Cases and authorities

Evidence - admissibility - whether opinions expressed were admissible

PROCEDURE - Disclosure before evidence - Practice Note SC Eq 11 - whether exceptional circumstances - defendant application - no evidence for plaintiff yet served - whether application premature

TORT - defamation - imputations - whether capable of being conveyed by matter complained of - whether bad in form - no question of principle

CORPORATIONS - Corporations Act 2001 (Cth) ("the Act") Ch 5C, Part 5C.3 and Part 5C.6 - managed investment schemes - CONTRACT - where member subscribes for units in a managed investment scheme on terms that the units will be redeemed by the responsible entity at a specific time - whether Pt 5C.6 of the Act applies to require the responsible entity to make a written withdrawal offer - if Pt 5C.6 applies, whether subscription contract was sufficient compliance with any such requirement - whether, in any event, the responsible entity was contractually bound to make such an offer - CORPORATIONS - Pt 5C.2 - where entity which is the responsible entity of a managed investment scheme purports to contract in its capacity as responsible entity and separately in its personal capacity and undertakes the obligation to purchase units which are not redeemed by it in its capacity as responsible entity - where change in responsible entity occurs - whether the obligation to purchase was in relation to the scheme and became the obligation of the new responsible entity - DAMAGES - claim for damages for failure to redeem or purchase units in breach of contract

TORT - injurious falsehood - malice - content of requirement to establish actual damage where only injunctive relief sought - adequacy of particulars

ASSOCIATION AND CLUBS - incorporated associations - inclusion of model rules - necessity for comparison of content of model rules with those of incorporated association - nomination and approval of candidates for membership - no valid decision in accordance with model rules ASSOCIATION AND CLUBS - procedural irregularity - Section 1322 Corporations Act 2001 - no application to Associations Incorporation Act 1984 MEETINGS - procedural irregularity - characterisation - issue as to existence of valid decision creating rights of membership - substantive not procedural - no procedural irregularity

LEGAL PRACTITIONERS - Application to restrain solicitor from acting in proceedings - Jurisdiction to restrain from acting - Inherent jurisdiction of Supreme Court to restrain legal practitioners from acting - Justice and the appearance of justice - Whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires that a solicitor be prevented from acting.

CRIMINAL LAW- appeal- conviction - tendency evidence - whether probative value of tendency evidence substantially outweighed prejudicial effect - whether trial judge gave proper consideration to application to tender tendency evidence - context evidence - whether directions of trial judge regarding context evidence correct - whether verdict unreasonable or unsupported having regard to evidence.

CRIMINAL LAW - sentence appeal - driving in a manner dangerous occasioning the death of a person and failing to stop after occasioning the death of a person - whether open to sentencing judge to make findings of fact adverse to offender - whether contents of psychological report properly taken into account - whether offender's youth properly taken into account - whether guideline judgment in Regina v Whyte properly taken into account - whether sentences individually and in total manifestly excessive.

CRIMINAL LAW - Application for leave to appeal pursuant to Criminal Appeal Act 1912, s 5F - Offence of intending to pervert the course of justice contrary to Crimes Act 1900, s 319 - Conduct of committal hearing - Trial judge found prima facie case - Whether magistrate failed to comply with Criminal Procedure Act 1986, s 89 - No order or judgment made by magistrate pursuant to s 89 - No interlocutory judgment or order made that may be appealed pursuant to Criminal Appeal Act 1912, s 5F. STATUTORY CONSTRUCTION - Meaning of "interlocutory judgment or order" - Criminal Appeal Act 1912.

APPEAL - civil - appeal from discretionary decision - whether appeal limited by principles in House v The King [1936] HCA 40; 55 CLR 499 - whether Supreme Court Act 1970 (NSW), s 75A confers larger powers on appeal from discretionary decision - whether distinction exists between sentencing and other discretionary decisions - Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 discussed APPEAL - civil - leave to appeal - appeal from interlocutory judgment - whether errors in judgment below warrant a grant of leave to appeal - District Court Act 1973 (NSW), s 127(2)(a) PROCEDURE - summary dismissal - want of due despatch - period of incapacity of plaintiff - whether lapse of time rendered fair trial impossible - whether cause of delay is relevant - whether appropriate steps taken to obtain evidence - whether sufficient evidence available to resolve issues - whether defendant and court required to accommodate delay - Civil Procedure Act 2005 (NSW), ss 56-60; Uniform Civil Procedure Rules 2005 (NSW), r 12.7 PROCEDURE - interlocutory issues - suppression orders - order suppressing names of legal representatives and witnesses - plaintiff made threats of harm - whether plaintiff's existing knowledge of witnesses' identity renders order unnecessary - whether necessary to suppress names of legal representatives - whether evidence justifies order - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 PROCEDURE - interlocutory issues - suppression orders - order suppressing name of plaintiff - plaintiff a minor at the time of alleged sexual assaults - whether universal practice of suppressing names of minors involved in sexual assaults - whether suppression order available in civil proceedings involving sexual assault - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

APPEAL - Summons seeking leave to appeal - Motor vehicle accident - Interlocutory judgment - District Court judge refused to dismiss proceeding against third party insurer- Whether judge erred by failing to determine a separate question - Hearing before judge only concerned with notice of motion seeking order of dismissal - Separate question not formulated - No appropriate factual basis for separate question determination - Uniform Civil Procedure Rules 2005, rr 13.4, 28.2. PRACTICE AND PROCEDURE - Whether appeal from interlocutory judgment or order from District Court lay as of right to Supreme Court - Leave to appeal required from an interlocutory order or judgment of District Court - District Court Act 1973, s 127(2).

Tort - negligence - patron slipping on internal stairs in hotel - liability of occupiers and architect - foreseeability of risk by occupiers and architect - whether breach of duty - Civil Liability Act 2002 - what response was required by occupiers and architect to foreseeable risk of injury - causation - notice of contention - whether respondent entitled to rely on notice of contention - apportionment of liability between occupiers and architect - contributory negligence.

STAYS - application for conditions on a stay pending appeal from a judgement - a stay as far as possible should involve the minimal interference with the position established by the judgment as is necessary to avoid irremediable detriment - stay is granted to avoid irremediable prejudice - stay is granted having regard to considerations of the balance of convenience

PRACTICE & PROCEDURE - orders for production - UCPR r 1.9 - appropriate procedure where objection is taken on the basis that the order for production will require production of privileged material - whether order for production ought to be made that captures material that may be subject to a claim for privilege - decision in Meteyard considered PRACTICE & PROCEDURE - orders for production - objection on grounds of oppression - whether terms of order are confusing - whether terms of order are too expansive

TRUSTS - requirements for existence - certainty of intention to create a trust TRUSTS - indicia of existence - requirement for trust property to be maintained in separate fund and not mixed VENDOR AND PURCHASER - monies paid prior to completion - characterisation as trust monies or debt

REFERENCE - adoption of report - breach of natural justice - dictates of justice - scope of adoption - costs.

PROCEDURE - cross-vesting application - slip and fall incident in Wodonga - proceedings commenced in District Court at Albury - application for transfer of proceedings to Victoria - whether transfer "in the interests of justice" - application for transfer refused

Practice - Pleadings - Application for Strike Out Order and Particulars - Orders for Disclosure of Documents before close of pleadings and service of Evidence.

PRACTICE AND PROCEDURE - application to strike-out pleadings - Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 - substantive proceedings by Attorney General to have plaintiff declared a vexatious litigant - strike-out application dismissed

APPEAL FROM LOCAL COURT - plaintiff absent at hearing in Local Court - matter dealt with in plaintiff's absence - contravention of Apprehended Violence Order - appeal on a question of law - appeal dismissed

PRACTICE AND PROCEDURE - claim of "without prejudice" privilege by plaintiff in relation to two distinct groups of documents - substantive action for defamation - UCPR r 21.5 - Evidence Act 1995 ss 131 and 131A - defendants dispute claim of privilege - reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding - claim of public interest immunity - order to produce

MISLEADING OR DECEPTIVE CONDUCT - in relation to financial services - Australian Securities and Investments Commission Act 2001 (Cth) s 12DA - allegation that financial planner made misrepresentations when marketing a complex financial product to plaintiffs - amount of damages agreed upon in the event the plaintiffs were successful - finding that conduct occurred and amounted to misleading and deceptive conduct -damages awarded to plaintiffs - cross-claim dismissed

PRACTICE AND PROCEDURE - Application for security for costs - Plaintiff company as trustee has virtually nil net asset value - Whether the trial judge failed to correctly assess the evidence - Trial judge erred in assessment of plaintiff company's financial position - Delay in bringing application - Onus on plaintiff to satisfy Court that defendant's conduct caused or materially contributed to its inability to meet order for costs - Court adopts cautious approach when claim is based on impecuniosity rather than loss of profit - Uniform Civil Procedure Rules 2005, r 42.21; Corporations Act 2001 (Cth), s 1335(1).

ADMINISTRATIVE LAW - judicial review - failure to take into account relevant considerations - whether failure to refer to particular evidence can constitute failure to take into account relevant consideration - whether applicant entitled to rely on the reasons of the decision maker - whether necessary for applicant to rely on submissions before decision maker - need to identify source of legal obligation to consider mandatory factors - whether decision maker considered evidence - whether evidence is a relevant consideration for the purposes of judicial review DAMAGES - motor vehicle accident - future economic loss - use of buffer - whether decision to award damages by way of buffer is an evaluative judgment - whether buffer manifestly unreasonable given likely future loss

ADMINISTRATIVE LAW - judicial power - executing invalid order of superior court - whether order of superior court incompatible with exercise of judicial power is valid until set aside - whether non-judicial order derives whatever authority it has solely from the relevant legislation - effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 CONSTITUTIONAL LAW - judicial power - Supreme Court order under statutory power incompatible with judicial power invalid - order made in proceedings involving exercise of federal judicial power - exercise of federal judicial power simultaneous with function incompatible with judicial power - whether invalid State law applied by federal law - Judiciary Act 1903 (Cth), ss 39(2), 79 and 80 TORT - defences - protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith - whether protection exists at common law - whether any protection extends to orders incompatible with exercise of judicial power TORT - false imprisonment - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation - legislation incompatible with judicial power and invalid - whether deprivation of liberty carried out by a person for whose conduct the State was liable - whether deprivation of liberty justified by law TORT - malicious prosecution and collateral abuse of process - plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation - whether malice established TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - whether State vicariously liable for conduct which was tortious absent statutory protection - Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10

PRACTICE AND PROCEDURE - Jurisdiction - Leave sought to extend time to file cross-claim against co-defendant in Dust Diseases Tribunal after judgment for plaintiff- Leave granted by trial judge - Whether the trial judge had jurisdiction to make orders extending the time in which to file a cross-claim - Dust Diseases Tribunal Act 1989, s 11.

COSTS - where plaintiff sought leave to discontinue proceedings - UCPR r 42.19 - whether the court should depart from ordinary rule that plaintiff pay defendant's costs upon discontinuance - factors to consider in departing from ordinary rule - where plaintiff discontinued against defendant having settled with his insurers - whether impecunious defendant was entitled to continue to defend proceeding once insurer was joined - where defendant has separate defences from insurers - where plaintiff achieved practical success against insurers through defendant - where plaintiff settled with insurer on terms that it would discontinue against defendant COSTS - interest - Civil Procedure Act s 101 - whether interest on costs should be payable - where party entitled to costs has been out of pocket for some time

CORPORATIONS - winding up - creditor's statutory demand - Corporations Act 2001 s 459G - whether genuine dispute exists - whether offsetting claim exists

MORTGAGES AND SECURITY - default - guarantee - construction - rectification - claim for possession

PROCEDURE - Courts and judges generally - application that judge recuse himself - whether statement in judgment gave rise to reasonable apprehension of bias - whether fair-minded observer would so conclude

TRADE PRACTICES - misleading and deceptive conduct - misleading and deceptive conduct by silence - where first defendant was plaintiff's agent in China and was involved in setting up business to purchase plaintiff's product at undervalue and to providing benefits to second defendant at plaintiff's expense. TRADE PRACTICES - misleading and deceptive conduct - calculation of damages - where plaintiff asserts it would not have entered into business but for misleading and deceptive conduct - whether all expenses of business recoverable or whether there was a "supervening event" causing some of the loss.

COSTS - apportionment of costs - where defendant succeeded on one issue but failed on others - whether costs should be apportioned - onus on plaintiff to demonstrate basis for departing from ordinary rule that successful defendant is entitled to costs - factors in deciding whether to deprive successful defendant of some or all of their costs - whether scope of liability can be separated from factual causation - where breach admitted by defendant - costs associated with breach of duty can be treated separately

TORTS - negligence - motor vehicle accident - boy on bicycle crossing road - collision with bus - unreliability of plaintiff's version of how accident occurred - inability of expert evidence to fill factual gaps - inability of plaintiff to prove failure to keep proper lookout on part of bus driver - inability of plaintiff to prove breach of duty by bus driver in failing to apply emergency braking - causation - contributory negligence - damages - assessment on a contingency basis.

PROCEDURE - civil - parties - representation - application for referral to legal practitioner on Pro Bono Panel - public authority refused to issue certificate of roadworthiness - plaintiff alleges breach of duty of care - whether substantive matter has reasonable prospects of success - whether in the interests of justice to refer applicant to Pro Bono Panel - discussion of Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 - Uniform Civil Procedure Rules 2005 (NSW), r 7.36

ENVIRONMENT AND PLANNING - building control - dual occupancy - where council required to consider development control plan when determining development application - where development control plan permitted dual occupancy as attached buildings - whether grant of development consent for detached building at rear of property valid - whether consent achieved objectives of development control plan WORDS AND PHRASES - "street frontage" - "frontage"

PRACTICE & PROCEDURE - interrogatories - UCPR r 22.1 - whether interrogatories are necessary - Supreme Court Practice Note SC Eq 11 - whether interrogatories should be ordered before defence filed or evidence served - factors justifying interrogatories at an early stage - where plaintiff requires information solely in the hands of the defendant to quantify its claim

CORPORATIONS - Winding up - Creditor's petition to wind up - Whether there is any advantage to the appointment of a liquidator by the court - Whether leave should be granted to the company to resolve that it be wound up voluntarily.

CRIMINAL LAW - summary prosecutions - s 91 Election funding and Disclosures Act 1981 - reportable political donation - failure to lodge declaration - defendant admitted offence - objective gravity lower end of scale

CONTRACT - Construction - where Services Agreement contains provisions clear and unambiguous in their meaning - effect must be given to that meaning - EQUITY - Rectification of contract - necessity for party seeking rectification to establish actual subjective intention

CONTRACT CONSTRUCTION - general principles - term in contract - ambiguous language - surrounding circumstances - whether creation of trust - principles of trust - obligations of trustee - rectification - common intention - implied term - estoppel

APPLICATION TO VARY ORDERS - orders made relocating plaintiff and his family to temporary accommodation whilst asbestos removal works take place at current residence - whether alternate accommodation suitable JURISDICTION - whether Supreme Court has power to re-open matter once orders made - held that only some issues in dispute could be decided

CRIMINAL LAW - appeal - conviction - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether person encouraged must be Australian citizen or resident - discussion of XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 - Crimes Act 1914 (Cth), ss 50AD, 50BA and 50DB CRIMINAL LAW - appeal - conviction - importation of child pornography; use of internet to access child pornography - defendant alleged that he did not have access to the computer at the time of the offence - whether trial judge erred in refusing to direct jury to acquit if evidence might reasonably have been true - whether miscarriage of justice in the circumstances of the case CRIMINAL LAW - appeal - sentence - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether sentence manifestly excessive - whether offending more serious when encouraged conduct occurred - Crimes Act 1914 (Cth), ss 50BA and 50DB CRIMINAL LAW - appeal - sentence - extra-curial punishment - value of appellant's business declined after arrest - whether allowance should be made for consequences common to all custodial sentences - whether greater allowance should be made for wealthy or well-known offenders - whether distinction should be made between consequences for offender and for associates CRIMINAL LAW - appeal - sentence - sentencing for Commonwealth offences - offences involved overlapping elements of criminality - sentencing judge imposed separate concurrent identical sentences for each offence - whether offender sentenced more than once for common elements - discussion of Pearce v The Queen [1998] HCA 57; 194 CLR 610 - Crimes Act 1914 (Cth), s 19 CRIMINAL LAW - procedure - application to split closing address - prosecutor not consenting - whether refusal led to miscarriage EVIDENCE - prosecution relied on tendency evidence without giving notice - whether evidence also relevant to circumstantial case in relation to another offence - whether necessary to distinguish circumstantial evidence from tendency evidence - whether direction could have assisted jury - whether leave should be granted to rely on ground not objected to at trial - Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4

STATUTORY INTERPRETATION - appellant and former member of Legislative Assembly married for duration of parliamentary service, divorced and remarried just prior to former member's death - whether appellant entitled to pension pursuant to s 23(1) of the Parliamentary Contributory Superannuation Act 1971 - extrinsic materials not able to be relied upon to displace clear words of statute

PROCEDURE - Fresh Trial - judge unable to conclude application to re-open - principles applicable to re-opening no longer applicable - whether cash payments journals deliberately withheld from discovery at trial admissible as material relevant to fresh trial

COURTS - jurisdiction - where proceedings remitted to trial judge to determine specified questions following appeal - whether task remitted by Court of Appeal required trial judge to rehear matters already determined by her - whether trial judge would be acting beyond power to determine questions remitted COURTS - practice and procedure - application of apprehended bias principle -specific questions remitted to trial judge by Court of Appeal - whether issues already determined by trial judge - where decision to remit to same judge alleged to have been made by Court of Appeal per incuriam - whether matter should be referred for hearing by another judge

APPEAL - assignment of debt arising under contract - counsel's fees - precise identification of debt - misleading or deceptive conduct - estoppel CONTRACT - costs agreement - counsel's fees - assignment of debt arising under contract - precise identification of debt - misleading or deceptive conduct - estoppel

PROCEDURE - claim in 2011 proceedings no longer pursued - 2011 proceedings dismissed COSTS - costs of four motions - orders made