COSTS – where provision made on 13 December 2019 for plaintiff to provide security for defendants’ costs – where defendants seek further security – whether there has been a material change in circumstances since 13 December 2019
PRACTICE AND PROCEDURE – notice to produce – whether legitimate forensic purpose shown – whether documents sought likely to assist on a material issue
CRIMINAL LAW – Practice and procedure – Juries – Self-represented accused – Request by jury for copies of final addresses of the Crown and the accused – Whether request should be met – Where the accused made inflammatory and scandalous submissions to the jury in the course of his address – Where the accused made submissions unsupported by the evidence – Whether the accused’s address should be redacted before being provided to the jury
CRIMINAL LAW – Judges – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused for the trial judge to recuse himself on basis of apprehended bias – Whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the proceedings – Whether trial was fair – Whether trial judge intervened excessively during the accused’s evidence-in-chief – Application refused
CRIMINAL LAW – Juries – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused for discharge of jury – Whether trial was fair – Whether trial judge intervened excessively in the accused’s evidence-in-chief – Application refused
CRIMINAL LAW – Practice and procedure – Crown’s duty of disclosure – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused for a temporary stay of proceedings – Whether the Crown had discharged its obligation of disclosure – Where raw electronic material needed to be viewed using licensed software and extracted by a trained computer technician – Where access to all material had been provided by the Crown to the accused’s representatives – Where no complaint had been made by counsel for the accused when the accused was represented – Application refused
CRIMINAL LAW – Practice and procedure – Courts – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused to be permitted to sit at the bar table when conducting his defence – Whether it was necessary for the accused to leave the dock for the purposes of properly conducting his defence – Whether the presence of Juvenile Justice personnel sitting near the accused in the dock was unfairly prejudicial – Relevance of security issues stemming from the accused’s behaviour at the commencement of the trial – Application refused
CRIMINAL LAW – Practice and procedure – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused for discharge of jury on the basis of an asserted inability to cross-examine witnesses called in the Crown case – Where the Crown case had closed – Where the accused had been represented by senior counsel for the duration of the Crown case – Application refused
BAIL – Self-represented accused charged with doing an act or acts in preparation for a terrorist act or acts – Application by accused for release on bail – Asserted need to be at liberty for the purposes of preparing and conducting the defence case – Where accused proposed to live in a halfway home if released – Where accused had made two previous applications for release both of which had been refused – No relevant change in circumstances since the most recent application for release – Application refused
DEFAMATION – defamatory matter – where material published in local newspaper and on the internet – where defendant admitted majority of pleaded imputations conveyed – remaining imputations found to have been conveyed – plaintiffs defamed – judgment for plaintiffs
DEFAMATION – defences – defence of justification not established
DEFAMATION – remedies – permanent injunction – aggravated damages
CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Where accused sought to tender evidence of a large volume of material found on electronic devices including pornographic video footage – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time – Evidence excluded
COSTS — Costs assessment — Determination — Power to disallow certain costs — Whether legal costs claimed are fair and reasonable — Entitlement to a specified gross sum instead of assessed costs
SUCCESSION – Will construction – Residuary clause in Will of deceased provides for gift to brother unless “[he] has already died or does not survive me or dies before attaining a vested interest” and then to her niece – Meaning of “before attaining a vested interest”
GAMING AND WAGERING – public lottery – plaintiff claiming to have entered winning numbers but unable to produce ticket – substantial unclaimed prize from 1997
MISLEADING AND DECEPTIVE CONDUCT – where plaintiff claimed to have presented winning ticket –cause of action for misleading and deceptive conduct accrued on ticket being rejected and discarded – statute barred by limitation period in s 82 of Trade Practices Act and s 68 of Fair Trading Act – damage not proven – judgment for defendants
CRIMINAL LAW – Practice and Procedure – Offences – Contempt – Self-represented accused –Where accused failed to answer questions put by the Crown in cross-examination – Direction to Registrar to commence proceedings for contempt
CRIMINAL LAW – Practice and Procedure – Self-represented accused – Whether appropriate to exercise the discretion in favour of allowing the Crown Prosecutor to make a closing address to the jury – Factors bearing upon the exercise of discretion
COSTS — Appeals — whether Court should make order as to costs of the proceedings below where no order was made by the primary judge – where on appeal the Court was not informed of the reason for not making an order as to costs at the time of the principal judgment – cost should follow the event – no issue of principle
Judgment of
Bathurst CJ at [1]
Macfarlan JA at [2]
White JA at [3]
CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts –Self-represented accused – Where accused sought to tender evidence of a large volume of documentary material found on an electronic device seized by police – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time – Evidence excluded
JUDGMENTS AND ORDERS — Court of Appeal – whether order requiring vacant possession be stayed pending the resolution of appeal proceedings –
COVID-19 pandemic – no issue of principle
CRIMINAL LAW – Juries – Misconduct – Juror falling asleep and failing to pay attention – Whether juror should be discharged – Whether trial should continue with a jury of eleven
CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Evidence of religious publications found in his possession following the alleged commission of the offence – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Whether expert evidence in relation to the publications admissible - Evidence excluded
BAIL – Applicant charged with doing acts in preparation for a terrorist act or acts – Where applicant arrested in 2016 aged 16 – Where jury at the applicant’s first trial in 2018 could not reach a unanimous verdict – Where jury in the applicant’s second trial was discharged due to disharmony – Where applicant will have spent between 3½ and 4 years in custody awaiting trial – Whether such circumstances should be regarded as exceptional – Exceptional circumstances made out
BAIL – Evidence of the applicant having repeatedly engaged in breaching the rules of his custody – Evidence of the applicant’s father having approached important Crown witness prior to the applicant’s second trial – Where bail proposal involved the applicant being released to reside with his father and mother – Evidence of previously fractured relationship between the applicant and his parents – Evidence given by the applicant’s father on a previous application for release which established that he was unable to control the applicant’s conduct in the period leading up to his arrest – Evidence that the applicant had been found to have religious texts in his possession in custody which espoused violent ideology – Risks of flight and the commission of further offences if released – Where risks could not be mitigated by the imposition of conditions – Application for release refused.
SENTENCING — appeals — appeal against sentence — misapplication of principle — whether sentencing judge failed to assess objective seriousness — whether sentencing judge erred in determining starting point for sequences 6 and 7 — whether sentencing judge erred in failing to give full effect to historical sentencing practices — historical child sexual assault offences — indecent assault — carnal knowledge — construction and application of s 25AA Crimes (Sentencing Procedure) Act 1999 — consideration of interaction between s 25AA and s 6(3) Criminal Appeal Act 1912 — grounds of appeal not made out — appeal dismissed
Judgment of
Brereton JA at [1]
Johnson J at [23]
Lonergan J at [105]
CRIMINAL LAW – Evidence – Expert evidence – Late service of expert report by the Crown – Inability of accused to engage expert to meet the contents of the report – Probative value of the evidence outweighed by procedural unfairness giving rise to a danger of unfair prejudice – Evidence excluded.
CRIMINAL LAW – Practice and Procedure – Juries – Member of the jury failing to follow the evidence – Where member of the jury fell asleep following an absence due to illness – Risk of substantial miscarriage of justice – Juror discharged – Whether trial should continue with jury of 11 persons – Ordered that the trial continue
CRIMINAL LAW – Juries – Practice and procedure – Where accused charged with doing acts in preparation for, or planning, a terrorist act or acts – Where Crown sought to provide jury with a chronology in the nature of a “road map” of the evidence – Where earlier objection was taken by counsel for the accused on the basis that to provide the jury with the chronology would be prejudicial – Where chronology provided – Where further objection taken to a particular entry in the chronology – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Entry permitted
CRIMINAL LAW – Practice and Procedure – Juries – Where communication received from a member of the jury advising that the accused had smiled and given a “thumbs up” signal to the jury upon leaving Court – Question asked by jury member as to whether such behaviour was “normal” – Where the answer to the question posed was “no” – Where that answer may be prejudicial to the right of an accused to a fair trial, notwithstanding the fact that the situation was of the accused’s own making – Application made on behalf of the accused to discharge the jury – Application not opposed by the Crown – Jury discharged
CRIMINAL LAW – Juries – Practice and procedure – Where accused charged with doing acts in preparation for, or planning, a terrorist act or acts – Where Crown sought to provide jury with a Chronology in the nature of a “road map” of the evidence – Where objection was taken by counsel for the accused on the basis that to provide the jury with the Chronology would be prejudicial – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Chronology provided
BAIL – Application by accused for release pending re-trial – Applicant charged doing an act or acts in preparation for, or planning, a terrorist act or acts – Where jury could not reach a unanimous verdict in first trial – Exceptional circumstances test – Application refused
CONTRACTS – Interpretation – management agreement – objective determination of parties’ intention – mercantile agency – ownership of property purchased from nominated business account operated by agent in accordance with agreement – separate question unable to be answered because rights may depend on the nature and effect of termination about which no party adduced satisfactory evidence - preliminary question not answered.
EVIDENCE – Admissibility – Where indication given by the Crown immediately prior to the close of the Crown case of an intention to tender additional material – Where such indication constituted the first notice to the accused of such intention – Whether evidence ought be excluded – Whether procedurally unfair – Procedural unfairness sufficient to create a danger of unfair prejudice – Evidence rejected
EVIDENCE – Admissibility – Evidence of the finding of the accused’s phone in a dismantled state – Whether that evidence admissible against the co-accused – No point of principle
EVIDENCE – Admissibility – Where evidence that one accused left a mobile telephone behind at his premises when he and the co-accused left those premises for the purposes of committing the alleged offence – Where the Crown alleged that the act of leaving the phone behind was a deliberate anti-surveillance tactic of that accused – Whether evidence was admissible against the co-accused on the basis that a joint decision had been reached to leave the phone behind – Evidence rejected
EVIDENCE – Admissibility – Evidence of clothing found in the possession of the accused at the time of arrest – Where investigating police dressed a mannequin in the clothing and photographed it – Where Crown sought to tender the photograph – Objection taken to the evidence – Evidence excluded
EVIDENCE – Admissibility of documents found in the possession of the accused in custody some weeks following his arrest – Where some of the documents expressed extremist views – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence admitted
EVIDENCE – Where Crown sought to lead evidence of footage, images and publications found on electronic devices linked to the accused – Where there was no evidence that the accused had read or viewed the material – Whether evidence relevant – Assessment of probative value and danger of unfair prejudice – Evidence admitted
EVIDENCE – Cross-examination – Whether particular question permissible on the basis of being relevant to the accused’s intentions or relevant to his credit – Question rejected – No point of principle
EVIDENCE – Relevance – Probative value – Danger of unfair prejudice – Accused charged with committing acts in preparation for a terrorist act or acts – Where Crown relied upon evidence of the accused refusing to stand for the National Anthem at a school assembly as evidence going to his intention and ideology – Where Crown sought to lead further evidence of absences from school on days when National Anthem was played – Where Crown case on ideology circumstantial – Necessity to consider circumstantial case as whole – Evidence relevant – No danger of unfair prejudice in the sense of possible misuse by the jury – Evidence admitted
EVIDENCE – Lay opinion evidence – Whether lay opinion necessary to obtain an adequate account or understanding of a perception or event – Where the witnesses were able to give evidence of their own direct observations – Test of necessity not met – Evidence excluded
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Admissions made by one of the accused to police – Where that accused was under the age of 18 at the time – Where those admissions were made in the absence of an adult – Whether there was a proper and sufficient reason for the absence of an adult – No proper and sufficient reason – Opportunity for police to have an adult present – Where police encouraged the making of the statements by the offender in the absence of an adult – Evidence excluded in part
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of the accused in company at a prayer room shortly prior to their arrest – Whether evidence relevant – Whether if relevant evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence admitted
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Evidence of disposal of items by the two accused at the time of doing such acts – Whether evidence relevant – Evidence admitted
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his presence at a previous unrelated protest holding a sign promoting violent ideology – Whether evidence relevant – Whether evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence relevant to the accused’s extremist ideology – Evidence admitted
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his admissions made regarding previous travel to parts of Egypt – Where admissions made outside of Australia to consular officers – Where officers of the Egyptian Government were in close proximity to the accused when the admissions were made – Where the accused had previously been held in Egyptian custody - Whether the admissions had been influenced by the violent and oppressive conduct to which the accused had been subjected when in previous custody – Evidence excluded
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of extremist material found on the mobile telephone and computer of one accused – No direct evidence that the accused had read or viewed the material – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence relevant to the state of mind of the accused – Not unreasonable to assume that accused had viewed, or had intended to view – the material – Evidence admitted
EVIDENCE – Practice and procedure – Application for separate trial – Where Crown sought to try two accused jointly for offence of committing acts in preparation for a terrorist act – Where some evidence admissible against one accused but not the other – Where that evidence clearly defined – Not a case where the evidence to be lead against only one accused was significantly different to or weaker than that which was to be lead against the other accused – Application for separate trial refused
WORDS AND PHRASES – “influence” – “influenced by”
Common Law – Administrative Law – termination of plaintiff from PhD program conducted by defendant – appeal to Student Appeal Board of defendant dismissed – many asserted grounds for judicial review – misconception as to nature of primary appeal – statement of claim dismissed
CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a
question of law alone — subpoena issued for production of criminal records of prosecution witnesses — subpoena set aside — whether legitimate forensic purpose behind subpoena
TAXES AND DUTIES – land tax – s 10AA(3)(b) of the Land Tax Management Act 1956 (NSW) - exemption for land used for primary production – whether land was used for primary production – whether the dominant use of the land was for the maintenance of horses for the purpose of selling them or their natural increase or bodily produce
CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Offender arrested in possession of knives and camouflage clothing – Steps taken by offender in an effort to ensure that he could not be traced – Where offending motivated by an adherence to extremist ideology including a belief that the Australian Government was “evil” – Where actions of the offender were consistent with propaganda published by Islamic State – Where the commission of a terrorist act was imminent at the time of the offender’s arrest – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence
CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Where offender 16 years of age at the time of the offending – Serious offending – Adult like behaviour – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending
APPEAL – criminal – interlocutory appeal – nature of appeal – Evidence Act s 128 – where accused objects to giving evidence – where trial judge refused to grant certificate – jurisdiction – Criminal Appeal Act, s 5F(3) – whether refusal of s 128 certificate an “interlocutory judgment or order given or made in proceedings”
EVIDENCE – Evidence Act s 128 – whether trial judge erroneously refused to grant s 128 certificate – where accused makes tactical decision not to give evidence without certificate – whether accused unfairly hindered in ability to satisfy onus to exclude prejudicial material pursuant to Evidence Act, s 137 – whether accused "objecting" to give evidence – whether accused “compellable” to give evidence
Judgment of
Latham J at [1]; Harrison J at [2]; Garling J at [51]
ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Failure to give adequate reasons for decision – Assessment of whole person impairment under Motor Accidents Compensation Act 1999 (NSW) – Reasons Inadequate – Certificate set aside
CIVIL PROCEDURE – Pleadings – Leave sought to file proposed amended pleading – Abuse of process – No reasonable cause of action – Tendency to cause prejudice, embarrassment or delay – Where proposed pleading embarrassing and disclosed no reasonable cause of action – Leave to file proposed amended pleading refused
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings –Abuse of process – No reasonable cause of action disclosed – Where demands made for payment in settlement of matter before proceedings commenced – Where plaintiff unlikely ever to be able to plead a reasonable cause of action – Where defendant required to incur expense in defending proceedings – Proceedings dismissed
CIVIL PROCEDURE – Inherent power – Abuse of process – Whether orders prohibiting plaintiff from commencing new proceedings dealing with same subject matter without leave appropriate – Whether commencement of new proceedings should be conditional on payment of costs of earlier proceedings – Orders not made
FAMILY LAW — Adoption — Recognition of foreign adoption under s 116 of the Adoption Act 2000 (NSW) — Declaration under s 117 of the Adoption Act 2000 (NSW) — Application for a consent dispense order under s 67(1)(d) of the Adoption Act 2000 (NSW) — Application to dispense with requirement to give notice of application to the Child’s natural parents under s 88(4) of the Adoption Act 2000 (NSW).
CIVIL PROCEDURE — Hearings — Adjournment – immediately prior to commencement of hearing
CIVIL PROCEDURE — Pleadings — Amendment — whether plaintiff permitted to recast case at late stage
CORPORATIONS – liquidators – whether defendant liquidator personally liable for costs – whether liquidator entitled to pay costs from assets of company in liquidation – principles at [3]-[20] – liquidator provoked the litigation – liquidator’s actions infused with self-interest – adversarial stance – wholly failed –liquidator’s conduct unreasonable – unjust for creditors including plaintiff to bear liquidator’s costs via remaining assets of company in liquidation
Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.
CIVIL PROCEDURE – subpoenas – undertaking in relation to documents produced – whether leave should be granted to use documents in another court – personal injury proceedings seeking damages for sexual abuse by plaintiff’s father – father convicted of multiple offences – defendant’s criminal record produced under subpoena by NSW Police - Mareva injunction sought in the United Kingdom to prevent dissipation of proceeds of pending sale of defendant’s property – where a need for defendant’s criminal record to be placed before court in the United Kingdom – leave granted to use criminal record in Mareva injunction proceedings
ADMINISTRATIVE LAW - judicial review - determination of Appeal Panel of Workers Compensation Commission - appeal from Medical Assessor - grounds of appeal - powers of Appeal Panel - whether appeal confined to grounds specified - whether Appeal Panel could refer applicant for further assessment prior to finding error - whether Appeal Panel could have regard to further assessor's report - errors demonstrated - determination quashed - matter remitted to fresh appeal panel
PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – Application for dismissal – Whether no reasonable cause of action because proceedings are statute barred – Whether proceedings are an abuse of process – Where the plaintiff has already been compensated for damages in a class action – Application dismissed
COSTS – security for costs – relevant factors – cross-claim of applicant – stultification of proceedings – strength of respondent’s claim – quantum and form of order
CRIME – appeals – appeal against conviction – fresh evidence – where neither applicant nor co-conspirator gave evidence at trial – where co-conspirator gave evidence at sentence that he only claimed to be preparing to carry out a terrorist attack to manipulate applicant into marrying him – whether evidence given by co-conspirator at sentence was fresh evidence – whether fresh evidence gave rise to miscarriage of justice
EVIDENCE – privileges – immunity – immunity in crime for conspiracy between husband and wife – where applicant and co-conspirator were married during timeframe of conspiracy – whether at the time immediately prior to the introduction of the Criminal Code Act 1995 (Cth) the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife – whether the Criminal Code, s 11.5, inconsistent with any common law immunity
Judgment of
Payne JA at [1];
Johnson J at [88];
Davies J at [89].
COSTS — Party/Party — Court’s discretion — primary judge’s assessment of a party’s commercial interests — whether primary judge erred in determining a party achieved a substantial victory.
Judgment of
McCallum JA at [1];
Emmett AJA at [2];
Simpson AJA at [39]
CRIMINAL LAW – sentencing – murder and manslaughter – senseless killing over drug debt – a little bit of money – sentencing after trial – two offenders convicted of murder – three offenders convicted of manslaughter – assessment of objective criminality – parity – where joint criminal enterprise escalated at the scene – where one offender produced a knife and used it – others unaware that knife would be used – offender employed varying degrees of violence – one behaving like a chook with its head cut off – motive for offence – love triangle unlikely explanation – relevant considerations on sentence
MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – agreement providing for customer to purchase livestock as agent for financier – financier retains title – whether a security interest
MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – priorities – agreement by livestock agent to purchase cattle for customer and fund subsequent agistment and feedlot charges – security for recoupment of agistment and feedlot charges – whether a purchase money security interest – whether a purchase money obligation
COSTS – party/party – general rule that costs follow the event – where mixed outcome in proceedings – plaintiffs’ contempt motion and first defendant’s abuse of process motion both unsuccessful – whether abuse of process motion should be treated as part of a successful defence to contempt motion – where criminal contempt charges against second defendant not upheld but finding of breach of undertaking – held that the general rule should apply on each motion – costs assessed and payable forthwith pursuant to Practice Note SC Eq 3
CIVIL – leave application – leave to apply out of time – Supreme Court Costs Assessment Scheme – assessment of legal costs – costs agreement – costs of the summons – unrepresented plaintiff – question of costs to be determined on the papers – question of disadvantage in responding to costs application – grant of leave to plaintiff – rights in relation to legal costs – reasonable conduct of defendant – unreasonable delay of plaintiff - Court discretion to award costs – exceptional delay without satisfactory explanation
CRIME - sentence - murder - where offender intended to rob victim at his own home – where victim stabbed to death in the course of the robbery - where offence committed over thirty years ago - where offender discovered following findings from a recent review of DNA evidence retained from crime scene - issue of delay – need to sentence according to prevailing sentence practices at the time of the offence – aggravating factors of planning, use of a weapon, committed in home of victim, committed for financial gain - offender with a lengthy criminal record - no remorse shown - poor prospects of rehabilitation – concerns for reoffending – older offender - offender in poor health – special circumstances
CRIMINAL LAW – Crown appeal against sentence – attempt to pervert course of justice – offender pleaded guilty to making false statement to police – statement gave alibi to friend being investigated for sexual assault – offender sentenced on agreed facts – whether sentencing judge erred in failing to find that offender instigated idea of a false statement – whether error in assessment of objective seriousness – whether sentencing judge failed to have regard to full extent of offender's criminality – whether sentence manifestly inadequate – appeal dismissed
CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 23.4 – Application for medical examination of plaintiff and plaintiff’s biological mother – Whether to order blood or buccal sample for medical testing – Where plaintiff’s condition may have been caused by genetic factors instead of or in addition to defendant’s negligence
CRIME – appeal against sentence – Commonwealth offence – conspiracy to import drugs - failure to take into account the utilitarian value of the plea of guilty – re-sentencing required – parity principle and its application – relative role in conspiracy – sentence below quashed and new sentence imposed.
Judgment of
Basten JA at [1];
Rothman J at [20];
Cavanagh J at [83]
CIVIL PROCEDURE – stay of Court orders pending appeal – order to vacate property and remove chattels – COVID-19 virus – need for self-isolation – availability of alterative accommodation – conduct since order made
CIVIL PROCEDURE - service outside Australia - proceedings in which permitted - application to dismiss proceedings - rule 11.6 UCPR – where prescribed notice not served on defendants – whether this Court was an inappropriate forum - whether proceedings have insufficient prospects of success to warrant putting the defendants to the time, expense and delay of defending the claim – whether test under r 11.6 was the same as the test under General Steel Industries Inc v Commissioner for Railways (NSW) -claims under ss 18 and 21 of the Australian Consumer Law – representations alleged to have been made in the United Arab Emirates concerning an employment contract in that place – where representations allegedly made by family members of the plaintiff on behalf of UAE company - whether representations were misleading and deceptive – whether defendants engaged in unconscionable conduct - all claims had poor prospects of success - proceedings dismissed
PRIVATE INTERNATIONAL LAW - jurisdiction - non-exercise of jurisdiction - forum non conveniens - connecting factors – juridical advantage - claims under ss 18 and 21 of the Australian Consumer Law – where no corresponding rights in foreign jurisdiction – where representations made to plaintiff in Australia – where damage suffered in Australia – local court was not an inappropriate forum
CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – whether Crown’s duty of disclosure breached – appellant charged with counts of sexual intercourse with person over 10 and under 14 – appellant’s mobile phone seized pursuant to warrant – Crown brief referred to download of information from mobile phone being available – Crown case statement referred to text message sent by accused to complainant – appellant did not seek access to download – Crown disclosed witness shortly before trial – no objection or application for adjournment – Crown identified witness from downloaded information – whether duty of disclosure extended to fact that Crown had identified witness from downloaded information – nature of duty of disclosure considered – whether verdicts otherwise unreasonable – appeal dismissed
Judgment of
Leeming JA at [1];
Johnson J at [77];
Harrison J at [78].
HIGH RISK OFFENDERS — preliminary hearing — application for interim supervision order and order for examination by court-appointed psychiatrists or psychologists — where orders opposed by defendant — conditions — test for imposition
EVIDENCE — privileges — public interest immunity — applicant produced documents pursuant to order under Crimes (High Risk Offenders) Act 2006 (NSW) s 25 — objection to disclosure of redacted material in documents — protection of police sources and informants — balancing of public interests
CIVIL PROCEDURE — Interlocutory applications in the Duty List — Where prior orders of the Court require the applicant to seek leave before filing a notice of motion returnable in the Duty List– Where the applicant has made numerous failed applications for leave and a further application is made based upon the occurrence of the coronavirus pandemic
CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule
CIVIL PROCEDURE — Originating process — Amendment — Negligence — Indemnity for claim under s 151Z(1)(d) Workers Compensation Act 1987 (NSW) — Tree fall on car — System for inspecting the road — Expert reports — Better particulars of alternate system of inspection — Use of internet resources — Delay
CONTRACTS — Remedies — Damages — Damages after specific performance — claim for additional damages — whether actions of defendant was caused ascertainable loss or damage
REAL PROPERTY – Section 88K Conveyancing Act, 1919
REAL PROPERTY – Section 88K(3) – terms of easement – remedial work
REAL PROPERTY – Section 88K(4) – compensation – market value – injurious affectation – blot on title
COSTS – Section 88K(5) – unreasonable conduct by defendant – order ‘to the contrary’ – relevance of special nature of proceedings for order pursuant to Section 88K(1)
APPEAL - further evidence - special grounds - whether further evidence relevant to appeal confined to question of law - whether further evidence not obtainable with reasonable diligence - Supreme Court Act 1970 (NSW), s 75A(8)
WORKERS COMPENSATION - appeal from Workers Compensation Commission constituted by President - appeal confined to question of law - whether President erred in disregarding evidence of psychiatrist - distinction between identifying meaning of expert report and evaluating evidence - whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment - definition of injury in (former) s 4(b)(ii) of Workers Compensation Act 1987 (NSW), considered
Judgment of
Bell P at [1];
Leeming JA at [2];
White JA at [62].
PROCEDURE – Discovery – Discovery sought to demonstrate good arguable case in freezing order application – Whether discovery sought is too broad – No issues of principle.
COURT – application to transfer oppression suit from Corporations List to Family Court – s. 1337H Corporations Act 2001 (Cth) – principles at [22]-[31] – whether in the interests of justice – parties same in both proceedings – proceedings equally advanced – a third proceedings not proposed to be transferred – oppression suit likely to be determined first – overlap in issues – risk of inconsistent findings– Family Court has jurisdiction to determine all issues while this Court does not – any benefit by early determination of oppression suit simplifying issues in Family Court outweighed by additional costs and dislocation of multiple proceedings – capital gains tax exemptions for Family Court orders – proceedings transferred
Misleading affidavits by solicitor – unhappy judge – lengthy adjournment sought by reason of COVID-19 pandemic – looking past the solicitor to the client and giving one more chance
LOSS AND DAMAGE – quantum – Corporations Act 2001 (Cth) s 1041I(1) – Australian Securities and Investments Commission Act 2001 (Cth)
s 12GF(1) – costs and expenses incurred by the plaintiff in responding to the defendants’ disseminations of information and material in contravention of the law recoverable from the defendants – internal costs which would have been incurred anyway not recoverable.
COSTS – Civil Procedure Act 2005 (NSW) ss 98(1), 98(2), 93(3), 94(4) – specified gross sum order instead of assessed costs appropriate.
CIVIL PROCEDURE - Registrars - review of Registrar’s decision - refusal to set aside a notice to produce and subpoena - motions arising from alleged breach of settlement agreement - many interlocutory skirmishes - application for freezing order - security for costs - appropriate costs order when motions withdrawn or dismissed
COSTS — Party/Party — Specific court rules in relation to costs — Action could not have been brought in inferior court
COSTS — Party/Party — Interest on costs
CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more
DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence
DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry
DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material
DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report
DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter
Judgment of
White JA at [1]; Emmett AJA at [128]; Simpson AJA at [166]
APPEAL - sentence - importing commercial quantity of a border controlled drug (methamphetamine) - applicant sentenced in 2015 - sentencing Judge did not have regard to utilitarian value of plea of guilty - Xiao v R error established - consideration of factors relevant to utilitarian value of plea - discount allowed - applicant with stronger subjective case on sentence in 2020 - lesser sentence warranted - applicant resentenced
Judgment of
Bathurst CJ at [1]
Johnson J at [2]
Ierace J at [81]
LAND LAW – Contract for the sale of land – Purchaser fails to pay agreed deposit of 10% of purchase price – Purchaser unwilling and unable to complete – Contract terminated following Purchaser’s failure to complete – Vendor promptly resells property for a lower price – Vendor seeks recovery of deposit and damages under cl 9 of standard form contract – Whether provision for recovery of deposit is a penalty – Recovery of damages for deficiency on resale and costs and expenses arising from breach – Damages for loss of bargain – Whether provision for interest if completion delayed is a penalty
STATUTORY INTERPRETATION – whether reference to “compensation” in s 134AB(1) of the Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether or not awarded under the Act or the Act of some other state or territory – expressio unius reasoning inappropriate where dealing with interpretation of a “patchwork” statute.
WORKERS COMPENSATION – whether worker who was injured in Victoria but was not entitled to compensation under Victorian workers compensation legislation was nevertheless required to pass through statutory gateways under Victorian legislation when seeking common law damages – where worker had received compensation under NSW workers compensation scheme – whether reference to “compensation” in s 134AB(1) of Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether awarded under that Act or the Act of some other state or territory.
Judgment of
Bell ACJ at [1]; Macfarlan JA at [62]; Emmett AJA at [63]
EQUITY – equitable interest in property – family arrangement – transferee pays off mortgage on property – equity in property exceeds amount owing – transferor permitted to remain in property – licence agreement not signed – relationship breakdown – Baumgartner v Baumgartner equity recognised – equitable compensation grated
EQUITY – general principles and maxims – they who seek equity must do equity – false claim of Commonwealth rental assistance – repayment of monies, interest and penalties as a condition of relief
CRIME – sentencing – mitigating factors – sexual intercourse without consent – community correction order imposed – offender’s self-induced intoxication taken into account in mitigation – error conceded – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
CRIME – sentencing – aggravating factors –whether offender in a position of trust or authority in relation to the victim – victim was niece of offender and heavily intoxicated – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)
CRIME – sentence appeal – appeal against inadequacy by Director of Public Prosecutions – error conceded – whether custodial sentence required –– discretion not to re-sentence
Judgment of
Basten JA at [1];
Rothman J at [47];
Cavanagh J at [64]
CIVIL PROCEDURE — Court administration — Sittings and vacations — Application to vacate — Video link evidence— Covid-19 — Other discretionary considerations
REAL PROPERTY – application for stay of writ of possession – whether defendants entitled to relief in anticipation of regulations that might be made pursuant to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 or s 229 of the Residential Tenancies Act 2010
CRIMINAL LAW – sentencing – drug offences – supplying large commercial quantity of gamma-butyrolactone – GBL – drug imported from China – whether Judge erred in assessment of objective criminality – whether sentence manifestly excessive – whether error in failing to apply Victorian authority relating to importation of the same drug – authority described GBL as “low reward drug” – where Judge referred to “modest profit” received or expected – relevant matter was taken into account – no error in approach
Administrative Law — Judicial Review— Error of law on the face of the record – Motor Accidents Compensation Act 1999 (NSW) – Whether claims assessor failed to sufficiently disclose reasons for assessment of buffers for future treatment expenses and future care - whether the disputed conclusions were legally unreasonable - Appeal allowed
STATUTORY CONSTRUCTION – Environmental Planning and Assessment Act 1979 (NSW) ss 6.19 and 6.20 – proper construction – whether this action is one for loss or damage arising out of or in connection with defective building work – defendant did building work, including on a ventilation duct under a building contract to which the plaintiff was not party – plaintiff occupied part of the building and suffered damage when a fire attributable to the defective building work occurred – Held: that the loss or damage suffered by the plaintiff did not arise out of and was not in connection with the defective building work within the meaning of s 6.20.
SUCCESSION – Probate and administration – Renunciation of Probate by executrix – When renunciation may be retracted – Whether leave to retract should be given
CRIMINAL LAW – bail – COVID-19 – novel coronavirus – pandemic – relevance to bail application – likely delays in summary hearing – conditions of incarceration – suspension of personal visits – access to lawyers – emergency legislation arising from medical emergency – need for accused to be free for lawful purposes – vulnerability of prisons and inmates – exponential increase in recorded cases – self isolation and house arrest – virtual courts
CIVIL PROCEDURE – default judgment – review of Registrar’s decision declining to set aside default judgment – default judgment against guarantor under chattel mortgage agreement for underground mining equipment – mining equipment repossessed after default under chattel mortgage agreement – whether defendant has arguable or triable defence to claim – defendant seeks to challenge assessment of fair market value of mining equipment – no triable or arguable defence disclosed – default judgment confirmed – application dismissed
WORKERS COMPENSATION – determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352
WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4 and 9A
Judgment of
Basten JA at [1];
Payne JA at [61];
Simpson AJA at [62]
HIGH RISK OFFENDER – serious sex offender – application for interim supervision order – conditions – electronic monitoring – access to financial information – access to internet, electronic devices and communications – access to healthcare information – condition abrogating privilege against self-incrimination is permissible
ADMINISTRATIVE LAW – judicial review – s 69 of the Supreme Court Act 1970 – no leave required to institute – leave to bring proceedings out of time – inflexible application of policy – pre-release leave – exceptional circumstances – reasons for decision – further amended summons dismissed – costs reserved
CIVIL PROCEDURE — Set aside a subpoena — Whether there is a legitimate forensic purpose for which access is sought — Whether it is “on the cards” that the documents will materially assist the defendants’ case — Where the plaintiff claims against the defendants in injurious falsehood
CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — trial judge refused to discharge jury although applicant’s trial counsel had withdrawn – error established – importance of counsel to fair trial
Judgment of
Harrison J at [1];
Adamson J at [5];
Button J at [29]
APPEAL – Leave to appeal – winding up order – no substantial injustice.
CORPORATIONS – Winding up on just and equitable ground – where directors planned to place company into liquidation in any event.
Judgment of
Bathurst CJ at [1]; Bell P at [2]; Gleeson JA at [60]
CIVIL PROCEDURE - stay of judgment pending appeal - where parties agree stay is appropriate - where undertaking proffered not to deal with assets pending appeal - where writs recorded on title to some property - whether recording of writs should be cancelled
CIVIL PROCEDURE – Pleadings – strike-out – no reasonable cause of action – leave to amend pleadings – conditional on payment of costs
CIVIL PROCEDURE – separate determination of questions – questions of facts and law – application refused
EQUITY — equitable remedies — injunctions — ex parte — standing — private event held on commercial premises
EQUITY — equitable remedies — injunctions — ex parte — undertaking as to damages
LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 131.1(1) of the Criminal Code Act 1995 (Cth) – whether fit and proper person – appropriateness of making of declarations as to fitness and propriety – order removing name from roll
Judgment of
Bell P at [1]; White JA at [46]; Emmett AJA at [47]
COSTS — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers —Orders when proceedings involve multiple parties — Bullock and Sanderson orders
CORPORATIONS – winding up – liquidators – release under section 480 – prerequisites under rule 7.5 of the Supreme Court (Corporations) Rules 1999 (NSW) – service by email – whether to dispense with requirement for service by prepaid post under rule 7.5(6)
CORPORATIONS – winding up – director withdrew registered office after service of statutory demand – by default, registered office became address of director – plaintiff knew director no longer at that address – director finally located by private investigator – Court’s exercise of discretion under section 467(3)(b) of the Corporations Act 2001 (Cth) – principles at [11]-[13]
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings
COSTS — Party/Party — Court’s discretion – Remitter from the Court of Appeal
CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether unreasonable verdict having regard to the evidence – whether complainant’s evidence implausible – whether complainant’s evidence contradicted by other evidence – whether complainant’s memories reliable – complainant’s evidence found to be reliable – jury’s verdicts reasonable – leave to appeal granted – appeal dismissed
CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether miscarriage of justice – whether onus of proof was reversed – whether applicant’s bad character was implied – matters not raised with trial judge – matters dealt with in applicant’s address to the jury – leave to appeal not granted
Judgment of
R A Hulme J at [1];
Adamson J at [8];
Ierace J at [15]
DEFAMATION – defences – offer to make amends – concerns notice – whether statement of claim a concerns notice – offer to be made within 28 days of receiving concerns notice – no valid offer where made after 28 days – Defamation Act 2005 (NSW), s 14(1)
DEFAMATION – defences – offer to make amends – whether made as soon as reasonably practicable after defendant aware that matter might be defamatory –offer made one year after action commenced – Defamation Act 2005 (NSW), s 18(1)
JUDGMENT – findings at trial that elements of claims made out – defence relied on by trial judge not available – other pleaded defences not pursued – defendant forwent opportunity to appear at trial – plaintiff entitled to judgment on liability
PRACTICE AND PROCEDURE – procedural fairness – bias – actual or apprehended – other proceedings affected – other parties not heard – whether allegations should be resolved
ADMINISTRATIVE LAW – denial of procedural fairness – whether common law right to procedural fairness excluded by statute – Environmental Planning and Assessment Act 1979 (NSW) Sch 5 – legislative intent plain
ENVIRONMENT AND PLANNING – statutory interpretation – whether carving into cement render of wall constitutes “development” – Environmental Planning and Assessment Act 1979 (NSW) s 4.2 – whether development consent obtained
Judgment of
Macfarlan JA at [1];
Meagher JA at [35];
Gleeson JA at [36]
COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time – whether assessment under Legal Profession Uniform Law Application Act 2015 (NSW) or Legal Profession Act 2004 (NSW) – error by Manager as to applicable law – whether error material – whether applicant demonstrated available grounds for review
CIVIL PROCEDURE – application to review decision of Manager, Costs Assessment – whether proceedings for judicial review or review under Uniform Civil Procedure Rules 2005 (NSW), r 49.19, 49.20 – nature of review
WORDS AND PHRASES – “proceeding” – whether appeal is a different proceeding from trial – transitional provision – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59
WORDS AND PHRASES – “review” – Uniform Civil Procedure Rules 2005 (NSW), cl 49.19 – distinguished from judicial review under Supreme Court Act 1970 (NSW), s 69
JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds
COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1987 (NSW), s 30
COSTS – appeal to District Court – indemnity costs ordered – incorrect law relied on by successful party – correct law resulted in same substantive order – costs of successful party
WORDS AND PHRASES – “proceeding” – “proceedings to which the costs relate commenced” – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59
Judgment of
Basten JA at [1];
McCallum JA at [59];
Simpson AJA at [64]
CIVIL PROCEDURE – service – consent to service by email – effective informal service
CORPORATIONS – winding up – liquidators – release under section 480 – principles at [28]-[32] – protracted history of litigation with person standing behind the corporation – prospect of further baseless claims – release under section 480 – prerequisites under rule 7.5 of Supreme Court (Corporation) Rules 1999 (NSW) – whether service under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) satisfied – whether dispense with requirement for service by prepaid post – principles at [34]-[37]
DEFAMATION – appeals – publication – Facebook – where defamatory posts made on public Facebook page styled “Narri Leaks” – evidence of publication – whether evidence outside particularised case – proof of extent of publication – whether respondent’s wife was acting on behalf of respondent in downloading the posts – whether answers to interrogatories evidence of proof of extent of publication – whether appropriate to draw Jones v Dunkel inference where defendant did not give evidence
DEFAMATION – appeals – imputations – whether error in finding three imputations were conveyed by fifth matter complained of
DEFAMATION – appeals – defences – common law qualified privilege – where posts made on public Facebook page – whether excessive publication – where posts downloaded by people outside Narrabri Shire – whether privileged occasion – whether error in rejecting defence of common law qualified privilege
DEFAMATION – appeals – defences – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – where finding that publication was unreasonable – whether presumption of honesty – significance of failure to contact plaintiff prior to publication
DEFAMATION – application for leave to appeal – publication – secondary participant in publication –whether endorsement of defamatory statements – Facebook comments – whether question of principle or of public importance involved – where small amount in issue – whether injustice if refusal of leave
Judgment of
Macfarlan JA at [1]
Gleeson JA at [2]
Brereton JA at [250]
COSTS – incidence of costs – family provision claim – amount of provision within District Court’s jurisdictional limit – whether plaintiff to be deprived of costs under UCPR r 42.34
COSTS – incidence of costs – family provision claim – informal offer – whether plaintiff’s rejection of offer reasonable
CORPORATIONS — leave to sue Court appointed liquidator — principles at [81]-[89] – unfunded liquidators – directors initially uncooperative – directors said companies had no assets and dormant – directors through other corporate entities apply to register trade marks of companies in liquidation – director signs letter on behalf of company in liquidation consenting to new corporate entity acquiring trade mark rights – director accused of ‘phoenixing’ – director does not inform liquidator that companies in liquidation abandoned trade mark rights and other corporate entities acquired those rights through usage and oral assignment – liquidator assigns trade mark rights to petitioning creditor and plaintiffs’ competitor – international trade mark war – plaintiffs application for trade mark initially unsuccessful – liquidation ends – plaintiffs later establish abandonment in other proceedings - complaint made years after completion of liquidation and deregistration of companies – leave refused
INTELLECTUAL PROPERTY – trade marks – abandonment – principles at [45]-[47]
NEGLIGENCE – liquidator’s duty to third parties – principles at [97]-[103] – vulnerability – no vulnerability here
AUSTRALIAN CONSUMER LAW – whether liquidator engaged ‘in trade or commerce’ – principles at [113]-[118] – reliance by third party – poor prospects
INSURANCE – house fire – claim for indemnity – whether insured responsible for fire – circumstantial case – good faith in taking of defence alleging lack of reasonable dispatch in rectifying property
PRACTICE AND PROCEDURE – leave to amend Commercial List Statement
CONSUMER LAW – misleading or deceptive conduct – whether directors were knowingly involved
COSTS – security for costs – where plaintiff undertakes to notify defendants if assets fall below specified value
TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – question of what constitutes “supporting documentation” – question of what constitutes “matters alleged” – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence
APPEAL – Leave to appeal – whether matter at issue amounting to or of the value or involving $100,000 or more – need for party seeking to appeal to demonstrate that jurisdictional threshold satisfied
CONSTITUTIONAL LAW – whether Part 3A of Civil and Administrative Tribunal Act 2013 (NSW) unconstitutional – whether, notwithstanding Part 3A, NCAT invested with federal jurisdiction – whether Part 3A entails discrimination contrary to s 117 of the Commonwealth Constitution
COURTS AND TRIBUNALS – whether Local Court of New South Wales has jurisdiction to entertain a diversity suit involving publication on the internet of matters alleged to contravene s 49ZS of the Anti-Discrimination Act 1977 (NSW)
DISCRIMINATION LAW – whether complaint by a resident of New South Wales against a resident of Queensland referred by President of Anti-Discrimination Board to NCAT could be heard by Local Court of New South Wales
Judgment of
Bell P at [1]; Basten JA at [86]; Leeming JA at [124]
HIGH RISK OFFENDER – final order for ESO made – issues as to Conditions to apply – duration of ESO – electronic monitoring – search and seizure – treating practitioner’s conveyance of information to DSO, only in some circumstances
Substituted service – director gives non-existent address to ASIC – non-existent address a variation on his parents’ address – service on parents likely to come to his attention
CORPORATIONS – Winding up – Termination – solvency clearly demonstrated – commercial morality – relevant factors – inadequate explanation of breaches – no suggestion that changes will be made – failure of director to cooperate with liquidator – suggestion of medical issues – history of non-payment to creditors – not appropriate to terminate winding up – opportunity to present different arrangements for management of company including another director
CRIMINAL LAW – appeal against sentence – child sexual assault – offender suffered from serious mental illnesses – sentencing judge failed to reduce role of general deterrence despite joint submission from Crown and defence – sentencing judge found aggravating factor of substantial harm – whether victim impact statement sufficient to establish substantial harm over and above harm inherent in offence – appeal allowed and offender resentenced
Judgment of
Leeming JA at [1];
Harrison J at [39];
Hamill J at [40].
CRIME — drug offences — Commonwealth offences — import border controlled precursor — pseudoephedrine
SENTENCING — appeal against sentence — sentence contrary to law — whether sentencing judge mistook facts by finding the applicant imported a larger amount of precursor — ground made out — applicant resentenced
SENTENCING — relevant factors on sentence — factual basis for sentence — amount of precursor drug imported — finding inconsistent with agreed facts on sentence
APPEAL – sentence appeal – where Form 1 offences taken into account contrary to legislative requirements – re-sentence – where offences objectively serious – where genuine remorse demonstrated – where good albeit guarded prospects of rehabilitation – where assistance does not entitle applicant to discount – where lesser aggregate sentence not warranted
Judgment of
Hoeben CJ at CL at [1]
Harrison J at [2]
Button J at [88]
EVIDENCE – client legal privilege – claims for legal professional privilege by prosecuting and investigative bodies – relationship between the CDPP and persons within her office – whether relationship is sufficiently “independent” for privilege to exist over communications – Held: privilege claim upheld
CRIMINAL LAW – whether privilege lost under s 125(1) of Evidence Act – whether disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth) to AFP and CDPP unlawful – whether within exception for performance of officer’s duties - s 16(2A) of Income Tax Assessment Act 1936 (Cth) – whether s 3E of Taxation Administration Act 1953 (Cth) limits operation of s 16(2A) – whether arguable construction of statute raises a “fact in issue” in the substantive proceedings within meaning of s 125(1) of Evidence Act – whether communications in “furtherance” of offence – Held: disclosures authorised by s 16(2A)
EVIDENCE – client legal privilege – whether continuation of prosecution and opposition to accused’s motion to stay proceeding is inconsistent with the maintenance of privilege in documents that fall within the prosecutorial duty of disclosure – whether results in an imputed waiver of privilege – relationship between the prosecutorial duty of disclosure and waiver or privilege – Held: no waiver of privilege – R v Bunting (2002) 84 SASR 278 not followed
CONTRACTS – Formation – Evidence relevant to whether parties entered into agreements – Where agreements partly written and partly oral
CONTRACTS – Construction – Identification of terms – Where agreements partly written and partly oral –Reliance on contemporaneous documentation
CRIMINAL APPEAL – prosecution appeal against sentence – home invasion – specially aggravated break and enter – attempted robbery of drug dealer – gun-fight in suburban street – very grave offence – manifest inadequacy – whether error in assessment of objective criminality – where trial Judge makes global finding in relation to co-offenders – failure to make clear finding in respondent’s case – whether Judge erred in assessment of respondent’s role – sheep who was led – where respondent concedes sentence manifestly inadequate – powerful subjective case – deprivation and dysfunctional family life – whether concession should be accepted – residual discretion
Judgment of
Leeming JA at [1]
Harrison J at [2]
Hamill J at [3]
CRIME — appeals — appeal against sentence – sexual offences by grandfather against two granddaughters –whether sentencing judge took into account applicant’s medical condition - whether sentencing judge provided adequate reasons – whether sentence was manifestly excessive - aggravating factors – abuse of position of trust or authority in relation to victim - where being “under authority” was an element of some but not all of offences - vulnerability of victim - where aggravating factors may have been double counted – no lesser sentence warranted
MORTGAGES AND SECURITIES — mortgages — mortgage contracts — form, validity and effect – solicitor’s ad hoc authority to deliver executed mortgage instrument
COSTS — Party/Party or indemnity basis — General rule that costs follow the event — Whether costs should be ordered on an indemnity basis — Whether costs should be paid forthwith
CIVIL PROCEDURE — Referral to mediation of the Court’s own motion
CIVIL PROCEDURE —transfer of proceedings from Dust Diseases Tribunal to Supreme Court of NSW — transfer of proceedings from Supreme Court of NSW to Supreme Court of Queensland – Cross-vesting — Relevant factors
COSTS – where plaintiff obtained costs order against defendants – application for non-party costs order –defendants now in administration – whether costs order should be made against sole director of and ultimate shareholder of defendants and against another company of which that director was also a director and which had provided financial assistance to defendants – whether costs order should also be made against holding company of defendants
COSTS – whether application for non-party costs order was an application to vary the earlier costs order – where that application neither foreshadowed nor made within 14 days of earlier costs order – whether claim precluded by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – whether s 14 of the Civil Procedure Act 2005 (NSW) available to allow claim
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Application to transfer proceedings commenced in the Supreme Court to the District Court — Where declaratory relief sought — Where construction of contractual obligations in issue — Where relations between the Commonwealth government and a foreign government in issue
CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity
EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant's debt to respondent – no error in conclusion by primary judge that impeachment not made out
Judgment of
Bathurst CJ at [1];
Leeming JA at [15];
McCallum JA at [122]
CORPORATIONS — Oppression — Where father of plaintiff had business partnerships with defendant — Several American and Australian companies — Defendant had day-to-day control of interests in Australia — Australian shareholdings approximately 50/50 — Father passed away — Heads of Agreement and Shareholders Agreement to govern future management of Australian companies — Long course of non-communication by defendant — Suit prompted by large number of irregular transactions.
CORPORATIONS — Oppression — Conduct relevant to finding of oppression — Failure to provide information in breach of Shareholders Agreement — Failure to appoint plaintiff as director in breach of Shareholders Agreement — Failure to pay dividends declared to plaintiff where defendant’s dividends fully paid — Large loans to defendant — Use of company funds for defendant’s private ventures — Irrecoverable loans by defendant brought onto the books of the company — Sale of company property at undervalue to related parties — “Adjustments” to defendant’s loan account said to reflect undocumented historical payments — Some transactions conceded by defendant as oppressive — Declaration of oppression made.
CORPORATIONS — Oppression — Defences — Construction arguments raised in defence of breach of Shareholders Agreement — Estoppel by convention — Whether necessary to prove detriment — Delay, acquiescence and laches — Relevance of plaintiff’s conduct — No defence established.
CORPORATIONS — Oppression — Remedies — Plaintiff seeks buyout order — Relevance of defendant’s ability to meet such an order — Group of companies whose principal asset is real property — Appropriate valuation methods — Property holding companies valued on the basis of assets held — Trading company valued as going concern —Determining value but for the oppressive conduct — Fefendant maintained spreadsheet with estimated value of companies’ property and investments —Whether spreadsheet as basis for fair value of property and investments — Whether recoverability of loans properly recorded in financial statements — Appropriate method of determining EBITDA where trend in earnings — Buyout order made.
EVIDENCE — Rule in Browne v Dunn — Business record demonstrably wrong — Author of document gave oral evidence —Not necessary to put inaccuracy of business record prepared years earlier to witness as a matter of fairness.
CIVIL PROCEDURE — Pre-judgment interest — Difference between dividends declared and paid credited to loan account — Loan repayments made from time to time — No consent to treat dividends in this way — Whether “running account” within the meaning of Clayton’s Case — Clayton’s Case not applicable — Interest calculated on balance from time to time from date when debt first arose.
DEFAMATION – defamatory matter – pleaded imputations not conveyed – plaintiff not defamed
DEFAMATION – defences – statutory defence of qualified privilege – facts determined on contingent and hypothetical basis – whether matter of public interest – whether media organisation’s conduct in publishing was reasonable – defence of contextual truth – whether plaintiff’s imputations would cause further harm notwithstanding the truth of contextual imputations – defence of honest opinion
LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted
LAND LAW — Co-ownership — Statutory trust for sale – whether share of property held on trust for other co-owner – whether arguable defence to an application under s 66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale
ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for an adoption order – birth mother and birth father do not consent to adoption order – child has been with adoptive parents from the age of four weeks – child is now six years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order.
HIGH RISK OFFENDERS – withdrawal of application – Court imposed requirement for leave to re-apply
PRACTICE and PROCEDURE – withdrawal after notification that adjournment opposed – leave to withdraw granted on condition of costs and leave to re-apply
PROCEDURE – Application to amend List Statement – Where substantial delay in seeking amendment – Where no real explanation for the delay – Whether no prejudice arises from delay – Question whether limitation period for cause of action with damages as essential component has expired – Question whether claim as sought to be made satisfies Civil Procedure Act 2005, s 65(2)(c) – Question whether Court should otherwise order under s 65(3) – Questions not to be decided on an interlocutory basis.
CRIME – appeals – appeal against sentence – manifest excess – fraud found in upper end of mid-range objective seriousness – eight years of maximum ten is excessive starting point – no room left for offences above mid-range but below worst case – re-sentenced with six year starting point
Judgment of
Macfarlan JA at [1]
R A Hulme J at [2]
Button J at [61]
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether award empowers employer to dismiss firefighters during an intrastate multiday deployment – whether firefighters entitled to overtime payment for entirety of intrastate multiday deployments
Judgment of
Basten JA at [1];
Leeming JA at [42];
White JA at [49]
HIGH RISK OFFENDER – application for Interim Supervision Order – index offence is murder in a domestic violence context – allegations of fact – if proved, warrant Extended Supervision Order – order agreed or not opposed – limited number of conditions contested – determination of appropriate conditions.
COSTS – Exception to general rule that costs follow the event — Offer of compromise/Calderbank offer — Whether the second defendant’s offers were genuine offers of compromise
COSTS – Order for payment of professional costs under s213 Criminal Procedure Act 1986 (NSW)
PROCEDURAL FAIRNESS – Primary judge decided the amount of the plaintiff’s “just and reasonable costs” on bases which they were not given an opportunity to address – Common ground that this constituted a denial of procedural fairness
JUDICIAL REVIEW – Primary judge’s decision resting on matters of which the plaintiffs were given no notice or opportunity to address involved a denial of procedural fairness amounting to jurisdictional error
SENTENCE – CRIMINAL LAW - sentence after trial - offenders found not guilty of murder but guilty of manslaughter - victim stabbed to death - joint criminal enterprise between offenders to cause harm to victim falling short of grievous bodily harm - inability to find beyond reasonable doubt which offender killed the victim - assessment of culpability of each Offender - different levels of culpability found - significant difference in subjective circumstances of offenders - discount for offers to plead guilty to manslaughter - sentences of imprisonment imposed
CIVIL PROCEDURE – pleadings – leave to amend commercial list response to plead proportionate liability defence – whether delay adequately explained – whether risk of prejudice to plaintiff being statute barred from suing concurrent wrongdoer
CRIMINAL LAW - appeal against sentence - five offences involving violence committed in a short period following sustained drinking - one count of intimidation intending to cause fear or physical or mental harm, two counts of reckless wounding, one count of common assault, one count of destroy or damage property - two men wounded, two women fearful for their safety, one woman assaulted by drink poured on her - aggregate sentence of 4 years with non-parole period of 2 years 8 months after 25% reduction for guilty plea - supplementary submissions made after decision reserved and without leave - propriety of making such submissions - whether sentencing judge erred in failing to consider that the injuries to the men amounted to “woundings in technical sense” - whether error in failing to consider medical reports, in circumstances where sentencing judge was not directed to those reports - whether unreasonable weight given to photographs of injuries to men - nature of care involved in use of photographic evidence - whether error in assessment of objective seriousness - relevance of fact that the charges could have proceeded summarily - submissions and evidence adduced which departed from agreed facts - significance of agreed facts - whether submissions based on “provocation” misunderstood by sentencing judge - whether character references unreasonably devalued by sentencing judge - significance of psychologist’s report purporting to diagnose psychiatric conditions - whether sentence manifestly excessive - significance and purpose of aggregate sentence - role of totality when offending was single course of conduct - appeal allowed and applicant resentenced
Judgment of
Hoeben CJ at CL at [1];
Leeming JA at [2];
Lonergan J at [143].
CRIMINAL PROCEDURE - Stay of proceedings - inherent power to prevent abuse of process - appeal from decision of Children’s Court where stay refused - case involving assault of police officers by a minor - where officers on sick report at time of hearing - where adjournment refused - where prosecutor withdrew charges - withdrawn charges later relayed when officers available to give evidence - whether an abuse of process - whether withdrawal and relaying of charges was designed to circumvent refusal of adjournment - importance of fair trial for the plaintiff - where prosecutor’s withdrawal of charges found to be bon fide by the Magistrate - where public confidence in administration of justice not eroded
APPEAL - from Children’s Court - by leave - where necessary to show question of law involved - where prerogative relief also sought – whether Magistrate asked the right question - no error of law - summons dismissed
CRIMINAL LAW – appeal against conviction – delay in bringing appeal – financial disadvantage – whether party to whom disadvantage flowed needs to be established beyond reasonable doubt – where credit card owner named in Court Attendance Notice – whether particular needs to be established – issue at first instance – whether accused was authorised to use the card – deception – whether prosecution required to call merchants to prove they were deceived – circumstantial case – inference that merchants deceived open on the evidence – no merit in conviction appeal – leave to extend time refused
CRIMINAL LAW – application to annul conviction – where applicant present at original hearing – where Minister referred annulment application to Local Court – application of wrong test – interests of justice – no requirement to establish exceptional circumstances
CRIMINAL LAW – annulment application – mental health legislation – where applicant seeks disposition under s 32 – purpose of legislation – whether purpose solely diversionary – criminal liability and mental illness – power to discharge unconditionally – power exercisable where mental illness present at the time of the offence and hearing – where applicant self-represented – where mental health issues not known or raised – Catch 22 – whether annulment “redundant” – where a bond already expired – delay
CRIMINAL LAW – annulment application – where matter referred to court by Minister – whether Minister’s opinion to be taken into account by Local Court exercising jurisdiction – Minister’s opinion irrelevant
TORTS — interference with goods — conversion — elements — where defendant hid and refused to deliver vehicles until payment was made to him — whether demand was made for return of the vehicles — damages
TORTS — interference with goods — detinue — elements — damages
MORTGAGES AND SECURITIES — liens — specific liens — artificer’s or repairer’s lien
CRIMINAL LAW – application for variation of commencement of sentence – where earlier unrelated sentence quashed – whether application for leave to appeal against sentence or application under s 59 – considerable confusion – where no ground impeaching reasons of sentencing judge – nature of appeal – jurisdiction – where extensive delay – whether criminal appeal rules provide a time limit for bringing application – discretionary considerations – where further sentences and parole orders made during period of delay – uncertainty around release dates if application was made earlier – whether egg can be unscrambled – where no evidence of matters relevant to the exercise of discretion – where applicant at large on parole order – rendering nugatory decisions of Parole Authority – application refused in exercise of discretion
Judgment of
Meagher JA at [1]
Johnson J at [2]
Hamill J at [3]
CONTRACTS — Formation — Agreement — Intention to make concluded bargain— Where the whole of the evidence indicates that negotiations are not complete
CONTRACTS — Construction — Interpretation — Natural and ordinary meaning
SUCCESSION — contested probate — testamentary capacity — whether deceased’s age and illness, and exclusion of his son from his will, raised doubt as to his testamentary capacity — whether deceased had the ability to understand the nature and value of his estate — whether deceased suffering from insane delusions that affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — whether alleged false misrepresentation vitiates will
VEXATIOUS PROCEEDINGS – Vexatious Proceedings Act 2008 (NSW) s 8(7) – where defendant and his corporate alter egos have repeatedly, frequently, and unsuccessfully brought final and interlocutory proceedings against the plaintiff without reasonable cause in connection with the same underlying grievance – where substantial costs orders have been made against the defendant and his companies in favour of the plaintiff which have not been met and which have no prospect of being met – where the defendant has expressly stated that he will do all he can to destroy the plaintiff’s solicitor, that he has nothing to lose in causing the plaintiff as much pain as he can, and that he is not going away – HELD – appropriate to make an order that the defendant be prohibited from instituting proceedings in NSW against the plaintiff.
PRACTICE AND PROCEDURE – dismissal of proceedings brought by a company – where Court previously refused leave for the company’s director to bring the proceedings and dismissed the proceedings but ordered stay of the dismissal pending a solicitor coming onto the record – where solicitor came onto the record but promptly ceased to act – HELD – stay of dismissal dissolved
COSTS – where judgment entered in favour of plaintiff in a substantial amount – gross sum costs order made in favour of plaintiff – plaintiff sought to enforce judgment and order – plaintiff obtained freezing order – defendant ultimately paid amount specified in freezing order into court – interlocutory applications and related proceedings thereby resolved without determination on the merits – whether plaintiff should have its costs of those applications
CIVIL PROCEDURE — time — extension of time — service of expert report out of time — whether necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW)
CRIME – appeal against sentence – co-offenders – disparity between sentences – disparity justified once regard had to different objective and subjective circumstances – no legitimate sense of grievance – appeal dismissed
Judgment of
R A Hulme J at [1]
Adamson J at [29]
Ierace J at [30]
CORPORATIONS – Directors and officers – Fiduciary duties and Directors’ duties – Duty to act in good faith in the best interests of company and for proper purpose – Duty not to place oneself in position of conflict of interest between oneself and principal – Where plaintiff company sued two former directors for breach of fiduciary obligations, both in equity and pursuant to 181(1) and 182(1) of the Corporations Act 2001 (Cth) – Where the impugned conduct arose in connection with a 2008 board resolution authorising purchase and development of a house in Wollongong – Project involved plaintiff spending $10.153 million through a subsidiary company whose only asset was the house; all the shares in the subsidiary were sold to a third party in 2013 for $3.75 million, which is what the house was then valued at, leading to a loss for the plaintiff of $6.4 million – In promoting the project to the company’s board, the defendant directors (a married couple) intended to, and later did, use the house as an exclusive rent-free residence for themselves and their children, but did not disclose this intention to the board; they instead advanced a contrary purpose to secure passage of the resolution and personally voted on it instead of recusing themselves – Where one of the two defendant directors cross claimed against the company secretary and the two non-defendant directors of the company who voted on the impugned resolution, contending that if he himself was found liable then these three cross defendants were similarly liable – Held: defendant directors in breach of fiduciary duties and liable to plaintiff for loss of $6.4 million plus interest. Cross claim failed, as the cross defendants were not shown to have been aware of the defendant directors’ true purpose in promoting the purchase.
CORPORATIONS – Directors and officers – Directors’ duties – Duty of care and diligence – Where plaintiff company sued two former directors for breach of the duty of care and diligence, both in equity and pursuant to s 180(1) of the Corporations Act 2001 (Cth) – Where one of the two defendant directors cross claimed against the company secretary and the two non-defendant directors of the company who voted on the impugned resolution, contending that if he himself was found liable then these three cross defendants were similarly liable – Held: defendant directors not liable for breach of this duty due to lack of evidence, and cross defendants could have no coordinate liability to the plaintiff for breach of this duty.
EQUITY – Trusts and trustees – Constructive trusts – Rule in Barnes v Addy – Where plaintiff company sued defendant company (being plaintiff’s former wholly owned subsidiary), asserting a constructive trust over a house which had been purchased with money the plaintiff invested in and loaned to the subsidiary – The expenditure was a result of the breach of fiduciary obligations on the part of two directors of the plaintiff – Defendant received the money with knowledge of the breach because the two defaulting directors were also directors of the defendant company – Where, before proceedings commenced, the plaintiff had converted the debt the defendant owed to it into additional equity in the defendant and then sold all of its shares in the defendant to a third party for $3.75 million – Held: constructive trust not available because plaintiff unable to rescind the earlier transactions and did not seek to rescind the agreement to convert the debt to equity and the sale of shares to the third party.
EQUITY – Equitable remedies – Equitable compensation – Where plaintiff company sought equitable compensation against two defendant directors for breach of fiduciary obligations; plaintiff also sought equitable compensation against its former subsidiary company which received the plaintiff’s funds with knowledge of the breach by the defendant directors – Where plaintiff later converted the debt owed to it by the subsidiary into further equity in the subsidiary and then sold all of its shares in the subsidiary to a third party for $3.75 million – Consideration of the causation test applicable to equitable compensation, including the Privy Council’s decision in Brickenden v London Loan & Savings Co concerning the kind of counterfactual scenarios courts can consider in determining causation – Consideration of distinction advanced between substitutive compensation and reparative compensation – Held: defendant directors held liable to pay equitable compensation to the plaintiff for all of the loss that would not have happened but for the breach (less the $3.75 million from the share sale) plus interest. Plaintiff’s claim for equitable compensation against the subsidiary refused on discretionary grounds because it was inconsistent with the sale of shares in the subsidiary to a third party.