Cases and authorities

Equity - Commercial List - Separate question orders

ADMINISTRATIVE LAW - Police Integrity Commission - reopening to deal finally with issues arising as a consequence of earlier judgment - whether judgment entered - jurisdiction - irrelevant considerations - reconsideration necessary

PRACTICE AND PROCEDURE - whether Part 50.5(2) of the Uniform Civil Procedure Rules applies - whether the Costs Assessor "must" or should be joined as a party to the proceedings - circumstances in which joinder should occur.

ADMINISTRATIVE LAW - workers' compensation premiums - deemed worker assessment under Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 - no error of law or jurisdictional error - certiorari (or orders in the nature thereof) and declarations refused

PRACTICE AND PROCEDURES - Discovery - allegation of inadequate discovery - no issue of principle

ADMINISTRATIVE LAW - challenge to magistrate's decision not to allow withdrawal of plea - material relied upon not available to defendant - Director of Public Prosecutions concedes denial of natural justice - orders in the nature of certiorari issued - no issues of principle

COURTS AND JUDGES - removal of Magistrate - report of Conduct Division of Judicial Commission of NSW - formation of opinion by Conduct Division that Parliament could consider removal on ground of proved incapacity - judicial review of administrative decision - grounds reviewed. ADMINISTRATIVE LAW - judicial review at Common Law - statutory duty to form opinion - opinion that Parliament could remove judicial officer for incapacity - limited grounds of review - did Conduct Division apply correct statutory test - whether consideration of irrelevant matter - whether refusal to consider relevant matter - no error of Conduct Division established.

BANKRUPTCY AND INSOLVENCY - avoidance of alienation of property with intent to defraud creditors - "phoenix company" - company in financial difficulties vacates the field in favour of another company owned by associate of its owners

PRACTICE AND PROCEDURE - UCPR - Service outside Australia - Defamation - Geographical location of defamation/injury to reputation - Compensatory nature of general damages PRACTICE AND PROCEDURE - UCPR - Set aside substituted service of process - Service outside Australia - Defamation - Whether service authorised by UCPR - Properly joined as party to proceedings - Common questions of fact and law in pleadings - Damages PRACTICE AND PROCEDURE - UCPR - Inappropriate forum - Clearly inappropriate forum test - Onus on applicant - Alternative forums - Connection with NSW - Financial capacity of parties - Speech Act (USA) - Whether continuation of proceedings oppressive and vexatious ABUSE OF PROCESS - Insufficient prospects of success - Defamation - Minimal recipients of defamatory publications - Real and triable issue - Summary Dismissal - Nominal damages

CRIMINAL LAW - appeal against sentence - whether insufficient weight given to the offence taken into account pursuant to s 16BA of Crimes Act 1914 (Cth) - whether insufficient weight was given to specific deterrence - whether insufficient weight was given to the maximum penalty for offences - whether the finding that substantial concurrence of the sentences imposed for the offences of Using a Carriage Service to Make Available Child Pornography and Dealing in the Proceeds of Crime was necessary to avoid prospect of double punishment - whether sentence was manifestly inadequate - appeal dismissed COSTS - application under either ss 6A or 6C of the Suitors' Fund Act 1951 - certificate refused

CRIMINAL LAW - particular offences - drug offences - leave to appeal against sentence - whether notional starting point of sentence manifestly excessive - continuing authority of R v Wong and Leung [1999] NSWCCA 420.

APPEAL - costs - right of appeal - jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(c) - whether leave to appeal required - whether an order that a liquidator pay the costs of the proceedings personally without a right of indemnification is an order "as to costs only" APPEAL - costs - right of appeal - whether an order that a liquidator pay the costs of the proceedings personally without a right of indemnification is an order as to "costs ... which are in the discretion of the court" - where judge finds that trustee, executor or liquidator has committed misconduct in the performance of the office and denies the right of indemnity concerning costs, the order of the judge is not one as to "costs ... which are in the discretion of the court" APPEAL - costs - right of appeal - whether the liquidator was a party or non-party in relation to various claims brought under a single originating process - general power of the court to make costs orders against parties and non-parties under Civil Procedure Act 2005 s 98 - whether an order that a non-party pay the costs of the proceedings is an order as to "costs ... which are in the discretion of the court" CORPORATIONS - liquidators - costs - loss of right of indemnification - right of appeal - inherent power of the court of control over liquidators - Corporations Act ss 477(6), 536 - whether liquidator acted prudently and reasonably in prosecuting the proceedings EXECUTORS - costs - loss of right of indemnification - right of appeal TRUSTEES - costs - loss of right of indemnification - right of appeal LEGAL PRACTITIONERS - costs - order that legal practitioner bear the costs of litigation personally - right of appeal

LEGAL PRACTITIONERS - Professional negligence - barrister - wasted costs - failure to advise on necessary content of affidavit evidence - negligence not in issue - proceedings dismissed under r 29.9 Uniform Civil Procedure Rules (NSW) 2005 - on facts, negligence at and from time affidavits were prepared - work done drafting or settling affidavits led to decision affecting conduct of the case in court - decision to conduct case on the affidavits as prepared - negligence within advocate's immunity - whether causation broken because barrister did not take steps at hearing which might have averted dismissal - or because judge erred in dismissal - appropriate for the scope of liability to extend to the harm so caused - but for advocate's immunity scope, liability would extend to wasted costs - respondent to pay appellant's costs

JURY - the jury in criminal proceedings - striking and empanelling - selection of additional jurors

INJUNCTIONS - Preservation of subject matter pending appeal - needs of parties liable to fluctuate - flexible approach necessitated - parties to not deal with real property without notice - liberty to apply to court. COSTS - Defendants successful - ordinary position that costs follow the event - exception in probate litigation where circumstances lead reasonably to investigation of will - defendants put untruthful account to court - untruthful account fundamental to initiation and ongoing prosecution of certain claims - defendants' incurred some additional costs as result of plaintiff's conduct of case - defendants would have incurred some costs regardless of own misconduct - defendants' entitled to portion of costs - plaintiffs to pay defendants costs fixed at $100,000.

PERSONAL PROPERTY - ownership and possession - possession - SUCCESSION - executors and administrators - rights, powers and duties - - application by wife for possession of sperm extracted from body of late husband - Human Tissue Act 1983 - circumstances in which sperm was extracted from deceased body - whether sperm extracted in such circumstances can be characterised as "property" - wife as administrator of estate of late husband - intended use outside New South Wales in assisted reproductive treatment to conceive a child - no written consent by late husband to such use - Assisted Reproductive Technology Act 2008 - whether application should be granted where it is likely sperm will be used out of State for a purpose prohibited within State - discretionary factors

PARTNERSHIP - dissolution and winding up - Wade claims to be creditor- whether debts incurred post dissolution by continuing partner carrying on partnership business necessary for winding up of partnership - assignment of debts at law under (NSW) Conveyancing Act, s 12 - plaintiff appointed agent for collection of certain debts - no absolute assignment of these debts - notification of certain assignments said to be given to creditor's solicitor - notice to solicitor is notice to client - notice by service of initiating processes. PAYMENTS INTO COURT - where funds paid in from sale of non-partnership asset pending outcome of accounting between partners - whether partnership creditor entitled to moneys paid in - fund solely to secure entitlements of partners on taking of partnership accounts - fund not to secure partnership liabilities - creditor has no proprietary entitlement to funds in court. TRUSTEES - Trustees appointed under Conveyancing Act s 66G to sell real property held in co-ownership by former partners - whether costs incurred by trustees in defence of proceedings unsuccessfully brought against them by beneficiary after trust terminated and property distributed incidental to administration of trust - termination of trust does not render defence of subsequent allegations of breach of trust other than incidental to administration - whether trustees disentitled to indemnity by failing to seek judicial advice - failure to seek advice does not disentitle - where trust property still identifiable and traceable - indemnity persists post termination of trust - trustees entitled to indemnity and lien over property.

CONTRACTS - whether signing a Borrower's Declaration as to Purpose invoked s 11(2) of Consumer Credit Code when borrowed funds on-lent to borrower's son - whether credit provider should have issued default notices under s 80 of the Code - whether loan agreements were unjust contracts within meaning of s 7 of Contracts Review Act - whether the lending was asset lending - whether test of unfairness in s 9 of Contracts Review Act is made out - whether knowledge of a borrower's financial circumstances by a third party under an Introducer Agreement should be imputed to the credit provider according to the law of agency - whether breach of duty of care by a failing to advise as to the legal effect of a Borrower's Declaration as to Purpose and the loan agreements - whether failure by lawyer to refuse to act by reason of a conflict of interest - whether failure by lawyer to advise to seek independent legal advice when that conflict became manifest - whether causation established

Application by notice of motion by brother of protected person seeking removal of Plaintiff as manager of protected person's estate - Appointment of himself as manager in Plaintiff's place - Order for costs - Current manager does not oppose application - Consents to the appointment of applicant in his place

CORPORATIONS - pre-emption agreement requiring defendant to offer shares in a company to the plaintiff if the defendant proposes to transfer the shares - scheme to be proposed under s 411 of the Corporations Act 2001 (Cth) - defendant expected to vote in favour of scheme - whether this amounts to proposal to transfer

CORPORATIONS - application for access to confidential affidavits filed pursuant to s 596C(1) of the Corporations Act 2001 (Cth) - application to set aside order for production - application to set aside examination summonses - HELD - access to confidential affidavits not granted - order for production limited in scope - examination summonses not set aside - direction that examinations be held in private and as to manner in which examinations to be transcribed

CORPORATIONS - winding up - statutory demand - application for order setting aside - judgment debt under default judgment against two companies - unsuccessful application to have judgment set aside - appeal pending - held no genuine dispute - held no "other reason" unless judgment debt paid into court

TRUSTS - Intention to create trust - certainty of intention, object and subject matter - non-requirement that the term "trust" be used when establishing trust - vesting order to appoint Company as trustee of trust EVIDENCE - Authenticity of documents - presumption as to the authenticity of documents displaced

APPROPRIATION - Circumstances in which appropriation of payment to discharge debt ought to be found - Relationship between debtor and creditor - Communication of intention to appropriate payment - Appropriation once made is irreversible CONTRACT - Whether contract made to alter appropriation can be considered valid and binding - Whether appropriation once made can be reversed through contractual negotiations - Consideration required to reverse effect of previously discharged debt through contract - Requirement of additional terms in contract providing fresh consideration for reversal of previously discharged debt

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed - whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA - whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act - whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

Common law - Administrative law - motor accident - medical assessment - referral to review panel - no error.

CRIMINAL LAW - application for leave to appeal against sentence - murder - sentencing judge found offence in middle range of objective seriousness - error in finding as aggravating factor that offence committed in company - consideration of objective gravity on re-sentence - finding that offence below mid-range

NEGLIGENCE - general practitioner administering cortisone injection - development of abscess - medical causation - whether failure by trial judge to properly analyse factual evidence - whether failure by a trial judge to properly analyse expert evidence - extent to which appellate court should interfere with fact finding of trial judge - evidence - difficulties in trial judge assessing competing medical evidence when reports tendered and oral evidence not given.

CRIMINAL LAW - evidence - view of crime scene by jury

CRIMINAL LAW - procedure - miscellaneous powers of courts and judges - suppression orders - application for non-publication orders in respect of certain evidence and witnesses

PRACTICE AND PROCEDURE - notice of motion - plaintiff under legal incapacity - proceedings concluded by consent orders without appointment of tutor - absence of tutor irregularity waived by defendants - subsequent application for appointment of tutor - where plaintiff's solicitor seeking to recover costs incurred in the proceedings - recoverability of costs unaffected by whether tutor now appointed - where plaintiff seeking to enforce consent orders made in the proceedings - orders sought to be enforced not expressed as orders of the court and are agreement between the parties - enforcement of agreement would be by way of claim for specific performance - appointment of tutor not necessary or appropriate for enforcement of consent orders - notice of motion dismissed with no order as to costs

Construction of deed - Mortgage - Consideration - Power of attorney

CONTRACT - alleged misleading and deceptive conduct - plaintiff claims to have invested $1 million with the first and second defendants - the second defendant admits and the first defendant denies the investment - HELD - plaintiff only invested with the second defendant by way of loan, not the first defendant - EQUITY - equitable remedies - alleged breach of fiduciary duty - first defendant said to have misused his fiduciary position in relation to the making of the plaintiff's $1 million investment - claim for equitable compensation - HELD first defendant is not the plaintiff's fiduciary - no equitable compensation awarded - MISLEADING AND DECEPTIVE CONDUCT - plaintiff alleges misleading and deceptive conduct and negligent misstatement against first defendant in relation to $1 million investment - HELD - no misleading or deceptive conduct - no conduct in trade or commerce - no duty of care.

EVIDENCE - opinion evidence - expert opinion - specialised knowledge - whether conclusions of experts based on specialised knowledge - principles in Makita v Sprowles - reliance by expert on analysts' and brokers' reports concerning the Plaintiff - whether such reports constitute business records - whether such reports admissible.

Legal professional privilege-Principles-Onus of an assertion of legal professional privilege-Scope of legal advice extends to what prudently and sensibly should be done in the relevant legal context

CORPORATIONS - winding up - statutory demand served by natural person - application for order setting the demand aside served by the company - application placed by process server in letterbox at particular premises - whether good service of application - whether personal service required by UCPR 10.20(2)(a) where defendant is a natural person - whether, through the exception in s 79(1) of the Judiciary Act, Acts Interpretation Act provisions regarding service applied by the Corporations Act itself prevail over the UCPR specification - whether originating process in a s 459G case is "required or permitted" to be served - whether the particular address was the address of the defendant's last known place of residence or business - whether leaving a document in the letterbox at premises amounts to leaving "at" the premises' "address"

TORTS - DETINUE - plaintiff as a professional artist agreed for no remuneration (other than expenses) to paint 10 portraits of indigenous women for the promotion and assistance of a project - permission given by plaintiff to defendants to use images of the paintings in a forthcoming publication Black Chicks Talking - defence pleaded a binding agreement whereby the second defendant, a production company, would hold the property in or the ownership of the paintings - onus of proof on elements of the cause of action in detinue discharged CONTRACT - whether defendants discharged the evidentiary burden on them to prove a binding agreement as pleaded - defendants failed to discharge that onus - relief as sought in paragraph 1 of the Further Amended Statement of Claim to be granted - first defendant liable both as director of the second defendant and as the person who was responsible for obtaining and holding possession of the paintings - proposed order that defendants deliver up possession of the paintings to the plaintiff as the rightful owner of them - direction that parties prepare short minutes of order to give effect to the judgment.

Common law - administrative law - proceedings dismissed - costs.

Application for prerogative relief pursuant to section 69 of the Supreme Court Act 1970 or leave to appeal pursuant to section 53(3)(a) Crimes (Appeal and Review) Act 2001 in relation to committal proceedings - failure to exercise jurisdiction by a Magistrate - failure to apply proper test - failure to answer the question that the law prescribed - misunderstanding the true nature and content of the opinion that was required at law to be formed - doli incapax was an element of the offence - failure to consider that issue - order for committal should be quashed and matter remitted to the Children's Court to be determined according to law.

CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - photographs of accused showing tattoos - photographs of one accused in prison clothing

REAL PROPERTY - caveat - application to lodge a fresh caveat under s 74O of the Real Property Act 1900 - where plaintiff claims an interest as chargee under lease agreement and guarantee - where plaintiff obtained judgment in Local Court for amount owing by the defendant under the guarantee and for costs of the application - serious question to be tried that the charge exists and secures the obligations of the defendant under Local Court judgment - balance of convenience favours maintenance of caveat as plaintiff may be put in position of unsecured creditor if left to remedies as judgment creditor - where plaintiff does not claim for final relief in application for maintenance of caveat - plaintiff entitled to leave under s 74O if proffers an undertaking to the court to amend summons to seek final relief, at least in form of a declaration that plaintiff entitled to charge over defendant's property

Corporations - Winding up - Winding up in insolvency - Statutory demand - Application to set aside demand - demand made pursuant to DCT notice of assessment - mere existence of an objection not sufficient ground to set aside demand

Corporations - Winding up - Winding up in insolvency - Statutory demand - Application to set aside demand - demand made pursuant to DCT notice of assessment - applicant lodged objections with ATO that have not yet been determined - single application made in relation to two separate statutory demands

PRACTICE AND PROCEDURE - Civil Procedure Act 2005 - application for interim payment - whether an order for interim payment could be made that does not exceed a reasonable proportion of the damages that might be recoverable - order for interim payment of $35,000

PROCEDURE - civil - judgments and orders - set aside orders

CRIMINAL LAW - particular offences - offences against the person - sexual offences - aggravated sexual assault - s 61J Crimes Act 1900 - property offences - malicious damage - stealing CRIMINAL LAW - appeal against conviction - trial by jury - unrepresented at hearing of appeal - unreasonable verdict - credibility of complainant - implausibility of account - fresh evidence - finding of guilt open on the evidence - appeal dismissed CRIMINAL LAW - appeal against conviction - trial by jury - conduct of defence counsel - failure to comply with instructions - absence of cross-examination on particular matters - no evidence given by accused at trial - exercise of forensic judgment - no miscarriage of justice - appeal dismissed CRIMINAL LAW - application for leave to appeal against sentence - applicant unrepresented - plea of guilty to property offences - aggravated sexual assault - finding of guilt following trial - offences related - numerous grounds - conditions of incarceration - mental illness - bias - failure to order sentences be served wholly concurrently - fresh evidence - error in finding no evidence of causal relationship between mental illness and sexual assault offence - error in finding offences committed while on conditional liberty - sentences within available range - no manifest excess - leave granted - appeal dismissed CRIMINAL LAW - Crown appeal against sentence - s 5D Criminal Appeal Act 1912 - manifest inadequacy - special circumstances - degree of departure from standard non-parole period - conduct reaching the "cusp" of mid-range of seriousness - evidence of causal relationship between offences and mental illness - error in finding offences committed while on conditional liberty - errors favour applicant on appeal - finding of special circumstances - no manifest inadequacy

CRIMINAL LAW - appeal on sentence - applicant charged with dealing with proceeds of crime - whether applicant reckless to that fact - whether trial judge erred in sentencing applicant for the intent offence than the reckless offence - Act provides proof of intention can indicate recklessness - whether breach of De Simoni principle - whether sentencing judge erred in taking into account multiple transactions in assessing objective seriousness - whether trial judge erred in increasing sentence to reflect "ongoing criminal conduct" - whether principle against double counting breached

CRIMINAL LAW - Appeal seeking to set aside interlocutory order - no order made - no jurisdiction to set aside preliminary ruling - providing false information to police - whether capable of constituting offence of acting with intent to pervert the course of justice - scope of offence - whether common law concept narrowed by Einfeld's case - whether error by primary judge could be corrected.

APPEAL - civil - damages - award - whether judge awarded excessive damages not reflected in the evidence. PROCEDURE - civil - judgments and orders - whether final judgment had been given before variation made - whether variation could be made even if judgment had not been entered - Uniform Civil Procedure Rules r 36.11(2).