not breached the implied term EQUITY — promissory estoppel — equitable remedies — equitable compensation — statement of principles — whether the plaintiff could prove its loss — HELD — the plaintiff failed to prove the loss for which equitable compensation would be awarded ESTOPPEL — conventional estoppel — whether the plaintiff could prove its loss — HELD — the plaintiff failed to prove the loss for which equitable compensation would be awarded CORPORATIONS — Members’ rights and remedies — Oppression — s 233 Corporations Act 2001 (Cth) — whether the defendant had an obligation or had created a legitimate expectation that funds would be expended in a particular manner — HELD — the plaintiff failed to prove the likelihood that it would have suffered loss had the defendant met that obligation or legitimate expectation EVIDENCE — witness evidence — credibility and reliability of witnesses — statement of principles —where witnesses recalling events over a decade prior — reliance on contemporaneous documents EVIDENCE — Jones v Dunkel inferences — statement of principles — principle of plain common sense — unexplained failure to call witness

CHILDREN AND YOUNG PERSONS - parens patriae jurisdiction – a Health Authority, the plaintiff, seeks orders authorising the administration of blood and blood products to a minor aged 17 who is undergoing surgery under general anaesthetic – minor refuses to consent to the administration of blood and blood products during the surgery – whether the Court should authorise the administration of blood and blood products

EQUITY – Equitable remedies – injunctions – where the plaintiffs seek leave to proceed pursuant to UCPR r 11.8AA – where plaintiffs seek injunctions by way of default judgment against persons whose identities are unknown, but who are defined in the statement of claim by reference to specified past conduct and/or communications with sufficient clarity that the injunctions do not operate against the world at large

COSTS — Security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — Where appellant is a natural person ordinarily resident outside Australia

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — application made by appellant — substantial judgment sum previously paid to appellant — whether test for pro bono referral satisfied

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in assessing the objective seriousness of the offending – whether sentencing judge erred in approach to quantity of drug – whether reasonably open for sentencing judge to decline to accept evidence of applicant’s limited role in drug manufacture – inferences of sentencing judge properly drawn beyond reasonable doubt – appeal dismissed.

COSTS – security for costs – where security for costs previously ordered – where defendant seeks top up security for costs – whether security for costs be ordered for costs incurred prior to the application

MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) – where publication could prejudice ongoing criminal investigation – where factual matrix is such that identification of defendant may tend to reveal the identity of plaintiff

COSTS – party/party – general rule that costs follow the event – probate and family provision proceedings – no issue of principle

CORPORATIONS — share register — transmission of shares on death of shareholder — executor seeking registration as legal personal representative — absence of functioning board — whether formal transmission application required — power to order rectification of register — Corporations Act 2001 (Cth) ss 175, 1071F — equitable jurisdiction to rectify — executor entitled to registration — alleged capital gains tax risk arising from transmission of shares to executor — whether speculative — whether relevant hardship defeating rectification. EQUITY — estates — executor’s duties pending challenge to probate — scope of “management” of estate — whether undertaking limiting distributions precludes litigation to secure control of estate assets — securing control of shareholdings to enable governance of companies. INTERLOCUTORY PRACTICE — discretionary relief — whether to defer final relief pending related probate proceedings — alleged agreement to hold over proceedings — effect of interlocutory consensus. RECEIVERS — application for appointment of receiver and manager to family companies and trusts — whether necessary where executor capable of administering through share control — conflict considerations — appointment refused. PROCEDURE — expedition — estate assets unmanaged — tax compliance concerns — need for timely restoration of corporate control.

CONSUMER LAW — Misleading or deceptive conduct — Whether conduct likely to mislead or deceive — Where plaintiff is a financial services company — Where defendants are the former directors (Directors) and Chief Financial Officer (CFO) of a pie manufacturing company (Company) — Where plaintiff granted the Company an unsecured revolving credit facility (Facility) to pay suppliers — Where the Company fell into financial distress and was seeking bidders for a recapitalisation or asset sale — Where the Company eventually undertook an asset sale and became unable to repay the Facility — Whether CFO engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law (ACL) by assuring plaintiff that the Facility would be repaid in full — Whether CFO engaged in misleading or deceptive conduct by promising plaintiff that the Facility would be repaid in exchange for continued use thereof AGENCY — Creation of agency — Express or implied agreement — Where Directors sought advice on ‘safe harbour’ provisions under s 588GA Corporations Act 2001 (Cth) to prevent liability for insolvent trading — Where Directors followed a plan that was devised to implement ‘safe harbour’ advice — Whether Directors personally appointed CFO, expressly or impliedly, to carry out the ‘safe harbour’ advice as their agent — Whether Directors are liable as principals for representations made by CFO to the plaintiff CONSUMER LAW — Misleading or deceptive conduct — Silence or non-disclosure — Where plaintiff was aware of possible recapitalisation but unaware of possible asset sale transaction occurring — Where CFO was the point of contact for plaintiff with the Company — Where CFO did not correct plaintiff’s understanding that a recapitalisation was taking place — Where CFO was under obligations of confidence in relation to the bids for recapitalisation and asset sale — Where plaintiff had internal systems for review of the Company’s credit-worthiness — Whether failure to correct plaintiff’s understanding was misleading or deceptive —Whether there was a reasonable expectation that the likelihood of an asset sale would be disclosed to plaintiff — Whether Directors are liable as accessories to misleading or deceptive conduct by being knowingly involved in CFO’s silence or non-disclosure CONSUMER LAW — Misleading or deceptive conduct — Causation or reliance — Where the Company was placed into liquidation following asset sale — Where plaintiff unable to recover any amounts in liquidation — Where plaintiff pleads loss of the whole outstanding balance on the Facility — Where plaintiff pleads alternative transaction case —Where plaintiff alleges that but for the misleading or deceptive conduct, it would have been able to negotiate with the Company’s secured creditor bank to obtain full repayment of the Facility — Whether misleading or deceptive conduct was causative of loss to plaintiff — Whether plaintiff’s counterfactual would have occurred — Whether plaintiff’s counterfactual would have resulted in transaction that was an unfair preference under s 588FA Corporations Act CONSUMER LAW — Misleading or deceptive conduct — Remedies — Damages — Whether damages under s 236 ACL should be reduced pursuant to s 137B Competition and Consumer Act 2010 (Cth) on account of contributory negligence of plaintiff — Whether liability should be apportioned between defendants and the Company under Pt VIA Competition and Consumer Act CONSUMER LAW — Unconscionable conduct — In connection with goods or services — Whether defendants’ conduct in the circumstances is unconscionable under s 21 ACL

BAIL – release application – larceny, attempted armed robbery with an offensive weapon and demanding property with menaces – unacceptable risk test – applicant suffers from various conditions – self-harm in custody causing serious injuries – significant need of support – difficulties faced by Justice Health NSW – more suitable support services available in the community – bail granted

EVIDENCE – relevance – no issue of principle EVIDENCE – opinion evidence – where basis of expertise not fully articulated – limitation of use of evidence

CIVIL PROCEDURE — jurisdiction — transfers to and from other courts — District and Local Courts – transfer deferred to ensure compliance with case management orders COSTS — security for costs — relevant factors — Impecuniosity of plaintiff – where also impecunious shareholder proffers undertaking to satisfy adverse costs order – risk of stultification – where impecuniosity said to be partly attributable to issues in dispute

COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers

APPEALS — appeal from Local Court — summons styled grounds as questions of law and questions of fact — where substance of grounds did not reflect that distinction APPEALS — appeal from Local Court — questions of law — whether denials of procedural fairness — whether magistrate failed to consider issues pleaded — whether unreasonable — no error established APPEALS — appeal from Local Court — questions of mixed fact and law — whether requirements for leave established — requirements not established

SUCCESSION — Familial disputes — matters involving: an elderly now deceased mother (M); 3 adult children: C (who predeceased M), AH (executor and one third beneficiary of M’s estate, the plaintiff) and AO (one third beneficiary of M’s estate); CA’s sole child G (defendant, executrix and sole beneficiary of C’s estate, and one third beneficiary of M’s estate) and T (applicant) — Debt and Will construction (D&WC) proceeding regarding M’s estate between AH and G — Family provision (FP) proceeding regarding C’s estate between T and G —T seeks joinder to D&WC proceeding on the basis that (inter alia) there is a common monetary fund and findings in the D&WC proceeding will impact allegedly directly his interests in the FP proceeding — Joinder opposed JOINDER — Parties to proceedings — Joinder sought pursuant to UCPR rr 6.19 and 6.24 — Joinder including those provisions and r 6.27 considered — Held joinder appropriate pursuant to residual discretion under r 6.19 JOINDER — Parties — Joinder pursuant to UCPR r 6.19 (common question and all relief same transaction limbs) — Same transaction limb not satisfied — Joinder pursuant to UCPR r 6.19 (residual discretion) discussed provisions including r 6.27 considered — Residual discretion expressed in unqualified terms — Considerations involve what is most conducive to a just resolution of the disputes between the parties, having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation — Consideration of matters in favour of and against exercise of discretion for joinder JOINDER — Parties — Joinder pursuant to UCPR r 6.24 (ought and necessary limbs) — Vexed issue as to whether applicant’s interests are directly affected in the D&WC proceeding — Arguably “yes” but residual discretion under r 6.19 preferred basis for determination JOINDER — Parties — Joinder pursuant to UCPR r 6.27 — UCPR r 6.27 has not generally been construed as independent or separate stand-alone unconstrained source of power to permit joinder, irrespective of there being some associated statutory provision in particular r 6.24 (or r 6.19) permitting joinder or some other general law requirement — A principal purpose of r 6.27 is facilitative, thus making it clear that non-party may invoke r 6.24 (or r 6.19) to seek joinder JOINDER — Parties — Joinder — Dispensation, conditions and alternatives — Consideration of power to dispense with requirements of rules and impose conditions on joinder — Consideration of alternatives to joinder — Proposed conditions on joinder rejected INTERVENTION — Difference between intervention and joinder

CIVIL PROCEDURE – notice of motion – notice to produce – damage to property claim – multiple fires – second plaintiff’s claim remains a mystery –requirement for specificity with respect to documents sought – requirement for relevance of documents sought to a fact in issue – where amended statement of claim remains on foot – majority of notice set aside – whether plaintiffs require leave before issuing further notices – leave not required – costs