CIVIL PROCEDURE — pleadings — striking out — where Defendant alleges Plaintiff’s statement of claim has tendency to cause prejudice, embarrassment or delay — where lengthy statement of claim seeking to wind up defendant company alleges unparticularised breaches of a settlement deed, statute and the general law — where statement of claim repeatedly fails to identify facts, matters or circumstances in support of the allegations made —where Defendant alleges Plaintiff does not have standing to bring application — unnecessary to decide — where Defendant alleges winding up application is inappropriate for resolving the Plaintiff’s allegations — held that the complex and unresolved claims would not be appropriately resolved in a winding up application — statement of claim struck out — proceedings dismissed
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
CRIMINAL LAW – murder – defence of mental illness – accused suffering from schizophrenia, substance use disorder and post-traumatic stress disorder – expert evidence unanimous that accused was suffering from mental illness at the time of the acts – expert evidence unanimous that accused could not reason with a moderate degree of sense and composure about whether her acts, as perceived by reasonable people, were wrong – special verdict of not guilty by reason of mental illness
INTERNATIONAL ARBITRATION – Arbitration – Where plaintiffs and defendant parties to licence agreements containing dispute resolution clause culminating in arbitration before the Court of Arbitration for Sport in Switzerland – Plaintiffs commence proceedings for preliminary discovery – Whether proceedings ought be stayed – Whether a preliminary discovery dispute a “matter … capable of settlement by arbitration” – Proceedings not subject to s 7(2) International Arbitration Act 1974 (Cth) INTERNATIONAL ARBITRATION – Arbitration – Stay of proceedings – Existence of inherent power to stay proceedings in favour of arbitration CONTRACT – Covenant not to sue – Power to stay proceedings brought in breach of covenant not to sue
SENTENCING — relevant factors on sentence — objective seriousness — whether sentencing judge erred in assessment of the objective seriousness — moral culpability — whether sentencing judge erred in assessment of the applicant’s moral culpability — mitigating factors — unlikely to re-offend — whether sentencing judge misstated the statutory test — where the expression was no more than a verbal infelicity
Judgment of
Adamson JA at [1]
Chen J at [2]
R A Hulme AJ at [142]
CRIME — Appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed sufficiently to take into account applicant’s disadvantaged background — misapplication of principle — mitigating factors in Crimes (Sentencing Procedure) Act 1999 (NSW) — risk of re-offending and prospects of rehabilitation — factors not raised before sentencing judge — whether sentencing judge erred in not assessing mitigating factors — manifest excess — whether aggregate sentence reflected totality of criminality — manifest excess established
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where defendant entirely unsuccessful on motion to set aside principal judgment — Where plaintiff alleges defendant delayed in prosecuting its notice of motion — Whether costs should be ordered on indemnity basis COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on a fixed sum basis — Whether Court can exercise power to award gross sum fairly between the parties — Where plaintiff advised of its total costs and disbursements
NEGLIGENCE – cross-claims – against third party for contribution – historical sex abuse – abuse of four male pupils by female teacher in 1978 and 1979 – judgments entered against the State in favour of the plaintiffs – where State seeks contribution from teacher alleged to have perpetrated the abuse – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – whether the State is a tortfeasor liable – whether the teacher is a tortfeasor, who would, if sued by the plaintiffs, have been liable to them for the same damage NEGLIGENCE – historical sex abuse – whether the abuse alleged occurred – where physical acts upon which each plaintiff sued must be individually assessed – where plaintiffs were cross-examined – where cross-defendant did not directly contradict the plaintiffs’ evidence – assessment of credibility and reliability of plaintiffs’ evidence NEGLIGENCE – liability as a tortfeasor – consent judgments – whether the entry of judgments against the State establishes it is a tortfeasor liable WORDS & PHRASES – meaning of ‘tort-feasor’ – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – distinction between the first and second mentioned tort-feasor NEGLIGENCE – breach – whether the State breached its duty of care – failure by State to take specified precautions – s 5B(1) Civil Liability Act 2002 – whether the risk of harm was foreseeable by the school – whether the risk of harm was not insignificant – whether the school ought to have taken precautions against the risk of harm NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether the failure by the State to take reasonable precautions was a necessary condition of the harm suffered NEGLIGENCE – breach – foreseeability by cross-defendant – whether the cross-defendant ought to have known of the risk of harm to the plaintiffs in 1978 or 1979 – where evidence did not reveal the personal knowledge or experience of the cross-defendant – where foreseeability cannot be judged by what the cross-defendant ought to have known in similar circumstances today – where the harmful consequences of child sexual abuse were not in 1978 or 1979 notoriously part of contemporary thought NEGLIGENCE – reasonableness of the settlements – whether the settlements were reasonable – where the State obtained advice from counsel on liability and quantum NEGLIGENCE – apportionment – apportionment of liability between tortfeasors – degree of the departure by the cross-defendant and State from duties owed to the plaintiffs – assessment of what is just and equitable
SUCCESSION — Administration of estates — dispute in relation to whether money is owed to the estate of Nelly Mary Aston by the estate of Riley Davis Aston or vice versa – dispute has persisted throughout various attempts to pass estate accounts – Court has power under Uniform Civil Procedure Rule, 54.3 to grant relief on any question arising in the administration of an estate without general administration proceedings being commenced – dispute about debts owing to or by an estate could be determined in general administration proceedings – the need for finality in the estate administration favours the determination of the issue – whether a debt is owed to the estate or by the estate of Nelly Mary Aston.
COSTS – Party/Party – Bases of quantification – Indemnity basis – whether offers of compromise/Calderbank offers – whether indemnity costs should be ordered – no question of principle
SUCCESSION — Burial and interment rights — Urgent application by granddaughter within 48 hours of deceased’s death to the Court for orders permitting 90 minutes of private access (with no other person present) to the deceased’s body, including permission for touching, before preparation of body for interment — Deceased made a number of instruments and directions regarding her burial — Ultimately, the deceased appointed a solicitor as executor but entrusted her son (first defendant) with making arrangements for her interment and discussed her wishes with him — Proposed arrangements for deceased’s memorial service to occur within days by closed casket and then for interment of deceased’s body in family vault SUCCESSION — Burial and interment rights — Initial lack of clarity regarding who had custody of the deceased’s body and location — Importance of parties being able to provide the Court with a core of critical information quickly to enable a sufficient picture of essential details to emerge from an obscured position SUCCESSION — Burial and interment rights — Joinder of parties — Deceased’s executor (a solicitor) joined as a party and orders made pursuant to r 7.10(2)(b) UCPR for representation and binding of the estate in respect of the determination in the absence of a grant of probate of the deceased’s Will and Codicil ALTERNATIVE DISPUTE RESOLUTION — Burial law — Law is often a blunt and sometimes can be an insensitive instrument to resolve what are essentially relational disputes between parties — Imperatives of ensuring the interment is conducted in a dignified manner and honouring the memory of the deceased heighten the sensibility of parties endeavouring, within the limited window of time available, to agree on consensual solutions — Parties encouraged by Court to first explore consensual outcomes SUCCESSION — Burial and interment rights — Case management — Plaintiff seeks orders regarding immediate access to deceased’s body and also disclosure of information and records — Access issue to deceased’s body immediately addressed — Application for disclosure of information and records separated from abovementioned matter SUCCESSION — Burial and interment rights — In absence of an agreed outcome between parties, the Court’s resolution of the matter will necessarily require appropriate clarity of orders — Determination that plaintiff should have time in the presence of the deceased’s body in an open casket but with no touching and orders made giving precision to that
APPEALS — procedure — stay pending appeal — urgent application for stay of execution upon judgment for possession and writ of possession — stay previously refused on the basis no application for leave to appeal filed — timing of effective filing unclear — prejudice established — undertaking by applicants to pay money into Court in satisfaction of respondents’ claim within 21 days — undertaking decisive —temporary stay granted
CIVIL PROCEDURE – Abuse of process – Where Court previously found that cross-claim was an abuse of process – Consideration of appropriate form of relief – Whether cross-claim must be permanently stayed – Permanent stay ordered COSTS – Application for indemnity costs – Where cross-claim found to be an abuse of process – Where indemnity costs should ordinarily be ordered where action taken is an abuse of process – Indemnity costs ordered
APPEAL — sentencing — control orders — Children’s Court — whether a single aggregate control order may exceed two years — coherence between cumulative and aggregate sentencing — jurisdictional limit for aggregate control orders — construction of Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(g), 33A(4), 33C — application of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53B CHILDREN — criminal law — sentencing — control orders — aggregate control order imposed for multiple offences — whether two-year limit in s 33(1)(g) applies — three-year jurisdictional limit under s 33A(4) — power to impose aggregate control order derived from Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A as applied by Children (Criminal Proceedings) Act 1987 (NSW) s 33C
Judgment of
Ward P at [1]
Mitchelmore JA at [2]
Adamson JA at [22]
MENTAL HEALTH — forensic patient — schizophrenia — substance use disorder — appeal from refusal to extend status — interim extension order — whether Court of Appeal judge had power to make interim extension order — whether unacceptable risk can be adequately managed by less restrictive means — whether primary judge applied correct statutory test — conditional release — Community Treatment Order — psychiatric evidence — disagreement between court-appointed experts — whether primary judge erred in approach to expert evidence — alleged rule as to calling experts — Jones v Dunkel inferences — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122
CIVIL PROCEDURE – summary disposal – where the defendant is self-represented and did not appear on the current application – where the only issue between parties is whether the defendant remedied defaults in terms of the loan agreement and mortgage – where the evidence discloses the defendant’s acts of default – no pleadable defence in the circumstances – held – summary judgment for the plaintiff for possession of the property
EVIDENCE ON COMMISSION – application to set aside subpoenas compelling applicants to give evidence – application to set aside subpoena to produce documents – request from the District Court of Nevada, United States of America – motions upheld in part
LAND LAW – possession of land – urgent application to stay execution of writ of possession – where the opportunity to sell has passed – no adequate explanation for lack of action by applicant
LAND LAW – possession of land – urgent application to stay execution of writ of possession – previous application for temporary stay previously granted and since expired – no adequate explanation for lack of action by applicant
Sentencing - Crown Appeal against inadequacy - sentencing judge imposed non-parole period of 6.25% of overall term - delay of 6 months in hearing of appeal - Appeal upheld but in view of delay respondent re-sentenced to periodic detention.
Judgment of
Meagher JA at 1; Hidden J at 2; Carruthers AJ at 3
MEDIA AND COMMUNICATIONS LAW – application by media outlet for access to file – proceedings originally heard in closed court – open justice – fair and accurate coverage of court proceedings – risk that publication will affect future proceedings
CRIMINAL LAW – proceeds of crime – restraining orders – notice of motion seeking to restrain additional property – where property in the name of a company but effectively in the control of the defendant - additional criminality by defendant
COSTS — Security for costs — Whether plaintiff company is impecunious — Where quantum of security sought might stultify proceedings — Plaintiff to provide security for costs but quantum reduced
CIVIL PROCEDURE – application for summary dismissal/strike out under rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – where the plaintiff advances an inadequate case of fraudulent conspiracy or collusion proceedings – proceedings summarily dismissed COSTS – gross sum costs order – where the costs of preparing a bill for assessment would be disproportionate – where the costs claimed in respect of the proceedings are modest – where proceedings could be finalised at an appropriately early time – third defendant entitled to gross sum costs subject to a discount of 30%
LAND LAW – possession of land – application to extend stay of writ of possession – where the applicant has a strong imperative to sell and made genuine attempts to sell – limited stay granted
NEGLIGENCE — Breach — Standard of care — Medical negligence — Whether spinal surgery ought to have been performed — Whether spinal surgery performed negligently NEGLIGENCE — Causation — Medical negligence — Whether lower back pain caused by spinal surgery LIMITATION OF ACTION — Claim in negligence — Where time expired — Whether extension of time should be granted — Where defendant suffered both actual and presumptive prejudice
MENTAL HEALTH – forensic patient – preliminary hearing – orders appointing experts – interim extension order – offences of intentionally causing fire and being reckless as to its spread – Black Summer bushfires – mild intellectual disability – moderate alcohol use disorder – not mentally ill – “Well Above Average” risk compared to other male sexual offenders – “High” likelihood of sexual offending – conditional release in community – no behavioural concerns since release – fishing, walking, bike riding – chronic nature of defendant’s cognitive condition – ongoing minimisation and absence of targeted intervention – response to challenges in community – orders made as sought
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether success or failure on separate claims should affect costs orders
CRIME – appeals – appeal against sentence – offence of sexual intercourse without consent – domestic violence – whether the sentencing judge erred in the application of a 25% discount for the applicant’s plea of guilty – whether the sentencing judge denied the applicant procedural fairness in finding that the offending was aggravated by a breach of trust – whether the sentencing judge double counted aggravating factors of a breach of trust and the offending having occurred in the victim’s home – no point of principle – leave to appeal granted – appeal dismissed
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Whether Court is satisfied to a “high degree of probability” that defendant poses unacceptable risk of causing serious harm — Whether risk cannot be adequately managed by other less restrictive means — Where risk dependent upon whether defendant maintains sobriety — Where pattern of alcohol-related offending
CONTRACTS — hire of equipment — damage to diamond saws — whether General Terms of Hire applied — whether “Hire Schedule” required to enliven terms — allocation of risk for damaged equipment — latent defect or damage during hire — application of Jones v Dunkel — assessment of damages by reference to repair invoices — admissibility of repair invoices — proportionality and case management — liability under guarantee — definition of “Owner” — overriding purpose — unpleaded issue raised in reply — Local Court appeal
HIGH RISK OFFENDER – interim application – serious violence offender – application for an Interim Detention Order – where the making of an order is opposed by the Defendant – where the Defendant is subject to an Interim Supervision Order – where the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order – application for an Interim Detention Order is refused
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — No issue of principle EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Where residuary beneficiary incurs costs recovering property which benefits estate
STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW), s 25 – supply of a large commercial quantity of a prohibited drug – level of knowledge required to establish charge under s 25(2) CRIMINAL LAW – appeal against conviction – where applicant convicted of supply of a large commercial quantity of a prohibited drug – applicant convicted of supply of fentanyl – where applicant gave evidence of mistaken belief as to the particular prohibited drug in his possession – whether applicant had requisite mental knowledge with regard to quantity of prohibited drug CRIMINAL LAW – appeal against sentence – supply of a prohibited drug – whether sentencing judge erred in assessment of objective seriousness of offending – where sentence appeal was previously abandoned and subsequently raised without leave
Judgment of
Bell CJ, Payne JA and Sweeney J at [1];
Basten AJA at [48];
Dhanji J at [152]
CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances
CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances
JUDGMENTS AND ORDERS – Stay of execution – Pending appeal – Where application for stay predicated upon appeal being filed – Where no appeal was filed – Where no proper basis for stay established – motion dismissed
CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — Where first defendant charged with serious criminal offences — Where plaintiffs allege first defendant engaged in misleading or deceptive conduct in relation to an investment — Where the transaction at issue in these proceedings also forms the basis of some of the criminal charges being defended by first defendant – Whether it is in the interests of justice to stay proceedings in these circumstances
SENTENCING — appeal against sentence — relevant factors on sentence — Form 1 offences — whether sentencing judge impermissibly took Form 1 offence into account when assessing the objective seriousness of the principal offence — whether sentencing judge failed to make finding accepting or rejecting case advanced by the applicant — where appeal allowed — resentence — where a greater sentence ought to have been imposed than that given by the sentencing judge
Judgment of
Adamson JA at [1]
Chen J at [2]
Coleman J at [103]
CONTRACTS — incorporated medical practice has 7-year contract to provide IVF specialist services to bulk billing IVF clinic — IVF specialist receives negative online reviews — IVF clinic receives patient complaints about ‘bedside manner’ and lateness — staff complain about rudeness and yelling — contract terminated without notice on the basis of the “reasonably held opinion” of the IVF clinic that the doctor had “committed an act which if true would” adversely affect its reputation or business – doctor seeks $3.8M damages. NATURAL JUSTICE — whether IVF clinic obliged to give notice – whether IVF clinic obliged to afford natural justice and investigate complaints – case law review and principles at [212]-[232]. CORPORATIONS – attribution of state of mind of officers – principles at [256] – necessary to consider the evidence of three officers to determine whether the corporation had a ‘reasonably held opinion’. NOTICE OF BREACH — whether written notice required — whether notice conformed to requirements of clause — principles at [209]-[210] – oral notice sufficed. DAMAGES — company provides services by its director, who is paid a salary – whether company’s loss is gross income or nett profit – principles at [293]-[296] — failure to mitigate — doctor does not resume medical practice for three years – principles at [304]-[306]. WORDS AND PHRASES — “would” at [233].
ESTOPPEL — Proprietary estoppel — Encouragement — Where deceased transferred approximately 3000 ha of farmland to second defendant — Where second defendant and plaintiffs are siblings — Whether the deceased had made representations to the plaintiffs that they would each get a third of the farmland — Whether it was reasonable for the plaintiffs to rely on the alleged representations — Whether the plaintiffs relied to their detriment on the alleged promises SUCCESSION — Family provision — Claim by adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Potentially large notional estate — Where plaintiffs each received cash legacy and second defendant received farmland — Whether adequate and proper provision made for the plaintiffs — Where plaintiffs contend they should each be given further provision to fund the purchase of farmland
INSURANCE – interpretation – standard business insurance policy – insurance of petrol station – meaning of “building” within policy – whether underground pipes fall within definition of “building” INSURANCE – interpretation – meaning of “contract value” – whether “contract value” distinguishable from “contract price”
ADMINISTRATIVE LAW – appeal from judicial review decision – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs that should be paid by Secretary of Department – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s payment rates for solicitors and counsel – standard of legal unreasonableness – advertence to policy considerations – statutory purpose – no error in reasoning of primary judge
Judgment of
Bell CJ at [1]
Mitchelmore JA at [2]
Kirk JA at [49]
SUCCESSION – Probate and administration – contest between children of the deceased testator as to which of two competing wills should be admitted to probate – the equity in the estate’s principal asset is being eroded by mortgage interest, an issue which the parties are not addressing – two parties apply for pro bono legal assistance under Uniform Civil Procedure Rules 2005, r 7.36 for the probate contest – whether in the circumstances pro bono legal assistance should be recommended by the Court where the Court doubts the declared financial position of the parties and the parties are not focused upon the declining financial position of the estate.
CIVIL PROCEDURE – Parties – Persons under legal incapacity – Tutors – Application for appointment of tutor by plaintiff – Application for stay of proceedings in lieu of the pending appointment of a new tutor by defendant – Application made by a vexatious litigant for appointment as tutor – Where pleadings articulate allegations of misconduct and corruption against solicitors – Where applicant for position of tutor deliberately misled the court as to prior rulings which were adverse to him – Where documentation alleged to have been sent to parties by the previous tutor was likely deceptively sent by the prospective tutor – Where applicant for position of tutor was deceptive in his application – Where the appointment of a vexatious litigant as tutor would result in the court being unable to rely on his word in the absence of independent corroborative evidence – Where the pleading alleges similar claims of fraud, conspiracy, deception and criminality of the defendants as the claims in prior litigation which resulted in the determination of the applicant as a vexatious litigant – Where litigation is being conducted in a way which is inconsistent with the objective and reasonable conduct of proceedings for damages for professional negligence – Application for appointment of tutor refused – Order made for stay of proceedings until such time as a tutor is appointed or plaintiff is deemed no longer a person under a legal incapacity
CIVIL PROCEDURE – Pleadings – Amendment – Where a defendant opposes the filing of a further Amended Statement of Claim – Where a defendant submits that proceedings ought be summarily dismissed – Whether plaintiff had been given sufficient opportunity in the past to re-plead such that further leave should not be granted – Where defendant subject to real prejudice as a result of costs incurred by continued failed attempts to adequately re-plead cause in action – Where plaintiff entitled to ventilate their claim in circumstances where they were a victim of sexual abuse – Where failure of plaintiff’s solicitors to adequately draft an appropriate pleading is not to be attributed to the plaintiff so as to prevent the matter being litigated – Leave granted
PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Application for variation or rescinding of previous orders – Application for continuation of stay previously ordered PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks to rescind, set-aside or vary an order made by a Judge of the Supreme Court of NSW regarding the registration of foreign orders based on an alleged error of law and fact – Where said order was made by consent – Whether the order was consented to by the parties in error as a result of an error of fact and foreign law – Insufficient cause shown that the order was made irregularly, illegally or against good faith – No application of the ‘slip rule’ contained in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – Where order sought by the plaintiff does not fall within any identified rules contained within the Uniform Civil Procedure Rules 2005 (NSW), Supreme Court Act 1970 (NSW) or Civil Procedure Act 2005 (NSW) – Where inappropriate for the Court to exercise discretion to set aside an order whilst an appeal is pending with respect to that order – Relief not granted PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks through Notice of Motion a declaration that a stay ordered by a Judge of the Supreme Court of NSW remains in full force and effects whilst awaiting the outcome of similar proceedings in a foreign jurisdiction – Whether a stay ordered previously has come to an end as a result of the delivery of a foreign judgment – Whether there has been final determination of the defendant’s set-off application – Where stay order contains reference to bankruptcy petitions and statutory demands which have not yet been determined – Where international judicial comity and public interest suggests that overlapping proceedings should not be heard simultaneously in different jurisdictions – Where it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of a set-off application in a foreign court – Where the stay order was made on the basis that there would be a determination of a balancing figure after the completion of set-off – Relief granted
CIVIL PROCEDURE — subpoenas — objection to production of documents or things — client legal privilege — privileged documents not to be produced CIVIL PROCEDURE — subpoenas — objection to production of documents or things — compliance burden
TRUSTS – whether directors of trustee resolved to amend trust deed and to approve appointment of a new appointor – whether amendment was outside power – whether appointor exercised power to appoint a supervisor for an improper purpose – whether supervisor exercised power to remove and replace trustee upon real and genuine consideration – whether appointments of appointor, supervisor and replacement trustee were invalid and of no effect EMPLOYMENT – where employment of chief executive officer terminated on payment of five weeks’ pay in lieu of notice – whether employment governed by written executive employment agreement – whether a mutual intention to abandon or vary the terms of the written agreement is imputed to the parties – whether employment could only be terminated on reasonable notice – whether employer breached implied obligations of good faith and reasonableness – whether there were grounds for summary dismissal CONTRACT – offer and acceptance – where parties exchanged emails regarding the terms of a proposed bonus in return for the successful implementation of a strategy to develop pubs – whether there was a binding agreement as to this “hospitality bonus term” CORPORATIONS – Oppression – whether the affairs of group of companies were conducted in a manner oppressive to minority shareholder – whether there was a strategy to remove minority shareholder as chief executive officer and as a director of operating entities for purpose of persuading him to agree to sell shares – whether there was commercial unfairness in removing minority shareholder from those roles
EVIDENCE – Expert evidence – application for single expert to be appointed pursuant to r 31.37 of the UCPR – complex and contested quantum issues – unclear scope of expert’s task – financial prejudice to defendants – whether appointment would advance the just, quick and cheap resolution of the real issues – HELD – application dismissed
CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — appeal under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) – defendant acquitted of charge of unauthorised possession of a pistol in Children’s Court — where prosecution case dependent on expert certificate of forensic ballistics expert identifying pistol — challenge to admissibility of certificate — exclusion of certificate on basis of a lack of “line” between the expertise of maker of certificate and the identification of the pistol— whether question of law — whether Magistrate committed error on a question of law EVIDENCE — Exclusion of evidence —— construction of s 177(1)(c) of the Evidence Act —meaning of “expressed to be wholly or substantially based on that knowledge”
TORTS — trespass to land — defences — land owned by plaintiff and plaintiff’s predecessor in title used by defendant’s predecessors in title and by defendant as garden since 1960s — plaintiff aware of use by 2009 — balcony, roof overhang, concrete slab, and deck constructed by defendant on, or projecting into airspace of, plaintiff’s land in 2009-2010 without plaintiff’s knowledge — deck reconstructed by defendant in 2019 — plaintiff then became aware of defendant’s construction works — whether works impliedly licensed by plaintiff — limitation — balcony and roof overhang gave rise to continuing trespass — deck (in original form) and concrete slab statute did not EQUITY — equitable remedies — injunctions — trespass to land — mandatory injunction to remove structures — Lord Cairns’ Act damages in lieu of injunction — “good working rule” in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 — adequacy of damages — hardship — mandatory injunction awarded ESTOPPEL — estoppel by convention — discussions concerning purchase of plaintiff’s land by defendant — defendant became aware of unregistered lease between parties’ predecessors in title and asserted during discussions that lease ‘existed’ — whether mutual assumption that defendant entitled to remain in occupation indefinitely — reliance — detriment — no estoppel as to indefinite occupation by defendant LAND LAW — Encroachment of Buildings Act 1922 — application by defendant for compulsory transfer of, or easement over, plaintiff’s land to accommodate encroaching structures built by defendant — defendant’s knowledge of encroachment at time of construction — hardship — application refused LAND LAW — easements — application by defendant for compulsory easement over outdoor stairs built by defendant’s predecessor in title on plaintiff’s land — Conveyancing Act 1919, s 88K — “original architectural vision” of defendant’s predecessor in title — heritage factors — past use by defendant and defendant’s predecessors in title — easement not reasonably necessary for the effective use or development of defendant’s land — alleged necessity resulted from defendant’s own conduct in building up to his boundary — application refused
SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentences imposed on five co-offenders — where five co-offenders received lesser sentences after the applicant was sentenced — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment
CRIME — appeal against sentence — sentence approximates the sentence actually sought at first instance — not manifestly excessive — parity ground — less severe outcome for co-offender amply justified by differences between cases — no question of principle
Judgment of
Adamson JA at [1]
Chen J at [2]
R A Hulme AJ at [3]
CRIMINAL LAW — appeal — conviction — self-represented applicant — maintaining unlawful sexual relationship with child under 16 years — challenges to conduct of prosecutor, defence counsel and trial judge — allegations of miscarriage of justice — admissibility of tendency, context and complaint evidence — alleged judicial bias — unreasonable verdict — constitutional challenge to s 66EA of the Crimes Act 1900 (NSW) CRIMINAL LAW — appeal — conduct of defence counsel — conduct of prosecutor — whether conduct caused miscarriage of justice CRIMINAL LAW — appeal — sentence — maintaining unlawful sexual relationship with child under 16 years — incompetence of counsel — alleged error in assessing number and frequency of acts — manifest excess — failure to consider particular circumstances — absence of remorse or insight
CRIMINAL LAW — appeal against conviction — causing grievous bodily harm with intent to cause grievous bodily harm — alleged unreasonable verdict — substantial evidence of multiple blows to the victim’s head – admissibility of statement made immediately after assault — statement made when victim unconscious — whether capable of constituting admission — motive to inflict grievous bodily harm — s 81 Evidence Act 1995 (NSW) — extension of time — delay caused by seeking a second opinion — appeal lacking merit
Judgment of
Adamson JA at [1]
Chen J at [42]
R A Hulme AJ at [43]
CRIME – Appeal – Appeal against conviction – Unreasonable verdict – Murder – Whether Crown excluded the possibility that a person other than accused inflicted at least one blow to the head of the deceased – Deference given to advantage of jury in assessing credibility and reliability of witnesses
Judgment of
Ward P at [1]; Rigg J at [414]; Coleman J at [416]
CRIME – appeals – appeal against conviction – unreasonable verdict – murder – joint criminal enterprise and extended joint criminal enterprise – investigated nine years later – where applicant acquitted by this Court – where High Court allowed Crown appeal and remitted for determination – admissions – where admissions central to proof of Crown case – reliability of admissions – inconsistent and against interest – litany of lies – Court invited to review recorded material – intercepted telephone calls and interviews with police – nature of advantage held by jury – whether advantage capable of resolving doubt.
Judgment of
Bell CJ at [1];
Dhanji J at [48];
Yehia J at [187].
CRIME – appeals – appeal against conviction – unreasonable verdict – attempt to possess commercial quantity of heroin – whether prosecution required to exclude possibility that an associate of the applicant had attempted to possess the heroin alone – unnecessary for prosecution to exclude that possibility – verdict not unreasonable CRIME – appeals – appeal against sentence – principles in R v De Simoni (1981) 147 CLR 383 – whether sentencing judge sentenced applicant based on his “role in importation” – error established – no lesser sentence warranted
CORPORATIONS — voidable transactions — application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Second Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established
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
CIVIL PROCEDURE – application for leave for an inmate to commence civil proceedings nunc pro tunc – prima facie ground for the proceedings supported by expert evidence – where the proceedings are not vexatious or an abuse of process
HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for extended supervision order – final hearing – whether defendant high risk terrorist offender – convicted NSW terrorism activity offender – statutory preconditions – jurisdiction – unacceptable risk test – expert evidence – other relevant material – autism spectrum disorder diagnosis – demonstrated belief in violent jihad – risk-increasing effect of order – primary risk of general violence – untested in community – risk unacceptable – discretion – extended supervision order made – period of 1 year – significantly less restrictive conditions imposed – if I had more time, I would have written a shorter letter – Mark Twain – Blaise Pascal
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings – prima facie ground for the proceedings supported by expert evidence – where a broad impression has been formed that the proceedings are not vexatious or an abuse of process
CIVIL PROCEDURE — Dismissal of proceedings — Want of due despatch — Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.5 — Where applicant failed to file White Folder — Where applicant has explanation of delay and is now legally represented CIVIL PROCEDURE — Expedition of proceedings — Where respondent of advanced age — Where respondent suffers anxiety and is kept out of funds
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle
Judgment of
Kirk JA at [1];
Fagan J at [133];
Sweeney J at [266]
CRIME – jurisdiction to prosecute executive liability offences under the Food Act – absence of express power – whether Food Authority as a statutory body has implied power to prosecute Food Act offences STATUTORY INTERPRETATION – legislative purpose – consideration of Act as a whole – text and context – coherence of outcome of construction
COSTS – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence – trial vacated – whether plaintiff should pay costs of motion to vacate and costs thrown away – no issue of principle.
CRIME — Appeals — appeal against conviction — unreasonable verdict — Crown alleged exclusive possession of drugs and cash — applicant argued evidence did not establish exclusive possession — whether applicant had exclusive possession of drugs and cash
CRIME – appeals – appeal against sentence – offence of wound person with intent to resist or prevent arrest – related offences on s 31 certificate – police pursuit, not stop and drive dangerously – robbery armed with offensive weapon – whether sentencing judge erred by sentencing the applicant ‘at law’ for the related offences – whether the sentencing judge erred by sentencing the applicant to a sentence that was more than jurisdictionally available – whether the sentence was manifestly excessive as a result of the asserted error – leave to appeal allowed – applicant resentenced
Judgment of
Harrison CJ at CL at [1];
Lonergan J at [2];
McGuire J at [3].
CRIMINAL LAW — appeal against conviction — using carriage service to transmit communications with person believed to be under 16 years — misdirection as to belief element — error conceded — whether Court should direct acquittal or order re-trial — interests of justice — discretion of Director of Public Prosecutions — significance of conviction under Child Protection (Offenders Registration) Act 2000 (NSW)
Judgment of
Adamson JA at [1]
Chen J at [30]
Coleman J at [31]
CIVIL PROCEDURE – pleadings – amendment to pleading – application for leave to file further amended statement of claim – where building inspection report failed to identify various defects in property – where second and third defendants object to certain paragraphs – allegations of misleading or deceptive conduct – complaints about form of the proposed pleading – whether the new claims arise from the same or substantially the same facts – whether a grant of leave would cause the defendants to suffer prejudice
CRIME – appeals – appeal against conviction – whether irregularity constitutes miscarriage of justice – where irregularity occurred by provision of a transcript containing discussions in the absence of the jury – where those discussions included details of allegations made by the complainant for which the applicant had been acquitted in a previous trial – whether irregularity met the threshold of materiality – whether continuing trial after discharge of juror occasioned a substantial miscarriage of justice – whether it would be inferred that discharged juror would have voted for an acquittal – where majority verdict followed a short time after juror was discharged
Judgment of
Price AJA at [1];
Cavanagh J at [102];
Yehia J at [103]
CRIME – Murder – Jury trial – Defence application for Mahmood direction as a result of Crown not calling some twenty persons to give evidence – Consideration of relevant factors – Where anticipated evidence is largely speculative and peripheral to relevant issues – Where anticipated evidence is highly unlikely to be admissible – Mahmood direction given only in relation to non-OCN witness where prosecution was on notice
CRIMINAL LAW – bail – child in Minister’s care – accommodation requirement – pre-release condition – where accommodation not organised within 24 hours in accordance with Youth Justice report – where court to list case every two days to ensure suitable accommodation is organised – power to seek information from officers of relevant government bodies – child released to bail
LAND LAW – Public roads – dedication and acceptance between 1892 and 1920 – whether parties instead intended private rights of way – whether mortgagor of Torrens land competent to dedicate public road – whether Council’s statutory title to public road defeated by registered proprietor’s indefeasibility of title
TORTS – trespass to land – underground trespass –action in trespass in relation to underground gas infrastructure – separate determination of questions – whether installation and continued presence, maintenance and use of gas infrastructure done pursuant to statutory authority – nature of ownership and possession of gas infrastructure
TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)
APPEAL — appeal against liability in the tort of deceit — whether primary judge erred in concluding that the appellant had knowledge of, or was reckless as to, falsity — where primary judge’s conclusion was based on inferences — inferences not to be disaggregated — appellate review of witness evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences — advantage of primary judge in seeing and hearing the witnesses give evidence
Judgment of
Payne JA at [1]
Mitchelmore JA at [2]
McHugh JA at [72]
LAND LAW – Caveats – extension of caveat – plaintiff’s application to extend caveat over the defendant’s commercial property – the plaintiff is the lessee under a commercial lease agreement – the plaintiff claims an equitable interest in the defendant’s property on account of the plaintiff’s claimed expenditure in the property – but the substance of the caveat does not reflect the interest articulated by the caveator in court on this application – defendant claims the plaintiff/lessee is in default in paying rent – caveator claims there was an agreement to waive rent by the defendant – defendant disputes any arrangement to waive rent – whether caveat should be struck out – whether plaintiff should be given leave to amend his Statement of Claim to reflect the interest claimed in the property as articulate on this application.
CRIME – Appeals – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence
CIVIL PROCEDURE – Abuse of process – Whether cross-claim should be struck out – Whether cross-claim should be dismissed or permanently stayed – Whether defendant should be estopped from pursuing matters set out in cross-claim – Where pleadings are contrary to previous arguments successfully pursued in this Court – Whether section 93C(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) creates an issue estoppel in relation to question of whether valid costs agreement exists – Operation of s 199(2)(a) of Legal Profession Uniform Law 2014 (NSW) – Abuse of process established
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – dispute as to existence of construction contract under s 4 SOPA CONTRACTS – formation – identity of parties – whether parties intended to be bound subject to execution of formal contract – consideration of subsequent conduct
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 and ancillary orders
CRIMINAL LAW – trial – pre-trial issues – ruling on admissibility of hearsay statements EVIDENCE – hearsay – first-hand hearsay exceptions – s 65(2) of the Evidence Act 1995 (NSW) – maker unavailable – whether the representation was made shortly after the asserted fact – meaning of “shortly after” – whether the representation was made in circumstances that make it highly probable that the representation is reliable – where maker of the representation criminally concerned in the events that gave rise to the proceedings
CRIMINAL LAW – pre-trial issues – admissibility of flight evidence – application of principles as to evidence of flight as evidence of consciousness of guilt – whether the probative value is outweighed by the danger of unfair prejudice to the accused – evidence of flight not admitted
CIVIL PROCEDURE – statement of claim – application for dismissal of proceedings or strike out of the pleading – where the statement of claim does not currently articulate or formulate a properly pleaded cause of action – plaintiff given opportunity to replead
CRIME – Appeal against sentence – Sexual offences – Aggravated sexual assault – Indecent assault – Circumstances of aggravation – Victim under authority – Victim under 16 years of age – Leave granted – Appeal upheld – Applicant resentenced CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in an assessment of objective seriousness – Whether the characterisation given by the sentencing judge was reasonably open to him –Ground of appeal not upheld CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in finding that personal deterrence was a significant factor in sentencing – Whether the offender’s willingness to engage in treatment courses is conditional upon expressions of remorse and insight into offending – Error of principle – Where remorse and insight into offending found not to be a precondition for engagement in treatment courses – Grounds 2 and 3 upheld CRIME – Appeals – Appeal against sentence – Manifest excess – Unnecessary to consider in light of upholding grounds 2 and 3
Judgment of
Harrison CJ at CL at [1]
Garling J at [2]
Yehia J at [73]
CRIME – appeals – appeal against conviction – supply commercial quantity of prohibited drug – 1,4-butanediol – whether guilty verdict unreasonable – whether commercial quantity of drug in possession for the purpose of supply – application of deeming provision – s 29(a) Drug Misuse and Trafficking Act 1985 (NSW) – definite and indefinite articles – nature of offence – indivisible whole – where proof of intention to use part of drug not inconsistent with possession of whole quantity for the purpose of supply – appeal dismissed
CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against sentence – Leave to appeal granted – Appeal dismissed CRIME – Child sex offences – Child abuse material – Bestiality material – Possession of – Pleas of guilty – Imposition of an aggregate sentence CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to consider objective seriousness – Where an ex-tempore judgment lacks the order and precision of a reserved judgment – Principle established in Rotner v R [2011] NSWCCA 207 – Where sentencing Judge refers to the factors relevant to objective seriousness without making an explicit determination – Where assessment of objective seriousness deemed to have taken place when the sentencing judgment is read as a whole – Ground 1 not upheld CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to give sufficient weight to a reduction in moral culpability re Bugmy and the applicant’s mental health conditions – Error in taking applicant’s mental health conditions into account – Application of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 – Where the applicant submitted that he was an inappropriate vehicle for general deterrence – Where no submissions were made or evidence tendered to support a link between the applicant’s mental health conditions and his offending conduct – Where consideration of Bugmy factors deemed to have taken place when the sentencing judgment is read as a whole – Ground 2 not upheld CRIME – Grounds of appeal – Manifest excess – Where it was open to the sentencing Judge to conclude that each offence needed significant individual recognition for the individual criminality displayed – Where indicative sentences displayed no error – Sentence open to sentencing Judge – Ground 3 not upheld
CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed
Judgment of
Adamson JA at [1]
Garling J at [2]
Sweeney J at [88]
CRIMINAL PROCEDURE — costs — Costs in Criminal Cases Act 1967 (NSW) — appeal against the trial judge’s decision to award a costs certificate after finding that it was not reasonable to institute proceedings against the respondent — whether if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings — whether the complainant was unreliable — whether complaint witnesses gave evidence that was inconsistent with the complainant’s account — whether the trial judge fell into error within the meaning of House v The King — whether a certificate should be awarded pursuant to the Suitors’ Fund Act 1951 (NSW) even if the appeal was successful
CRIME — appeals — appeal against sentence — where Crown accepted that Court should proceed to resentence the applicant — where extension of time and leave to appeal granted — where appeal allowed — where Court proceeded to resentence the applicant
Judgment of
Stern JA at [1];
N Adams J at [104];
Chen J at [105]
DAMAGES – personal injury – where plaintiff successful in personal injury claim – calculation of damages for past economic loss and future treatment expenses
GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Collateral agreement — Where plaintiff lent moneys to first defendant — Where second and fourth defendants each entered into a contract of guarantee and indemnity in respect of the loaned moneys — Where second defendant alleges an oral collateral agreement with the plaintiff whereby the plaintiff stated it would enforce guarantees given by the other guarantors first — Whether such an agreement was made — Whether the agreement would be inconsistent with the terms of the contract of guarantee and indemnity GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether contract of guarantee and indemnity correctly refers to the principal deed of loan GUARANTEE AND INDEMNITY — Rights of guarantor against creditor — Right to notice of default or demand — Where contract of guarantee and indemnity provides for liability under the indemnity ‘on demand’ and liability under the guarantee when guarantor receives a ‘default notice’ — Whether liability arises under guarantee or indemnity — Whether a default notice is a condition precedent — Whether purported demand complied with the requirements of the default notice GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether plaintiff postponed enforcement of guarantee
ADMINISTRATIVE LAW – judicial review – decision of the Personal Injury Commission of New South Wales – where the insurer was found liable to pay for treatment and care expenses that were directly related to, and reasonably contemplated at the time of, the surgery whether or not the treatment was provided after the 26-week period STATUTORY INTERPRETATION – the meaning of the word “incurred” in Motor Accident Injuries Act 2017 (NSW), s 3.28 as it read prior to amendment
HIGH RISK OFFENDERS – extended supervision orders – appeal against Supreme Court’s refusal of application – whether offence against s 33A(1) of Crimes Act 1900 (NSW) is a “serious violence offence” defined in s 5A(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) – elements of claimed index offence necessarily such as to satisfy the requirements of s 5A(1)(a), even though not expressed in that way STATUTORY INTERPRETATION – principle of legality inapplicable to ss 5A and 5B of Crimes (High Risk Offenders) Act 2006 (NSW) – in any event would not outweigh significance of text, context and purpose CRIMES – attempt – if person discharges firearm with intent to cause grievous bodily harm they have necessarily at least undertaken an act not merely preparatory towards commission of crime of engaging in conduct causing grievous bodily harm with intent to do so
CORPORATIONS — voluntary administration — deed of company arrangement — where plaintiff creditor applies to set aside a deed of company arrangement — where plaintiff alleges several matters in support of claim that immediate winding up of the company would result in better return for creditors — where plaintiff’s claims depend, in large part, on whether creditor owed substantial claim for ‘make good’ obligations in relation to premises — where plaintiff alleges breaches of directors duties —held that plaintiff did not comply with contractual requirement to give rise to ‘make good’ obligation on which it relied — held that arguable case for breach of directors’ duties not established — plaintiff has not established that deed of company arrangement should be set aside
CRIMINAL LAW – sentence – murder – victim impact statement – young offender – objective seriousness – extended joint criminal enterprise - psychological evidence – family and developmental history – psychological history – physical and mental health – drug and alcohol use – sexual abuse history – criminal history – future offending – risk assessment – general and specific deterrence – special circumstances – orders
CIVIL PROCEDURE – Pleadings – Amendment – Amendment to Statement of Claim – Application for leave to file a Proposed Second Amended Statement of Claim – Where no cause of action pleaded arising out of the material in a paragraph of a pleading – Where a paragraph in a pleading exists to provide context against which conduct can be considered – Paragraph deemed unnecessary – Reference to objects of the Crimes (Administration of Sentences) Act 1999 (NSW) deemed inappropriate for inclusion in pleadings – Leave granted to file Proposed Amended Statement of Claim STATUTORY INTERPRETATION – Objects – s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) – ‘safe, secure and humane environment’ – Whether the incorporation of the objects of the Crimes (Administration of Sentences) Act 1999 (NSW) into a pleading is inconsistent with the provision in subs (3) of that Act – Whether one provision or statute can dictate the answer to a question of statutory construction – Whether the correct interpretation of subs (3) of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the objects of the Act cannot give rise to a statutory civil cause of action – Issues demanding a full argument and hearing
CIVIL PROCEDURE – Parties – Joinder – Of defendants CIVIL PROCEDURE – Pleadings – Amendment – Application for leave to file an Amended Statement of Claim joining cross-defendants as defendants – Where the joinder of a cross-defendant as a defendant does not necessitate any additional cost or burden of proceedings on that party
ADMINISTRATIVE LAW – judicial review – review of decision by review panel constituted for review under Motor Accidents Compensation Act 1999 (NSW) – where plaintiff injured in motor vehicle accident – psychological injury – whether review panel failed to provide reasons in applying the Psychiatric Impairment Rating Scale – whether review panel’s path of reasoning is sufficiently exposed on a fair reading of the reasons – whether review panel failed to conduct the medical assessment in accordance with the Motor Accident Permanent Impairment Guidelines
DAMAGES – assessment of damages for statutory unconscionable conduct and breach of fiduciary duties in acquisition of company – valuation of start‑up company – where primary judge rejected expert valuation reports from plaintiff and defendants – whether primary judge erred in relying on statements by defendant to creditor as to the value of the company
Judgment of
Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59 — summary dismissal of charge by Magistrate following decision to exclude evidence — nature of an appeal under s 56 discussed CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity — fictitious children — Grindr conversation between accused and purportedly 15 year old male — assault and robbery of accused by group of four — “vigilante paedophile hunting” EVIDENCE — Evidence Act 1995 (NSW), s 138 — whether Magistrate erred in finding evidence of the Grindr conversation was obtained in or in consequence of a contravention of Australian law STATUTORY INTERPRETATION — Crimes Act 1900 (NSW), ss 66EB, 80G — Crimes Prevention Act 1916 (NSW), s 2 — whether the specific preclusion of an incitement offence under s 80G displaces the general application of s 2
SUCCESSION – burial rights – where there is a will but no grant of probate – where there is a dispute between siblings as to the location of their mother’s burial – where plaintiff contends the deceased wished to be buried in Fiji – where second to fourth defendants contend that the burial location should be Sydney – Amended Summons dismissed
BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties under s 18B of Home Building Act 1989 (NSW) — Whether building work complied with Building Code of Australia (BCA) — Where under BCA different standards relating to waterproofing exists depending on correct classification of given room as ‘habitable’ or ‘non-habitable’ — Meaning of ‘habitable’ under the BCA NEGLIGENCE — Duty of care — Non-delegable duty — Whether claim for breach of statutory duty under s 37 of Design and Building Practitioners Act 2020 (NSW) (DBPA) is apportionable under Part 4 of Civil Liability Act 2002 (NSW) where there has been no delegation of works to third parties — Consideration of Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 and The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 NEGLIGENCE — Defences — Contributory negligence — Whether defence of contributory negligence applicable to breach of statutory duty under s 37 DPBA — Whether defence made out on the facts
CONTRACTS – Termination – Repudiation of contract – where purchaser chooses style of scheme in off the plan unit – where vendor constructs unit with wrong style scheme – where vendor refuses to change style scheme – where purchaser terminates upon vendors renunciation of contract – whether contract permits vendor to change style scheme – whether vendor renunciates contract – no question of principle CONTRACTS – Remedies – Specific performance – Contract for sale of land – whether specific performance should be ordered LAND LAW – Conveyancing – Contract for sale of land – Deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle
CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed
Judgment of
Ball JA at [1];
N Adams J at [2];
Sweeney J at [3]
COSTS – security for costs on appeal – impecunious appellant – where appellant’s impecuniosity was in part caused by his own conduct in related proceedings – where security may stifle appeal – limited prospects of success on appeal – security ordered
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — three sets of proceedings on same subject matter — HELD — proceedings summarily dismissed
COSTS – where plaintiff successful – where plaintiff made a Calderbank offer to settle proceedings including other claims – where plaintiff contends defendant’s conduct was an abuse of process – where plaintiff raised a late argument on which it was ultimately successful – no basis for indemnity costs – no basis for plaintiff to pay portion of defendant’s costs – costs ordered on the ordinary basis PAYMENT OF MONEY OUT OF COURT – where plaintiff paid money into Court as ‘price of injunction’ – where plaintiff has been successful – where defendant resists payment out of Court while it appeals – no basis for money to remain in Court INJUNCTION – no issue of principle – defendant to be restrained from enforcing SOPA determination
OCCUPATIONS — Legal practitioners — Solicitors — Former client — Whether plaintiff’s solicitors should be restrained from acting for him in proceedings — Where respondents previously acted for the applicant in XXXXX proceedings — Where respondents came into confidential information concerning plaintiff’s mental health — Whether confidential information will be relevant in the proceedings in this Court — Whether there is a real risk the applicant’s confidential information will be misused
EVIDENCE – written statements – admissibility – whether the evidence is admissible under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the material was not reasonably available to the plaintiff when the pre-filing statement was served – whether the failure to grant leave would substantially prejudice the plaintiff’s case
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether there was a “construction contract” within meaning of s 4 of the Act — Whether payment claim complied with s 13(2)(a) — Whether payment claim validly served — Whether subcontractor liable to pay amount claimed COSTS — Whether primary judge erred in ordering costs on indemnity basis in relation to entire proceedings — Where court in position to re-exercise discretion — Whether unreasonable not to accept Calderbank offer
TORTS — trespass to the person — assault and battery — historical sexual misconduct — sexual abuse — serious physical abuse — claim for damages for psychiatric harm LIMITATION OF ACTIONS — personal injury — child abuse — legislative removals of previous limitation periods — meaning of serious physical abuse — where serious physical abuse established
EVIDENCE – Identification evidence – Admissions – Still image depicting murder vehicle bearing an unidentifiable driver – Evidence of subsequent admissions – Whether manipulation by zooming in to certain parts of the image is unfairly prejudicial – Whether evidence should be excluded or its use limited – Evidence of an unidentifiable driver cannot constitute “identification” evidence
EVIDENCE – Unreliable evidence – Warning to the jury pursuant to s 165 – Where witness is not “criminally concerned” with events giving rise to the proceeding – Submission that witness joined conspiracy to murder conceded to lack merit – Drug use not a matter requiring a warning
EVIDENCE – Rulings – Unfavourable witnesses – Application to cross-examine witness pursuant to s 38 – “I don’t recall”-style evidence – Unpredictable witness earlier charged with knowingly giving false evidence CRIME – Murder – Trial by jury – Application to discharge jury – Potential prejudice arising from a failure to call the witness on a Basha inquiry EVIDENCE – Rulings – Admissions – Application for exclusion of evidence under ss 90 and 138 – Admissions subsequently reported by witness to police not captured by s 90 – Statement obtained illegally or improperly assumed for expedience – Balancing exercise favours admissibility
EVIDENCE — Advance ruling — Three counts alleging murder, conspiracy to murder and assault — Admissions — Admissions referring to unavailable video evidence — Discretion to exclude admissions under Evidence Act 1995 (NSW) s 90 — Objections to evidence — Prejudicial evidence — Evidence of criminal association — Probative value of indecipherable conversation captured by surveillance recording device CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing
COSTS – plaintiffs’ application for interlocutory injunction dismissed – where plaintiffs contend costs should be costs in the cause – where defendants contend costs should follow the event – whether there is a usual position as to costs in interlocutory applications – plaintiffs to pay defendants’ costs of the interlocutory application
CORPORATIONS – interlocutory application – where plaintiffs seek interlocutory injunction – where defendants proffered an undertaking to take all reasonable steps to have second plaintiff registered as a director – where defendants do not contest there is a serious question to be tried – where balance of convenience does not favour the injunctive relief – where there is a real risk that the management affairs will be dysfunctional – plaintiffs’ application dismissed – costs to be decided on the papers
CRIMINAL LAW – sentence after trial – terrorism offences – conviction for doing an act in preparation for, or planning, a terrorist act or acts – Criminal Code (Cth), s 101.6(1) – guilty plea to attempting to make funds available to terrorist organisation – Criminal Code (Cth), ss 11.1(1) and 102.6(1) – where offender was pursuing the agenda of Islamic State – where offender made funds available to Islamic State to fund foreign fighters – where offender participated in intercepted telephone conversation with senior Islamic State member discussing plan for domestic terrorist attacks
CRIMINAL LAW – application to discharge jury – extensive publicity of committal proceedings of other persons alleged to have been associates of the accused – prejudice not capable of being cured by direction – application granted
CRIME – appeal – appeal against sentence – applicant convicted of murder based on joint criminal enterprise to kill as act of revenge – applicant 17 years old acting with father and brother – whether sentence was manifestly excessive – no challenge to findings made by the sentencing judge – sentencing judge had regard to all relevant factors in determining sentence including youth immaturity and father’s influence – applicant presented favourable subjective case on sentence – sentence not unreasonable or plainly unjust – leave to appeal granted – appeal dismissed
Judgment of
Adamson JA at [1];
N Adams J at [2];
Weinstein J at [60].
COSTS — r 42.20(1), Uniform Civil Procedure Rules (2005) — owners of high-rise development bring four proceedings against developers, builder and others for building defects — fifth proceeding against developer dismissed as abuse of process — whether defendants entitled to costs of proceedings — whether “the Court orders otherwise” — principles at [2]-[4] — plaintiffs seeks to exclude substantial categories of costs as evidence relevant to remaining four proceedings and given suggested failures by defendants — no reason to make “orders otherwise”.
PROBATE – Practice and procedure – Uncontested application for probate – Consideration of application not deferred pending determination of claim that estate property held on trust outside the will SUCCESSION – Costs – Consequences of abandonment of several claims for relief including, but not limited to abandonment of opposition to grant of probate
CIVIL PROCEDURE – interim preservation – freezing orders – where ancillary orders for the provision of information are sought in aid of asset preservation orders
APPOINTMENT OF CORPORATE TRUSTEE – whether money paid into Court for plaintiff should now be paid to corporate trustee rather than NSW Trustee & Guardian – where plaintiff argues fees of corporate trustee will be considerably less than those of NSW Trustee & Guardian – where consent has been provided by corporate trustee to act as manager of estate of plaintiff under order and direction of NSW Trustee & Guardian – where comparison of fees and investment is provided – power of court to appoint corporate trustee not in doubt – where known sum available for investment – where need to avoid unnecessary delay in appointment of corporate trustee – where Court proposes that an actuary or similar expert provide a professional opinion on the appropriateness of preferring the corporate trustee
EVIDENCE – where defendants tendered documents in file suggesting receipt of instructions from plaintiff to limit due diligence inquiries on behalf of plaintiff as prospective purchaser – whether email inadmissible as hearsay – relevance of whether subsequent letter sent to or received by plaintiff where no issue related to creation of letter in fact – where file copy capable of supporting inference that limiting instructions received – letter arguably relevant to proof of a fact in issue
APPEALS – issue of jurisdiction – leave sought to appeal against a District Court interlocutory judgment – where District Court proceedings were an appeal against a Local Court conviction – where District Court Judge dismissed application for adjournment and leave to tender fresh evidence – leave sought pursuant to s 5F(3)(a) Criminal Appeal Act 1912 – whether the Court of Criminal Appeal has jurisdiction to entertain the appeal – whether appeal should be dismissed as “incompetent” – whether a party can appeal to the Supreme Court following an appeal in the District Court from a Local Court conviction WORDS AND PHRASES – “indictment” – s 5F(1)(a) Criminal Appeal Act 1912 – whether s 5F should be read down and/or made subject to the terms of s 176 District Court Act 1973
TERRORISM HIGH RISK OFFENDER – application for further extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – satisfaction to a high degree of probability – whether matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – where materials disclose a conservative religious belief system but an affirmative denial of support for religious violence and terrorism – where state relies heavily on lack of affirmative denunciations of terror activities
CIVIL PROCEDURE – settlement approval – where settlement approved but plaintiff yet to receive funds directed to NSW Trustee & Guardian – further order made – funds to be held by NSW Trustee & Guardian on trust for plaintiff
COSTS – where plaintiff failed to comply with directions for the filing of expert liability evidence – whether plaintiff or defendant should pay costs of two directions hearings that were necessary for the default to be considered – costs to be defendant’s costs in the cause
CONSENT ORDERS – whether question of defendant’s liability should be decided separately from question of damages – whether hearing date should be vacated – where there is difficulty obtaining suitable expert with sufficient knowledge of rare condition – payment of defendant’s costs
SUCCESSION – Contested Probate – Practice and Procedure – Caveats – Caveat against grant – Application for order that caveat cease to be in force – Doubt as to whether grant of probate or administration should be made – Circumstances that warrant investigation before pleadings – Nature of “evidence” to be considered by Court - Case management – Orders for disclosure of information about a deceased estate, testamentary instruments and personal circumstances of a deceased person – Orders for discovery affidavits deposing to circumstances in which a will was prepared and executed – Supreme Court Rules 1970 (NSW), rule 71.4
CRIME — Sentence — where guilty plea made at first available opportunity — where offences inadvertent but gave rise to serious risk to human health — objective seriousness of offending below mid-range for all but one offence — objective seriousness mid-range for one offence — application of totality principle — corrective advertising ordered
CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdicts of guilty on two counts of sexual intercourse without consent, knowing the other person does not consent, and two counts of intentional sexual touching without consent, knowing that the victim does not consent, were unreasonable — where no reasonable doubt — where any doubt the Court may have had could readily have been resolved by the jury’s advantage in seeing and hearing the evidence CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s comment to jury in summing up that complainant confused or misled by questioning in her cross-examination — where no such miscarriage of justice occasioned and comment did not deflect jury from its fundamental task of deciding whether prosecution had proved the elements of the charged offences beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s direction to jury to decide element of knowledge by considering what applicant’s state of mind would have been if he had not been intoxicated — where no complaint made at trial about trial judge’s direction to jury in this regard — where leave therefore required under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 — where jury not deflected from its fundamental task and no such miscarriage of justice occasioned — where leave therefore refused under r 4.15 to raise ground
Judgment of
Stern JA at [1];
Garling J at [129];
Sweeney J at [130].
COSTS — Party/Party — Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers — Where plaintiff obtained judgment more favourable than two offers made to the defendant — Whether indemnity costs should be ordered from date of one of the Calderbank offers — Whether it was unreasonable for the defendant to reject the offers
EQUITY – trusts and trustees – judicial advice – whether trustees justified in defending proceedings brought by beneficiaries – where beneficiaries seek access to trust documents – where trustees not obliged to provide trust documents under trust deed – advice given – trustees justified in defending proceedings
ADMINISTRATIVE LAW — judicial review — District Court — whether primary judge’s decision affected by jurisdictional error — legal unreasonableness — alleged denial of procedural fairness — alleged errors in assessment of evidence and credibility — whether such errors capable of founding jurisdictional error — Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18 CRIMINAL LAW — intimidation with intent to cause mental harm — residents of aged care facility with dementia — circumstantial case — use of photographic evidence as corroborative of eyewitness account — tendency evidence — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
LAND LAW — Caveats — Removal of caveat – plaintiff’s application to remove defendant’s caveat – where the parties have settled family law proceedings – where the form of the caveat insufficiently describes defendant’s interest in the property – where the defendant allegedly filed the caveat by reason of the plaintiff’s default of the family law settlement orders - where both parties are in breach of the settlement agreement – relief granted to the plaintiff, conditional on the defendant having the opportunity to challenge allegations against the plaintiff about undervaluing the property.
COSTS – Costs orders in interlocutory proceedings – appropriate order where measure of success to all parties – appropriate order where no final determination of motion necessary – no question of principle
COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – where mixed outcome – where provisions of Lease providing for lessor’s costs – no order as to costs – no question of principle
SUCCESSION — Family provision — Guidance as to purpose, use and content of family tree diagrams or genograms — Encouragement of common-sense approach SUCCESSION — Family provision — Identification of purposes of appropriate specification of proper names and guides informing specification of names — Practical guidance SUCCESSION — Family Provision — Practice note — Discussion of introduction and development WORDS & PHRASES — ‘lagom’ (Swedish) SUCCESSION — Family Provision — Disregarding of interests under s 61(2)(b) Succession Act 2006 (NSW) — Previous spouses initially unable to be located — Residential address, email address and phone number of one particular spouse unknown following initial searches — Further searches disclosed sufficient information — All relevant persons ultimately served
CONTRACTS — Formation — Agreement – Whether parties entered into a binding oral agreement – Whether agreement was in the nature of a mortgage - Whether either of the parties breached the agreement CONTRACTS — Formation — Contracts requiring written evidence — Statute of frauds — Where parties entered into written contracts for the sale of two properties — Whether the doctrine of part performance applied to concurrent oral agreement — MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Whether parties have ever exercised redemption ESTOPPEL — Proprietary estoppel — Encouragement — Whether defendant’s alleged representations gave rise to an estoppel — Whether plaintiffs detrimentally relied on defendant’s alleged promises
APPEALS — right of appeal on question of law — whether rescission notice under s 925A(2) of the Corporations Act 2001 (Cth) was given within a reasonable period — whether the recipient’s state of mind was an irrelevant consideration — whether the primary judge asked the wrong question — no error established APPEALS — leave to appeal on question of mixed law and fact — whether appeal should be granted under s 40(1) of the Local Court Act 2007 (NSW) — no issue of public importance — lack of proportionality between the monetary amount at issue and the cost of proceeding — leave refused
REAL PROPERTY – where plaintiffs, as mortgagees in possession, seek that caveats be withdrawn – where plaintiffs have entered into a contract for sale of the property – where defendant opposes the withdrawal on the basis that the plaintiffs acted in bad faith in conducting the sale process – where defendant offers to provide security – defendant’s caveats withdrawn
APPEALS – appeal from a decision of the NCAT Appeal Panel from a decision of NCAT where the plaintiff became self-represented after a failed adjournment application – whether the plaintiff’s self-represented status was given sufficient consideration – whether a constructive failure to exercise jurisdiction where fresh evidence was not admitted by the Appeal Panel – whether the correct test for the admissibility of fresh evidence was considered by the Appeal Panel
CIVIL PROCEDURE – interim preservation – preservation of property – trustees for sale appointed to sell certain former matrimonial property – plaintiff seeks relief in relation to the performance of trustees for sale of their duties in completing their sale of certain real estate – orders claimed for an inquiry into the integrity of the auction process – other orders sought which repeat prior interlocutory claims made by the plaintiff which have already been determined – what orders should be made to preserve the estate of the parties and limit the unnecessary incurring of legal costs and costs of the trustees for sale to the detriment of the parties – no issue of principle.
CIVIL PROCEDURE – application under UCPR rr 36.15, 36.16(1)-(3A), 36.17 to set aside orders dismissing notice of motion – whether orders entered irregularly, illegally or against good faith – whether denial of procedural fairness – applicants in Commercial List expected to prosecute motions expeditiously – motion misconceived – no procedural unfairness in dismissing motion where counsel present and previous adjournments granted – application dismissed
PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – service in Hong Kong and the British Virgin Islands – conflict between Part 11 and Part 11A of the UCPR – whether the Hague Service Convention is an exclusive mechanism for service – exclusive jurisdiction clause – necessary or proper party – not a clearly inappropriate forum – leave granted CIVIL PROCEDURE – default judgment – claim for debt under r 16.6 of UCPR – judgment awarded
COSTS – where award of damages below jurisdictional limit of District Court – whether costs charged by practitioners are reasonable and proportionate – whether practitioners should be referred to OLSC CIVIL PROCEDURE – application to amend judgment under UCPR r 36.16 – where Court misapprehended plaintiff’s case – where plaintiff’s pleading did not include deposit – where leave to amend pleading was refused – where judgment mistakenly awarded damages for deposit
REAL PROPERTY – where the plaintiff seeks an extension of a caveat – where the defendants entered into a contract to sell the property – where there is no dispute that there is a seriously arguable case – balance of convenience favours extending caveat for 6 months subject to conditions
CIVIL – Criminal Assets Recovery Act 1990 (NSW) – substituted serious crime use property declarations under s 22AA and forfeiture orders under s 22 – whether interest in property an available interest for purposes of the Act – property sold and substituted serious crime use property declaration sought in respect of net proceeds of sale – whether original property was “used in, or in connection with” the serious crime related activity of the defendants – original property used to conceal a large commercial quantity of methylamphetamine for the purposes of supply – whether original property used in or in connection with manufacture of methylamphetamine by refinement – where the original property was used in, or in connection with the serious crime related activity of manufacturing and supplying a large commercial quantity of a prohibited drug contrary to ss 24 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – declarations and forfeiture orders made STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – construction of s 9B – meaning of "used in, or in connection with”
SUMMARY DISPOSAL — owners of high-rise development bring four proceedings against developers, builder and others for building defects — building work rectification order issued to developers under Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) — owners commence fifth proceedings against developers only seeking declaratory relief in respect of rectification method to comply with order — cost of rectification may be $37M — whether declaration ‘purely hypothetical’ — principles at [79]-[81] — multiplicity of proceedings — multiplicity of legal representation — principles at [93]-[99] — potential inconsistent findings and affected parties not bound by any declaration — whether an abuse of process — whether proceedings should be dismissed, stayed or case managed with related proceedings —proceedings dismissed.
CIVIL PROCEDURE – Subpoenas – Application to set aside – Legitimate forensic purpose – Oppressive – Where legitimate forensic purpose demonstrated through a subpoena designed to test the evidence of a practitioner’s usual medical practice – Where oppression demonstrated due to large number of patient records requiring examination due to subpoena as currently formulated – Proportionality of the task which is to be undertaken to the apparent relevance and forensic need for the documents
JUDGMENTS AND ORDERS — Application to vary orders — Where head of claim dismissed by primary judge on particular basis — Where basis successfully disturbed on appeal — Where head of claim not reagitated on appeal — Where Court of Appeal referred “remaining amounts claimed” to referee — Whether head of claim included in reference — Whether orders should be varied to include head of claim in reference
CRIME – appeals – appeal against sentence – attempt sexual intercourse without consent – alleged material error of fact – leave to appeal against sentence refused – no point of principle
COSTS – substantive proceedings resolved by consent – whether ultimate agreement between the parties represented a better or worse outcome for the plaintiff than a previous offer of compromise by the defendant – no hearing on the merits and therefore no event – whether defendant’s conduct prior to and after commencement of proceedings was unreasonable – where plaintiff almost certain to have succeeded at trial
JUDGMENTS AND ORDERS – Enforcement of foreign judgment – Whether PRC post judgment interest regime amounts to penalty – Whether it would be contrary to public policy to enforce foreign judgment
COURTS AND JUDGES – Bias – Application for recusal – On the grounds of actual bias and/or apprehended bias – Applicable principles – Principles in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 – Whether a Judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented – The ‘double might’ test – Whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial and unbiased mind to the resolution of the question for determination – Principles in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 COURTS AND JUDGES – Allegations of bias – Where the applicant alleges several acts of judicial conduct which demonstrate an apprehension of bias on the part of a Judge – Where the Judge has previously refused a recusal application by the same applicant – Where a deceased defendant was removed from the proceedings as a matter of procedure – Where no substantive harm to the plaintiff as a result of the State of NSW accepting vicarious liability – Where the applicant alleges clandestine communication between a Judge and legal representatives – Where such communication was purely the routine and procedural collection of information for upcoming hearing – Where the applicant alleges that a transcript of a hearing has been altered – Where no motive for and evidence of such alteration exists – Whether the Court has an obligation to make orders purely on the basis that the parties consent to them – Where the Court was deemed not to – Where the applicant has failed to satisfy the legal tests for actual bias or apprehended bias – Where no factual basis for the allegations of the applicant as to actual bias or apprehended bias – Motion dismissed
CRIME – Procedure – Subpoena to produce issued to Australian Criminal Intelligence Commission –Intelligence material collected by the ACIC – Secrecy immunity against production –Whether it is necessary material be produced for the purpose of carrying into effect the provisions of a relevant Act – Whether it is necessary for material to be produced for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions
CRIME – Murder – Non-publication orders – Takedown orders – Present trial concerning member of Alameddine OCN charged with offences arising out of feud with opposing OCN – Where accused in future trials belonged to OCN and alleged to have committed different offences but in the context of the same feud – Where prejudice asserted arising from similarities in evidence – Principle of open justice prevails.
CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure
CRIME – Evidence – Murder – Application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(4) – Where material relevant to murder trial – Whether disclosure ‘may’ be desirable in the interests of justice
CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – where respondent is a National Disability Insurance Scheme participant – where respondent became a forensic patient pursuant to s 73(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) – where the applicant seeks the respondent’s status as a forensic patient to be extended by 18 months – whether material obtained by the applicant from a registered NDIS service provider pursuant to s 138 of the MHCIFP for the purpose of that application is admissible – whether there is an operational inconsistency between s 138 of MHCIFP Act and s 67G of the National Disability Insurance Scheme Act (2013) (Cth) such that to that extent the former is invalid pursuant to s 109 of the Commonwealth Constitution
BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether adjudicator’s finding of existence of construction contract reviewable — whether payment claim validly served — whether email address “specified” for service of documents — determination set aside
CRIMINAL LAW – high risk offenders – application for interim extension order - high risk sex offender – sexual intercourse with child under the age of 10 – victim was daughter of offender – prior offending including property and violence offences – one prior sex offence – offender assessed as high risk of further sexual offending – whether offender an unacceptable risk of committing a serious sex offence – offender conceded that interim order was appropriate – parties agreed on conditions of order – conditions found to be appropriate
SUCCESSION — Will construction — Deceased by her Will gives whole of her estate to be held on trust and divided equally amongst her grandchildren “as survive me and attain the age of [25]” — Clause providing estate given to 2 named charities “if no grandchild of mine survives me and attains a vested interest” — Dispute regarding when the interest vests — Determined that interest vested upon deceased’s death SUCCESSION — Will construction — General principles discussed SUCCESSION — Will construction — Vesting in interest and vesting in possession explained — Presumptions regarding vesting discussed — Presumption of early vesting has not been subject to desuetude SOLICITORS — Practice — Record keeping—Encouragement for solicitors who destroy files after certain period of time to consider a practice of creating and preserving a digital archive of Will files SOLICITORS — Practice — Will drafting —Encouragement for solicitors in drafting Wills to clarify testator’s intentions regarding when a gifted interest vests, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’ CONSTRUCTION — ‘Surplusage’ rule — Exceptions — Accepting prima facie all words should be given some meaning, sometimes the use of words which are not strictly necessary are included to emphasise intention WORDS & PHRASES — desuetude
HIGH RISK OFFENDERS – Extended supervision orders – Where defendant diagnosed with paedophilic disorder, personality disorder and substance use disorder – Where defendant assessed to be in the high risk category of sexually reoffending – Where defendant did not submit against an extended supervision order for five years – Where defendant disputed specified conditions including use of alcohol, weekly schedules, attendance on sex workers, and the use of encryption on devices
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Actions on judgments prior to expiry of deadline for enforcement – Proceedings brought four days before expiry of limitation period – Whether bringing an action on a judgment instead of enforcing the judgment debt is necessarily an abuse of process – No manifest unfairness or oppression from mere delay LIMITATION OF ACTIONS – Action on a judgment – Interaction with enforcement provisions in Civil Procedure Act 2005 (NSW), Pt 8 and Limitation Act 1969 (NSW), s 17 – Whether commencement of action on judgment circumvents time restrictions which would otherwise apply – No circumvention
LAND LAW — Caveats — Extension of operation of caveat — Whether extension of operation of caveat permissible when service of the lapsing notice has been effected — No issue of principle LAND LAW — Caveats — Lodgment of second caveat claiming same interest as previous caveat — Whether interest claimed in caveat in fact ‘in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat’ — No issue of principle
CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Notices – Group members – Identifying – Opting out – Where plaintiff proposes orders to encourage unknown group members to register for an ordered mediation via the distribution of an approved notice – Where the defendant opposes the imposition of the plaintiff’s registration process and seeks an order for the provision of information about presently known group members – Whether the plaintiff’s proposal will result in duplication of the process and wasted expenditure at a later point in proceedings following mediation – Whether the distribution of unnecessary notices will negatively affect vulnerable group members – Application of s 56 Civil Procedure Act 2005 (NSW) – Court determined that a greater number of known claimants prior to mediation will result in greater assistance in reaching settlement – Vulnerability of the class not affected by distribution of two notices – Orders made in favour of plaintiff
CRIMINAL LAW – sentence – two counts of solicit to murder contrary to s 26 Crimes Act 1900 and one count of murder contrary to s 18 Crimes Act 1900 – revenge killing of innocent victim aged 15 – murder offence in the worst category – determinate sentence imposed
EVIDENCE – credibility of witness – where CC gave evidence contrary to previous statements – where successful s 38 application by Crown made to cross-examine CC – s 106 application subsequently made by Crown to lead evidence from witness E to rebut CC’s denials – where Crown submission that evidence of Witness E relevant to credibility of CC – whether substance of Witness E’s evidence put to CC
CRIMINAL PROCEDURE – application for non-publication – application for evidence to be taken by audio visual link and suppression of witness identities – whether order sought are “necessary”
CRIMINAL PROCEDURE – where accused to stand trial charged with murder and related offences – applications by Crown and accused pursuant to s 45 of the Crime Commission Act 2012 that evidence given to the Commission by various witnesses be made available to the parties and their lawyers – whether the interests of justice require that the material be made available
CRIME – appeals – appeal against sentence – Commonwealth offences of attempting to cause a person under the age of 18 to enter into a forced marriage SENTENCING – appeal against sentence – whether there was evidence of the applicant’s conduct as an accepted cultural practice in the sentence proceedings – whether s 16A(2A) of the Crimes Act 1914 (Cth) precluded a finding of reduced moral culpability because of a cultural practice SENTENCING – appeal against sentence – consistency in sentencing federal offenders – whether this Court should follow decisions of intermediate appellate courts in other States and Territories – leave to appeal granted – appeal dismissed
Judgment of
Stern JA at [1];
Garling J at [2];
Sweeney J at [19]
CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review
Judgment of
Ward ACJ at [1];
Leeming JA at [2];
Harrison JA at [70]
CRIMINAL LAW – appeal – appeal against conviction – where the applicant was found guilty of murder by a jury – whether the verdict was unreasonable – where the Crown case was circumstantial – whether the circumstances of the Crown case were adequate to prove the applicant’s presence at the scene of the murder CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – where parts of the recorded conversation were unclear – whether the recorded conversation contained admissions – whether the surveillance device material was relevant – whether admission of the recorded conversations by the trial judge was unfairly prejudicial to the accused CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – whether the jury was properly directed as to the manner in which the surveillance device material could be used – whether the jury was directed in accordance with Shepherd v The Queen and Burns v The Queen CRIMINAL LAW – appeal – appeal against conviction – fresh evidence – where it cannot be said that the evidence was not available to the applicant in the preparation of his case – where the evidence did not give rise to doubt about the applicant’s guilt – leave to appeal granted – appeal dismissed