Cases and authorities

ARBITRATION – leave to appeal – s 34A, Commercial Arbitration Act 2010 (NSW) – occasions for grant of leave narrowly circumscribed – case law review at [2]-[20] – whether “will substantially affect rights” – s 34A(3)(a) – whether question “of general public importance – building contract for defence project – defence contracts use standard templates widely used – this particular contract was bespoke – s 34A(3)(c)(ii) – whether tribunal decision “open to serious doubt”; less onerous than “obviously wrong” – s 34A(3)(d) – whether “just and proper” to determine the question; nature of the fourth requirement – need to assess whether requirements satisfied for each question for which leave to appeal is sought. BUILDING AND CONSTRUCTION – liquidated damages – the ‘prevention’ principle – principles at [76]-[78].

JUDGMENTS AND ORDERS — Final orders — Where parties previously invited to propose form of final orders and make submissions giving effect to principal judgment — Orders proposed by plaintiff are disputed — Orders proposed by Plaintiff made with some variation EQUITY — Subrogation — Principles in Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 considered and distinguished — Where the present case involves proprietary relief against the person guilty of the fraud to the extent that the misappropriated funds were used to maintain property belonging to the fraudster

Tort – Negligence – Concurrent wrongdoers – Proportionate liability – Where owners corporation claimed damages from developer and head building contractor for construction of building – Where claim for economic loss arising from breach of duty imposed on person carrying out construction work by s 37 of Design and Building Practitioners Act 2020 (NSW) ("DBPA") – Where duty to exercise reasonable care to avoid economic loss caused by defects in or related to building arising from construction work – Whether Pt 4 of Civil Liability Act 2002 (NSW) can limit liability for damages for breach of s 37 of DBPA. Words and phrases – "apportionable claim", "building work", "concurrent wrongdoers", "construction work", "direct liability", "duty of care", "non-delegable duty", "personal liability", "proportionate liability", "statutory duty", "vicarious liability". Civil Liability Act 2002 (NSW), ss 5Q, 34, 34A, 35, 39(a). Design and Building Practitioners Act 2020 (NSW), ss 7(3), 32, 33, 34, 35, 36(1), 37, 38, 39, 40, 41.

Damages – Assessment – Breach of contract – Scope of contractual duty – Remoteness – Where appellant employed by respondent – Where incident involving appellant occurred during travel for appellant's work duties – Where appellant provided with "stand down letter" outlining allegations arising from incident – Where previous reports of appellant's aggressive behaviour – Where disciplinary meeting held for appellant to respond to allegations in stand down letter – Where employment terminated – Where decision to terminate employment based upon allegations of previous aggressive behaviour not put to appellant contrary to respondent's disciplinary procedure – Where appellant diagnosed with major depressive disorder – Whether liability for psychiatric injury caused by employer's breach beyond scope of employer's duty concerned with manner of dismissal – Whether rule in Addis v Gramophone Company Ltd [1909] AC 488 precludes recovery of damages for breach of contract in respect of psychiatric injury caused by manner of dismissal – Whether damage too remote. Contract – Incorporation of terms – Employment contracts – Policies and procedures – Where employer's disciplinary procedure in enterprise agreement and policy document – Where contract of employment required employee to agree to comply with employer's policies and procedures – Whether disciplinary procedure incorporated as term of employment contract. Negligence – Duty of care – Whether employers owe duty to employees to provide safe system of investigation and decision-making with respect to discipline and termination of employment. Words and phrases – "common intention of the parties", "duty of care", "general manner in which the damage occurred", "general type of damage", "incorporation", "manner of dismissal", "mental distress", "on the cards", "psychiatric injury", "reasonable contemplation of the parties", "remoteness of damage", "safe system of work", "scope of contractual duty", "serious possibility", "willing to accept".

LAND LAW — Indigenous land rights — Aboriginal Land Rights Act 1983 (NSW) — claimable Crown lands — where primary judge found land was not claimable Crown lands under s 36(1)(c) because it was needed for an essential public purpose — whether primary judge applied s 36(1)(c) erroneously— where primary judge failed to address the absence of decision of executive government that the land was needed for a particular purpose — where primary judge identified essential public purpose as education provided by private community college — whether primary judge’s conclusion was legally unreasonable APPEALS — right of appeal — scope of right — error of law — where appeal from decision from Land and Environment Court only lies on question of law — whether appeal grounds raise questions of law — where grounds allege error in primary judge’s application of s 36(1)(c) of the Aboriginal Land Rights Act 1983 (NSW)

CIVIL PROCEDURE — Summary dismissal — Abuse of process — Plaintiff suing defendant solicitors in relation to costs arising out of previous family law proceedings and related matters — Application of the defendant to have the plaintiff’s summons struck out on various bases, in circumstances where the plaintiff had commenced related proceedings in this Court seeking substantially similar relief, which proceedings are currently part-heard — Where the plaintiff’s summons otherwise contained similar relief to that which the Court refused her leave to pursue in the related proceedings — Held that the plaintiff’s conduct in filing new summons constituted an abuse of process — Plaintiff’s summons dismissed WORDS AND PHRASES — Meaning of “court” in Uniform Civil Procedure Rules 2005 (NSW) CIVIL PROCEDURE — Summary dismissal — Where the plaintiff’s summons sought appeal or review of an order for default judgment made by the Principal Registrar of the District Court — Discussion of the right of review under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) — Right to appeal under s 127 of the District Court Act 1973 (NSW) not applicable to plaintiff’s claim — Issues of forum and delay — Held that relief seeking appeal or review of the order was untenable COSTS — Gross sum costs orders — Defendant made application for a gross sum costs order — In circumstances where there had already been vexing litigation between the parties over a number of years and the plaintiff planned to permanently relocate overseas, held that gross sum costs order should be made

CIVIL PROCEDURE – withdrawal of concession – where a concession was made by defendant during closing address based on an intermediate appellate court’s decision – where that decision has now been overruled by High Court – where the party now wishes to withdraw the concession – concession not accepted or acted upon by the plaintiff – conditional leave to withdraw granted

JUDGMENTS AND ORDERS – reasons – publication – application for restriction on publication of judgment – where limited redactions made to principal judgment – where plaintiff has determined not to appeal part of principal judgment that deals with confidentiality claims – where plaintiff accepts no further justification for redaction – where plaintiff presses separate application for permanent redaction of document attached to judgment

CORPORATIONS – enforcement of guarantee given by director as to amounts payable under deed of company arrangement – calculation of interest. REAL PROPERTY – termination of co-ownership –whether liquidators should be appointed as trustees for sale under s 66G of the Conveyancing Act 1919 (NSW).

CIVIL PROCEDURE – application for possession of property – where defendant sought leave to file an amended defence – where defendant no longer seeks leave to amend and neither opposes the plaintiff’s orders for possession – order of possession made

BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted

NEGLIGENCE – work accident – where plaintiff subcontractor fell three metres through an open penetration at a construction site sustaining injury – where head contractor owed the plaintiff a duty of care to keep the work site safe – where head contractor installed a timber cover over the penetration as a precaution against falls – whether the head contractor failed to take reasonable care to ensure adequate protection against a risk of falling remained in place whenever the timber cover was removed NEGLIGENCE – contributory negligence – where the plaintiff removed plywood timber covering an open penetration – where the plaintiff then covered the open penetration with a plastic sheet – where the plaintiff stepped onto the plastic and fell through the penetration – whether the plaintiff’s inadvertence or inattention amounted to contributory negligence

COSTS – application for costs order to be paid in gross sum – no question of principle – where proceedings dismissed on appeal from Associate Justice – gross sum costs order made in respect of proceedings including costs of proceedings giving rise to the appeal

FAMILY LAW AND CHILD WELFARE — Adoption of 9 year old child where the birth parents have not provided consent — Whether the birth parents had been provided with the required notice pursuant to ss 72(1) and 88(1)(a) Adoption Act 2000 (NSW) (“Adoption Act”) through email communications FAMILY LAW AND CHILD WELFARE — Notice — Requirements for giving of “notice” discussed — Review of the legislative history and subsequent amendments to s 197(1) Adoption Act, which specifies the manner of giving notice under the Act — Held that notice via email will only fulfil the requirements of s 197(1)(b) if, prior to the notice giver attempting to give notice to the intended recipient by email to a particular email address, the intended recipient confirmed that such email address may be used for the service of documents of that kind — Held that the required notice was not effected FAMILY LAW AND CHILD WELFARE — Dispensing with consent — Whether consent of the birth parents should be dispensed with pursuant to s 67(1)(d) Adoption Act — In circumstances where the child had been placed with the proposed adoptive parents for close to 90% of her life (including the last eight years), there had been little engagement from the birth parents and there was no realistic prospect of the child being able to return to both or either of her birth parents, held that a consent dispense order in respect of the birth parents should be made FAMILY LAW AND CHILD WELFARE — Considerations bearing upon orders dispensing with the requirement for birth parents’ consent identified and discussed — Whether notice of the application for a consent dispense order in respect of the birth parents should be dispensed with pursuant to s 72(2)(c) Adoption Act — While formal notice had not been effected, the birth parents had been made aware of the fact that an adoption order was being sought and progressed in this Court by email correspondence with the applicant — Consideration of the best interests of the child — In the circumstances, held that it was desirable to make the consent dispense order without notice of the application having been given to the birth parents FAMILY LAW AND CHILD WELFARE — Requirements for notice of the application for adoption on the birth parents — Apparent overlap of notification provisions and dispensation powers as between ss 54(3) and 88(1) and (4) Adoption Act discussed and explained FAMILY LAW AND CHILD WELFARE — Whether notice of the application for an adoption order should be dispensed with pursuant to s 88(4) Adoption Act — Despite several unsuccessful attempts to give formal notice of the application to each of the birth parents, both had been made aware that an adoption order was being sought by email correspondence with the applicant — Considered that it would not be in the child’s best interests for any adoption order to be stymied by difficulties with the applicant being able to formally give notice of the application to her birth parents — Held that the giving of notice of the application to the birth parents be dispensed with FAMILY LAW AND CHILD WELFARE — Whether the adoption order should be made — In all the circumstances, held that the adoption order should be made FAMILY LAW AND CHILD WELFARE — Change of name of child under 12 years of age — Whether the Court should approve proposed change to the child’s surname to align with that of her proposed adoptive parents (who shared the same surname) — Consideration of the wishes of the child, the proposed adoptive parents and the birth parents, as well as the assessor’s opinion — Proposed change of surname approved

APPEALS – Leave to appeal – Summary dismissal – Proceedings barred by issue estoppel or Anshun estoppel – Proceedings instituted outside limitation period – No issue of principle or public importance – Leave refused

COMPULSORY ACQUISITION OF LAND —compensation — market value of land — statutory disregard of certain increases or decreases in value of land — public purpose for which the land acquired — meaning of “public purpose” — where Transport for NSW acquired land pursuant to s 177 of the Roads Act 1993 (NSW) for the construction of the M12 motorway — whether broader purpose of developing area of the Western Sydney Airport was part of Transport for NSW’s “public purpose” for the purposes of s 56(1)(a) STATUTORY INTERPRETATION — Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 56(1)(a) — meaning of “public purpose” — whether public purpose in s 56(1)(a) is limited to purposes for which an acquiring authority is authorised by statute to acquire land

EMPLOYMENT AND INDUSTRIAL LAW – Contract terms – Which of two entities in same corporate group is true employer of respondent – What reasonable person in position of all persons potentially party to contract would understand as to which entity was party as employer – Post-contract conduct relevant where contract unwritten – Factors still relevant in employee/independent contractor characterisation context may shed some light on issue – Question of control and direction significant though not definitive CIVIL PROCEDURE – Pleadings – Admission contrary to subsequent argument not withdrawn – Pleadings and particulars define issues for decision – Primary judge entitled to determine issue based on admission LIMITATIONS OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – When plaintiff “ought to know” facts – No requirement that plaintiff knows capacity in which putative defendant might be liable – Reasonable steps to be taken by plaintiff, not plaintiff’s lawyers – Lawyers’ omissions not to rebound on plaintiff where he had taken all reasonable steps NEGLIGENCE – Damages – Non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses, past gratuitous domestic assistance

SUCCESSION — Administration of estates — By her statement of claim, the plaintiff claims that the assets of the deceased’s estate are held on constructive trust for the plaintiff and the first defendant executor, with alternative claims for damages or a family provision order — Claims also made for sums alleged to be owing to the estate from the second defendant trustee — Application for the first defendant’s grant of probate to be revoked and an independent administrator to be appointed — First defendant executor consented on without admissions basis to the revocation of his grant and the appointment of an independent administrator — Identity of appropriate independent administrator discussed — Orders made for revocation of grant and appointment of independent administrator SUCCESSION — Representative orders — Whether the first defendant should be appointed to represent the estate in the defence of the proceedings pursuant to r 7.10(2)(b) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), in circumstances where he is the only person with personal knowledge relevant to the issues in dispute — Whether UCPR r 7.10 was applicable in circumstances where the independent administrator would be joined to the proceedings — UCPR r 7.10(2)(b) order not made SUCCESSION — Administration of estates — Interim distributions — Whether the plaintiff should receive interim distribution from sources which could more promptly realise funds than a property in Kensington which the plaintiff was bequeathed under the Will — Discussion of necessity for independent administrator to also have some cash available — Orders made for interim distribution in accordance with regime agreed between the parties COSTS — Interlocutory applications — Whether the first defendant executor should pay the plaintiff’s costs of the application personally, in circumstances where the first defendant failed to put on evidence or indicate his position on the relief sought on the plaintiff’s application until effectively the day before the hearing, only to substantially concede (on a without admissions basis) to the primary relief sought — Where the plaintiff’s legal representatives had incurred costs in preparing for a fully-contested hearing on the relief sought, including the preparation of a court book and submissions — Held that the first defendant executor pay the plaintiff’s costs of the application incurred over the period specified personally

LAND LAW — Easements — Rights of way – Substantial interference with easements – Remedies for substantial interference – plaintiffs hold the dominant tenement of a right-of-access over rural land of the defendant – the right-of-access provides the primary vehicular access to the plaintiff’s land – the plaintiffs constructed a gravel road over the right-of-access 2018 – the plaintiffs complain in their Summons that the defendant has substantially interfered with their rights of access over the right-of-access by various actions including the placing of obstacles on the easement, the tightening of gate chains the planting of trees – plaintiffs further allege that the defendant engaged in threatening conduct to deter them from using the easement – whether this conduct amounts to an actionable nuisance – whether injunctive relief should be granted or damages assessed in respect of any proven nuisance – the defendant’s Cross Summons complains that the plaintiffs’ construction of the gravel road over the right-of-access over his land has been undertaken improperly and has caused more than as little damage as is practicable to the lot burdened and claims that the burdened lot should be restored to its former condition before the construction of the road – what order should be made in relation to the remediation of the road.

CIVIL PROCEDURE – where directions made to prepare short minutes to give effect to reasons for judgment, including calculation of interest – where determination had been made in reasons for judgment regarding date from which interest was to be calculated – where defendants sought to reagitate that issue – where the defendants had the opportunity to address that issue at the hearing – public interest in finality of litigation – application to reopen issue refused

SENTENCING – Manslaughter – Intentionally damaging property by means of fire in company – Guilty pleas – Joint criminal enterprise to assault the deceased with a co-perpetrator – Did not foresee the possibility that the co-perpetrator would use force to intentionally kill, or inflict grievous bodily harm on the deceased – Offender present when co-perpetrator rendered the fatal assault – attempt to cover up crime by burning deceased’s apartment – whether Bugmy and De La Rosa reduce moral culpability

PROCEDURE – application for separate questions under UCPR 28.2 – where plaintiff seeks orders under Part 1C of the Civil Liability Act 2002 to set aside settlement agreements which may otherwise preclude the plaintiff from maintaining the balance of the proceedings – claimed benefit to defendants of plaintiff’s promise to “take no action”– statutory right to commence proceedings subsequently enacted – construction of s 7D(1) of the Civil Liability Act 2002 – overlap in issues and credit for hearing of separate questions and the balance of the proceedings – application for separate questions rejected.

HIGH RISK OFFENDERS – Final Hearing – application for an extended supervision order – sexual offender – risk factors of substance abuse and impulsivity – history of offences committed shortly after release to parole – limited time spent in community – consideration of statutory criteria – application granted

CIVIL PROCEDURE — jurisdiction — where parts of the plaintiffs amended statement of claim allege breaches of a development consent which would fall within the exclusive jurisdiction of the Land and Environment Court — where the amended statement of claim also alleges nuisance — whether the alleged nuisance is dependent upon a finding of breach of the development consent — held the nuisance was pleaded as a separate issue and the Supreme Court has jurisdiction to deal with a cause of action in nuisance TORTS — private and public nuisance — interference with use and enjoyment of land — whether vehicles parked alongside both sides of the road leading from the Farm and past the plaintiff’s property constitutes nuisance — where plaintiff alleges inability to safely egress from property and interference with enjoyment of their land TORTS — nuisance — remedies — whether injunction should be granted requiring defendants to modify website booking process and place a restriction on the number of vehicles allowed to book — where wording of injunction sought is not a practical means of achieving abatement of the nuisance — where injunction would have a minor or meaningless effect — injunction not ordered

CRIMINAL LAW - sentence - federal offenders - conspiracy to defraud Commonwealth of PAYG tax - conspiracy to deal in proceeds of crime

ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is “core” issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction

CRIME – bail – bail pending conviction appeal – unrepresented applicant – where Court heard full argument on application for leave to appeal prior to application for bail – not a course routinely taken – whether the applicant has established special or exceptional circumstances – length of sentence – prospects of success on appeal – personal circumstances – health concerns – particular concerns with respect to the applicant’s children and grandchild – personal circumstances weighed against all matters – application refused

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – two counts of sexual offences – where applicant found guilty on one count and acquitted on the other – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – discrepancies and inconsistencies in complainant’s evidence – appeal allowed – conviction quashed.

CRIME — Appeals — Appeal against sentence — Where sentencing judge took into account applicant’s juvenile criminal record — Where sentencing judge erroneously took into account unproved allegations — Bugmy v The Queen

CRIME — Appeals — Application for leave to appeal against convictions — Unreasonable verdict — Child sexual assault offences

CRIMINAL LAW – SENTENCE APPEAL – Commonwealth offence – mandatory requirement to take into account prospects of rehabilitation – Crown concession error established – Kentwell error – appeal allowed – resentence – mid-range objective seriousness – subjective value of guilty plea – moderate prospects of rehabilitation.

CRIME – Bail – bail pending appeal – where previous appeal bail applications refused by Court of Criminal Appeal – Bail Act 2013 (NSW) – ss 22 and 74 – whether change in circumstances since previous application – unrepresented applicant – strength of the proposed grounds of appeal – capacity to prepare appeal in custody – conditions in custody – whether the applicant has established special or exceptional circumstances – application dismissed

CRIMINAL PROCEDURE — intensive correction order for federal offender in NSW – Application of Crimes Act 1914 (Cth) STATUTORY CONSTRUCTION — whether in considering making intensive correction order for federal offender in NSW a court is required to apply s 16A of Crimes Act 1914 (Cth) or s 66 Crimes (Sentencing Procedure) Act 1999 (NSW) SENTENCE — gravity of offending — no lesser sentence warranted

CIVIL PROCEDURE – proceedings for persons under legal incapacity – settlement or discontinuance – court approval – wrongful imprisonment at a mental health facility – difficulties obtaining instructions due to the plaintiff’s neurocognitive impairment – whether the settlement in the plaintiff’s best interests – settlement approved

PRACTICE AND PROCEDURE — pleadings —applications in related proceedings — whether plaintiffs should have leave to amend their respective commercial list statements — where proposed changes meet the essential requirements of an acceptable pleading — where defendants on notice of the cases they have to meet — HELD — leave to amend commercial list statement in each set of proceedings granted

PRACTICE AND PRODECURE – Application for recusal on the grounds of actual or apprehended bias – No question of principle.

COSTS – determination of final orders – where both parties have had some measure of success – no question of principle

CORPORATIONS – winding up – where plaintiff sought winding up of company on just and equitable ground – where company was a closely held family company – where plaintiff contended that winding up order should be made because the relationship with her other family members had broken down and she was unable to sell her shares and end her involvement of company – where subsequent to initial hearing of application plaintiff accepted a buy-back offer and ceased to be a member of the company – where parties unable to agree on form of orders resolving proceeding – application dismissed

Pearson v Commonwealth of Australia JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs Minister for Home Affairs v Pearson Minister for Immigration, Citizenship and Multicultural Affairs v Tapiki Statutes – Construction – Migration Act 1958 (Cth) – Aggregate sentences – Where visas subject to mandatory cancellation under s 501(3A) of Migration Act because plaintiff and appellants did not pass character test on basis of s 501(7)(c) – Where s 501(7)(c) engaged if person sentenced to a term of imprisonment of 12 months or more – Where plaintiff and appellants each convicted of multiple offences and received aggregate sentence of imprisonment of 12 months or more – Where items 4(3), 4(4) and 4(5)(b)(i) of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Aggregate Sentences Act") purported to retrospectively validate decisions made under Migration Act rendered invalid by reason that aggregate sentence for 12 months or more was not considered "a term of imprisonment of 12 months or more" – Whether aggregate sentence "a term of imprisonment" within meaning of s 501(7)(c) – Whether Aggregate Sentences Act validated decisions of Administrative Appeals Tribunal affirming decisions not to revoke cancellation of visas – Whether items 4(3), 4(4) and 4(5)(b)(i) of Sch 1 to Aggregate Sentences Act invalid – Whether second applications for special leave should be granted. Words and phrases – "aggregate sentence", "character test", "decision", "imprisonment", "mandatory cancellation of a visa", "punishment for an offence", "sentence", "substantial criminal record", "validity". Migration Act 1958 (Cth), ss 501, 501CA. Migration Amendment (Aggregate Sentences) Act 2023 (Cth), Sch 1, items 4(3), 4(4) and 4(5)(b)(i).

Administrative law – Judicial review – Decision of administrative character made under an enactment – Where prisoner was subject to supervision order of Supreme Court of Queensland – Where Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) required supervision order to contain requirement that prisoner comply with every reasonable direction of corrective services officer – Whether prisoner entitled to reasons for direction – Whether Act source of direction's effect on prisoner's legal obligations. Words and phrases – "decision made under an enactment", "direction", "judicial review", "legal force or effect from statute", "legal rights or obligations", "statement of reasons", "supervision order". Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 16, 16C, 20, 43AA. Judicial Review Act 1991 (Qld), ss 4, 30, 32, 33.

Immigration – Visas – Cancellation of visa – Revocation of cancellation of visa – Where appellant convicted of offences and sentenced to aggregate term of imprisonment – Where appellant's visa mandatorily cancelled on the basis of "substantial criminal record" under s 501(3A) of Migration Act 1958 (Cth) – Where appellant notified of cancellation and invited to make representations about revocation of cancellation decision within 28 days pursuant to s 501CA(3) of Migration Act ("notification") when appellant was receiving psychiatric care – Where appellant lacked legal capacity to make representations sought or to empower person to make decisions on his behalf at date of notification – Where appellant did not make representations sought within 28 days – Where guardian subsequently appointed to appellant pursuant to Guardianship and Administration Act 2019 (Vic) – Whether notification valid – Whether Minister discharged duty in s 501CA(3) at date of notification. Words and phrases – "cancellation", "capacity", "character test", "constructively unperformed", "fit to plead", "guardian", "invitation", "notification", "practicable", "representations", "revocation", "soundness of mind", "substantial criminal record", "unable to be held criminally responsible", "vitiate". Migration Act 1958 (Cth), ss 501, 501CA. Guardianship and Administration Act 2019 (Vic), ss 3(1), 5, 22, 30.

CRIMINAL LAW – special hearing – murder – Crown case based on joint criminal enterprise or extended joint criminal enterprise – no dispute that deceased shot but not by accused – where accused suffers from schizophrenia, intellectual disability and a hearing impairment – dispute at to whether the accused was present at the time plans to kill the deceased were discussed and his ability to comprehend such statements – dispute as to whether the accused ever left the car which he travelled to the deceased’s property in – multiple witnesses criminally concerned in the events and already convicted

CIVIL PROCEDURE – notice of motion – order sought to restrain the defendants from accessing proceeds of sale

CIVIL PROCEDURE – application to vacate hearing – matter set down as undefended – dictates of justice

COSTS — party/party — multiple claims in which plaintiff was primarily, but not totally, successful — costs follow the event on a claim-by-claim basis — apportionment based on costs solely referable to each claim — informal offers of compromise made by both parties — refusal of offers not unreasonable in the context of the claims being pursued at the time — respective applications for special and indemnity costs orders failed — plaintiff entitled to ordinary costs of proceedings apart from costs solely referable to unsuccessful or abandoned claims

COSTS – no question of principle.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – decision of medical appeal panel – psychological injuries – failure of appeal panel to examine worker before rejecting findings of medical assessor and making unfavourable findings as to the worker’s veracity and credibility ADMINISTRATIVE LAW – judicial review – decision of medical appeal panel – failure to give proper, genuine and realistic consideration to worker’s case – lengthy reasons of appeal panel made only one brief reference to worker’s submissions WORKERS’ COMPENSATION – determination of degree of whole person impairment – psychological injury – challenge by employer to findings of medical assessor – assessment of reliability and veracity of worker – proper function of medical appeal panel – varying assessment of psychological injury without examining the worker

COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company — Where defendant’s claim for costs meets the threshold requirement that plaintiff would be unable to pay the costs of the defendant if ordered to do so — Plaintiff had not advanced discretionary grounds for a refusal of security — Security for costs ordered COSTS — Security for costs — Quantum and form — Costs ordered to cover whole of the proceedings but payable across three tranches

ADMINISTRATIVE LAW – judicial review – motor accident injury – whole person impairment based on PTSD – where President’s Delegate refused plaintiff’s application for medical assessment and medical assessment certificate to be referred to a review panel for review – whether failure to consider a substantial and clearly articulated argument – whether Delegate erred in decision to not allow a review of the medical assessment certificate

COSTS – security for costs – release of security following successful appeal – whether security should be continued pending potential application for special leave – no application made within time – security released