CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic
Judgment of
Harrison CJ at CL at [1]
Garling J at [96]
Yehia J at [98]
CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — where orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s chairman
CORPORATIONS — voluntary administration — Deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether shareholders unfairly prejudiced
CIVIL PROCEDURE — Interlocutory injunctions — minority shareholder seeks control of corporate group by acquiring rights of lenders to the group — corporate group presently in default under Syndicated Loan Facility — actions by former directors and chief executive officer said to be in breach of fiduciary obligations – whether a serious question to be tried – where balance of convenience lies – interim injunction granted.
CRIMINAL PROCEDURE – application to discharge the jury – where jury cautioned pursuant to s 165 Evidence Act 1995 (NSW) – where the witness was cross-examined in relation to crime scene photographs taken by other officers – where the witness had no direct knowledge of circumstances related to the photographs – hearsay evidence – whether the challenge to the hearsay evidence was the subject of agreement between counsel
CRIMINAL LAW – Evidence – Cross-examination of witness – credibility rule – where counsel for the accused cross-examined witness as to credit – where the witness has a criminal history of traffic offences – s 103 Evidence Act exception satisfied – cross-examination question objected to is allowed
CRIMINAL LAW – procedure – admissibility of ISRAPS evidence of crime scene and blood staining – where blood stain experts will give evidence – where a proper direction can be given to the jury
EVIDENCE – admissibility of crime scene photograph – misleading or prejudicial evidence – where photograph depicts significant amount of bloodstaining – where bloodstaining has been diluted by rain – whether evidence is relevant to a central fact in dispute
EVIDENCE – admissibility of evidence – where the parties seek to tender a selection of enhanced still photographs of CCTV and dashboard camera footage central to the fatal incident – where the footage depicts a degree of violence and use of makeshift weapons by the accused and the deceased – no forensic purpose found – where the stills present a skewed view of the circumstances – where the jury have access to the entirety of the footage
CRIMINAL PROCEDURE – pre-trial hearing – ruling on admissibility of late served additional material served – no identified forensic disadvantage in the conduct of the trial arising EVIDENCE – s 146 Criminal Procedure Act – application for exclusion for non-compliance with pre-trial disclosure requirements – where late served evidence included is in Amended Crown Case Statement – non-compliance waived
CRIMINAL PROCEDURE – practice and procedure – trial – change of venue – trial aborted on second day – limited availability of court space in Wollongong in 2025 – accused in custody since December 2022 – interests of justice – “expedient” in the interests of justice to fix the trial to commence in Sydney in May 2025
EVIDENCE – credibility evidence – accused – ERISP evidence denying the use of a baseball bat – where accused admits to using the baseball bat in the same interview – whether prior inconsistent statement – probative value of evidence – not unfairly prejudicial – evidence allowed
EVIDENCE – documentary evidence – dash-cam footage – where the Crown superimposed red squares on the accused’s and deceased’s hands to draw the jury’s attention to contents or otherwise – permissible for the purpose of assisting the jury
CRIMINAL PROCEDURE – trial – jury – application to discharge jury – discharge of whole jury – Crown’s service of lay witness and expert statements on the second day of trial – where parties have already opened their cases – where the new materials are at odds with the accused’s case theory based on evidence previously served – interests of justice to discharge the jury and adjourn the trial
EVIDENCE – tendency evidence – tendency rule – murder – self-defence – accused’s reliance on the deceased’s tendency evidence – tendency to opportunistically deploy as a weapon any object readily available – tendency insufficient to provide significant probative value as to the deceased’s tendency to arm himself with a knife under s 97(1)(b)
EVIDENCE – tendency evidence – tendency rule – murder – defence of self-defence – accused’s reliance on tendency evidence of the deceased – whether the tendency evidence has “significant probative value” under s 97(1)
CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.
Judgment of
Bell CJ at [1];
Harrison CJ at CL at [89];
Hamill J at [94].
CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge
Judgment of
Leeming JA at [1];
Wright J at [174];
Rigg J at [175]
PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner
APPEALS – interlocutory decision on a question of practice and procedure – not to order separate questions – no error of principle CIVIL PROCEDURE – separate determination of questions – application for separate questions under UCPR r 28.2 – where plaintiff applied under Part 1C of the Civil Liability Act 2002 (NSW) to set aside settlement agreements for historical child abuse as part of a claim for damages for personal injury – whether set aside application must be heard separately before hearing of underlying claim STATUTORY INTERPRETATION – Part 1C of the Civil Liability Act 2002 (NSW) – whether application for setting aside “affected agreement” required to be determined by separate determination prior to final hearing TORTS – liability for historical child sexual abuse – two prior proceedings involving substantially the same allegations – both settled by payment of money by the State of NSW – Part 1C of the Civil Liability Act 2002 (NSW) – new proceedings commenced including applications to have prior settlement agreements set aside – application under UCPR r 28.2 to have set aside applications determined as separate questions – separate questions not ordered
Judgment of
Bell CJ at [1];
Payne JA at [33];
Price AJA at [34].
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether defendant’s motion to vary orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3A) should be granted — Where defendant seeks additional declarations and an order under UCPR r 42.25(1) COSTS — Party/Party — General rule that costs follow the event — Where principal judgment was generally in favour of the defendant — Where plaintiffs submit they had a measure of success — Whether parties should pay their own costs
CONTRACT – contract – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established COSTS – Calderbank offer – where successful party did not “better” financial terms of offer by unsuccessful defendant made shortly prior to trial – relevance of issues going to public vindication in assessing reasonableness of rejection of offer – where argument going to this issue inadvertently overlooked – nature of judgment awarding of costs – even if matter dealt with summarily, key arguments need to be addressed DAMAGES – contract of employment – where conduct relied upon to found summary dismissal held not to be established – whether employer would have terminated employment following expiry of fixed term of employment on three months’ notice under termination without cause provisions in circumstances where employee had elected to continue employment following expiry of fixed term – proper basis for assessment of damages in such circumstances – loss of a chance or balance of probabilities EMPLOYMENT LAW – contract of employment – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established
Judgment of
Bell CJ at [1];
Leeming JA at [211];
Free JA at [215].
CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – whether the request for a further medical examination is reasonable – real purpose of the request is to ascertain whether malingering – improper and impermissible purpose – motion dismissed
EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate
CIVIL PROCEDURE — Application by plaintiff for vacation of hearing dates of a family provision claim — Illness of counsel — Plaintiff’s counsel contracted RSV less than two business days before two-day hearing scheduled to commence — Counsel’s discussion with doctor indicates he would be quite unwell for at least 3-4 days — Counsel has been involved from the beginning of the matter for a period of two years and is acting on a conditional fee basis — Subject matter not overly complex but strongly contested — One of the defendants is the deceased’s elderly widow with significant health issues — Experienced counsel for the plaintiff confirmed the day before the scheduled hearing that the position regarding his health and asserted inability to discharge his duties has not changed — Hearing dates vacated — Defendants’ counsel’s submission that plaintiff’s counsel should simply “soldier on” rejected LEGAL PRACTITIONERS — Discretion of judge in urgent circumstances to act upon representations from the bar table
APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable
CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused
LEASES AND TENANCIES – possession of commercial property – where property leased by mother to son for many years – dispute over terms of undocumented lease and payment of rent – notices to quit served – declaratory relief in respect of lease sought – refused – order for possession made LOANS – where money loaned by mother to son – dispute about interest and repayment of loans – payment of unpaid interest and repayment of loans ordered PROCEEDS OF THE SALE OF LAND – son and his parents previously registered proprietors of a farming property – proceeds of sale split between parents – claim for share of proceeds pursued against mother – Pallant v Morgan equity – son not entitled to share of proceeds
CRIMINAL LAW – murder – application by accused for trial by judge alone – pre-trial publicity – whether in the interests of justice to make order for judge alone trial – application refused
CONTRACTS – Breach of contract – Remedies – Damages – Expectation damages – Quantification of expectation loss – Whether evidence adduced by plaintiff sufficient to establish extent of expectation loss occasioned by repudiation – Whether plaintiff expected to adduce further evidence to establish expectation loss – Plaintiff’s evidence insufficient – No damages awarded on head as claimed CONTRACTS – Breach of contract – Remedies – Damages – Limits on recovery – Remoteness – Where plaintiff claims loss in form of wages paid to carpenters retained on construction of defendants’ residence – Where plaintiff’s employment of carpenters not brought to defendants’ attention prior to retention – Whether loss natural result of defendants’ repudiation of contract – Whether second defendant assumed responsibility for loss – Loss too remote – No damages awarded on head as claimed CONTRACTS – Recovery on quantum meruit – Nature of claim in quantum meruit – Free acceptance – Where plaintiff effected further construction works at defendants’ request – Whether plaintiff entitled to restitution for construction work outlaid – Contract in favour of plaintiff inferred from defendants’ request for further construction works
EQUITY — Fiduciary duties — Fiduciary relationships — Where plaintiffs and defendant were joint and several co-attorneys for principal — Whether defendant breached her fiduciary duty in selling principal’s shares and borrowing the proceeds at interest for specified purpose — Whether principal consented to the sale of the shares and the terms of the loan — Where plaintiffs and defendant actively worked together to decide which shares were to be sold and the terms on which the funds would be lent COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether indemnity costs should be awarded COSTS — Party/Party — Bases of quantification — Trustee basis — Whether exception in r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) applies
COMMERCE – Restraint of trade – Interlocutory relief – Whether orders should be made for an interlocutory injunction – Whether there is a serious question to be tried – Whether the balance of convenience favours the granting of interlocutory relief
SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 SUCCESSION — Construction — General principles — Structure and scheme of will SUCCESSION — Construction — Gifts
COSTS — application for a gross sum costs order — where plaintiff an incorporated legal practice acting for itself — where evidence before the Court insufficient to support extent of costs claimed — exercise of discretion to award discounted costs
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
COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW) ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed
Judgment of
Leeming JA at [1];
McHugh JA at [3]
Ball JA at [4]
CIVIL PROCEDURE – Service – Informal service – Where plaintiff’s agents personally served originating documents on defendant’s ex-father-in-law – Whether such service sufficient steps taken for purpose of bringing originating documents to notice of defendant – Application for confirmation of informal service dismissed CIVIL PROCEDURE – Service – Substituted service – Where defendant ordinarily resident in People’s Republic of China – Where defendant prohibited by Consumption Restriction Orders from departing from People’s Republic of China – Where plaintiff attempted personal service on two occasions – Whether originating documents unable practicably to be served on defendant – Application for order for substituted service dismissed
APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted
CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed
HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – where making of order and some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – orders for expert assessment and ISO imposed
CORPORATIONS – insolvency – winding up – application for leave under s 459S of the Corporations Act – where applicant failed to serve the s 459G application within the statutory period – where applicant seeks to rely on the ground that the debt claimed in the statutory demand is disputed – whether requirements for leave under s 459S are satisfied – application dismissed
ADMINISTRATIVE LAW – judicial review – medical assessor’s determination of whole person impairment for the purposes of the Motor Accident Injuries Act 2017 (NSW) – assessment of whole person impairment as a result of psychiatric injury – whether the medical assessor took into account an irrelevant consideration – consideration that “no overt cognitive difficulties noted during the assessment” wrongly assigned to the “concentration, persistence and pace” area of functional impairment as defined in the Motor Accident Guidelines – error established – decisions and reasons of assessor set aside AMDINISTRATIVE LAW – judicial review – where medical assessor’s function included obtaining necessary information to assess whole person impairment for the purposes of the Motor Accident Guidelines – where necessary information not obtained – medical assessment of class 2 for the “Concentration, consistency and pace” area of functional impairment – where class rating based on considerations that did not provide a basis for distinguishing between class rating 2 and class rating 3 – error established
CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133
ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Decisions of medical assessor and delegate of President of Personal Injury Commission on review applications – Failure of Review Panel to exercise jurisdiction as required – Where Review Panel issued medical assessment certificate determining plaintiff’s whole person impairment at 8% - Where Review Panel failed to determine the extent of whole person impairment as it existed at the time of assessment – Where Review Panel failed to determine whole person impairment relating to subsequent injury and conduct appropriate calculation as required – Errors established – Medical assessment and review determination set aside – Matter remitted for re-determination
CIVIL LAW – high risk offender proceedings –terrorism - media application to access file – where documents tendered in open court – exercise of discretion – reports of experts – summaries of phone calls from jail - desirability of high risk offenders providing honest history – where access may frustrate purposes of the act – where extensive reasons are given in preliminary and final judgment – where access to exhibits is not required for fair and accurate reporting – where non-publication orders made under the Court Suppression and Non-Publication Orders Act 2010
CORPORATIONS – management and administration – orders sought for modification of operation of Corporations Act s 443A for limitation of administrators’ liability in respect of relevant borrowings – whether the funding arrangement is in the interests of the company’s creditors CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – where the security agreements creating the security interests are to be entered on a date after the appointment of administrators – whether it is necessary to make an order under s 588FM – whether, in the absence of intermediate appellate authority determining this issue, it is just and equitable to make an order under s 588FM
CHILD WELFARE — Adoption — Order — No issue of principle — Public interest in encouraging fostering and adoption of children where restoration to birth parents or family not possible
COSTS – party/party – where defendant made an offer of compromise pursuant to UCPR r 20.26 – where plaintiff rejected this offer – where plaintiff obtained judgment for nominal damages – where UCPR r 42.15 is enlivened – whether the Court should order otherwise under r 42.15 – where there is no reason the Court can only otherwise order if it is in favour of the offeree – where plaintiff was substantively the unsuccessful party – where the policy underpinning the regime is to encourage the proper compromise of litigation – plaintiff is to pay defendant’s costs up to the date of the offer of compromise on the ordinary basis and on the indemnity basis thereafter
SUCCESSION — Family provision — Notional estate — Whether Court has jurisdiction to grant interlocutory injunction restraining dealing in property liable to be designated as notional estate — Succession Act 2006 (NSW), s 62(3) SUCCESSION — Family provision — Practice — Application to amend to introduce substantive equitable claim after Court-annexed mediation — Where no explanation for lateness and not based on facts not previously discoverable with reasonable diligence
MENTAL HEALTH – forensic patient – extension of status as forensic patient – cognitive impairment – unacceptable risk of causing harm – no alternate (less restrictive) means of adequately managing the risk – interim orders neither consented to or opposed – consideration of statutory criteria
PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate
CIVIL PROCEDURE – application to adjourn proceedings – where cross claim dismissed and part of defence struck out – where defendants failed to comply with court orders and still have not served all the evidence – where still no explanation given – adjournment refused CONTRACTS – contract for acquisition of land for joint venture development – where defendant did not appear – where plaintiffs evidence about the proper construction of the contract was not challenged – judgment for the plaintiff
ADMINISTRATIVE LAW – application for judicial review of decisions of Delegate of President of the Personal Injury Commission and of Appeal Panel – whether Delegate obliged to give reasons for decision to refer to Appeal Panel – whether Appeal Panel gave adequate reasons and exposed its actual path of reasoning – application dismissed
CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — where the plaintiff fails to satisfy any of the elements of Uniform Civil Procedure Rules 2005 (NSW) r 5.3 — where the plaintiff brought the application for an extraneous purpose and the court would exercise its discretion to refuse it
APPEALS — orders on appeal — whether proceedings should be remitted to Court below — where Court ought determine quantum finally CONSUMER LAW — misleading or deceptive conduct — supply and assembly of prefabricated home — reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — loss of bargain — whether cost of rectification is unreasonable — Australian Consumer Law, ss 236, 237 CONTRACTS — breach of contract — breach of express terms — contractual variation based on misleading or deceptive conduct
Judgment of
Adamson JA at [1]
Stern JA at [127]
Price AJA at [128]
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under the Felons (Civil Proceedings) Act 1981 (NSW) –Whether the Felons (Civil Proceedings) Act 1981 (NSW) applies exclusively to persons in custody in NSW who have been convicted of or found to have committed a serious indictable offence in New South Wales STATUTORY INTERPRETATION – Legal presumptions – Jurisdiction – Extraterritorial application – General law rule of construction – References to New South Wales implied under the Interpretation Act 1987 (NSW)
CIVIL PROCEDURE – Application for the appointment of pro bono representation – Where special reasons exist to justify further referral for pro bono representation
CRIMINAL LAW - Evidence - admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - CRIMINAL LAW - Sentencing - 2 murders and 3 other offences involving attempt to murder - life sentences for murder - whether excessive - whether other offences relevant in considering sentences for murders
Judgment of
Dunford J at [1];
Simpson J at [96];
Hidden J at [97]
CORPORATIONS — statutory demand — application to set aside — offsetting claim — whether Graywinter principle applicable — where plaintiff contends that defendant’s delay and representations as to costs of building works created offsetting claim — statutory demand set aside
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
PRELIMINARY DISCOVERY — Mass departure of personnel from the Australian professional services partnership conducted by the plaintiffs (EY) including D2-6 (ex-partners), with all being employed by the D1, a global competitor of EY — Remaining partners contend that the ex-partners may have engaged in wrongful conduct and they may be entitled to make claims for relief against D1 and D2-6 — EY seeks preliminary discovery PRELIMINARY DISCOVERY — Purported ‘Goldilocks’ dilemma — Plaintiffs know enough to be concerned but not enough to make a sensible and informed decision about whether or not to commence substantive proceedings against the defendants PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — The correct test is the “appears to the Court” test — Submissions regarding “reasonable cause to believe” test rejected EVIDENCE — Inferences — Drawing such inferences where the relationship is between a given fact and a human act WORDS & PHRASES — Garden Leave PRELIMINARY DISCOVERY — Costs and expenses — Distinction between the cost of the litigation per se and the costs of actually providing discovery
CIVIL PROCEDURE — Interlocutory applications — Freezing orders – Ex parte — Duty of disclosure — Whether plaintiffs failed to put before the Court all material facts and arguments within their knowledge which the defendants, if present, could be expected to have brought to the Court’s attention — Held: Material non-disclosure, which was deliberate on the part of the plaintiffs and inadvertent on the part of counsel appearing at the ex parte hearing — Held: Freezing orders discharged — Held: Plaintiffs not permitted to treat the hearing of the defendants’ application to discharge the freezing orders as a de novo application for the freezing orders or equivalent orders under r 25.3 of the Uniform Civil Procedure Rules
COSTS – Security for costs – where second and third defendants and plaintiff both claim interests in first defendant’s property and there is a priority dispute between them – where parties made agreement and orders were made by consent facilitating the registration of the second and third defendants’ mortgage, the sale of the property and the preservation of the sale proceeds, on the basis that priority between plaintiff’s claimed interest and the second and third defendants’ mortgage would be determined in these proceedings as at the date of those orders immediately before the registration of the second and third defendants’ mortgage – where second defendant now seeks an order requiring the impecunious plaintiff to provide security for its costs within 14 days, and orders dismissing the proceedings, releasing the second and third defendants from their obligations under the agreement, and discharging the order requiring the sale proceeds of the property to be preserved, if such security is not provided – whether an order for security would work an injustice
CRIMINAL PROCEDURE – Discharge of jury – Application for Suitors’ Fund Certificate – Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Trial adjourned through no fault of accused or his lawyers – Certificate granted
CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether plaintiffs unable to obtain sufficient information to make decision about whether to commence proceedings — Whether inspection of documents sought would assist plaintiff to make decision — Preliminary discovery ordered
CORPORATIONS — application by special purpose receiver for directions — where applicant was appointed by the Court as special purpose receiver under s 283HB of the Corporations Act — whether Court has jurisdiction under s 283HB of the Corporations Act to give such directions — whether the directions sought are within the class of questions on which the special purpose receiver may properly seek directions — whether directions sought by the special purpose receiver should be given
CRIMINAL PROCEDURE – Trial – Adjournment – Vacating of hearing date – Where NSW Police first disclosed to the DPP and the accused, 37.3 gigabytes of data by way of a Cellebrite download two weeks before trial - A misleading affidavit erroneously identifying that all documents had been disclosed – Where counsel failed to allocate sufficient time for trial preparation – Where the DPP continued to serve material which necessitated consideration and contextualisation before agreements on proposed edits could occur
CRIMINAL PROCEDURE – Trial – Jury – Discharge of whole jury - Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Whether late disclosure of documents has prejudiced the accused’s right to a fair trial
COSTS — Party/Party — bases of quantification —— whether plaintiff entitled to special costs order because of non-acceptance of offer of compromise — offer only capable of acceptance by both defendants COSTS — Party/Party — exceptions to general rule that costs follow the event — consideration of “rule of thumb” approach to the apportionment of costs where a plaintiff succeeds against one jointly represented defendant but not another
CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy
Judgment of
Stern JA at [1];
Cavanagh J at [65];
Rigg J at [139]
CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences
Judgment of
Stern JA at [1];
Cavanagh J at [116];
Rigg J at [149]
PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle
Judgment of
Mitchelmore JA at [1];
Ball JA at [36];
Free JA at [37]
LEGAL PRACTITIONERS - contested litigation concerning the admission to probate of wills of the deceased made in 2015, 2019 and 2021 – solicitor acted for the deceased in relation to the preparation of the 2019 will and now acts for the plaintiff (the executor of that will) in seeking admission of the 2019 will to probate, alleging that the deceased lacked testamentary capacity at the time of making the 2021 will – deceased uplifted the 2019 will from the solicitor before making the 2021 will – other parties contend that the deceased’s 2021 will is valid and that he destroyed the 2019 will – solicitor is a witness in the contest in relation to contentious factual circumstances of the deceased’s making of the 2019 will and his later uplifting of the 2019 will from the solicitor’s office before the will’s alleged destruction – whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting for the plaintiff in the proceedings.
HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended
CRIME – appeal and review – application to Supreme Court under Part 7 – Crimes (Appeal and Review) Act 2001 (NSW) – conspiracy to murder – where co-conspirator found not guilty of conspiracy and acquitted – whether doubt or question as to applicant’s guilt – whether verdict unsustainable as a matter of law – principle of incontrovertibility of an acquittal – broader claim of inconsistency – impact of “fresh” evidence led at co-conspirator’s trial – responses of each accused to Crown case of conspiracy substantially different – conviction of applicant consistent with acquittal of co-conspirator – abundant evidence at applicant’s trial to support guilt – discretion under s 79(3) – application refused
LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused
CIVIL PROCEDURE — Cross-claims — Connection with subject-matter of claim — Whether cross-summons should be dismissed or in the alternative stayed COSTS — Security for costs JUDGMENTS AND ORDERS — Enforcement — Charging orders
MENTAL HEALTH – forensic patient – extension of status as a forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – where defendant does not oppose making of order – orders for examination made – interim extension order made
BUILDING AND CONSTRUCTION – claim by subcontractor against principal in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – subcontractor’s right of recovery under s 11(4) subject to any defence the principal would have had against recovery of the debt by the contractor – whether principal entitled to raise matters of set-off defending debt claim
CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions
COSTS — Party/Party — Bases of quantification —Indemnity basis — Offer under the rules — Whether to ‘otherwise order’ — Where defendant claims they were surprised by case run at final hearing
SUCCESSION — Family provision — Limitation period — Where claim brought almost two years after the expiry of limitation period — Whether sufficient cause shown to ‘otherwise order’ SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship pursuant to s 21C of the Interpretation Act 1987 (NSW) — Whether couple ‘living together’ SUCCESSION — Family provision — Notional estate — Restrictions on out of time or additional applications — Where estate already fully distributed — Whether ‘special circumstances’
CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected
COSTS — Security for costs — Relevant factors — Place of incorporation or residence out of jurisdiction — Where plaintiff domiciled in People’s Republic of China and has significant assets — Whether cross-claim is in substance defensive — Whether security for costs should be limited to costs of enforcing judgment — Security for costs granted
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ scheme of arrangement — where formal requirements satisfied — whether scheme of arrangement should be approved.
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CIVIL PROCEDURE — Default judgment — Motion to set aside – where defendant is vendor and plaintiff is purchaser under a contract for sale of land – where default judgment for specific performance of the contract was entered against the defendant on 14 June 2024 – where defendant’s first motion to set aside default judgment dismissed on 6 December 2024 in the absence of any appearance by the defendant – where defendant continued to deal with the property despite being on notice of the Court’s orders requiring specific performance of the sale contract and took other steps to interfere with completion of the sale contract in accordance with those orders – whether defendant asserts a bona fide defence and cross-claim – whether there is an adequate explanation for defendant’s default and delay – prejudice to plaintiff caused by delay – whether an order setting aside default judgment is in interests of justice and consistent with the overriding purpose and objects contained in ss 56-60 of the Civil Procedure Act 2005 (NSW)
CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether change of name should be approved
PROCEDURE — advance ruling under s 192A Evidence Act — whether defect reports prepared by quantity surveyor are business records — whether prepared for purpose of proceedings — s 69(3)(a), Evidence Act 1995 (NSW) — whether opinions expressed in business record admissible — limitation made under s 136 Evidence Act (NSW).
COSTS – Gross sum costs order – Where costs assessment likely to involve further expense and delay – Where assessment would disadvantage party seeking order because of other party’s inability to discharge costs liability – Whether sufficient evidence for Court to undertake fair and just quantification
PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused
CIVIL PROCEDURE – Interim preservation – preservation of property – where plaintiff obtained orders to enter real property to obtain personal goods but has failed to comply with a Court order as to retrieving the goods – where the Court has provided further opportunity for the plaintiff to obtain personal goods FAMILY LAW — Property — Property of relationship — Injunctions and restraints – Where Husband has obtained orders to enter real property to obtain personal goods but has failed to comply with Court orders as to retrieving goods – where trustees have been appointed to dispose of family property – where Husband has been restrained from entering property
CORPORATIONS – winding up – insolvency – statutory presumption of insolvency – plaintiff’s application to wind up defendant on the ground of insolvency pursuant to s 459A – where plaintiff relies on a debt that was not the debt that was the subject of the statutory demand - defendant’s application for leave under s 459S to oppose the winding up application on the ground that there is a genuine dispute - whether plaintiff has standing as a creditor under s 459P(1)(b) to bring winding up application – whether there is a genuine dispute about the alleged debt forming the basis of the winding up application – where the plaintiff does not have standing as a creditor – where the pursuit of these proceedings would have been an abuse of process if the plaintiff had standing – originating process and amended interlocutory process dismissed
CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable
Judgment of
Davies J at [1];
Hamill J at [2];
McNaughton J at [10]
EVIDENCE — Privileges — Client legal privilege — Litigation — inadvertent disclosure of email communication — where privileged communication accessed via Dropbox link with specialist IT assistance — whether privilege waived — whether there was knowing and voluntary disclosure — whether there was deliberate abuse of power — no waiver established APPEAL — costs — costs assessment — appeal from Review Panel — s 89(1) Legal Profession Uniform Law Application Act 2014 (NSW) — whether Review Panel erred in fact or law in determining the amount payable by the plaintiffs — where proceedings conducted without reference to the email communication — no error of fact or law established CIVIL PROCEDURE — Jurisdiction — Monetary limits — leave required under s 89(1)(b) Legal Profession Uniform Law Application Act 2014 (NSW) — leave refused CIVIL PROCEDURE — Time — Extension of time — Leave required under r 50.3 UCPR — approximately three months out of time — leave refused
CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Notice – Where Plaintiff issued notice of intention to move a resolution at general meeting of shareholders removing directors of Defendant and notice of intention to nominate new directors – Whether notices were valid CORPORATIONS – Meeting of members – Notice – Where Plaintiff issued notice to Defendant’s shareholders convening a general meeting of shareholders – Where Defendant’s directors resolved to postpone and change venue of general meeting of shareholders– Whether Defendant’s directors’ resolution was valid – Whether Plaintiff’s notice was valid – Where independent chair of general meeting of shareholders ordered
BAIL – where applicant is accused of murder – Aboriginal mother with mental health challenges – where the Crown’s case is strong – whether cause has been shown – application refused
JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion
CRIMINAL LAW – Murder – application for judge alone trial – retrial – where the matter has a protracted and unusual history – where the Crown case relies on constructive murder by way of joint criminal enterprise – whether it is in the interests of justice to grant the order sought – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where there is a strong interest in efficiencies and finality in the trial – whether a jury is better placed to assess credibility – application for a judge alone trial granted
JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances
CHARITIES AND NOT-FOR-PROFITS — charitable gifts and trusts — administration of two trusts in parallel — appointment of a common trustee to the two trusts ineffective — proposed scheme to transfer trust property of two trusts into new trust to be administered by a new trustee — whether cy près or administrative scheme
COSTS — Further security for costs — Relevant factors — Procedure and discretion — Strength of the claim — Stultification — proceedings — Impecuniosity of opponent — Impecuniosity attributable to the applicant’s conduct – Whether the plaintiff is effectively in the position of a defendant
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied
CIVIL PROCEDURE — appearance — withdrawal of appearance — leave of Court — where breakdown in relationship between solicitor and client — leave granted CORPORATIONS — winding up — practice and procedure — leave of Court — where director of company seeks leave to appear for company — leave granted CORPORATIONS — winding up — statutory demand — failure to comply with statutory demand — whether company should be wound up — where winding up ordered subject to a stay
PROCEDURE – Contempt, attachment and sequestration – Contempt of court – Where court makes freezing order and orders disclosure affidavits – False invoices to obtain payments purportedly under exception for business expenses – Breach of freezing orders.
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts — transfer of proceedings from Local Court to Supreme Court — where cross claim sought equitable relief
PROCEDURE – appointment of amicus curiae – suggested by respondent and unopposed by applicant – questions of general principle arising – matter referred to Registrar for purpose of appointing amicus
CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced
Judgment of
Davies J at [1]
Hamill J at [2]
McNaughton J at [61]
CRIME — Confiscations — Restraining order — Ancillary order for examination of third-party regarding defendant's property — s 12(1)(b)(ii) Criminal Assets Recovery Act 1990 (NSW)
SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles
Judgment of
Davies J at [1]
Hamill J at [79]
McNaughton J at [83]
LAND LAW – possession of land – urgent application to stay execution of writ of possession – too little to late – no adequate explanation for lack of action by applicant – defence struck out in April 2025 – question mark over legitimacy of alleged contract for sale – stay refused
MORTGAGES AND SECURITIES – claim by mortgagee for possession of land following default by mortgagors – default judgment entered and writ of possession issued – application for stay of execution of writ of possession – factors relevant to application for stay – stay in terms sought refused
SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting – whether deceased promised child provision – whether child suffered detriment due to reliance on alleged promises – whether a Crisp order should be made – whether estate assets were misappropriated – provision refused – no issue as to principle
EQUITY – Equitable remedies – injunctions – where the plaintiff seeks leave to proceed pursuant to UCPR r 11.8AA – where the plaintiff seeks final relief by way of default judgment - where defendants’ names unknown but defendants involved in clearly identifiable acts – injunctive relief ordered against such “persons unknown” – non-publication and suppression orders.
SUCCESSION – Family provision – where the deceased loaned significant sums of money on favourable terms and provided rent-free accommodation to enable the appellants to study in Australia – where the deceased made provision for the appellants in his will – where the appellants sought an order for provision in the sum of $300,000 to $450,000 out of the deceased’s estate – whether the primary judge erred in determining that the appellants had not demonstrated factors warranting under s 59(1)(b) of the Succession Act 2006 (NSW) – whether the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the deceased under his will pursuant to s 59(1)(c) of the Succession Act CIVIL PROCEDURE – Appeals – appropriate standard of appellate review of a decision under ss 59(1)(b) and (c) of the Succession Act
Judgment of
Bell CJ at [1];
Gleeson JA at [2];
Stern JA at [5].
CIVIL PROCEDURE – where trustee in bankruptcy appointed for plaintiffs – where proceedings were dismissed by consent except as against second defendant - where second defendant served a notice of action on trustee – where trustee is deemed to have abandoned action – where proceedings were not prosecuted with due despatch – where fourth plaintiff sought to make submissions as to costs due to sufficient interest – where fourth plaintiff made no claim for relief against second defendant – where there was no hearing on the merits – proceedings against second defendant dismissed – no costs order against fourth plaintiff – application by third plaintiff to make a claim after reasons delivered – application by third plaintiff after reasons delivered to revisit orders – orders unchanged
COSTS – where defendant’s statutory demand served on plaintiff was set aside pursuant to s 459G of the Corporations Act 2001 (Cth) – where plaintiff seeks an order that defendant pay its costs of the proceedings on the indemnity basis – where plaintiff relies on without prejudice letters as the basis for their indemnity costs application – where plaintiff made a Calderbank offer but only provided a modest amount of compromise – where defendant seeks there to be no orders made in relation to costs or for costs to be limited to those assessed on the standard basis – where defendant seeks a stay on the enforcement of any costs orders – where defendant submits that any costs orders would be punitive and futile – no departure from the usual position that costs follow the event – defendant is to pay plaintiff’s costs of the proceedings on the ordinary basis
EXPERT DETERMINATION — vendor sells company for $2M plus ‘earn out’ based on EBIT x multiplier — expert determination clause requires chartered accountant of 10 years’ experience — expert determines earn-out payment is $9.7M — whether parties agreed to be bound by expert’s construction of contract — principles at [124]-[129] — purchaser raises proper construction of contract outside timeframe prescribed by expert determination clause — whether expert should have determined that matter at all — expert determination clause varied by letter appointing expert, at [146] — “manifest error” — where suggested error of law — principles at [150]-[153] — Bagata Pty Ltd v Runner Pty Ltd [2024] QCA 17 followed — construction not obviously wrong — no manifest error — parties bound. RECTIFICATION — principles at [231]-[235] — purchaser’s board had authority to vary contract – board papers and minutes, contemporaneous documents and post-contractual conduct paint compelling picture of common intention – purchaser seeks to avoid bad deal by exploiting imperfect drafting – appropriate case for rectification. JONES v DUNKEL — issue waiver — written communications with lawyer tendered — whether to draw inference where solicitor not called — whether unnecessary witness — no evidence that lawyer and client had confidential oral communication – inference not drawn, [11].
APPEAL – appeal from Local Court – dispute between landlord and tenant – whether Magistrate was biased – whether hearing was procedurally unfair – whether any other irregularity in hearing – whether Magistrate erred in upholding landlord’s claim for unpaid rent and damages – appeal dismissed
CORPORATIONS – winding up – application by contributory and sole director to set aside orders for winding up and appointment of liquidator – where winding up orders were made in the absence of applicant – where applicant was unaware of the statutory demand or winding up application – where liquidator consents to the termination of the winding up – where creditor neither consents nor opposes the termination of the winding up – where company is solvent and profitable - where creditors are protected – where liquidator’s remuneration is agreed
OPPRESSION – Members’ rights and remedies – whether oppression established – terms of buy-out order available where company in liquidation COSTS – Whether indemnity costs should be awarded against Defendants on basis of Calderbank principles – Whether unreasonable not to accept Calderbank offer
BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety, the sum offered and more information about the Crown’s case – s 74 satisfied BAIL – charge of supplying a commercial quantity of a prohibited drug, direct activities of criminal group and deal with proceeds of crime – show cause offence – cause is not shown
CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down CRIME – appeals – appeal against sentence –whether sentence manifestly excessive
Judgment of
Mitchelmore JA at [1];
Rothman J at [62];
Yehia J at [63].
SUCCESSION — Family provision — Notices of Claim — Disregarding power — Identification of the context and purposes of family provision legislation bearing upon s 61 Succession Act SUCCESSION — Family provision — Outline of the evolution of approach to consideration of possible applicants under family provision legislation in determining claims of applicants SUCCESSION — Family provision — Construction of s 61 Succession Act in light of context, purpose and text SUCCESSION — Words and phrases — Family provision — Meaning of “disregard the interests” of any other person (other than a beneficiary) — Meaning of “unnecessary, unreasonable or impracticable” — Examination of “unnecessary, unreasonable or impracticable” terms as applied in family provision caselaw SUCCESSION — Family provision — Service of Notices of Claim — Discussion of purposes underlying notification regime — Outline of requirements of Notices of Claim, including means and time of service SUCCESSION — Family provision — Discussion of types of searches to locate persons and limitations of such searches — Discussion of internet and social media searches — Discussion of property searches — Discussion of electoral roll searches — Meaning and discussion of “skip tracing” SUCCESSION — Family provision — Form of request for s 61 notation — In most cases the request is informally made by email or in proposed short minutes of order or outline of submissions and not formalised by notice of motion SUCCESSION — Family provision — Guidance as to practical application of search and notification requirements SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which another child had not been served with a Notice of Claim and evinced an intention of not being located by the plaintiff or others associated with dealings with his deceased father’s estate — Credible but untested evidence disclosed deceased had ex-nuptial children — Orders sought (and notation made) to disregard the interests of that other child — Further notation made to address position of such, if any, ex-nuptial children
SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act 2006 (NSW) is personal and therefore not transmissible so as to survive the applicant’s death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff’s child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the proposed settlement (which included provision to the second plaintiff) ought to proceed without any further requirement for service of a Notice of Claim on the child SUCCESSION — Family provision — Interests of other potentially eligible persons — Basis for disregarding interests — Whether interests of the deceased’s former de facto spouses and the adult child of the second plaintiff can be disregarded — In circumstances where (inter alia) both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded COSTS — Jurisdiction — Whether the Court has jurisdiction to make a costs order in family provision proceedings which abate — Discussion of effect of abatement on proceedings and cases where the Court has determined that the proceedings are a nullity — Authorities indicate that it cannot be presumed that the Court has jurisdiction to make a positive costs order in favour of or against a deceased applicant — Position in respect of costs of defendant executrix is arguably different, as such costs properly incurred will ordinarily be a testamentary expense to be paid out of the estate — Notation made that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of a specific court order — Order made for defendant’s costs to be paid out of the estate on the indemnity basis
LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts — Medical negligence — Where plaintiff has been diagnosed with a non-functioning pituitary macroadenoma with symptoms including memory impairment — Whether there should be an extension of the long-stop limitation period — Whether just and reasonable to extend the limitation period
CIVIL PROCEDURE – judgments and orders – amending – whether reasons for judgment require amendment to reflect arguments made and consequences of findings made
EQUITY – trusts and trustees – where building contract provided that retention shall be held in trust by defendant developer for plaintiff builder until such time as either became entitled to retained funds – where plaintiff builder alleges breach of trust against defendant developer – where plaintiff builder alleges defendant director knowingly involved in the defendant developer’s breach of trust – whether any trust constituted – no trust constituted EQUITY – contribution – coordinate liability – where plaintiff builder settled claims against some defendants prior to hearing by transfer of residential lots – whether settling parties had coordinate liability to the plaintiff builder for the defendant developer’s contractual debts – whether coordinate liability arose by reason of knowing involvement in breach of trust or by reason of mortgages entered over properties – whether effect of settlement was to discharge that liability – whether transfer of residential lots was at an undervalue such that the plaintiff builder achieved a benefit – no discharge of coordinate liability BUILDING AND CONSTRUCTION – contract – variation – where defendant developer’s representative priced and approved variations – where plaintiff builder obliged to do work when directed by defendant developer under contract – whether defendant developer now entitled to contest variations – construction of “variation” and “direction” BUILDING AND CONSTRUCTION – contract – damages – delay – where defendant developer claims liquidated damages against plaintiff builder for delay – factual dispute over the original contracted date for practical completion
ADMINISTRATIVE LAW — Jurisdictional error — Whether NSW Civil and Administrative Tribunal ("NCAT") had jurisdiction to determine tenancy when District Court proceedings already afoot — Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(7) — Where District Court proceedings concerned the relationship between landlord and tenant — Where NCAT proceedings sought enforcement by the landlord of a s 85 termination notice — Whether there was an overlapping of issues between the NCAT proceedings and the District Court proceedings
CRIMINAL LAW – appeal – conviction – where the trial was conducted with a judge sitting alone – where the trial judge failed to adequately direct himself – where the trial judge failed to observe the requirements of s 133 of the Criminal Procedure Act – where the conviction is quashed – where a new trial is ordered
Judgment of
Hoeben CJ at CL at [1];
Latham J at [2];
Price J at [79]
CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established
CRIMINAL LAW - appeal - conviction - sexual offences - Judge alone trial - whether verdicts inconsistent - time an essential element of the offences - difference in verdicts rationally explained and not inconsistent
Judgment of
Emmett JA at [1]
Price J at [2]
Fullerton J at [47]
LEASES AND TENANCIES – Default and termination – Relief against forfeiture – where the change of ownership of the shares of the tenant company constitute an assignment of the lease – where consent was not sought for the assignment of the lease – whether to grant relief against forfeiture – no question of principle EVIDENCE – Standard of proof – Civil cases – where defendant alleges that plaintiff made up evidence of serious wrongful conduct of defendant – application of Briginshaw – application of s 140(2) of Evidence Act 1995 (NSW) – no question of principle ESTOPPEL – Cause of action estoppel – Anshun estoppel – no question of principle
CONTRACTS – Construction – Interpretation – where no time specified for the completion of the contract for the sale of land – whether contract void for uncertainty – implied reasonable time for completion of contract – no question of principle CONTRACTS – Termination – whether breach by either party – whether repudiation of contract – whether acceptance of repudiatory conduct – no question of principle LAND LAW – Conveyancing – Contract for sale – Termination – whether necessary for vendor to show readiness, willingness and ability to perform contract at time of termination – whether vendor ready, willing and able – question of principle LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – where deposit is 13% – whether deposit is a penalty – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – question of principle
CRIMINAL LAW – sentencing – aggravated sexual intercourse with a child – two counts – whether aggregate sentence manifestly excessive – penile/vaginal intercourse – offender of good character – findings of remorse and prospects of rehabilitation – early pleas of guilty – comparison with past sentencing cases – use of statistics – helpful and thorough submissions – sentence imposed not manifestly excessive – sentence not plainly wrong or unjust
Judgment of
Adamson JA at [1]
Hamill J at [4]
Ierace J at [54]
CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced
Judgment of
Mitchelmore JA at [1];
Rothman J at [2];
Yehia J at [104]
CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment
EQUITY — Trusts and trustees — Judicial advice — Where the object of the association is to afford assistance in necessitous and deserving cases — Whether association funds may be used to provide a counselling service — Where association was plainly intended to be charitable in the legal sense — Where counselling service is directed to former and current barristers and their dependents
EQUITY — Equitable remedies — Equitable compensation — Assessment — Where equitable compensation to be assessed on the basis of a loss of opportunity — Whether discount should be applied pursuant to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 EQUITY — Equitable remedies — Where defendants accept that plaintiff entitled to make a ‘split election’ for different remedies as between them — Where the second defendant was the sole director of the first defendant — Where the defendants were found in substance to owe the same fiduciary duties to the plaintiff — Where acts constituting separate breaches by each of the defendants were in each case performed by the second defendant only — Whether risk of double recovery
APPEALS — leave to appeal — principles governing — where proceedings raise questions of public importance — leave to appeal granted — time limits — extension of time — extension of time granted CIVIL PROCEDURE — effect of admission in points of defence in NCAT — where applicant admitted lessee was an impacted lessee under COVID-19 regulatory regime — Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 53 — Evidence Act 1995 (NSW), s 191 LEASES AND TENANCIES — retail leases — retail shop lease — termination of retail lease covered by COVID-19 Regulation — whether lessee an impacted lessee under COVID-19 regulatory regime — application of Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW), cll 6A, 6B, 6C, 6D
CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations – dictates of justice – whether applicant’s changes in position caused significant injustice – whether procedural unfairness CIVIL PROCEDURE – costs – whether applicant should pay costs of settled strike out motions – whether offers of compromise were relevant to costs application – whether applicant’s conduct unreasonable – whether applicant should pay costs on the motion to re-plead
CORPORATIONS – action for enforcement of judgment debt due to corporate trustee – form of orders to give effect to reasons for judgment – whether any reason why costs should not follow the event – no issue of principle
BUILDING AND CONSTRUCTION — adjudication — judicial review — whether adjudicator’s opinion that a submission was not “duly made” was reviewable — whether the adjudicator erred in law — whether adjudicator’s determination affected by jurisdictional error on the basis that he found certain submissions were not “duly made” — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 20, 22, 26, 32A
Judgment of
Leeming JA at [1]
Adamson JA at [106]
Free JA at [183]
BUILDING AND CONSTRUCTION – progress payments – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – identification of work to which progress claim relates – payment claim operating by reference to contents of earlier invoices – identification, in a reasonable way, of the work to which claim relates – no express or implied requirement in the Act that purported payment claim have the objective character of being a claim “for” construction work or for related goods or services CIVIL PROCEDURE – summary disposal – judgment for plaintiff – requisite material and necessary assistance from parties to enable Court to reach definite and certain conclusion – only defence identified is one bound to fail – final hearing would be otiose
APPEALS – Challenge to underlying findings of fact and credit-based findings – Where appellant unrepresented – Consideration of extent of court’s role in relation to unrepresented parties SUCCESSION – Where probate not granted in respect of a 2013 Will – Where primary judge not satisfied that deceased had testamentary capacity at time of making of 2013 Will – Where clinical notes recorded cognitive defects both before and after execution of 2013 Will – Significance of such evidence – Where will witnessed by a solicitor – Where testatrix unaware about why she was attending solicitor’s office – Application of Banks v Goodfellow (1870) LR 5 QB 549 COSTS – Where family provision claim rejected on basis that 1998 Will provided adequately for the appellant – Where primary judge may have held differently if appellant ordered to pay costs – Where primary judge unaware of Calderbank offer and formal offer of compromise made well prior to trial – Where different judge revisited costs order following primary judge’s retirement – Where, notwithstanding holding that Calderbank offer and offer of compromise unreasonably rejected, respondent awarded less than one quarter of his costs – Whether exercise of discretion vitiated by error or otherwise miscarried – Relevance of notional “buffer” that had been referred to by primary judge
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CONTRACTS — Termination — Whether parties agreed to terminate building contract CONTRACTS — Remedies — Damages — Proof of loss or damage — Whether plaintiff entitled to loss of bargain damages following defendant’s alleged repudiation — Where plaintiff has failed to adduce precise evidence of quantum of loss of bargain damages
COSTS – party/party – costs orders in interlocutory proceedings – where cross-defendant seeks previous costs order made on the notice of motion be varied – whether defendant should pay cross defendant’s costs – whether defendant’s notice of motion went primarily to the issues on the cross-claim – where cross-defendant filed no evidence nor provided written submissions on the notice of motion – where cross-defendant’s appearance could have been mentioned by plaintiff – where no orders were made against cross-defendant
CIVIL PROCEDURE – judicial review procedure – Uniform Civil Procedure Rule 59.7 – application to tender further evidence from defendant's expert – experts had produced joint and agreed reports – defendant granted time to ask both experts certain questions directly, overnight – plaintiff's expert unavailable; defendant's expert available, and produced answers not seen by plaintiff’s expert – leave refused
CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of murder as an accessory before the fact – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – circumstantial Crown case – where the appeals of the co-accused have been allowed – whether certain inferences can be drawn from communications between the applicant and the co-accused where evidence of the content of those communications is unavailable or limited – whether other reasonable possibilities remain available – whether the applicant ‘procured’ the assault to cause really serious injury to the deceased – leave to appeal granted – appeal allowed – verdict quashed – applicant acquitted
Judgment of
Harrison CJ at CL at [1]
Yehia J at [6]
Chen J at [7]
CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody
CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed
Judgment of
Price AJA at [1]
Campbell J at [4]
Hamill J at [5]
LAND LAW – possession of land – claim by trustee in bankruptcy against bankrupt – where bankrupt has not in engaged in proceedings – judgment for possession
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody
ADMINISTRATIVE LAW – diversity jurisdiction – extraterritoriality – dispute between residents of two States arising under State law – whether the Anti-Discrimination Board (NSW) has jurisdiction to accept and refer a complaint of homosexual vilification to NCAT pursuant to ss 89B and 93C of the Anti-Discrimination Act 1977 (NSW) where residents of two different States – whether a delegate of the President of the Board needs to be satisfied of residency in NSW and that the relevant “public act” occurred in NSW before exercising any discretionary power – whether these factors constituted jurisdictional facts – not found to constitute jurisdictional facts – Anti-Discrimination Board (NSW) found to possess relevant jurisdiction to accept complaints and refer to NCAT ANTI-DISCRIMINATION – meaning of homosexual vilification provisions in Anti-Discrimination Act 1977 (NSW) – section 49ZT – meaning of “to incite” – meaning of “public act”
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Final hearing — History of schizophrenia and polysubstance use disorder — Where two forensic experts were appointed by the Court to conduct examinations of the forensic patient — Dispute as to the appropriate length of extension period of the defendant’s status as a forensic patient
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Act 1996 (NSW), s 210 — whether applicant required to allege that a protected matter is the cause of any detrimental action — whether Commissioner impermissibly reversed onus — where no evidence given by particular police officer in first defendant’s case — where Commissioner found matters involving that police officer not a substantive and operative cause of identified detrimental action — no jurisdictional error ADMINISTRATIVE LAW — judicial review — extension of time to file application — where applicant pursued appeal rights to Full Bench of Industrial Relations Commission — where grounds of review overlapped with argument advanced to Full Bench — where no suggestion first defendant suffered prejudice — where issues fully argued — extension granted
CONTRACTS — Construction — Interpretation — Whether plaintiff entitled to payment from defendant under special condition for what plaintiff contends is additional work — Scope within contract sum
EVIDENCE – criminal proceedings – exclusion of prejudicial evidence – where representations made in prior proceedings are unfairly prejudicial and contain information of marginal relevance EVIDENCE – criminal proceedings – admissions – whether previous representations are adverse to the accused’s interest in the outcome of the proceeding – where previous representations made by accused are prima facie exculpatory – where contradictory evidence may be adduced at trial
CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence
Judgment of
Harrison CJ at CL at [1]
Dhanji J at [2]
Huggett J at [68]
CRIME – appeals – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle
SUCCESSION — Family provision — Claim by adult child — Two adult sons in dispute over mother’s estate — Mother’s clear and rational intention to leave most of her estate to one of her sons in preference to the other
APPEALS – leave to appeal – where the applicant seeks to appeal two District Court decisions made on 23 September 2024 relating to the applicant’s criminal proceedings – where the related criminal proceedings have since been resolved – whether the District Court had jurisdiction to hear the appeal from the decision of the magistrate –whether the present appeal lacks utility – leave refused APPEALS – leave to appeal – where the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia – where the applicant sought to commence a private prosecution against the judge who made the parenting proceeding orders – where the applicant seeks leave to appeal from orders made on 10 October 2024 and on 15 August 2024 dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice for the applicant’s private prosecution – leave refused
COSTS — withdrawal of caveat — no caveatable interest — substituted service on defendant — relevance of no personal service on defendant — costs follow the event
ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Decision regarding the share component for a replacement floodplain harvesting access licence — Whether the decision required the Minister to estimate the volume of water capable of being used by the plaintiff’s water supply works — Whether the Minister’s calculation omitted water used for direct irrigation — Whether the omission constituted a failure to exercise jurisdiction, as stipulated by the Regulations
CONTRACTS – construction of standard form contract – terms in standard form contract may make provision for eventualities only to apply to the extent activated by parties – parties’ choice not to activate those provisions is not to be undermined by seeking to stretch other words in the contract to fill the purported gap EVIDENCE – onus of proof – language of “shifting” onus apt to deceive – notion of doubtful utility at the end of a hearing or in an appeal
Judgment of
Payne JA at [1];
Kirk JA at [2];
Adamson JA at [99]
INSURANCE – policy for life and total and permanent disability (TPD) cover – where life insured provided services to appellant as a construction manager and project supervisor – where life insured undertook hip replacement – where appellant made claim for TPD under policy – meaning of “Own Occupation” under policy – whether primary judge erred in construing “Own Occupation” – no error EVIDENCE – whether primary judge erred in finding the life insured exaggerated his evidence – whether primary judge failed to give adequate weight to expert and documentary evidence – no error
Judgment of
Ward P at [1];
Mitchelmore JA at [2];
Ball JA at [3]
CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive
Judgment of
Harrison CJ at CL at [1]
Wright J at [2]
Huggett J at [3]
CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death
Judgment of
Harrison CJ at CL at [1];
Cavanagh J at [35];
Dhanji J at [116]
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CIVIL PROCEDURE – Admissions – Admission of facts – Withdrawal of admissions – Where Defendant served a defence containing an admission necessary for Plaintiff’s standing to bring an oppression claim under ss 232 – 233 of the Corporations Act 2001 (Cth) – Where Defendant subsequently filed and served a defence withdrawing the relevant admission COSTS – No order as to costs of the application – Defendants to pay Plaintiff’s costs thrown away by reason of the withdrawal of the of the admission
CORPORATIONS – Winding up – Public examination of directors, officers and others – Application to set aside summons to attend examinations, orders for production and related orders – Where applicants rely on medical evidence of purported incapacity to attend examinations – Where medical evidence noncompliant with Expert Witness Code of Conduct CIVIL PROCEDURE – Appearance – Withdrawal of appearance – Leave of Court refused
CORPORATIONS – Winding up – Conduct of liquidation – Meeting of creditors – Where liquidators did not convene a meeting of the company’s creditors in response to creditors’ direction – Whether creditors’ direction was unreasonable
CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending
CIVIL PROCEDURE – extension of time – application to rely on expert evidence served out of time – where expert evidence is essential to the Plaintiffs’ case – where explanation for delay in serving expert evidence provided – where no prejudice identified by Defendant – extension granted
EQUITY – Equitable remedies – where equitable mortgagee seeks order for judicial sale – whether order for judicial sale should be made – no question of principle
EQUITY — Trusts and trustees — Trust instruments — Trust language – interpretation – where 1873 deed of trust established church school – where the object was “to provide an efficient course of education for youth” – where school previously adopted male-only admission policy – whether coeducation permissible – meaning of “youth” in trust deed – “plain and ordinary” meaning – evidence of contemporaneous usage – dictionary definitions – quotations from individual publications – admissibility – contextual factors – nature of instrument – constitution for ongoing institution – whether ambiguous – recourse to “surrounding circumstances” – 19th century educational practice – boys-only predecessor school – prior deliberations of church authorities – parol evidence rule – recourse to subsequent conduct of parties – subsequent adoption of boys-only admission policy – subsequent establishment of separate girls-only school – “ancient instruments” rule
CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.