Cases and authorities

CRIMINAL LAW - Certiorari - Application pursuant to s 69 Supreme Court Act 1970 - eligibility test under s 5(2) of the Drug Court Act 1998 - elements of offence relevant, not circumstances of offence - discretion available to reject offender even where otherwise eligible - violent conduct in eligibility test means violence to person - damage to property may be considered under discretion but not relevant to exclude offender under eligibility test

ADMINISTRATIVE LAW - Police Integrity Commission - subject matter of investigation - test whether connected with misconduct - past, present or likely future misconduct may be investigated - an expected outcome of prevention may allow for an investigation if, in fact, sufficiently connected with allegations of past, present or likely future misconduct

Application for security for costs and to set aside part of notice to produce

PROCEDURE - notice of motion - reasonable security of costs for future litigation sought - notice of motion leave to re-open - leave granted - reasonable costs assessed

REVIEW - Registrar's decision - Discovery

APPEAL - civil - objection to competency of appeal - whether appeal lies from the District Court judgment on an appeal from the Consumer Trader and Tenancy Tribunal - District Court Act 1973 (NSW), s 127; Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67. WORDS AND PHRASES - "action" - District Court Act 1973 (NSW), s 127

DUST DISEASES TRIBUNAL - procedure - new claim by defendant seeking contribution from third parties - claims resolution process ("CRP") - apportionment determination by a Contributions Assessor - whether CRP applies to contribution claims made in separate proceedings to original claim - whether ss 32H(1)(a), 32H(1)(b) of Dust Diseases Tribunal Act authorises regulations applying CRP in separate contribution proceedings

CRIMINAL LAW - evidence - whether relevant - whether relevance outweighed by danger of unfair prejudice - evidence of prior surveillance of Hells Angels member by Comancheros

PROCEDURE - discovery - documents relating to third parties - whether documents sought was a fishing expedition - documents relevant to claim - orders made

PROCEDURE - application for leave to commence proceedings under Vexatious Proceedings Act 2008 - applicant prohibited from commencing legal proceedings without leave of the court - leave sought to file a notice of appeal - requirements of s 14(3) of the Vexatious Proceedings Act 2008 - consideration under s 15(1) of the Vexatious Proceedings Act 2008 - prima facie ground found - leave sought granted

CRIMINAL LAW - Appeal against sentence - manslaughter - deceased acting aggressively and armed with knives - deceased lowers knives and backs away - deceased struck with a branch by offender and kicked while on the ground - plea of guilty to manslaughter on the basis of excessive self defence accepted during course of trial - whether sentencing judge erred in assessment of degree of threat posed by deceased and whether sentence manifestly excessive - application for leave to appeal granted but appeal dismissed.

DEFAMATION - qualified privilege defences - significance of plaintiff not being named in newspaper article - quantification of damages - application for leave to appeal dismissed

PROCEDURE - service - whether statutory demand delivered to director at registered office - question of fact - no matter of principle

[Practice and procedure] - Application to transfer proceedings from District Court - plaintiff invited to make application in August 2010 before trial set down for hearing - plaintiff chose to stay in the District Court to enjoy forensic advantage - when forensic advantage could not be achieved - application made to transfer proceedings five days before trial to commence in District Court

Costs

PROCEDURE - application for default judgment - defence not filed in time but filed before application made - no default - application for summary dismissal - plaintiff unrepresented - no material facts pleaded - no particulars of fraud - no duty of care identified - plaintiff permitted to re-plead - amended pleading does not correct defects - proceedings dismissed.

CIVIL PROCEDURE - applications by defendants pursuant to Rule 12.11(1)(e) and/or 36.16(1) for discharge or setting aside of ex parte orders extending time for service of the Statement of Claim - application for dismissal or permanent stay of the proceedings - plaintiffs' application for leave pursuant to s 64 and/or 65 of the Civil Procedure Act 2005 (NSW) to amend the Statement of Claim HELD - order pursuant to Rule 12.11(1)(e) that orders made ex parte on 16 November 2009 and 20 May 2010 extending the time for service of the Statement of Claim be discharged - proceedings dismissed - application to amend Statement of Claim dismissed

Reference out - Discretion to adopt, vary or reject reports of referee- Principles

CORPORATIONS - winding up - application for order setting aside statutory demand - reliance on offsetting claim ground - whether "supporting affidavit" filed and served within 21 day period - "Graywinter principle" - no sufficient identification of any offsetting claim or its amount - proceedings dismissed

REAL PROPERTY:- appointment of trustees on statutory trusts for sale - allowing co-owner to purchase - costs.

Summary judgment - r13.1 UCPR - set-off - indirect causation - principle in Westco - guarantee - ousting of jurisdiction

The Plaintiffs, the children of the deceased by his first marriage, seek a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to the Defendant, his wife of 32 years - Reasonably large estate or notional estate - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made

CONTRACT - construction - avoidance of capricious, unreasonable or inconvenient consequences UNCERTAINTY - applicable principles - complex restraint of trade clauses - multiple combinations and permutations - mere complexity insufficient ESTOPPEL - applicable principles - formal legal relationship - necessity for clear and unambiguous representation - reliance unreasonable - no reasonable expectation of reliance by representor REPUDIATION - no intention to renounce contractual obligations - no repudiation RESTRAINT OF TRADE - applicable principles - restraint contained in management equity participation deed not employment contract - legitimate interest - reasonableness of restraint period - factual considerations - confidential information - business cycle of negotiations with advertisers - significance of acknowledgement by employee of reasonableness of restraint period - significance of legal advice - pacta sunt servanda DISCRETION - circumstances at date of hearing - relevance of gardening leave - no reasonable likelihood of misuse of confidential information after 1 January 2012 - no legitimate protectable interest after that date - injunctive relief declined after 1 January 2012

CORPORATIONS - winding up - application for winding up in insolvency - at start of final hearing, defendant seeks leave to file s 459S application - no such application foreshadowed - need for such application to be determined before final hearing - application refused

INSURANCE - continuous disability insurance - whether insured suffered total/partial incapacity - interpretation of the definition of 'sickness' - whether signing proposal form adopts it contents - whether insured made misrepresentations in the proposal form - whether misrepresentations fraudulent - whether insurer would have issued policy in light of misrepresentations. CONTRACT - performance - affirmation - election - communication required for election - level of knowledge required for election - insufficient knowledge for election - whether waiver offers separate defence. EVIDENCE - witnesses - unexplained failure to call witnesses - inferences - no inference to be drawn from the failure of insurer to call employees who handled claim. RESTITUTION - change of position defence - moneys paid under contract subsequently avoided - whether missed opportunity for benefit is a detriment for purpose of change of position - whether defence should operate pro tanto - whether payment of living expenses can in some circumstances constitute a change in position

PROCEDURE - civil - summary disposal - dismissal - whether reasonable cause of action disclosed - UCPR 13.4 - interpretation of s 36 of Civil Liability Act 2002 - whether "concurrent wrongdoer" for purpose of s 36 - whether issue estoppel operates in relation to consent judgments - held reasonably arguable case

Appeal from Local Court - power to order stay of appeal until security for costs is given - principles applicable - failure by a party to meet previous cost orders - interests of justice - consideration of past and anticipated costs.

CRIMINAL LAW - appeal - sentencing - robbery - repeat offending - whether sentences manifestly excessive

PROCEDURE - Local Court - apprehended violence proceedings - costs - whether Court required to fix amount - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 99; Criminal Procedure Act 1986 (NSW), s 215; Legal Profession Act 2004 (NSW), s 353 STATUTES - interpretation - reconciliation of conflicting provisions - provisions in one Act picked up by another

CRIMINAL LAW - procedure - information, indictment or presentment - joinder - joint or separate trial - whether prejudice caused by case for co-accused will cause positive injustice

PROCEDURE - pleadings - defamation - truth defence - distinction between material facts and particulars - whether defendants ought to have amended pleading rather than notifying plaintiff of additional particulars by letter

[Practice and Procedure] - Application to set aside subpoenas - whether any legitimate forensic purpose - documents sought in support of an application to cross examine defendants in relation to compliance with orders for preliminary discovery

[Practice and Procedure] - Whether party who has filed five verified Lists of Documents and agreed to file a sixth verified List of Documents may be cross-examined - impact of s 56 of the Civil Procedure Act 2005

PROCEDURE - civil - subpoena - application to set aside - circumstances in which application can be made by a party to the proceedings - whether too broad - whether legitimate forensic interest in obtaining subpoenaed documents -interrogatories and notice to produce - whether entitled to investigate changes in financial position in order to establish receipt of secret commissions - held insufficient evidence to justify interrogatories and notice to produce

Notice of motion seeking to set aside default judgment - Principles - No arguable defence - Prejudice to plaintiff

PROCEDURE - account - taking of account - mortgagor and mortgagee - who is accounting party and who is non-accounting party - where onus lies - PROCEDURE - moneys in court - balance of proceeds of sale of mortgaged property - where taking of account between mortgagor and mortgagee pending - moneys in court substantially exceed total claimed by mortgagee - whether that excess should be paid out to mortgagor or left in court to be paid out as and when mortgagor's liquidator shows a proper need for funds for the purposes of the winding up

PRACTICE AND PROCEDURE - medical negligence claim - contested application for appointment of facilitator to attend reconvened meeting of breach of duty experts - role of facilitator - order made for attendance of facilitator - application for leave to rely upon further expert report served out of time - leave granted

PROCEDURE - first defendant's notice of motion to strike out those parts of the plaintiff's statement of claim which claim breaches of fiduciary duty - whether the statement of claim discloses any arguable fiduciary duty or breach of duty - whether separate interests not involving conflict give rise to a cause of action for breach of duty - second defendant's notice of motion to set aside the service of the statement of claim outside of Australia - Rules 11.7(2)(a) and 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) - whether the statement of claim discloses an arguable cause of action against the second defendant - whether the fact that the second defendant owns and controls the first defendant means that the second defendant is in a fiduciary relationship with the plaintiff to the same extent as the relationship between the plaintiff and the first defendant when the second defendant has no dealings with the plaintiff

JUDGMENT - application to set aside - exceptional power to re-open - principles - Sections 56 and 90 Civil Procedure Act - additional dimensions - further hearing

PRACTICE AND PROCEDURE- Pro bono application- application for pro bono legal assistance for appeal from Administrative Decisions Tribunal Appeal Panel- assistance from Legal Aid refused on the merits- no solicitor on Law Society's panel willing to assist- Court required to consider the interests of justice- the interests of justice usually require a person with an arguable case to have the opportunity to put the matter before the Court- this has less weight in Court of Appeal than at first instance- case already heard before two administrative tribunals- Court takes into account whether there is a real chance of success but does not fully consider the merits- although applicant was in person, there was no sufficiently arguable case to support the grant of an order for pro bono assistance.

ADMINISTRATIVE LAW- natural justice-evidence of key witness admitted notwithstanding witness not present for cross-examination- finding of denial of procedural fairness upheld. ADMINISTRATIVE LAW- tribunal not bound by rules of evidence- applicant to satisfy tribunal that he is no risk to children- Commissioner raising particular incidents-no onus on Commissioner to prove those incidents occurred- onus remains on applicant.

CORPORATIONS- uncommercial transactions- Corporations Law s 588FB- new company taking over business of "Resellers"- Resellers owe debt to Apple- new company not obliged to pay Resellers' debt to Apple, but does so- whether transaction uncommercial- significance of whether or not transaction is for full consideration and detriment suffered by payer- full consideration does not necessarily, by itself, render a transaction commercial but goes a long way to avoiding it being termed uncommercial- balance of detriment was such that payments were uncommercial transaction- defence of good faith- Corporations Law s 588FB(2)- for the defence to apply, there must be good faith, no reasonable grounds to suspect insolvency and valuable consideration- where a creditor receives payment for a genuine debt, prima facie it acts in good faith- satisfaction and release of an antecedent debt is valuable consideration- defence under s 588FB(2) applies to payments. CORPORATIONS- who is a shadow director?- a person in accordance with whose instructions or wishes the directors of a company are accustomed to act- "in accordance with" requires a causal connection- "the directors" are the governing majority or real decision makers regardless of whether there has been an informal delegation of board authority- "accustomed" is habitual compliance over a period of time- the instructions or wishes must be with regards to board decisions and not managerial activities- whether certain activities are board or managerial activities is a question of fact- subject must be approached with an eye to the ultimate question- not every person whose advice is in fact heeded as a general rule by the board is a shadow director- neither Apple nor its representative was a shadow director.

WILLS AND ESTATES - family provision claim - nature and extent of estate - deceased left property to two adult sons free of all encumbrances - on death of deceased property was sold and the whole sale price was used to pay out the liabilities of the estate - plaintiff left residue of estate

CORPORATIONS - winding up - statutory demand - plaintiff seeks order setting aside statutory demand - whether s 459G(3) requirement with respect to service of originating process and supporting affidavit satisfied within 21 day period - defendant is a natural person - no personal service - no service at solicitor's office stated in demand - documents sent by post to a post office box - held no service

CRIMINAL LAW - appellant convicted for various offences of improperly obtaining money - subsequent appeal dismissed - case referred by Attorneys to be dealt with as appeal - grounds of appeal did not involve only question of law - whether leave to appeal necessary - differing obiter views - whether open to jury to be satisfied beyond reasonable doubt that appellant was an officer of companies - on facts was open - whether open to jury to be satisfied beyond reasonable doubt that appellant made knowingly false representations - on facts was open - whether trial judge asleep or apparently asleep during trial - whether jury distracted from attention to the evidence - not established that judge was asleep - on evidence, no more than occasional appearance that was asleep - no distraction of jury constituting miscarriage of justice.

CRIMINAL LAW - Appeal against interlocutory decision - prosecution under Protection of the Environment Operations Act 1997 - refusal to grant stay - failure of sewerage pumping station - pollution not permissible under environment protection licence - procedural unfairness - judicial discretion as to factual findings - public interest in prosecution.

CRIMINAL LAW - Cultivating not less than a large commercial quantity of prohibited plants (cannabis) by enhanced indoor means -applicant's naivety and vulnerability - offence in the mid-range of objective gravity - discussion of indicator in the role of an offender as principal - contributing financially - standing to share in the profit - management of operation - decision making role - unsupervised in advancing the cultivation - in charge of the operation - re-planting failed crops - recruiting assistance - whether offender could be categorised as principal in enterprise (Simpson and Davies JJ - No, Grove AJ - Yes) - sentence not manifestly excessive