Cases and authorities

HIGH RISK OFFENDER – preliminary hearing – serious sex offender – serious violence offender – application for interim supervision order – where making of order and nature of some conditions contested by defendant – whether parole conditions should be imposed under an Interim Supervision Order – 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 – interim supervision order imposed

CIVIL PROCEDURE – matter settled with certain terms to be restated – where defendants proposed a deed – where plaintiffs required payment of their costs of considering deed – where defendants ultimately agreed to orders and notation consistent with settlement – where plaintiffs nonetheless moved for declaratory relief pursuant to Civil Procedure Act 2005 (NSW) s 73(1) and costs

CRIMINAL LAW – application under s78 of the Crimes (Appeal and Review) Act 2001 (NSW) – inquiry into conviction of common assault and appeal from the Local Court’s decision District Court – five previous applications dismissed – application not further dealt with or considered under s 79(3) having been previously dealt with in review proceedings

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”

EQUITY — Trusts and trustees — Quistclose trusts — Whether funds advanced under unwritten agreement were only to be used for purpose of investing in specific land — Whether subsequent loan agreement had legal effect of wholly dealing with any equitable interest in funds — Where subsequent agreement was written EQUITY — Trusts and trustees — Breaches of trust — Whether defendants held traceable proceeds — Whether corporate defendants liable for knowing receipt or knowing assistance — Whether defendants liable as constructive trustees

EVIDENCE – expert evidence – negligence proceedings – historical sex abuse – cross-claim by State for contribution or indemnity from former school teacher – where cross-defendant objects to tender of expert report on the duties and obligations of the school and cross-defendant at the time of the alleged abuse – where expert is a lawyer – where the expert report is described as a ‘legal submission’ rather than an admissible opinion

COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise/Calderbank offers – where the offeror’s requirement that a deed of release be agreed lacked precision – where it was not unreasonable for the plaintiffs to reject the defendants’ Calderbank offer

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Offence of aggravated indecent assault – Where complainant accepted difficulties in memory and recall of events – Whether internal discrepancies and inconsistencies present in complainant’s evidence – Whether complainant’s memories of sexual intercourse and lack of consent reliable – Whether complainant credible – Strong corroboration of complainant’s evidence – Inconsistencies immaterial to credibility and reliability – Jury’s verdict reasonable – Leave to appeal granted – Appeal dismissed CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Where complaint witness not called by Crown – Where trial judge did not give direction after brief enquiry from counsel – Where Crown opening indicated that witness would not be called – Whether Mahmood direction required – No expectation for Crown to call complaint witness – Complaint witness not essential or material – Absence of Mahmood direction to the benefit of the applicant’s submission to the jury – No requirement for Mahmood direction – No miscarriage of justice – Leave to appeal granted – Appeal dismissed

CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task

CRIME – Bail – show cause test – conspiracy to import a border controlled drug – aid and abet the attempted importation of a border controlled drug – AN0M devices – strength of prosecution case – longer delay – cause shown – unacceptable risk test – stringent conditions – bail granted

DEFAMATION — defamatory matter — capacity to convey pleaded imputations — Motion to strike out parts of Statement of Claim — Defamation Act 2005 (NSW) — admissibility of recorded conversation under Surveillance Devices Act 2007 (NSW) and Evidence Act 2005 (NSW) — whether imputations in the Concerns Notice and the Statement of Claim are substantially similar — whether imputations must be pleaded rather than particularised — whether imputations are capable of arising — whether imputations are capable of being defamatory — whether serious harm was pleaded and particularised TORTS — economic torts — Injurious falsehood — whether false statement pleaded — whether false statements are about the plaintiffs’ goods, services or business — whether Statement of Claim fails to give the particulars of the falsity of each statement

CHILD WELFARE – adoption – consent – dispense order – where child is subject to Temporary Care Arrangement pursuant to Children and Young Persons (Care and Protection Act) 1998 (NSW), s 151 – where birth mother consents to adoption – where two putative birth fathers identified – where first putative father cannot be found or identified – where DNA testing results for second putative father delayed – where paternity cannot be confirmed prior to expiry of Temporary Care Arrangement – where it is in child’s best interests to be placed in adoption placement as soon as possible – whether second putative father’s continued involvement would be serious cause for concern for child’s welfare – whether consent dispense order would override putative birth father’s wishes

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 – contract – damages – defects – default judgment entered against builder with damages to be assessed – assessment of damages – no question of principle

COSTS – certificate under Suitors’ Fund Act 1951 (NSW) sought – unsuccessful respondent’s submissions had led lower court into error – unsuccessful respondent sought to defend erroneous decision on appeal – inappropriate to grant certificate

COSTS – Civil Procedure Act 2005 s 98(4)(c) – Determination by the Court of a specific gross sum to be paid instead of assessed costs – Approach to be taken – Where defendant’s proposed figure discounted and the plaintiff’s proposed figure barely differ – HELD – Plaintiff’s amount, rounded down to the nearest hundred dollars ordered

CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Error not required to be shown – Court must be satisfied that it is in the interests of justice to exercise its discretion to vary or set aside Registrar’s order COSTS – Security for costs – Relevant factors – Insolvent plaintiff – Stultification – Court must consider what resources may reasonably be expected to be available to plaintiff – Position of those standing behind plaintiff’s major creditor – Availability of commercial litigation funding

EVIDENCE — Advance ruling — Three counts alleging murder, conspiracy to murder and assault — Admissions — Admissions referring to unavailable video evidence — Discretion to exclude admissions under Evidence Act 1995 (NSW) s 90 — Objections to evidence — Prejudicial evidence — Evidence of criminal association — Probative value of indecipherable conversation captured by surveillance recording device CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing

APPEALS — Contracts — Formation — where primary judge found intention to form a binding and enforceable contract in the terms of a letter — whether primary judge erred in assessment of circumstances — whether primary judge erred in assessment of parties’ intentions — whether contract excluded by prior agreements APPEALS — Procedural fairness — Evidence — where primary judge preferred evidence of plaintiff as to key disputed conversations — where primary judge regarded evidence of defendant as “self-interested” — whether error in treatment of evidence of witnesses APPEALS — Procedural fairness — where slight disparity between pleaded case and case as conducted — where counsel for defendant at first instance confirmed no prejudice — whether defendant denied procedural fairness APPEALS — Further evidence — Power to receive further evidence — where appellant made informal application to adduce fresh evidence on day of hearing — whether leave should be granted to admit fresh evidence

CIVIL PROCEDURE — Court administration — Sittings and vacations — Where counsel for the plaintiff returned brief shortly before final hearing — Whether court should allow plaintiff’s application to vacate final hearing in circumstances where plaintiff no longer has counsel

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient

CORPORATIONS – Voluntary administration – convening periods – whether to grant an extension of convening periods for the second meetings of creditors – where the extension will allow the sale of the business as a going concern – whether any creditors will be prejudiced by the extension.

COSTS — Costs assessment — Review decision of Manager Costs Assessment and extend time — Where further prosecution of proceedings lacked utility — Orders made without merits hearing

ADMINISTRATIVE LAW – review for denial of procedural fairness – review on the grounds of irrelevant and relevant considerations – remedies – discretionary factors – delay – plaintiff is the Owners Corporation of a multi-residential apartment building erected in suburban Sydney – the second defendant is the New South Wales Civil and Administrative Tribunal (“NCAT”) – the first defendant is a Council constituted under the Local Government Act 1993 (“the Council”), and the developer of the complex – after the building work is completed and the building is occupied, the plaintiff sought to file an application with the Registrar of NCAT against the Council and others for breach of the statutory warranties provided under the Home Building Act 1989 – application is rejected by the Registrar – NCAT files a submitting appearance in these proceedings – Council defends NCAT’s rejection of the application – whether the Registrar of NCAT denied the plaintiff procedural fairness in rejecting the application – whether the Registrar took into account irrelevant considerations or failed to take into account relevant considerations in rejecting the application – whether prerogative relief under Supreme Court Act 1970, s 69 should be refused on discretionary grounds due to the delay of the plaintiff in bringing these proceedings.

APPEALS – appeal from Local Court to Supreme Court – damages for loss of chance – where parties have agreed and seek consent orders – orders granted

CIVIL PROCEDURE — Cross-vesting — Application for transfer of proceedings to the Federal Court of Australia – Where the proceedings involve interpretation and application of an access dispute determination made under Part IIIA of the Competition and Consumer Act 2010 (Cth) in the context of a dispute concerning liability to pay wharfage charges under Part 5 of the Ports and Maritime Administration Act 1995 (NSW) – Whether transfer of proceedings is in the interests of justice under s 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

ADMINISTRATIVE LAW – judicial review – jurisdictional error – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs by Secretary –assessment of “maximum amount” – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s rates – whether costs to be assessed on “party/party” basis – disallowance of fees at senior counsel rates

ADMINISTRATIVE LAW – judicial review – jurisdictional error – decision of delegate of President, Personal Injuries Commission to refer medical assessment to review panel – whether not reasonably open to delegate to be satisfied that there was reasonable cause to suspect medical assessment was incorrect in material respect – whether order in the nature of certiorari available – whether relief should be refused on discretionary basis

Administrative law – judicial review – review panel under the Motor Accidents Compensation Act 1999 (NSW) – approach to causation under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW) – adequacy of reasons – whether review panel failed to respond to substantial and clearly articulated arguments – whether review panel failed to consider and evaluate evidence before it and intellectually engage with the case before it

COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — application for indemnity costs — costs of two notices of motion

COURTS AND JUDGES - Bias - Application for recusal – Claim of lack of independence – Whether actual or apprehended bias

CIVIL PROCEDURE

CIVIL PROCEDURE – Evidence – Time – Extension of time – Reasonable period for the filing of evidence – Where an extension of time is required for the filing of lay evidence and expert evidence – Whether delay has come about through the ordinary incidents of complex litigation – Where flexibility concerning filing dates of expert reports is necessary as a result of complexity of matter – Where lay evidence is made available to experts in the ‘best form possible’ to facilitate timely drafting of expert reports

PROCEDURE — Application to set aside Registrar’s orders — Plaintiff overseas and without legal representation — Whether it’s unjust for orders to stand — Orders set aside

ADMINISTRATIVE LAW — review of medical assessment by appeal panel — judicial review of appeal panel decision — where additional evidence before appeal panel — whether appeal panel erred in finding no demonstrable error in medical assessor’s finding that maximum medical improvement had been reached — whether appeal panel erred in finding additional evidence did not establish deterioration of the worker’s condition

Crime — sentence — murder — intimidation — trial by judge alone — where offender intended to make good his intimidation threat if he could locate victim — where offender fatally assaulted murder victim by repeated blows to head, neck and torso — where nature and duration of assault bespeaks intention to kill — whether there was a degree of provocation — nexus between mental health and offences — issue of remorse — Bugmy considerations and moral culpability — poor prospects of rehabilitation — special circumstances

CRIME — appeals — appeal against conviction — unreasonable verdict — whether each or either verdict of guilty in relation to two counts of sexual intercourse without consent cannot be supported having regard to evidence CRIME — appeals — appeal against sentence — application for leave to appeal out of time — application not opposed CRIME — appeals — appeal against sentence —miscarriage of justice — whether discrepancies between the sentencing judge’s findings and evidence — where no objection taken at trial — whether errors of fact capable of influencing sentencing discretion — whether lesser sentence warranted in law

CRIME – appeal against sentence – child sex offences – finding of special circumstances – grounds were age of offender, first period of imprisonment, mental condition and rehabilitation – adjustment to non-parole period from the statutory ratio refused because no need for extended period of rehabilitation – other grounds remained – error in not adjusting non-parole period – offender resentenced

CRIME – Appeals – appeal against sentence – sentencing for state and federal offences – whether the total effective sentence is manifestly excessive – consideration of manifest excess in the absence of comparative cases – totality – leave to appeal granted – appeal upheld – resentenced

CRIME – Appeals – Crown appeal – offences of dangerous driving occasioning grievous bodily harm and failing to stop and assist after vehicle impact occasioning grievous bodily harm – whether the sentencing judge took into account self-induced intoxication as a mitigating factor – whether the sentencing judge erred in his approach to imposing an ICO – manifest inadequacy – exercise of the residual discretion

CRIME – appeals – appeal against conviction – where the applicant and co-accused were charged with murder – where the Crown case was that the deceased died because one or other or both of the applicant and co-accused injected the deceased with drugs – where jury initially directed that if deceased self-injected the applicant was not liable – where trial judge permitted Crown to broaden its case after jury sent out to deliberate – whether trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing – where jury redirected inconsistently with IL v The Queen - where there can be no liability for the applicant for manslaughter in accordance with IL – conviction and sentence quashed – new trial ordered

EVIDENCE – Privileges – Public interest immunity – Evidence excluded in public interest – Matters of state – Where a judge requests the production of further evidence to overcome any defect in a claim for public interest immunity – Whether an adjournment should be granted in circumstances where further evidence is required to overcome any defect in a claim for public interest immunity where the respondent opposes the adjournment – Whether a delay of one week in the resolution of a claim for public interest immunity over a small number of redacted pages is likely to disadvantage the respondent in their preparation for hearing – Where any consideration of claim of public interest immunity should occur in a calm environment allowing for considered debate

EVIDENCE – Privileges – Public interest immunity – Evidence excluded in public interest – Matters of state – Whether the public interest in admitting into evidence documents dealing with State matters is outweighed by the public interest in preserving confidentiality – Whether a person responding to an application for public interest immunity in support of which affidavits are read has a right to cross-examine the deponent – Whether cross-examination of a deponent would be likely to reveal issues relevant to a claim for public interest immunity – Where a respondent to a public interest immunity claim seeks to argue substantive issues during the cross-examination of a deponent of affidavits relied upon by the State in a claim for public interest immunity

CRIMINAL LAW – SENTENCE – Murder – Joint criminal enterprise to kill – offender not present at the scene of the murder – offender conveyed shooter and getaway driver to the car used by them – offender drove the shooter and getaway driver away from another location after the crime – offer and provision of money to offender – mild intellectual disability contributed to involvement in joint criminal enterprise

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer — Where plaintiff gave false evidence — Whether indemnity costs should be ordered

CRIMINAL LAW – application for trial by judge alone – relevant considerations – relevance of mainstream and social media items – extent to which prejudice capable of being cured by direction and vetting of jury panel – where self-defence likely to be raised – extent to which “reasonableness” and application of community standards will apply – facial tattoos – where tattooing patent – where tattoos depict knives or scythes – where death caused by stabbing – whether prejudice capable of being cured by direction – relevance of academic studies close to ten years old – where interests of justice lie

FAMILY LAW AND CHILD WELFARE – Adult adoption – application for adoption by stepfather – whether adoption by stepfather is in the best interests of the adult child – adoption order made – declaration that order does not have effect that mother ceases to be so regarded in law

CONSUMER LAW – Australian Consumer Law (ACL) s 18 – Claim for damages against defendants who made misrepresentations to the plaintiffs which induced them to invest in worthless property investment opportunities – Sixth defendant claims that he was acting as a mere conduit in the provision of information, was a mere introducer and is protected by disclaimers in his emails – HELD – Defendants engaged in conduct which was misleading or deceptive, or likely to mislead or deceive – First defendant was a person involved in the contraventions by the second and fourth defendants – Sixth defendant was not a mere conduit or introducer and did not establish the existence of any disclaimer – Because of the conduct of the defendants the plaintiffs suffered loss

ADMINISTRATIVE LAW – whole person impairment as the result of psychological injury – dispute about whether statutory threshold for damages for non-economic loss met – where parties had not referred dispute for medical assessment – whether damages for non-economic loss can be assessed without medical assessment – summons dismissed STATUTORY INTERPRETATION – construction of Motor Accident Injuries Act 2017 (NSW) – construction of Motor Accident Guidelines – inconsistency with the statute – judgment referred to State Insurance Regulatory Authority