Cases and authorities

CIVIL LAW – proceeds of crime – defendants facing serious criminal charges – orders made requiring defendants to provide statements as to assets and liabilities – application for revocation of orders – exercise of discretion to revoke orders – whether compliance with orders gave rise to a real risk of interference with the administration of justice – risk of interference to be assessed in the context of strict legislative provisions governing proceeds of crime CIVIL LAW – proceeds of crime – defendants facing serious criminal charges – orders made requiring spouses of defendants to provide statements setting out dealings in respect of particular items of property – application for revocation of orders – exercise of discretion to revoke orders – whether spousal privilege available to be claimed – exercise of discretion having regard to the nature and purpose of legislative scheme relating to proceeds of crime

INTELLECTUAL PROPERTY - confidential information - whether client lists were copied by the defendant - where client lists were found on defendant's computer - where client lists were accessed on defendant's home computer - whether defendant used this information to contact clients - where significant portion of defendants' new clients had transferred from the plaintiff - whether information was confidential - where client lists only available to employees of the plaintiff - held that defendants copied and used confidential information of the plaintiff TRADE AND COMMERCE - restraints of trade - validity and reasonableness - whether clause a restraint of trade - where defendant by contractual clause agreed that restraints were reasonable - three month non-solicitation of employer's clients reasonable to protect the legitimate interests of the employer DAMAGES - measure of damages for use of confidential information and breach of restraints - whether clients would have changed financial planners regardless of former employee's actions - where employer did not contact clients after employee had left - where employee did not inform clients of who would handle their accounts - 30 per cent discount to allow for by factors outside former employee's actions

PROCEDURE - miscellaneous procedural matters - other matters - joinder of parties REAL PROPERTY - torrens title - caveats against dealings - priority of registered mortgage over subsequently lodged caveat - withdrawal of caveat

PRACTICE AND PROCEDURE - claim for declaratory and injunctive relief - social housing provider terminates periodic tenancy under s.85 Residential Tenancies Act 2010 - claim that tenant denied procedural fairness - application by tenant for interlocutory injunction - tenant seeks order that relevant public housing premises remain vacant until determination of claim for final relief - serious question to be tried - undertaking as to damages - balance of convenience - interlocutory injunction refused

Estoppel - estoppel in pais - equitable estoppel - proprietary estoppel - whether an arrangement between parties was a permanent easement or a car park licence for an indefinite period determinable by either party on reasonable notice - whether defendant gave the plaintiff reasonable notice of its intention to terminate - proprietary estoppel not established

CIVIL LAW - proceeds of crime - defendants facing serious criminal charges - orders made requiring defendants to provide statements as to assets and liabilities - application for revocation of orders - exercise of discretion to revoke orders - whether compliance with orders gave rise to a real risk of interference with the administration of justice - risk of interference to be assessed in the context of strict legislative provisions governing proceeds of crime CIVIL LAW - proceeds of crime - defendants facing serious criminal charges - orders made requiring spouses of defendants to provide statements setting out dealings in respect of particular items of property - application for revocation of orders - exercise of discretion to revoke orders - whether spousal privilege available to be claimed - exercise of discretion having regard to the nature and purpose of legislative scheme relating to proceeds of crime

TRUSTS - JUDICIAL ADVICE - application by Plaintiff trustee for judicial advice pursuant to s 63 of the Trustee Act 1925 - whether he would be justified in resolving proceedings on identified terms - Judicial advice not given on terms of compromise but simply that the trustee would be justified in compromising the proceedings - Unnecessary to answer other questions posed

WILLS AND ESTATES - family provision claim - competing claims or interests - contributions by the plaintiff - obligations owed by the deceased - relationship with the deceased - deceased's children joint beneficiaries - deceased and plaintiff separated for some years - whether informal property settlement at time of separation - whether deceased had a moral obligation towards the plaintiff

CRIMINAL LAW - appeal - sentence - where sentencing judge failed to impose a non-parole period in respect of count 1 - whether sentencing judge erred in consideration of the standard non-parole period - where sentencing judge had regard to the standard non-parole period as one of the matters to be considered - whether sentencing judge breached the rule in Pearce v R (1998) 194 CLR 610 - where sentencing judge first determined overall appropriate sentence before determining sentence for each count - Rule in Pearce v R breached - whether sentence is manifestly excessive - applicant resentenced - lesser sentence imposed.

CONTEMPT - whether there is a case to answer - whether taking the prosecutor's case at its highest, there is evidence that, if accepted, is capable of establishing beyond reasonable doubt that the respondent is guilty of the contempt charge Contempt - Disobedience of court orders - party not bound by terms of order - whether intentional interference on the part of the alleged contemnor with the attainment of the intent of the order Contempt - Disobedience of court orders -Construction of - Ambiguity of order - whether real doubt as to meaning

CORPORATIONS - Supervision, Regulation and Correction - application for leave under Corporations Act 2001 (Cth), s 236 to commence proceedings in name of corporate trustee - whether best interests criterion in s 237(2)(c) established - action by beneficiary raising same issues - whether undertaking as to costs of value EVIDENCE - Admissibility and Relevance - objection to hearsay - whether application under Corporations Act 2001 (Cth), s 236 final or interlocutory

CORONERS - finding at inquest that deceased had taken his own life - application for orders that finding be quashed and a new inquest be held - examination of evidence before the coroner - new expert evidence

PRACTICE AND PROCEDURE - Pleading of causes of action in negligence and defamation - first defendant in its capacity as contractor provided security services to second defendant who was the plaintiff's employer - first defendant captured and recorded by CCTV video images of the plaintiff on premises of second defendant - images of the plaintiff published on Facebook. LIMITATION OF ACTIONS - Extension or postponement of limitation periods - action for defamation - where more than one year between publication of images and plaintiff's commencement of proceedings - plaintiff failed to establish that requirements for extension of limitation period under s 56A of the Limitation Act 1969 justified. NEGLIGENCE - Essentials of action for negligence - duty of care - no basis for a finding that the plaintiff did not have an arguable case that the first defendant owed her a duty of care as set out in s 32 of the Civil Liability Act 2002. WORKERS' COMPENSATION - Alternative rights against employer - whether election made by plaintiff under Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44 - requirement for there to have been a clear and unambiguous written election for any cause of action against the second defendant for damages for personal injury not satisfied. Plaintiff's claim in negligence against the second defendant as employer accordingly not maintainable. PRACTICE AND PROCEDURE - Summary disposal - application by first defendant to dismiss proceedings under rule 13.4 and/ or 14.28 of the Uniform Civil Procedure Rules 2005 - cause of action in negligence not misconceived on basis that law of defamation may preclude an action in negligence - no basis for striking out the cause of action in negligence -first defendant could not be vicariously liable for the intentional acts of employees - leave to amend to include such cause of action refused. PROCEDURE - Application for leave to amend Statement of Claim to include a cause of action for breach of confidence - whether arguable basis established for proposed action of breach of confidence. TORTS - Breach of confidence - whether cause of action for breach of confidence available as a matter of law in respect of images downloaded onto Facebook website - grant of leave to amend - cause of action for breach of confidence could not be considered to be futile.

EVIDENCE - admissibility of evidence - whether evidence relevant to issues in case as pleaded - where evidence concerned whether defendant had "reasonable grounds" for representations made with respect to future matters - where plaintiff relied on deeming provisions in s 51A of the Trade Practices Act 1974 and s 41 of the Fair Trading Act and defendant had pleaded specific "reasonable grounds" - where plaintiff had not replied and there was deemed joinder of issue. PRACTICE AND PROCEDURE - pleadings - UCPR r 14.14, the "surprise rule" - whether rule applies where party is aware of the new matter by way of evidence already served in the proceeding - held that it does not. TRADE PRACTICES - misleading and deceptive conduct - existence of "reasonable grounds" for representation as to future matter - whether representor's knowledge, experience and expertise relevant when considering whether "reasonable grounds" existed - whether qualifications and experience of expert relevant to "reasonable grounds".

NOTICE OF MOTION - review of the decision of Macfarlan JA brought pursuant to s 46(4) Supreme Court Act 1970 - whether the decision of Macfarlan JA dismissing the appeal against the decision of the Appeal Panel of the Administrative Decisions Tribunal was plainly wrong - notice of motion dismissed - no order as to costs

REAL PROPERTY - torrens title - caveats against dealings - defendant's application to remove plaintiff's caveat - whether the evidence establishes that the plaintiff's obligation under a settlement agreement to remove the caveat is enlivened - HELD: insufficient evidence adduced to enliven the plaintiff's settlement agreement obligation to remove the caveat.

CRIMINAL LAW - sentence - imposition of limiting term under Mental Health (Forensic Provisions) Act - sentencing factors relevant to the length of a limiting term - relevance of a forensic patient's mental condition to the length of a limiting term

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - whether genuine dispute exists as to indebtedness - construction of contractual term giving rise to indebtedness

CONTRACTS - general contractual principles - transactions between family members - whether there was any intention to create or effect legal relations - gift not loan LIMITATION OF ACTIONS - contracts, torts and personal actions - application of the statutes to particular causes of action - Limitation Act 1969 (NSW) ss 14, 63 - loan repayable on demand

EMPLOYMENT LAW - employment contracts - restraint of trade clauses on competition and solicitation - application for interlocutory injunctions restraining defendants from undertaking employment with competitor in breach of restraints in employment contracts - serious questions to be tried as to operation and breach of restraints - whether balance of convenience favours granting of interlocutory injunctions

APPEAL - application for leave to appeal - appeal from findings of fact - not reasonably arguable - leave refused

LEAVE TO APPEAL - appeal against costs orders only - where Calderbank offers and other proposals and requests made - question of principle raised - serious question whether certain of the orders were plainly unreasonable and discretion miscarried - substantial costs sums at stake - as to other orders, error, if any, goes only to weight afforded to factors taken into account

CONTRACT - formation - sale of land - whether intention to create legal relations - exchange of written contracts - agreement as to payment of deposit not reflected in written contracts - whether evidence established exchange not intended to have ordinary legal consequences CONTRACT - collateral agreement as to deposit - unenforceable because inconsistent with contract for sale - ineffective as parol variation of contract required to be in writing

PROCEDURE - judgments and orders - application to amend orders - correction under slip rule - Uniform Civil Procedure Rules 2005, r 36.17 - no question of principle

APPEAL - Court Suppression and Non-publication Orders Act 2010 (NSW) s 14 - operation of s 14 - nature of appeal - whether de novo appeal PROCEDURE - interlocutory issues - suppression orders - order sought suppressing information concerning pendency and subject matter of proceedings - whether order "necessary to protect the safety of any person" - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8 STATUTORY INTERPRETATION - words and phrases - Court Suppression and Non-publication Orders Act 2010 s 8 - "necessary"

Security for costs - claim by former mistress of deceased against estate - whether impecuniosity of appellant established - whether matters raised on appeal arguable - special circumstances not established - application dismissed.

SUCCESSION - application for family provision order under Part 3 Succession Act 2006 - comparison of that legislation with former Family Provision Act - whether new legislation requires departure from approaches adopted under former legislation - testatrix with five children gives small legacy only to one daughter and makes more extensive provision for other children - long estrangement between testatrix and daughter concerned - evaluative decision to be made by the court - observations on need for order to reflect community values

PROCDURE - Costs - interest on assessed costs - Legal Profession Act 1987 (since repealed), s 190(2) provided that a barrister or solicitor might not charge interest on unpaid costs unless the bill of costs contained a statement that interest was payable and of the rate of interest - no statement on bill - 4 documents served together - a document described as a cost agreement contained the statement - Legal Profession Regulation 2002, r 45(3) provided that a bill of cost might comprise more than one document - whether the 4 documents read together constituted a bill of costs with the required statement

LOCAL GOVERNMENT - consent orders

PROCEDURE - costs - offers of compromise under the UCPR - where offer contains term that defendants are to pay the plaintiffs' costs of proceedings as agreed or assessed - offer not exclusive of costs and therefore inconsistent with the UCPR PROCEDURE - costs - offer of compromise under the UCPR - where offer did not state that it would be relied on for indemnity costs - where offer not capable of acceptance in absence of formal deed - offer not in accordance with the UCPR and cannot be relied on for indemnity costs PROCEDURE - costs - Calderbank offers - where offer is not expressed to be Calderbank - where basis of calculation of offer not explained - where offer only open for seven days - offer cannot be relied on as Calderbank offer and in any event not established that it was unreasonable not to accept the offer PROCEDURE - costs - conduct of parties - where party abandoned claim at the commencement of hearing - where party not successful on a point - insufficient to warrant order for indemnity costs PROCEDURE - costs - apportionment of costs - extensive affidavits not relied on at hearing - plaintiff not entitled to recover costs of preparing those affidavits or portions not read PROCEDURE - money paid into court by defendants - balance after payment out of judgment sum - whether balance should be released to defendants pending assessment of or agreement on costs - where there is no evidence that defendants unable to pay their own lawyers or other creditors - balance should remain in court

PROCEDURE - motion - further leave sought to file amended defence - defence not properly pleaded - failure to lead evidence establishing their claim - motions dismissed - costs

PRACTICE AND PROCEDURE - pleading - amendment - further evidence - likely costs - delay - explanation - hearing date not imminent

PROCEDURE - Contempt, attachment and sequestration - freezing order extended and injunction granted against new party - belief that exceptions in freezing order applied to new injunction - whether an honest but mistaken belief - whether charges should fail as not in proper form

ADMINISTRATIVE LAW - review of decision - interlocutory orders sought - has a prima facie case been established - balance of convenience considered

PROCEDURE - motion - leave sought to proceed on a statement of claim - leave sought to proceed on the proposed statement of claim refused - whether proceedings should be struck out - whether reasonable cause of action - pleading defective - final opportunity to replead in relation to the goods in question granted - costs

EVIDENCE - hearsay evidence of source of documents and whether documents are a business record - exceptions to hearsay rule relating to interlocutory proceedings and to business records not confined to "first-hand hearsay" - general unreliability of hearsay particularly beyond "first-hand" - authentication of documents and source established in interlocutory proceedings - once established as business records documents then admissible in substantive proceedings

BAIL - Application for bail pursuant to Bail Act 1978 - special or exceptional circumstances under s 30AA of the Bail Act - principles in respect of post-conviction bail applications - delay arising in the course of a part-heard appeal in which grounds of appeal raise miscarriage of justice - Crown concession as to special or exceptional circumstances - Court to be satisfied that relevant factors taken either individually or in combination exist and support concession made by Crown as to the existence of circumstances under s 30AA of the Bail Act and as to the existence in fact of such circumstances - caution to be exercised in determining whether to stay an order of imprisonment and to grant bail - need to consider both position of applicant to bail and position of the Crown - issues concerning interference with the due administration of criminal justice to be considered in determining what constitutes special or exceptional circumstances - such circumstances not established in the subject applications.

TESTAMENTARY CAPACITY - whether order of South Australian Guardianship Board prohibiting deceased from making a will has effect in New South Wales such that grant of probate should be revoked - full faith and credit provision - s 185 Evidence Act (Cth) - in the alternative, whether the deceased lacked testamentary capacity as a matter of fact

BANKRUPTCY - election by trustee in bankruptcy to prosecute or discontinue legal proceedings - new trustee appointed after service of notice of proceedings on initial trustee - evidence that new trustee did not personally have notice of proceedings - what constitutes notice of proceedings - whether period within which election must be made commences with service on new trustee - whether service on trustee's solicitor constitutes service on trustee - whether service must bring the documents to the notice of the trustee - Bankruptcy Act 1966 (Cth), s 60 PROCEDURE - civil - summary dismissal - want of prosecution - five successful applications by appellant to vacate hearing dates - respondent has not sought review of those determinations - whether proceedings should be summarily dismissed PROCEDURE - civil - judgments and orders - stay of writ of possession - appellant to pay occupation fee during stay - whether appellant in breach of obligation to pay

MOTOR VEHICLE ACCIDENT - negligence- personal injury - whether primary judge erred in finding that the respondent was not aware at the time of the collision that the collision had occurred - whether the primary judge erred in failing to consider the evidence of eyewitnesses contrary to the respondent's version of events - whether the primary judge erred in finding that the respondent was not guilty of failing to keep a proper lookout or that he was in breach of his duty of care by failing to facilitate the appellant's need to move lanes

MOTOR ACCIDENT - motor accident not caused by the fault of the respondent - construction of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) - whether appellants are entitled to damages under Division 1 of Part 1.2 of the Act - whether accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act - meaning of the word "fault" in the definition of "blameless motor accident" - construction of the definition of "fault" and whether it includes the non tortious negligence of the injured party - whether a restrictive construction of "fault" would be inconsistent with the use of the word "fault" in other provisions of the Act - whether the primary judge was correct in her assessment of the degree of the first appellant's contributory negligence - costs

[PROCEDURE] - interlocutory issues - application to set aside an order that the defendant serve its evidence on the plaintiff's contempt motion - whether statement of charge is defective.

COSTS

TORT - negligence - breach of duty of care - whether failure to install railing or other protective devices on mining machinery unreasonable in the circumstances TORT - negligence - damages - causation - question of apportionment between pre-existing condition and supervening events PRACTICE AND PROCEDURE - evidence - admissibility - whether unidentified author of comment in a business record had personal knowledge of matters set out in the document

Application to vary judgment - whether judgment should be varied and, if so, what orders should now be made

PAYMENT OF MONEY OUT OF COURT - competing claims by two mortgagees for money held in court - proceeds from sale of third defendant's property - third defendant denies signing security documents in relation to mortgage in favour of first defendant - plaintiff relies on third defendant's evidence to claim priority in relation to money held in court - whether third defendant signed security documents - inferences to be drawn from failure to call potential witnesses

CRIMINAL LAW - particular offences - clearing of native vegetation in contravention of s 12 of Native Vegetation Act 2003 - whether charge adequately particularised - application and scope of s 12 - whether primary judge erred in finding offence proven beyond reasonable doubt - whether primary judge erred in holding that native vegetation includes dead plant matter held that native vegetation does not include dead plant matter - whether primary judge erred in finding that the appellant caused native vegetation to be cleared - whether primary judge reached erroneous conclusions about environmental impact of offence such that the sentence imposed was excessive - appeal dismissed

CRIMINAL LAW - appeal against conviction - appellant convicted on 24 counts of sexual offences - appellant charged jointly or severally with complainant's mother - appellant and complainant's mother tried together - clear directions given by trial judge about use of evidence - no miscarriage of justice in joint trial CRIMINAL LAW - appeal against conviction - evidence - admission of record of interview - trial judge declined to exclude parts of interview to which appellant answered "no comment" - trial judge declined to exclude evidence of medical examination - evidence not prejudicial or irrelevant - clear directions given by trial judge - no miscarriage of justice CRIMINAL LAW - appeal against conviction - inconsistent verdicts - appellant acquitted on two counts at trial - evidence on all counts primarily that of complainant - acquittal on two counts not necessarily indicative of doubts about complainant's overall veracity - jury properly instructed - sound possible evidential bases for acquittal on two counts and conviction on 24 other counts - verdicts not inconsistent

COSTS - recovery of costs - by barrister - bill of costs rendered to a firm of solicitors by a barrister pursuant to a costs agreement - dispute over charges after time expired to seek assessment under the Legal Profession Act 2004 - barrister commenced action to recover charges - defence pleaded that charges were not reasonable having regard to skill of barrister and requirements of work undertaken - barrister moved the court to strike out the defence on the basis that the Legal Profession Act provided an exclusive regime for assessing the reasonableness of costs - strike out refused - the jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner in the course of the legal practice or practitioner suing for unpaid fees is not ousted by the statutory costs assessment regime COSTS - recovery of costs - by barrister -barristers were traditionally not engaged by contract to provide services - common law position altered by statute - a costs agreement provided by a barrister in accordance with the Legal Profession Act may be sued upon as part of a contract to provide legal services - court accordingly has jurisdiction to hear the matter as it would a contract claim involving disputed items of charge PRACTICE AND PROCEDURE - Court of Appeal - leave to challenge Court's own previous decision; application for - circumstances in which leave will be granted - requirement that sitting judges have strong conviction that previous decision was incorrect - requirement not met - leave refused