LAND LAW — easements — constructions of easements — general principles of construction LAND LAW — easements — creation of easements — creation by express grant LAND LAW — easements — substantial interference with easements
CIVIL PROCEDURE – application for leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) – leave granted nunc pro tunc
MENTAL HEALTH – forensic patient – extension of status as forensic patient – final hearing – where defendant has been diagnosed with an intellectual disability and paedophilic disorder – whether the risk of causing serious harm to others can be adequately managed by other less restrictive means – where defendant subject to guardianship order, obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and in receipt of NDIS funding – application for final extension order granted
JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis for setting aside judgment established COURTS AND JUDGES — bias — where applicant requested notice of motion be heard by differently constituted bench — where members of bench participated in earlier decision refusing leave to appeal — whether previous adverse decision can ground reasonable apprehension of bias — recusal application refused
SUCCESSION – family provision – claim by widow for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – obligation of the deceased to the surviving spouse after 31 years of relationship – provision of financial resources where deceased and surviving spouse entered into a Binding Financial Agreement
CIVIL PROCEDURE – default judgment where no appearance by defendant – damages proved – no need for declaratory relief CONTRACT – breach of contract – employment contract – misleading or deceptive conduct by former employee – breach of contractual, fiduciary and statutory duties DAMAGES – assessment – damage to reputation COSTS – gross sum costs order – where sufficient information before the Court to enable the grant of a gross sum costs order
SUCCESSION – trusts and trustees – judicial advice – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – no question of principle
CRIME – SENTENCE – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” – evidence taken into account on sentence in general mix of subjective features
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of shareholders to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CONTRACTS – breach of contract – breach of lease – breach of agreement – maintain herd profile – whether there is a shortfall of cattle – onus of proof – Briginshaw principles - probability of a shortfall CONTRACTS – construction of a contract – falsa demonstratio non nocet – rectification – error – absurdity – objective intention CONTRACTS – formation of a contract – offer and acceptance – failure to unequivocally accept CONSUMER LAW – s 18 of Australian Consumer Law – misleading or deceptive conduct – reliance on representation – loss suffered from sale of cattle - whether relived of obligations otherwise under contract – damages
CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed
BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – whether the determination was outside the scope of the payment claim – whether the determination lacked a legal or factual basis, and was illogical or unreasonable – Jurisdictional error not established
ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2) BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether jurisdictional error to fail to investigate “true merits” of a payment claim – where adjudicator’s task limited to deciding dispute on restricted materials BUILDING AND CONSTRUCTION – adjudication – judicial review – setting aside part of determination – meaning and operation of s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether adjudicator entitled to fees after making adjudication affected by jurisdictional error – whether adjudicator’s decision to apportion costs affected by jurisdictional error
Judgment of
Ward ACJ at [1];
Payne JA at [2];
Basten AJA at [203]
CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest - application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) – where application not served either personally or otherwise – application to be listed for subsequent hearing
PERSONAL PROPERTY – Personal Property Securities Act 2009 (Cth) – personal property securities register – charge registered on the basis of an agistment agreement which never came into existence – whether defendant had any interest in the Arabian mares capable of being registered as a security interest – no security interest ever came into existence TORTS – interference with goods – detinue
LAND LAW – possession of land – default under loan agreement and mortgage – where second defendant had been bankrupted but bankruptcy annulled – where trustee held funds of bankrupt – where second defendant intended to use funds held by trustee to satisfy debt to mortgagee – where no arrangements made for application of funds - where no defence to mortgagee’s claim – summary judgment given
NEGLIGENCE — Personal injuries — slip and fall during open for inspection — admission that driveway had recently been painted — whether non-slip paint was used — whether evidence was that driveway was slippery — whether primary judge erred in finding witness’ evidence unreliable
Judgment of
Payne JA at [1];
Mitchelmore JA at [66];
Griffiths AJA at [67]
COSTS — interlocutory costs — application for asset preservation orders – orders obtained ex parte against defendants and third party – application abandoned following service of evidence by respondents – incidence of costs – reasonableness of application – costs follow the event – applicants ordered to pay costs – applicants ordered to pay lump sum on account of costs liability
CONTRACTS – Sale of Land – Where defendant Vendor repudiates contract by purporting to terminate it without valid grounds and plaintiff accepts repudiation – Plaintiff entitled to damages
CLIENT LEGAL PRIVILEGE – s 118, Evidence Act 1995 (NSW) – onus – means of proof – dominant purpose – ruling on ‘sample’ documents – efficacy questioned – privilege over communications with in-house lawyers – principles at [13]-[14] – privilege over communications between non-lawyers – principles at [15].
CRIME – appeals – appeal against sentence – where applicant sentenced to a term of imprisonment for 1 year and 10 months for cause grievous bodily harm reckless as to actual bodily harm – whether sentencing judge followed “three step process” – where applicant posed no risk to community safety - whether intensive correction order had to be imposed – whether intensive correction order should have been imposed – application of High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Judgment of
Harrison CJ at CL at [1]
Wilson J at [6]
Ierace J at [55]
ADMINISTRATIVE LAW — procedural fairness — decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident — decision quashed at first instance based on a denial of procedural fairness to the claimant — whether primary judge erred in finding procedural fairness was denied — content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal
Judgment of
Kirk JA at [1];
Adamson JA at [2];
Basten AJA at [74]
APPEALS – appeal from Local Court to Supreme Court – Local Court determined parties did not have a binding agreement – whether plaintiff’s offer was subject to contract – how offer should be categorised in accordance with Masters v Cameron CONTRACTS – formation – agreement – counter-offer – whether purported acceptance complied with mirror image rule – taking into account parties’ conduct in interpreting intention – purported acceptance was a counteroffer – decision of Local Court affirmed
COSTS – indemnity costs – where plaintiff was self-represented at hearing of notices of motion – whether relevant misconduct in the proceedings warranting indemnity costs order established –unreasonableness of plaintiff’s application for summary judgment and resistance of defendants’ application for leave to amend defence and file a cross claim contrary to obligations under the Civil Procedure Act 2005 (NSW) warrants indemnity costs order –– costs ordered on indemnity basis
CIVIL PROCEDURE – default judgment – application for default judgment – requirements of UCPR r 16.6 met – default judgment entered – declarations sought provided to assist with repossession process
COSTS – where gross sum costs order made – quantification of costs – order for further costs incurred in respect of quantification submissions and hearing.
HIGH RISK OFFENDER – application for extended supervision order – where extended supervision order previously made by same judge – history of sexual offending against developmentally delayed women and girls – determination of risk – lack of insight or change in attitude towards offending – concerning contact with intellectually disabled woman whilst subject to order – lack of compliance with conditions leading to community correction order – failure to discontinue risky personal relationships – some evidence of defendant’s efforts to reintegrate into community – formation of some pro-social contacts – expert evidence of average risk of committing a further serious sex offence – extended supervision order imposed – dispute regarding scheduling conditions resolved
COSTS – specified gross sum costs order instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – defendant, the Deputy Commissioner of Taxation, successfully opposes the plaintiff’s appeal against a Departure Prohibition Order issued under the Taxation Administration Act 1953 (Cth), s 14S – plaintiff ordered to pay the defendant’s costs of the proceedings – plaintiff has few assets in his own name – plaintiff advanced evidence of doubtful provenance in support of his claim – whether the conduct of a costs assessment would be aggravating or oppressive to the defendant in the circumstances – what is the appropriate specified gross sum to be fixed instead of assessed costs – whether a discount should be applied from the costs claimed by the defendant – consideration of the effect of proceedings being brought in vacation reducing the cost efficiencies that might otherwise have been employed by the legal representatives of the defendant.
COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff’s notice of motion of January 2024 sought to vary the final orders – plaintiff’s January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.
CONSUMER LAW – Australian Consumer Law misleading or deceptive conduct – principles – misleading or deceptive conduct by silence, non-disclosure or fraudulent concealment amounting to a positive representation – sale of contaminated land for residential development purposes – whether purchaser has a “reasonable expectation” for certain disclosures to be made by vendor – whether vendor did not disclose information in light of purchaser’s “reasonable expectation” – whether vendor had requisite knowledge CONSUMER LAW – Australian Consumer Law – sections 237 and 243 – meaning of “loss and damage” CIVIL PROCEDURE – privileges – Evidence Act 1995 (NSW) s 131 – without prejudice privilege – meaning of “in connection with” – proximity of conversations to resolution of dispute CIVIL PROCEDURE – pleadings – construction of pleadings – scope of pleadings
CRIMINAL PROCEDURE – stay of proceedings – plaintiff charged by future Court Attendance Notice (“CAN”) with two driving offences – where original CAN charged negligent driving occasioning grievous bodily harm – four further CANs added dangerous driving, combined two offences and added further details – plaintiff sought a permanent stay of the proceedings on two bases – Magistrate dismissed application – whether prosecutor needed leave to amend CAN – held s 20 of the Criminal Procedure Act 1986 (NSW) requiring leave to amend an indictment after it is presented does not apply to a CAN – prosecutor entitled to issue further CANs – if leave had been sought to amend, leave would have been granted – greater degree of particularity with successive CANs – no abuse of process by service of five successive CANs – whether the particulars were inadequate – CAN identifies precisely the time and date, place, act and harm suffered – CAN complies with relevant legislation and matters discussed in Johnson v Miller – plaintiff in no doubt about the case she has to meet – both bases for a permanent stay rejected – no error in the Magistrate’s determination – summons dismissed
CONTRACTS – formation – whether the Loan Agreement is a deed – whether forbearance to sue is sufficient consideration – whether the deceased had mental capacity to create the Loan Agreement – whether the deceased was under undue influence when creating the Loan Agreement – whether the plaintiff engaged in unconscionable conduct – whether the interest component of the Loan Agreement is a penalty – whether the reference to $300,000 in the Loan Agreement is a reference to the $300,000 bequeathed to the plaintiff in the deceased’s will – held the Loan Agreement is valid and enforceable
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due dispatch – delay occasioned by the plaintiff’s repeated non-compliance with case management court orders – delay attributable to (i) plaintiff’s failure to put his solicitor in funds and (ii) solicitor’s pressing personal circumstances – plaintiff desirous of further progressing the proceedings – inappropriate to dismiss proceedings. CIVIL PROCEDURE – occupations – legal practitioners – application for leave to file notice of intention of ceasing to act – relationship between plaintiff and solicitor irretrievably broken down – cause shown – leave granted.
CIVIL PROCEDURE – leave to discontinue proceedings under UCPR r 12.1 – leave granted COSTS – where proceedings discontinued by the plaintiff – whether plaintiff established basis for departure from ordinary costs order under UCPR r 42.19(2) – whether parties to bear own costs – plaintiff ordered to bear defendant’s costs of the proceedings
INTERLOCUTORY APPLICATIONS – interim injunction – forestry operations – assumption that serious question to be tried – unexplained delay in seeking interlocutory relief – scope of relief sought too vague and uncertain – balance of convenience a neutral consideration
CIVIL PROCEDURE – jurisdiction – judicial review – supervisory jurisdiction of State Supreme Court – where Council relied on its own legal interpretation of proposed contracts in refusing registration of financial interest – Court well equipped to make such an evaluation – no absolute rule that a public law remedy after judicial review must be refused in favour of merits review or appeal available in lower court or tribunal – Court’s power to make binding declarations of right irrespective of whether consequential remedy is available CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where only relief sought is a declaration of right – commencement of second proceedings when proceedings pending in NCAT – where remedies are different in nature and purpose – where determination of these proceedings will not finalise NCAT proceedings – no abuse of process
CIVIL PROCEDURE — Notices to produce in civil proceedings — Application to set aside — Proper approach to assessing whether notice to produce should be set aside — Interaction of principles of abuse of process and legitimate forensic purpose CIVIL PROCEDURE — Notices to produce — Consideration of power of the Court to regulate production of documents — Distinction between subpoenas to persons or entities who are not parties to proceedings and notices to produce as between parties to proceedings — In the context of case management as between parties to proceedings, once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties’ contentions but in a sense becomes ‘at large’ in that it is subject to the Court’s power to actively manage cases to achieve the overriding objective — In the context of appropriate case management and the Court’s dispensing power, the Court is not bound to binary outcomes of whether the notice to produce in its existing form and content should be set aside or not — Nor is the Court necessarily bound by historical distinctions between whether the notice to produce identifies a particular document or thing or requires an obligation in the nature of discovery — The Court may modify the form and/or content of a notice to produce to require production of documents having apparent relevance consistent with the overriding purposes of case management NOTICES TO PRODUCE — Whether the documents are likely to materially assist the issuing party’s case is not the decisive determinant of legitimate forensic purpose — If the documents materially assist the issuing party’s case that will generally suffice as demonstration of legitimate forensic purpose — However the converse is not the case, and inability to demonstrate that it is ‘on the cards’ that the documents sought will materially assist the issuing party’s case will not necessarily deprive the notice to produce of a legitimate forensic purpose if ‘apparent relevance’ is shown NOTICES TO PRODUCE — In general, it will be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced have an apparent relevance to the issues in the case, including if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are, or might be, inadmissible according to the rules of evidence NOTICES TO PRODUCE — Discussion of meaning of requirement that the issuer of the notice ‘specify’ a document or a thing — Examples of ‘specification’ PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — Consideration of element that the applicant may be entitled to make a claim for relief against the prospective defendant
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed
CIVIL LAW – high risk sexual offender – application for continued detention order – complex diagnostic challenge – uncertainty over diagnosis – where psychotic illness complicated by personality disorder – tirades of abuse – mental condition masked by nasty and aggressive abuse of authority figures – where court appointed experts disagree on management of risk legislative or administrative hole – crossroads of mental health and high risk offender legislation – uncertainty over accommodation – defendant not engaging with assessments for appropriate accommodation – cheeky and unrealistic demands regarding accommodation – two bedder by the seaside – plaintiff’s reluctant applications for adjournment – defendant incarcerated – “Parkinson’s Law" – cycle – application for adjournment refused – community safety – continued detention – superficially preferable – protective purpose better achieved by supervision and rehabilitation – conditions of extended supervision order – relevant principles – orders made
REAL PROPERTY — caveats — solicitor’s costs agreement providing for client’s property to be charged as security for fees — caveat by solicitor — lapsing notice issued — application for extension of caveat — final relief not claimed — originating process defective CIVIL PROCDURE — service — application for interlocutory relief — respondent inmate of correctional centre — ex parte order for “service in the first instance” on respondent’s then solicitor by email — originating process and other court documents not delivered to respondent — no valid service — application dismissed
HIGH RISK OFFENDER – Final hearing – High risk sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision
APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Principles governing — Application of Section 127(1) of the District Court Act 1973 (NSW) APPEALS — From exercise of discretion — Disregard of relevant considerations — Whether Judicial Registrar of District Court failed to take into account relevant considerations APPEALS — From exercise of discretion — Procedural decisions — Whether several cases with overlapping facts should be heard together
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where in principle settlement has been agreed between the parties for judgment in favour of the defendants – Where plaintiffs have failed to progress applications for infant approval
APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $30,000 – where defendant loaned money to his first cousin – cousin asserts third party borrowed money and ownership of a BMW X6 was transferred as security – where cousin was unrepresented litigant – cousin subpoenaed car registration documents – subpoenaed documents show ownership was transferred to the defendant four months before the loan was made – registration documents not tendered at trial – Magistrate gave judgment against cousin – whether Magistrate denied procedural fairness by not facilitating tender of the registration documents – whether failure to tender documents deprived cousin the possibility of a successful outcome – questions of fact – where Magistrate had explained the procedure for tendering documents and asked what material was to be tendered – held Magistrate was not obliged to say anything further – no denial of procedural fairness – subpoenaed documents inconsistent with BMW being provided as security – evidence overwhelmingly supported defendant’s case – no substantial miscarriage or wrong – grounds of appeal rejected – summons dismissed
CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner’s proceedings are properly characterised as a “cross-claim” for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner’s case — where the builder has delayed in enforcing the judgment debt BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act
Judgment of
Payne JA at [1];
Adamson JA at [2];
Griffiths AJA at [3]
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved
CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – marriage certificate – no valid will – where NSW Trustees and Guardian and sons of the deceased wish to take no part in proceedings – where the sons make no claim against the deceased’s estate – deceased’s wife appointed as representative with consent.
EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property
CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted.
JUDGMENTS AND ORDERS — injunction — enforcement of possession orders of Federal Circuit and Family Court of Australia — comity between courts — earlier applications to the Court dismissed –- functus officio doctrine — injunction refused
RESTRAINT OF TRADE – employment contract – interlocutory inunction – prima facie case – plaintiff member of corporate group – arguable interest to support restraint – hardship – lack of evidence of defendant’s financial position – delay – injunction refused
COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967
CRIME – sentence – manslaughter – excessive self-defence – offender stabbed adult son in the neck at their home – offending arose during family argument – victim approached offender quickly – single stab wound to the neck using kitchen knife – offender accepted responsibility but unable to explain or recall inflicting the stab wound – relatively impulsive offending – just below mid-range of objective seriousness – where offender did not give evidence at sentence proceedings – three psychological and psychiatric reports – no evidence of mental health concerns – 12 character references speak of a good, kind and non-aggressive person – offender aged 76 years – currently in remission from leukemia – no criminal record or concern about reoffending – offender entirely remorseful for his actions – significant variation of statutory ratio given offender’s age and health conditions SENTENCING – plea of guilty – where offender originally charged with murder only – where offender made an offer to plead guilty to manslaughter by unlawful and dangerous act before committal – offer rejected by Crown – Crown later accepted plea to manslaughter by excessive self-defence – s 25E of the Crimes (Sentencing Procedure) Act 1999 concerned with the “offence” not its basis – entitled to 25% discount for guilty plea
STATUTORY INTERPRETATION – meaning of “unpaid leave” – whether a period of absence from work due to incapacity from an injury for which a worker was paid workers compensation constitutes a “period of unpaid leave” – cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987 (NSW) – reg 8E of the Workers Compensation Regulation 2016 (NSW)
Judgment of
Leeming JA [1];
Stern JA [19];
Griffiths AJA [125].
COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer
JUDGMENT AND ORDERS – parties bring in orders to reflect reasons – construction of orders – whether ambiguity required before judgment consulted – principles at [5]-[11] – ambiguity not a pre-condition to consider judgment. COMMON INTEREST PRIVILEGE – legal advice shared between competitors – whether joint interest in governance of an industry body constitutes a “common interest” – principles at [115] –– whether parties’ interests are selfish or adverse to one another. PRELIMINARY DISCOVERY – adequacy of preliminary discovery challenged – whether direct evidence should be given as to compliance with orders – whether claims for client legal privilege ought be supported by direct evidence.
GUARANTEE AND INDEMNITY – deed of guarantee – whether deed of guarantee executed by guarantor – no point of principle EVIDENCE – evidence of execution of a document – execution of document not admitted by defendant – comparison by tribunal of fact of authentic signature of defendant with non-admitted signature – document found to have been executed by defendant
CIVIL PROCEDURE – Pleadings – Amendment – Plaintiffs seek to file Further Amended Statement of Claim – Defendants’ consent to substantive amendments but oppose deletion of a paragraph – No real prejudice to the defendants – Amendment allowed
SUCCESSION — Family provision — Claim by adult child — Plaintiff lived overseas with her mother since the age of nearly four — “Estrangement” not a useful term
SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Proper construction and management of an unarticulated testamentary direction to pay “Zakat” SUCCESSION — Construction — Islamic Wills —Sharia law and its interaction with Australian Succession law CHURCHES AND RELIGIOUS ASSOCIATIONS — Conceptualising Sharia law in the context of the general law governing a religious community as a voluntary association
CHILD WELFARE – Jurisdiction – Supreme Court of NSW – Parens patriae – 14 year old child diagnosed with Pre B Acute Lymphoblastic Leukemia – Where the child has a number of underlying health conditions – The Parents would prefer that there be no treatment for the Leukemia and the child be allowed to die at home so that the child may avoid the pain and suffering of the treatment – Hospital sought order authorising treatment – Order made for authorisation of treatment
COSTS – ex parte orders set aside for lack of candour – proceedings expedited given plaintiff’s terminal illness – some evidence that plaintiff had divested himself of assets – plaintiff’s claim being reformulated. PAYABLE FORTHWITH – r 42.7 Uniform Civil Procedure Rules 2005 (NSW) – court’s discretion to “order otherwise” – principles at [2]-[7] – motion concerned a discrete matter – existence of some unreasonable conduct – some distance to go in the litigation – no evidence that a ‘forthwith’ costs orders would stultify the proceedings – defendants ought nor bear credit risk associated with plaintiff’s asset divestiture – payment of costs order should be finalised given plaintiff’s terminal illness and likelihood of additional disruption to the litigation.
CRIME – murder – cause grievous bodily harm with intent to murder – defence of mental health impairment – judge alone trial – availability of the special verdict – schizophrenia – s 28 Mental Health Cognitive Impairment Forensic Provisions Act (NSW) – special verdict returned
CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — where administration of two trusts in parallel administratively difficult — whether order should be made for assets of both to be applied cy-près pursuant to a single scheme
TORT – CONSUMER LAW - Civil Liability Act 2002 Part 1A, Part 4 – Australian Consumer Law s 60 - Duty of care – Negligence – Where an employee of the real estate agent retained by the owner of a house causes a fire and the house burns down – Claim by tenants and occupiers for damages for the loss of personal property in the house and by the owner for damages for the loss of the house – Claim by the owner that the real estate agent breached the warranty given in s 60 of ACL to render services with due care and skill – Whether the real estate agent caused the fire and acted negligently and without due care and skill – Liability established
CRIMINAL LAW – murder – special verdict – defence of “mental health impairment” – where experts and parties agree defence is established – man kills wife of 51 years by strangulation – evidence of delusions – hearing voices – where statements to police inconsistent with history of delusions provided to doctors – explanation by expert psychiatrist – “plethora” of evidence of mental illness – where defence lawyer briefs psychiatrist shortly after accused man charged – strong evidence accused still mentally ill – presumption accused not mentally ill – onus of proof on accused – defence established – special verdict entered – consequential orders made for detention of the accused and referral to the Mental Health Review Tribunal
HIGH RISK OFFENDER – final hearing – application for continuing detention order – application for an extended supervision order - serious violence offences – final relief granted - continuing detention order - committal of the defendant to a correctional centre - defendant be subject to an extended supervision order.
SENTENCING – penalties – criminal contempt – deletion of documents in order to prevent production pursuant to an order of the Court COSTS – costs of separate sentencing hearing
CIVIL PROCEDURE – notice to produce – application to set aside – whether plaintiff’s notice to produce documents complies with Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 21.10(1)(b) – whether that requirement should be dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 CIVIL PROCEDURE – subpoenas – application to set aside – where plaintiff seeks two correctional officers attend and give evidence at hearing of notices of motion – where plaintiff self-represented – whether subpoenas comply with UCPR, r 7.3(1) – whether necessary in the interests of justice for officers to give evidence on hearing of motions CIVIL PROCEDURE – where plaintiff seeks access to other inmates for purpose of obtaining their evidence in the exercise of his “right” to bring proceedings – where plaintiff classified as an EHRR inmate and subject to non-association determination – where, notwithstanding those determinations, plaintiff able to communicate with other inmates via mail – whether order for access otherwise necessary to prevent an abuse of process
CIVIL PROCEDURE — interim preservation — freezing orders — form of freezing orders to give effect to principal judgment — HELD — orders proposed by plaintiff in standard form granted COSTS — party/party — mixed outcome — general rule that costs follow the event — application of the rule and discretion — discretion to award indemnity costs — where no unreasonable conduct or delinquency on the plaintiff’s part — where the overall practical result favoured the plaintiff — HELD — order that costs be costs in the cause
CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Application of Graywinter principle — Where the affidavit in support of application adequately supports the application — where plaintiff bears burden of proof and evidential onus of establishing genuine dispute — where there is a failure to discharge that onus — HELD — application dismissed with costs
CRIME – judge-alone trial – accused charged with murder – proposal to plead guilty after trial commenced – plea of guilty may not have been rationally based and in the interests of the accused – question as to fitness to be tried under Pt 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – inquiry held – accused fit to be tried.
CIVIL PROCEDURE – duty list – medical negligence – application for a separate hearing on the issue of liability only – UCPR r 28.2 – quantum of damages difficult to assess for a substantial period of time – overlapping evidence in liability and damages - application granted.
JUDGMENTS AND ORDERS – monies in court – defendant mortgagor seeking payment out of residual funds from sale of defendant’s property – no question of principle
LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where plaintiff owns landlocked rural land — Whether proposed easement over neighbouring property reasonably necessary — Where access possible via a paper road and across plaintiff’s other land
CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness
Judgment of
Garling J at [1]
Wilson J at [2]
Cavanagh J at [3]
CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence
Judgment of
Adamson JA at [1]; Button J at [240]; McNaughton J at [241]
CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence
Judgment of
Wilson J at [1]
Ierace J at [28]
Cavanagh J at [29]
CRIME – Appeals – Appeal against conviction – Where applicant found guilty by jury of common assault and one count of sexual intercourse without consent – Where applicant not found guilty of related offences – Whether guilty verdicts unreasonable with regard to available evidence and related not guilty verdicts – Guilty verdicts reasonable – Leave granted, but appeal dismissed CRIME – Appeals – Appeal against direction given to jury by trial judge - Whether trial judge misdirected jury – Where no objection made to direction during trial – Where appeal against direction is strictly protective where identical argument rejected in earlier decision of this Court
Judgment of
Simpson AJA at [1]
Button J at [130]
Weinstein J at [131]
CRIME – appeals – extension of time – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – female teacher sexually abused one of her students between 1977 and 1979 – where underlying offences were contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – where Court recently held in Lam v R [2024] NSWCCA 6 that s 81 was incapable of being committed by a female – applicant now seeks leave to appeal against conviction – where no application made to withdraw plea – extension of time granted CRIME – bail – bail pending appeal – whether pending proceedings – whether bail should be granted – necessity to demonstrate “special or exceptional circumstances” – where Crown accepts applicant more likely than not to succeed on appeal – where no bail concerns – conditional bail granted
ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal
NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but for negligence NEGLIGENCE — assessment of damages — future economic loss — damages by way of buffer — Civil Liability Act 2002 (NSW), s 13
Judgment of
Mitchelmore JA at [1];
Stern JA at [114];
Harrison CJ at CL at [115]
PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied
Judgment of
Leeming JA at [1];
Adamson JA at [111];
Stern JA at [112]
TORTS – false imprisonment – arrest and detention prior to bail being granted – whether arrest unlawful – onus on defendant to establish that arrest was lawful – requirements for lawful arrest under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether requirements met TORTS – malicious prosecution – elements – whether proceedings terminated in favour of the plaintiff if finding of guilt but no conviction or withdrawal of charges – whether prosecutor acted with malice – whether prosecution commenced or maintained without reasonable and probable cause TORTS – trespass to goods – whether seizure of mobile phone containing video of alleged offence voluntarily handed to police was lawful under s 21(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether seizure of mobile phone was lawful under common law principles in Ghani v Jones [1970] 1 QB 693 TORTS – general principles – damages – availability of damages for consequential loss and damage from harm suffered as a result of intentional torts – whether harm caused by the tort – whether harm intended by tortfeasor – whether harm the natural and probable consequence of the tort
CORPORATIONS — winding up — voidable transactions by group of companies — unreasonable director-related transactions — evidential onus on defendant to explain commercial purpose — failure to meet evidential onus — where recovery of payments sought and granted
CIVIL PROCEDURE — Pleadings — Striking out —Anshun estoppel — no reasonable cause of action or defence — tendency to cause prejudice, embarrassment or delay
APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs
COSTS – solicitor/client – application to appeal out of time a Costs Determination Certificate entered as a judgment of the Local Court – where procedure for appeal to review panel has not been followed – where the Court has no power to make the orders sought by the plaintiffs in the circumstances – application dismissed
APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $65,000 – where daughter was appointed mother’s financial manager from 2013 to 2018 – whilst financial manager daughter transferred $65,000 from mother’s bank account to her own – NSW Trustee and Guardian appointed financial manager in 2018 – commenced proceedings in 2022 to recover sum plus interest – where daughter failed to respond to Notice to Produce bank records - Magistrate gave judgment against daughter – whether Magistrate erred by finding daughter retained the benefit of the $65,000 to the detriment of her mother – question of fact – Magistrate did not draw inferences from daughter’s failure to produce documents – cannot be said that there is no evidence to support the Magistrate’s finding – no error of law – ground rejected APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – whether Magistrate erred in permitting reliance on a claim for fraud – where fraud allegation was not particularised nor ultimately pursued – where Magistrate made findings on fraudulent concealment not fraud or deceit – where fraudulent concealment was put to the daughter in cross-examination – held no unfairness despite lack of particularisation – leave to appeal refused – ground not made out APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – question of costs – indemnity costs – where daughter rejected an earlier Calderbank offer – where Magistrate made lump sum costs order at $30,000 – whether Magistrate erred in finding the Calderbank offer was a valid basis to award indemnity costs – held Calderbank offer a valid offer of compromise – no reason shown for grant of leave in respect of ground – leave to appeal refused – summons dismissed
CRIME – appeals – appeal against sentence – offences of sexual intercourse with child – inclusion on form 1 of repealed offence – error conceded – no findings on remorse, prospects of rehabilitation or risks of reoffending – offender denying offences six weeks prior to sentencing hearing despite having pleaded guilty three months prior – questionable insight – no lesser sentence is warranted in law
CRIME – bail – show cause – strength of the prosecution case for serious drug charges – first time offending – delay until trial – medical evidence demonstrating a more onerous experience in custody – cause shown CRIME – bail – bail concerns – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where bail conditions can adequately ameliorate bail concerns – bail granted
CIVIL PROCEDURE – service outside of Australia – service of documents other than originating process – where defendants seek third party costs order against majority shareholders to plaintiffs – where majority shareholders incorporated in Singapore and the Cayman Islands – where those shareholders actively involved in events leading to the litigation – whether defendants require leave to serve those shareholders overseas – whether circumstances fall within Sch 6 of the UCPR – whether leave to serve overseas should be granted – whether motion delivered to solicitors acting for shareholders in wider dispute albeit not in relation to the third party costs application itself should be taken to have been served on shareholders
CORPORATIONS — winding up — grounds for winding up — liquidators — where the parties nominate different proposed liquidators — where consideration of cost paramount
APPEALS – procedure – time limits – extension of time – amendment– parties on appeal – joinder – whether joinder was necessary or proper APPEALS – leave to appeal – right of appeal – whether appeal moot – proper construction of Liquor Act 2007 (NSW) – whether Civil and Administrative Tribunal of New South Wales could make orders in favour of appellant on further review of an application for extended trading refused by the Authority LICENSING – liquor licensing – hotel – failed application for extension of trading hours – statutory construction – s 49 of the Liquor Act 2007 (NSW) – whether extended trading authorisation ‘runs’ with the premises upon transfer to a new licensee –whether orders pursued by former licensee about a failed extended trading application can be made by Tribunal
CRIME – appeals – appeal against sentence – where applicant had committed a large number of property offences – larceny, obtain property by deception, break and enter, reckless damage – whether error in sentencing judge’s determination of objective seriousness – consideration of the applicant’s status as subject to conditional liberty at the time of the offending in determining objective seriousness – consideration of the applicant lengthy criminal history in determining objective seriousness of offence pursuant to s 115 Crimes Act 1900 – objective features of the offending and subjective features of the offender must be considered separately – appeal upheld – applicant resentenced CRIME – appeals – appeal against sentence – whether error in sentencing separately for common elements in ss 114 and 115 offences – no additional act of criminality necessary for guilt under s 115 – offence complete on proof of previous conviction and applicant’s commission of the s 114 offence – double punishment –contravention of Pearce v the Queen – discussion of background to statutory provision – consideration of approach in Darcy v R and R v Tillott – s 115 inconsistent with prevailing sentencing standards – unanimous criticism of s 115 – inappropriate to impose any penalty – inappropriate to indicate any sentence as part of an aggregate term of imprisonment – appeal upheld on this ground by majority
Judgment of
Simpson AJA at [1]
Button J at [75]
Weinstein J at [131]
CRIMINAL PROCEDURE — sexual offence proceedings — applicant convicted of indecent assault of and sexual intercourse with a child under the age of 10 — victim gave detailed description of ejaculation when interviewed by police at the age of 11 — effect of prohibition in to s 293 Criminal Procedure Act 1986 (NSW) (now s 294CB of Crimes Act 1900 (NSW)) — whether Crown was entitled to make submission to the effect that victim would not have known about ejaculation other than because of the offending conduct — whether trial judge was entitled to infer that victim would not have known about ejaculation other than because of the offending conduct EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether trial judge erred in not accepting evidence of witness (a child) which was contradicted by complainant — reasons for verdict to be read as a whole to determine why such evidence was rejected CRIMINAL PROCEDURE — sexual offence proceedings — complaint evidence — minor inconsistencies in complaint evidence — whether trial judge entitled to address alleged inconsistencies in global way in reasons for verdict EVIDENCE — whether trial judge was obliged to refer to evidence of witness whose evidence was of little or no probative value in reasons for verdict JUDGES — Courts — Duty of trial judge in trial by judge alone to give reasons for verdict — whether infelicitous phrase revealed error — requirement to read judgment fairly and as a whole
Judgment of
Adamson JA at [1];
Davies J at [217];
Garling J at [218]
APPEALS – leave to appeal – monetary threshold – principles governing grant of leave to appeal below monetary threshold – whether application identified issue of principle, question of general public importance or reasonably clear injustice – whether application goes beyond being merely arguable
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender
Judgment of
Ward P at [1]; Davies J at [165]; Fagan J at [173]
GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – relief under Contracts Review Act 1980 (NSW) – whether primary judge erred in finding that clause of Deed of Guarantee and Indemnity was unjust – s 7 of the Contracts Review Act JUDGMENT AND ORDERS – interest – award of on judgment – rate applicable – where primary judge awarded interest at the rate of 10% as provided for in Deed of Guarantee and Indemnity – where pleaded claim was for interest at the prescribed rate under the Civil Procedure Act 2005 (NSW) – whether primary judge erred in finding that interest should accrue in accordance with terms of Deed of Guarantee and Indemnity
APPEALS – Leave to appeal – Arguable case CIVIL PROCEDURE – Jurisdiction – Where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction CIVIL PROCEDURE – Summary disposal – Where applicant had sought summary judgment – Where respondents had not yet been required to file evidence in defence CIVIL PROCEDURE – Default judgment – Where respondents had not yet been required to file a defence CIVIL PROCEDURE – Pleadings – Amendment – Where amendments were based on contentions the primary judge considered were doomed to fail – Where applicant had not been able to identify the evidence on which he intended to rely – Whether House v The King error was demonstrated CIVIL PROCEDURE – Summary disposal – Where primary judge had summarily dismissed the proceedings – Whether proceedings were doomed to fail COURTS AND JUDGES – Bias – Actual and apprehended bias – Whether primary judge had pre-judged the applicant’s claim – Whether primary judge was intimidatory and bullying towards the applicant APPEALS – Procedural fairness – Whether applicant was afforded a reasonable opportunity to adduce relevant evidence
SENTENCING – hindering investigation of homicide – guilty plea – relevant factors on sentence – objectively serious example of the offence – no persons convicted of homicide of deceased – where offender former national sergeant-at-arms of Comancheros – lengthy criminal history – commission of offence on parole serious aggravating feature – no remorse found – prospects of rehabilitation unclear – near fatal injuries inflicted on offender – death of brother in his presence – very significant physical injuries – psychological conditions – extremely restricted conditions of custody – special circumstances found – small reduction of non-parole period – sentence imposed
BANKRUPTCY – civil proceedings – proceedings resolved without order as to costs – sequestration order against estate of unsuccessful party – whether costs order could be made in civil proceedings after sequestration order COSTS – general rule that costs follow the event – whether subsequent events affect success – effect of delay in pursuing costs application – related issue raised in separate unresolved proceedings in Equity Division COSTS – form of order – order sought for assessment on indemnity basis – Calderbank offers by plaintiff – whether defendant unreasonable in failing to accept offers – gross costs order – complexity of case
CONTRACT – real estate agent and Chinese investors in property development together – proceedings commenced in Commercial List alleging real estate agent misappropriated $9M to buy property in Meadowbank – proceedings settled – agree to sell Meadowbank land – real estate agent to chose selling agent – property to be sold “on terms to be agreed, such agreement not to be unnecessarily withheld” – proper construction of clause – principles at [26]-[29]. BREACH OF CONTRACT – incomplete agency agreement submitted – real estate agent did not respond to queries – whether breach – principles at [86], [87] – time for performance had not yet arrived. WORDS AND PHRASES – “unnecessarily withheld” – “unreasonably withheld” – at [50], [87].
WORKERS COMPENSATION – Police Superannuation Scheme – where a member seeks to have a further infirmity certified under s 10B(1) or his earlier certification of infirmity amended to include an additional infirmity for the purpose of being entitled to increased annual superannuation allowance pursuant to ss 10 and 10B of the Police Regulation (Superannuation) Act 1906 (NSW) STATUTORY INTERPRETATION – whether an additional infirmity may be certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) in circumstances where a previous certification of a different infirmity was made prior to the police officer’s discharge
Judgment of
Leeming JA at [1];
Kirk JA at [15];
Griffiths AJA at [16]
REAL PROPERTY – Sale of land - Repairs – Duty to repair – Obligation under bespoke agreement between vendor and purchaser CONTRACT – terms and conditions – construction and interpretation of contract
EQUITY – alleged oral rental agreement – whether property was purchased as an investment or as part of joint endeavour with family members – purchase financed with a loan in the name of the plaintiff – cross claimants paid for completion, contributed some mortgage payments and paid some outgoings EQUITY – remedies – failed joint endeavour – division of proceeds of sale – division of surplus – return of contributions – indexation – occupation for a period following the failure of a joint endeavour
LIMITATION OF ACTIONS – whether proceedings brought out of time – whether interim occupation certificate authorised occupation and use of the “whole of the building” for the purposes of the Home Building Act 1989 (NSW) CIVIL PROCEDURE – pleadings – application to strike out – whether claims under the Home Building Act 1989 (NSW) and Design and Building Practitioners Act 2020 (NSW) adequately articulated – whether necessary to prepare a schedule setting out the risks and steps to manage those risks
DAMAGES – Nominal damages – Whether interest payable on nominal damages CORPORATIONS – Contravention of ss 181 and 182 of Corporations Act 2001 (Cth) established – Whether declaration should be made COSTS – Claims against Fifth Defendant dismissed – Whether a Sanderson or Bullock order should be made against the First and Third Defendants COSTS – Application of UCPR r 42.34 – Whether there should be no order as to costs having regard to outcome of Plaintiffs’ various claims – Whether costs should be apportioned between such claims COSTS – Offers of Compromise and Calderbank Offers – Whether costs incurred after the date of any such offer are payable on an indemnity basis
APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose
Judgment of
Ward P at [1];
Gleeson JA at [2];
Basten AJA at [3]
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – financial position of plaintiff’s mother relevant to consideration of plaintiff’s interests – settlement approved
CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted
OCCUPATIONS – legal practitioners – misconduct and discipline – complaint to professional body – practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law
CRIME – Bail – Show cause – Strength of the prosecution case for a murder charge and serious drug charges – Time elapsed until trial – Applicant’s conditions of custody and safety – Proposed bail conditions – Bail refused.
CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis
CRIME – appeals – appeal against conviction – where applicant charged with specially aggravated break, enter, and commit assault occasioning actual bodily harm – joint criminal enterprise to break and enter victim’s home, commit common assault, and steal cash – whether guilty verdict was unreasonable or unsupported by the evidence – three particulars – evidence sufficient to find agreement to assault made before breaking and entering – evidence sufficient to find that infliction of actual bodily harm was foreseen as a possibility in carrying out the joint criminal enterprise – discussion of whether prohibited to combine legal concepts of extended joint criminal enterprise and committing the offence in company – concepts able to stand together – consideration of Markou v R – in that case only the assault itself required to be proven to have been committed in company, not the consequence of actual bodily harm – whether miscarriage of justice occasioned by trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise – oral directions sufficient – no sign of any difficulties in jury’s understanding – appeal dismissed
Judgment of
Harrison CJ at CL at [1];
Button J at [2];
Weinstein J at [83]
COSTS – Party/party costs – General rule that costs follow the event – Application of the rule and discretion – Appeal from a Local Court decision as to costs – Whether the costs order was disproportionate to the dispute.
BUILDING AND CONSTRUCTION — Contract — Damages — Defects — Concrete slab not constructed in accordance with specifications BUILDING AND CONSTRUCTION — Contract — Dispute Resolution — Experts and expert evidence — Where experts disagree on extent and quantum of damages CONTRACTS — Remedies — Damages — Loss or damage — Where defects are agreed but extent of damage and rectification are not CONTRACTS — Remedies — Damages — Loss or damage — Whether to deduct settlement figure of another defendant from judgment sum
CRIMINAL LAW – murder – extended joint criminal enterprise – directed verdict – whether there is no evidence upon which a jury could convict – circumstantial evidence – whether inferences contented by the Crown are available
HIGH RISK OFFENDERS – extended supervision orders – violent offender – where defendant does not oppose making of ESO – where dispute is limited to the length of the ESO and conditions to be imposed – extended supervision order imposed
PRACTICE AND PROCEDURE — whether a vexatious proceedings order should be made — where litigant had reagitated the same points on multiple occasions after proceedings in the Court of Appeal and rejection of special leave application — whether sufficient frequency of institution of proceedings for the purposes of s 8(1) of the Vexatious Proceedings Act 2008 (NSW) — vexatious proceedings order made
STATUTORY INTERPRETATION – Power of Commissioner of Police to appoint police officers – Meaning of “position” – Anthony Hordern principle – Extrinsic materials – Seeking to give practical and coherent effect to statutory regime ADMINISTRATIVE LAW – Jurisdictional error – Characterisation of exercise of statutory power where multiple powers available – Practical difference in operation of statutory powers under separate provisions – Power of dismissal under s 80(3) of Police Act 1990 (NSW) not available – Dismissal quashed STATUTORY INTERPRETATION – Meaning of “first appointed” – Suggested use of subordinate legislation to construe Act – Not appropriate where subordinate legislation not drafted when Act enacted WORKERS COMPENSATION – Protection of injured workers – Reinstatement of worker – Interaction with police legislation – Implied grant of power to State public sector employers to reinstate workers
CRIME – appeals – Crown appeal against directed verdicts of acquittal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) – 40 counts of aggravated sexual offences – where respondent was employed as a gynaecologist and obstetrician – 19 complainants – respondent’s case at trial that the physical acts had either been performed for a proper medical purpose, or had not occurred at all – verdict of not guilty directed – trial judge found Crown had not adduced any evidence the complaints were not consenting, or that the respondent had possessed the requisite mental element to be charged with any sexual offence – appeal involved four proposed questions of law alone – evidence of complainants’ lack of consent readily inferred –evidence that the respondent at least foresaw the possibility that each complainant was not consenting available – directed verdicts erroneous – appeal allowed – verdicts of not guilty quashed CRIME – appeals – Crown appeal against acquittals – new trial – whether new trial appropriate – where new trial would be the third – where respondent submits new trial would be unduly oppressive – not in the interests of justice to allow acquittals to stand – new trials ordered
Judgment of
Davies J at [1];
Button J at [2]
Weinstein J at [121]
COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end
Judgment of
Gleeson JA at [1];
Mitchelmore JA at [2];
Kirk JA at [3]
JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Second application under UCPR, r 36.16(3A) – Applicant seeking to reagitate issues for second time – No basis for re-opening established – Application vexatious and an abuse of process
CRIME — drug offences — supply prohibited drug psilocybin — commercial quantity — whether weight of prohibited drug included weight of mushrooms in which psilocybin naturally found — construction of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW)
Judgment of
Mitchelmore JA at [1];
Rothman J at [41];
Wilson J at [71]
INSURANCE – motor vehicle – fraud – s 118 of the Motor Accidents Compensation Act 1999 TORTS – miscellaneous torts – deceit – state of mind of defendant – whether the defendant knowingly or recklessly made false representations to the plaintiff and others to obtain a benefit to the detriment of the plaintiff – whether the plaintiff was induced by the representations of the defendant STANDARD OF PROOF – civil standard – application of Briginshaw EVIDENCE – tendency evidence – where credibility evidence cannot be used for tendency purposes – evidence properly adduced for credibility purposes DAMAGES – whether true value or settlement value theory applies – parties agree that value would be the same in either case – damages assessed
PRACTICE AND PROCEDURE – costs – whether it was appropriate to commence proceedings in the Supreme Court – whether it was necessary to seek declaratory relief – whether successful plaintiff is entitled to costs where the amount in issue did not exceed $500,000
HIGH RISK OFFENDERS – post-sentence orders under Division 105A Criminal Code Act 1995 (Cth) – application for extended supervision order – whether satisfaction on balance of probabilities of unacceptable risk of defendant committing a serious Part 5.3 offence – statutory interpretation of temporal requirements of crucial test – where defendant convicted of making a document connected with preparation for a terrorist act when 18-years of age – defendant denied parole – eight years in continuous custody – interim supervision order imposed – expert evidence – limitations of predictions of risk of recidivism – difficulties in determining realistic possibility of risk – grievance based reasoning – evidence of previous misconduct in custody through communications with unauthorised associates – perceived risk based on possibility of subsequent deterioration based on association with Islamic extremists – many concerning contacts to remain in gaol for the period of the order sought – where defendant has renounced extremist views – significant progress in custody – strong family support –concern about potential risk of committing serious Part 5.3 offence, but not satisfaction on balance of probabilities that such a risk will develop – not satisfied any risk will come to fruition within period of order sought – not satisfied any risk is unacceptable – statutory test not fulfilled – amended summons dismissed
CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive
Judgment of
Ward P at [1]; Wilson J at [394]; Fagan J at [405]
COSTS — claim for debt — defendant made bankrupt before final orders made — proceedings stayed — stay does not prevent costs order being made — whether plaintiff would have succeeded in the proceedings — defendant ordered to pay costs
CIVIL PROCEDURE — Preliminary discovery — whether plaintiff may have a claim for relief – where plaintiff asserted the defendant company may have failed to comply with its taxation obligations – whether, if established, asserted failures capable of justifying winding up of the defendant company
EQUITY —Equitable charges and liens — Enforceability — Whether court should make an order for judicial sale out of court — Whether court should make ancillary order for possession
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – admission of breach of duty of care – whether proposed settlement in best interests of plaintiff – settlement approved
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manslaughter — Where sentencing judge took account of evidence not tendered in sentence proceedings — Whether miscarriage of justice occurred CRIME — Appeals — Appeal against sentence — Where applicant had a background of profound childhood deprivation — Whether sentencing judge failed to give meaningful consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CRIME — Appeals — Appeal against sentence — Where sentencing judge erred in failing to consider special circumstances
CONSUMER LAW — First plaintiff embarks upon a career change and engages in training to qualify as a mortgage broker — First plaintiff claims first defendant arranged for mentoring of the first plaintiff — First plaintiff claims the first defendant made ownership and investment representations regarding a mortgage broking business (MAP Business) and induced the first plaintiff and his wife (the second plaintiff) to sell properties and transfer proceeds to the first defendant based on a promise of a 50% interest in the mortgage broking business, which were misleading and deceptive in that the first defendant had no such interest to sell — Other claims in relation to breach of mentoring agreement and sales and marketing promises CONSUMER LAW — Misleading or deceptive conduct — Discussion regarding the operation of the Australian Consumer Law (ACL) as a law of the Commonwealth and as a State “application” law — Discussion of s 6(3)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) — CCA extends the operation of s 18 of the ACL (in addition to certain other parts of the ACL) to persons who are not corporations where the impugned conduct involves the use of postal, telegraphic or telephonic services — The expression “postal, telegraphic or telephonic services” extends to conduct involving the use of the internet CONSUMER LAW — Misleading or deceptive conduct — Measure of damages — ACL, sections 18 and 236(1) UNREPRESENTED LITIGANTS — Content of procedural fairness PLEADINGS — Discussion (obiter) of pleading of claims in fraud and restitution TRUSTS — Discussion (obiter) regarding intention to create a trust and claims involving Quistclose trusts
CRIME – appeals – appeal against sentence – whether obligation on a sentencing judge to make a finding of fact about an offender’s unlikelihood of re-offending – no such obligation on the evidence relevant and known to the court – where the sentencing judge made a “neutral” finding – appeal dismissed
Judgment of
Simpson AJA at [1]
Button J at [2]
Weinstein J at [3]
CONSTITUTIONAL LAW — The Judiciary — Notice of constitutional matter — whether the Proceeds of Crime Act 2002 (Cth) ‘otherwise provides’ for law within the meaning of Judiciary Act 1903 (Cth) s 79(1) — whether application of the Uniform Civil Procedure Rules excluded
COSTS – party/party – self-represented litigant – where unsuccessful plaintiff alleged multiple grounds for an exception to general rule that costs follow the event – where defendant sought indemnity costs on the basis of “walk-away offer” in Calderbank letter
COSTS – party/party – self-represented litigant – where application made by defendant for gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following summary dismissal of plaintiff’s claim – where conduct of the plaintiff significantly increased costs and disbursements incurred by the defendant – application granted
CRIMINAL LAW – application for review of conviction and sentence – sexual touching – common assault – “groping” – three separate victims – offences committed on the dancefloor of nightclub – associated offences of assaulting security staff and resisting police – two separate incidents – second incident occurred when applicant on bail for the first incident – applicant with psychological issues – no previous convictions – offences out of character – whether case should have been diverted under mental health legislation – whether convictions should have been recorded – where matter considered carefully by Magistrate – where appeal to District Court succeeded in part – rejection of ambitious submission made by lawyer in District Court that objective seriousness less because nightclubs “sexually charged arenas” – where solicitor “struggled to find the words” to articulate submission – whether appearance of doubt or question around conviction or sentence – nature of jurisdiction – whether Court should refuse to consider application because issues fully considered in courts below – discretionary decision to consider case on its merit – application dismissed
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where property registered in names of estranged daughters — Where purchaser bankrupt — Where purchaser forged daughters’ signatures — Whether intention to gift property — Whether registration contrary to policy of Bankruptcy Act or Real Property Act — Whether illegality prevents declaration of resulting trust — Whether unclean hands prevent declaration of resulting trust
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Long running litigation where each party succeeded on some issues — No issue of principle
CIVIL PROCEDURE — Pleadings — Amendment — Current pleading rendered otiose by events — Where foreshadowed amendment involved plaintiff suing in different capacity on completely different causes of action — Application for timetable to bring amendment application refused — Proceedings summarily dismissed
CIVIL PROCEDURE – default judgment – setting aside – proceedings for possession of land and liquidated sum – where company and its director entered into a loan agreement – where earlier judgment had been obtained against the director for possession of other land and for a liquidated sum – where writ of possession executed – non-disclosure and irregularity – whether Court ought to have been notified of prior judgment on an ex parte application for default judgment – whether default judgment entered irregularly by reason of non-disclosure – held information not relevant nor material – requirements of UCPR rr 16.4, 16.8 and 36.8 to obtain default judgment satisfied – no injustice occasioned by failure to provide further information – no irregularity CIVIL PROCEDURE – default judgment – setting aside – bona fide defence on merits – where draft defence relies on statutory unconscionability – asserts defendant under special disadvantage given (1) sole director’s advanced age and minimal income and (2) loss made in the 2022 tax year – where nothing about the defendant’s position in 2022 was provided to the plaintiff – whether general law concept of special disadvantage applies to a corporation – not unarguable that defendant might be found to be at a special disadvantage given director was the controlling mind – authorities leave open the possibility that a company can rely on unconscionability by reason of its special disadvantage – not unarguable that loan was unconscionable given evidence there might have been difficulty servicing the loan – bona fide defence exists – default judgment set aside
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CRIME – appeal against conviction – resisting officers executing duty – appellant acquitted of charges of resisting arrest by first two officers at the scene because arrest held to be unlawful – appellant also charged with counts of resisting officers executing duty – charges based on resistance to third and fourth officers who arrived at scene later and saw appellant struggling with first and second officers – appellant pleaded guilty – whether appellant should be permitted to withdraw his pleas – whether unlawfulness of arrest by first two officers impacted upon charges based on resistance to third and fourth officers – alternatively, whether appellant entitled to set aside one of the convictions because both were based on identical conduct – significance of absence of findings by primary judge – appeal against conviction dismissed CRIME – appeal against sentence – whether finding that arrest was invalid relevant to sentencing – whether sentencing judge failed to have regard to evidence of appellant’s cognitive deficits – whether sentencing judge failed to have regard to aspects of appellant’s subjective case – appeal against sentence allowed and appellant resentenced
Judgment of
Leeming JA at [1];
Wright J at [129];
Wilson J at [130].
CRIME – Appeal and review – Application to Supreme Court under Part 7 – where applicant had already made several Part 7 applications – where no special facts or special circumstances arise justifying further action – Court declines to consider or deal with the application
EQUITY — Equitable remedies — Injunctions – interlocutory injunction – second defendant/cross claimant seeks the continuation of injunctive relief to restrain a trustee from making payment to a unitholder, the plaintiff/cross-defendant, upon a notice of redemption of units in a unit trust – the second defendant/cross claimant alleges that the plaintiff/cross-defendant granted security to the second defendant/cross claimant over the proceeds of the units being redeemed to secure the repayment of a debt due by the plaintiff/cross-defendant to the second defendant/cross claimant – whether there is a serious question to be tried – whether the injunctive relief originally granted to the second defendant/Cross claimant should be discharged on account of nondisclosure at the time of an ex parte application.
JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge – Matter not to be remitted to primary judge REAL PROPERTY – Caveats – Caveatable interests – Where caveatable interest in the nature of equitable charge secured payment of commission owing in respect of sales of property – Whether charge extended to all unsold units – Effect of supplementary agreements is that the properties listed therein are to be treated as included in the primary agreement – Declaration that equitable charge extends to all unsold units to secure debt owed for commission and interest
PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — where family farming partnership had carried on farming business since 1989 — whether farmland formed part of partnership assets PARTNERSHIPS AND JOINT VENTURES — Winding up — Rights of outgoing partner — where family farming partnership had carried on farming business since 1989 — where daughter-in-law buys into the partnership — where parents retire from partnership — whether retired parents hold farmland on bare trust for incoming partners — effect of informal winding-up on retired partners’ interest in the partnership assets EQUITY — Equitable remedies — Specific performance — Land — where conversation at family meeting said to give rise to binding contract — whether terms of contract ever agreed to ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — where conversation at family meeting said to give rise to inducement to pay into partnership in return for inheriting farm — whether representation made — whether representation too ambiguous to give rise to an estoppel
EQUITY – specific performance – contract for sale of land – corporate purchaser’s obligations guaranteed by sole shareholder and director – purchaser defaulted under contract – specific performance ordered against purchaser – whether decree available as against guarantor – whether decree against guarantor premature – order made against purchaser and guarantor jointly and severally requiring payment of purchase price on settlement GUARANTEE AND INDEMNITY – actions to enforce guarantee – construction of guarantee – where guarantee of the performance of all obligations of the purchaser under the contract, including payment of all money payable – where guarantee given as principal
CIVIL PROCEDURE – confidentiality – implied and express obligations to use documents only for purposes of proceedings – reach of obligations – application to agent, solicitor and counsel for party – use for purposes of complaint against solicitor after proceedings completed – release of obligations by court – release to permit ongoing use for complaint proceedings – release nunc pro tunc to permit past use – order for return or destruction of copies by recipients no longer involved in complaint proceedings
COSTS – application for indemnity costs or alternatively a gross sum costs order – Offer of Compromise – costs summary – assessment of costs not warranted having regard to the overriding purpose
CIVIL PROCEDURE – application for summary disposal – allegations that a bank unlawfully complied with the terms of a freezing order – dismissal of proceedings – frivolous or vexatious proceedings
CIVIL PROCEDURE – asset preservation orders — continuation of order after judgment – prima facie case – claims rejected but subject to appeal not relevant – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants are individuals resident in Australia – outcome of accounting proceedings unclear – order discharged
SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands. DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86]. CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care. FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact. ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.
JUDGMENTS AND ORDERS — Slip Rule – Legal practitioners for cross-claimant by oversight failed, both at the time of proposing short minutes of order to give effect to reasons for judgment and on hearing when substantive orders made, to seek orders for pre-judgment interest on amount of judgment sum — Slip rule (Uniform Civil Procedure Rules 2005, r 36.17) applies to various instances of legal practitioner clerical error — Orders made for inclusion of interest REMEDIES — Duress to the person — Payments as the result of improper pressure including economic duress arising from assault are generally recoverable with interest from date of payment
CRIMINAL LAW – release application – where sentencing proceedings imminent – where bail also refused for unrelated offences – lengthy delay – whether appropriate to refuse bail for one offence but grant bail on others – possibility of intensive correction order – show cause requirement – issues as to strength of prosecution case and seriousness of second series of offences – different functions of sentencing court and bail court – bail decision ought not to influence proper exercise of sentencing discretion – preposterous in this case to think it would – bail granted on second series of the offences – refused on the offence for which sentence is pending
CRIMINAL LAW – bail – change of circumstances since bail refused – extensive delay – where volumes of material served after matter listed for trial – defence application to vacate trial date refused – prosecution application to vacate trial date granted – inability of applicant to access voluminous material in prosecution brief – show cause requirement – bizarre and disturbing sexual offences – four complainants – degrading and humiliating conduct – issue of consent – where applicant’s knowledge of brief critical to proper presentation of his case – tricky case for trial lawyers – prosecution case not necessarily overwhelming – previous bail breaches – complainants’ fears – whether stringent bail capable of mitigating risk
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
SUCCESSION – family provision – claims by testator’s two adult daughters – residue of estate left to testator’s grandchildren – “generation skipping” – estrangement – false statement accompanying will as to reasons for excluding daughters – only competing claims those of claimants’ children – primary responsibility of parents to care for children – impact of unresolved death benefit under life insurance policy