Cases and authorities

CONSTITUTIONAL LAW - implied freedom of communication on matters of government and politics - Uniform Civil Procedure Rules 2005 r 5.2 - power to order disclosure of confidential source - relevance of court's discretion to order disclosure - whether rule effectively burdens freedom - whether rule reasonably appropriate and adapted to legitimate end in manner consistent with maintenance constitutionally prescribed system of government PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules 2005 r 5.2 - discretion to order preliminary discovery - whether discretion enlivened - whether reasonable inquiries made - whether unable to sufficiently ascertain the identity or whereabouts of person notwithstanding inquiries PRACTICE AND PROCEDURE - admissibility of evidence - Evidence Act 1995 s 87 - admission by a party - whether representation made by person with authority to make statements on behalf of party - whether statements constitute admission APPEAL - principles for grant of leave to appeal - decision not to admit evidence - whether decision attended by error

COMMERCIAL ARBITRATION - Commercial Arbitration Act 1984 (NSW) ss 18, 34(2)(a)(iv) - claim for an order setting aside an arbitral award on the grounds that the arbitral procedure was not in accordance with the agreement and was not in accordance with the Act because the tribunal declined to give it an oral hearing which it claimed it was entitled to require and that it was not given a reasonable opportunity of presenting its case

PRACTICE AND PROCEDURE - costs - recovery of costs - on indemnity basis - with interest - effect of discontinuance - choice of forum for proceedings.

[PRACTICE AND PROCEDURE] [PRELIMINARY DISCOVERY] - where parties against whom preliminary discovery under Part 5 rule 5.3 of the Uniform Civil Procedure Rules 2005 is sought had been notified previously that the applicants were going to join them to proceedings in the District Court in respect of the same issues the subject of the relief which they may be entitled to claim in this Court - whether such notification evidenced that the applicants had sufficient information to decide whether or not to commence proceedings

CORPORATIONS - multiple civil penalty contraventions and other contraventions of Corporations Act and ASIC Act (in relation to operation of unregistered managed investment scheme, provision of financial services without an Australian Financial Services Licence, misrepresentations, improper use of corporate position to obtain benefits at the detriment of companies) - relief and consequential orders following findings of liability - consideration of relevant principles and factors in determination of penalties - power to make disqualification orders under s 1324 where no declaration of contravention of s 1101B - principles applicable in relation to exercise of discretion for grant of declaratory relief - appointment of receiver to assets of defendants in jurisdiction - costs

PROCEDURE - Costs - general rule costs follow the event - where relevant "event" arises from accrual of cause of action triggered by defendant's criminal activity.

CORPORATIONS - Winding up - Application for summary judgment under Uniform Civil Procedure Rules 2005 (NSW) r 13.1 for specified payments - To whom relevant payments were made and character of relevant payments - Whether demand for repayment has been made - Whether high level of satisfaction that the order should be made - Whether the amount for which summary judgment should be given has been established.

PROCEDURE - judgments and orders - summary judgment - defendant's continued failure to comply with Court orders - section 61(3) of Civil Procedure Act 2005 - strike out of defence as a result of non-compliance with Court directions. RESTITUTION - recovery of money paid under duress or compulsion - involuntary payment of money as a result of incapacity.

ADMINISTRATIVE LAW - judicial review - decision of the Review Panel of the Motor Accidents Authority - bystander allegedly injured whilst rendering assistance at the scene of an accident - delay in seeking medical attention - crucial adverse finding - claimant not informed of issue - denial of natural justice.

APPEAL - civil - leave to appeal - whether the rejection of evidence is an interlocutory decision - interlocutory decisions merge in final decision - leave to appeal not required

PROCEDURE - civil - judgments and orders - stay

APPEAL - civil - leave to appeal - arguable case - whether standing to bring an action under Contracts Review Act 1980

APPEAL - application for leave to appeal dismissed - no issue of principle

STATUTORY INTERPRETATION - interpretation of statute determined as a separate question - Motor Accidents (Lifetime Care and Support) Act 2006 and Motor Accidents Compensation Act 1999 - whether participant in Lifetime Care and Support Scheme entitled to damages pursuant to s 128 Motor Accidents Compensation Act 1999 - whether Lifetime Care and Support Authority or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously pursuant to s 128 Motor Accidents Compensation Act 1999 - motor vehicle tortfeasor/CTP insurer remains liable to make such payments in certain circumstances - liability of Lifetime Care and Support Authority to make payments to person providing gratuitous attendant care to participant in scheme - possible limitations on such an obligation - question of fact as to whether Lifetime Care and Support Authority has such an obligation.

EVIDENCE - admissibility - where letter written by party's solicitor to insurer - party not the author of the letter and made no representations by or in it - letter not admissible to prove the truth of the the previous representations made by its author - letter not admissible to prove suggested admission by party.

PROCEDURE - summary dismissal - whether issue estoppel due to proceedings in District Court - whether Anshun estoppel principle applies for failure to run current claim as cross-claim in original proceedings - whether unreasonable not to have applied for leave to transfer to Supreme Court - whether proceedings frivolous and vexatious

COSTS - Where proceedings dismissed - Where no determination on the merits - Default provision for costs in UCPR r 42.20 - Whether to depart from ordinary position - Need for reason to depart from ordinary position.

CORPORATIONS - Reinstatement - Application for an order for reinstatement under Corporations Act 2001 (Cth) s 601AH - Whether application for orders is made by a person aggrieved by the deregistration - Whether it is just to reinstate the registration of the company. COSTS - Application for reinstatement - Whether Court is entitled to impose conditions on reinstatement order - Whether unusual and special circumstances exist that warrant an order for costs in favour of non-parties to proceedings.

COSTS - application for variation of costs order - offers of compromise made by the plaintiff in compliance with UCPR 20.26 - whether circumstances justify an order otherwise than in accordance with the usual rule in UCPR 42.14.

DEFAMATION - jury - application for jury of 12 - test applicable - relevant considerations - where third defendant a prominent person - where issues for trial unrelated to public activities of third defendant

CRIMINAL LAW - sentence appeal - self represented appellant - no issue of principle - sentencing judge not in error - appeal dismissed

CRIMINAL LAW - appeal - sentencing - possession of child pornography - applicant pleaded guilty to offence against s 91H(2) of the Crimes Act 1900 - produce child pornography - aggravated indecent assault - person under 16 years - child 21 months - convicted after trial of offences against s 61M(2) and s 91H(2) of the Crimes Act - whether sentencing judge erred when applying principles relating to standard non-parole periods - whether sentencing judge fell into The Queen v de Simoni [1981] HCA 31 error - whether sentence for count 1 manifestly excessive - application of Muldrock v The Queen [2011] HCA 39 - sentencing judge erred when fixing standard non-parole period - sentence therefore manifestly excessive - applicant re-sentenced - Crimes Act 1900 s 91H(2), s 61M(2), s 91H(2) and s 66A - Crimes (Sentencing Procedure) Act 1999 Pt 4 Div 1A, s 44 and s 54B

CRIMINAL LAW - sentence appeal - parity with co-offender - justifiable sense of grievance - appeal allowed

CRIMINAL LAW - sentence appeal - manifestly excessive; whether - parity between co-offenders - mistaken view of concurrency in applicant's sentence in setting co-offender's sentence relied on for disparity - justifiable sense of grievance - appeal dismissed

APPEAL - civil - objection to competency - requirement to obtain leave if compensation in issue less than $100,000 - compensation not assessed in court below - failure by appellant to file an affidavit in accordance with Uniform Civil Procedure Rules 2005 (NSW) - consequence of failure - procedure for determining competency BIAS - apprehension of bias - assertion that the trial judge was Jewish and a Zionist - a defendant in proceedings a judge of the same Division of the Court as the trial judge - no application for the trial judge to disqualify herself - unrepresented litigant aware of the source of possible apprehension of bias - waiver of right to object TORTS - negligence - assault - battery - wrongful imprisonment - appellant detained by security guards - whether only reasonable force used

Torts - negligence - joint tortfeasors - apportionment - liability of builder and scaffolder for accident on building site

EVIDENCE - admissibility of an expert report - whether report relevant - whether expert opinion based wholly or substantially on an expert's training, study or expertise -whether an expert has provided adequate explanations for opinions

PROCEDURE - application for dismissal - conduct giving rise to Anshun estoppel - whether conduct unreasonable - whether proceedings abuse of process

COSTS - general rule costs follow the event - the effect of Rule 42.34 of the Uniform Civil Procedure Rules - Terms of Settlement and Offers of Compromise - reasonable pre-litigation settlement offers - whether proceedings commenced unreasonably - whether all particulars were necessary - methodology of assessment of loss and damage. LEGAL PRACTITIONERS - admission of breach of duty and negligent conduct

CORPORATIONS - Winding up - application to set aside orders made requiring disclosure of new trustees - whether Liquidators entitled to know identity of Trustees

CORPORATIONS - winding up - leave to proceed - leave to claim directly against insurer under (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6

CORPORATIONS - Winding up - Litigation funding agreement - Orders sought under s 477(2B) Corporations Act 2001 (Cth) approving entry into litigation funding agreement - Whether entry into the agreement is a proper exercise of liquidator's power - Whether appropriate to give direction under s 479(3) Corporations Act protecting liquidator from claim of breach of duty in respect of the funding agreement.

COSTS - Civil Procedure Act 2005 (NSW) s 98 - Application for order for payment of costs on a gross sum basis under s 98 Civil Procedure Act 2005 (NSW) - Whether payment should be made on an indemnity basis - Relevance of delay likely to occur on further assessment - Relevance of uncertainty over a party's capacity to meet a costs order.

PROCEDURE - Judgments and orders - consent judgment for possession of Real Property Act land signed on 7 March 2012 - First Defendant's Trustee in Bankruptcy executes consent judgment - First and Second Defendant are husband and wife - First Defendant executes transfer of property to Second Defendant before Consent Judgment - but transfer not registered - First and Second Defendants seek to set aside judgment under UCPR, rr 36.15 and 36.16 - whether judgment entered irregularly after service of the Statement of Claim only on the trustee in bankruptcy - whether the form of judgment for possession was irregular, such that it should in the Court's discretion be set aside - HELD - no requirement to serve the First Defendant with legal process in respect of proceedings commenced after his bankruptcy - no irregularity in the form of the judgment for possession is shown - BANKRUPTCY - bankruptcy courts - jurisdiction and powers of Court - first defendant bankrupt and Trustee appointed to his estate - whether the First and Second Defendant's motion to set aside the Consent Judgment requires the Court to determine the Trustee's authority to sign the March 2012 consent judgment, and in turn, the question of whether the First Defendant's interest in the subject property vested in the Trustee - whether the exclusive jurisdiction of the Federal Court of Australia and the Federal Magistrates Court in bankruptcy requires either of those Courts to determine that issue of authority rather than this court - HELD - the issues for determination must be decided within the exclusive jurisdiction in bankruptcy conferred by Bankruptcy Act 1966 (Cth) section 27 on the Federal Court of Australia and the Federal Magistrates Court.

CRIMINAL LAW - application for leave to appeal against sentence - whether sentence manifestly excessive - whether failure to apply principles of parity and totality

CRIMINAL LAW - interlocutory appeal -sexual assault communications privilege - issue of subpoena and production of documents subject to leave - inspecting subpoenaed documents for protected confidences - consent to production - whether compelled documents had substantial probative value - Criminal Procedure Act 1986, ss 295-306 CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - repugnancy to judicial power or institutional integrity of State court - Criminal Procedure Act 1986, ss 295-306

CONSTITUTIONAL LAW - criminal law - mandatory minimum sentences - two overlapping provisions for sentences - whether valid

CRIMINAL LAW - conviction appeal - murder - known drug dealer shot in his home - Crown case put on basis of extended joint criminal enterprise and constructive murder - essential part of Crown case that appellants were armed when arrived at deceased's home - Crown case based on circumstantial evidence - whether verdict unreasonable and not able to be supported having regard to the evidence - detailed examination of nature and effect of evidence in Crown case - implicit rejection of evidence of appellants - whether correct direction given to jury in respect of felony murder, i.e. that the act causing death had to be voluntary - whether manslaughter by unlawful and dangerous act should have been left for the jury's consideration - whether trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning - EVIDENCE - whether evidence relied on by Crown to establish consciousness of guilt was admissible - s 137 Evidence Act 1995 - was trial judge obliged to reject evidence pursuant to s 137 if no objection taken - Crown bound by way case put at trial - Crown not entitled to change case on appeal from that presented at trial - Guilty verdicts to be quashed and verdicts of acquittal entered.

PROCEDURE - variation of orders - variation pursuant to compromise of claim - COMPULSORY ACQUISITION OF LAND - compensation - claim for losses attributable to disturbance

EVIDENCE - objections to evidence - defendant seeks to tender responses to a survey - relevance - hearsay - prejudice

SUMMARY DISMISSAL - hearing a motion for a summary judgment - consequence of a denial of a hearing on the merits before a Court - whether in interests of justice to dismiss proceedings. COSTS - application for indemnity costs on the grounds of serial non-compliance of Court orders - a successful contest of a motion for summary judgment is not unreasonable conduct such as to warrant indemnity costs.

CRIMINAL LAW - section 1043A(1)(d) Corporations Act 2001 (Cth) - insider trading - sentencing principles for such offences - mitigating factors - unethical work environment - factors relevant to imposition of a custodial sentence

COSTS - proceedings for damages - assessments of costs - registration of assessments as judgments - whether judgments should be set aside for irregularity

PROCEEDS OF CRIME - pecuniary penalty order - insider trading offences - benefit derived from illegal activity - whether purchase price of shares to be deducted from sale price in assessing value of benefit STATUTORY INTERPRETATION - principle of legality - requirement for clarity before Parliament will be taken to have intended to interfere with vested property rights

PROCEDURE - Vexatious Proceedings Act 2008, ss 6 and 8 - whether proceedings the defendant commenced are "vexatious" - whether proceedings were conducted "frequently" - whether the Court should exercise its discretion to make a s 8(1) order - whether any order made prohibiting defendant from commencing or conducting proceedings should only be for a limited period of time - whether all existing proceedings the defendant has initiated should be stayed.

PROCEDURE - judgments and orders - amending varying and setting aside - application for order recalling judgment and setting aside orders because appeal decided on a ground on which the appellant was not heard - need to identify "comparator" when discrimination alleged - whether that need sufficiently recognised in the course of argument of the appeal

COSTS - special costs order sought by appellant - offer made in accordance with Calderbank v Calderbank (1975) 3 All ER 333 - proposed offer made no allowance for pre-judgment interest despite explanatory letter providing calculations for such interest - without pre-judgment interest, offer less favourable than result achieved by respondent - no basis for compromise set out in explanatory letter - special costs order refused.

APPEAL AND NEW TRIAL - Appeal - Practice and procedure - New South Wales - Extension of time for appeal APPEAL AND NEW TRIAL - Appeal - General principles - Error of law - Adequacy of reasons APPEAL AND NEW TRIAL - Local Court - Civil Claims - Appeal and new trial CONTRACTS - Formation of contractual relations - Contract implied from conduct of parties CONTRACTS - Building, engineering and related contracts - Performance of work - Effect of acceptance

PROPERTY LAW - declaration of the rights of a registered proprietor of land - purchase at auction from trustees in bankruptcy and ex wife of the bankrupt - fraud as an exception to the indefeasibility principle - quia timet injunction

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - Defendant, an administrator of an intestate estate, was obliged to preserve the estate for the benefit of the deceased's widow and sons - Plaintiff-widow purportedly granted powers of attorney to the defendant to administer the deceased's estate - Defendant, without notice to the plaintiff, transmitted estate funds to Lebanon in the names of the deceased's sons in the practical control of their grandfather - Whether the powers of attorney were validly granted - Whether the terms of the powers of attorney authorised the defendant to transmit the disputed funds beyond the practical reach of the plaintiff and any representative of the deceased's estate.