Cases and authorities

CRIME – bail – release application – young person – conspiring to engage in an act in preparation for or planning a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) – show cause – unacceptable risk – extremist ideology – co-conspirators – risk of re-radicalisation – bail concerns – community supports – risk mitigated – bail granted subject to conditions

COSTS – party/party – exception to the general rule that costs follow the event – offers of compromise/Calderbank offers – whether particular circumstances of the case justify Court ordering otherwise to displace defendant’s conditional entitlement to indemnity costs – UCPR part 42 r 42.15A

CIVIL PROCEDURE — parties — joinder of insurers — where seventh defendant opposes joinder due to exception in s 5(4) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — whether the seventh defendant’s insurance policy will not respond to the claim — where seventh defendant’s policy limited liability to a contract price of $500,000 — where the only evidence of contract value was an unsigned statement by the director of the third defendant — joinder allowed

BANKRUPTCY – Proceedings commenced by a plaintiff who subsequently becomes a bankrupt – whether proceedings involving claims for malicious prosecution, false imprisonment and trespass to goods proceedings in respect of a personal wrong done to the bankrupt within s 60(4) of the Bankruptcy Act 1966 (Cth) – whether proceedings continued by the bankrupt – whether aspects of proceedings not within s 60(4) should be dismissed after failure by trustee to elect to continue. COSTS – indemnity costs – offer of compromise under Uniform Civil Procedure Rules 2005 (NSW), r 20.26 – where plaintiff fails to obtain a judgment no more favourable to the plaintiff than the terms of the offer – where plaintiff is unrepresented – indemnity costs order made. COSTS – gross sum costs order – where plaintiff liable for costs is unlikely to be able to pay any costs order – gross sum costs order made.

CRIME – confiscations – restraining order – proceeds of crime

EQUITY – Trusts – Where plaintiff alleges that rural properties in Walgett are held on express trust for the benefit of himself and the fourth defendant – Where trust established in 1962 over a monetary sum for the benefit of plaintiff’s mother – Whether properties held on same trust – Where plaintiff alleges various conversations regarding the fact of the properties being held on trust – Where plaintiff’s claim fails on its merits – Where plaintiff’s claims have been released – Where plaintiff is estopped by issue estoppel and Anshun estoppel SUCCESSION – Family provision – Claim by plaintiff for provision from stepfather’s estate – Where plaintiff is not an eligible person – Where no factors warrant the grant of provision – Where lack of provision justifiable in circumstances of estrangement – Where adult stepchild not a natural object of testamentary intention

ADMINISTRATIVE LAW – jurisdictional error – refusal to submit questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) – whether District Court judge considered irrelevant matters – whether identified questions of law arose on the appeal CRIMINAL PROCEDURE – stay – convictions and sentence confirmed on appeal from Local Court to District Court – sentence served – summons seeking judicial review dismissed – whether convictions could be stayed

CRIMINAL LAW – bail – detention application – where court satisfied respondent will be sentenced to full-time imprisonment – section 22B Bail Act – “special or exceptional circumstances” – where offender under 18 at the time of the offences – where kept in juvenile detention centre before bail granted – where offender now an adult – where legislation provides no power or discretion in bail court for offender to be detained in detention centre on remand – possible lacuna in legislation – where sentencing court has power to order offender to be detained in juvenile institution upon sentence – threats from other accused – where sentencing proceedings to occur in the next 6 weeks – prosecution of detention application fairly and properly muted – special or exceptional circumstances established – application refused

CIVIL PROCEDURE – discovery – whether necessary for resolution of real issues in dispute – issues and relevance to be identified by reference to the pleadings

PARENS PATRIAE – 16 year old boy has heart condition necessitating urgent treatment – In the unlikely event of a difficulty (with the procedure) where bleeding is involved a blood transfusion might be required – The child’s parents and the child oppose blood transfusion on religious grounds – HELD the welfare and best interests of the child require the refusal of consent to be overridden – Obiter observations on the relevance, if any, of s 174 of the Children and Young Persons (Care and Protection) Act 1998 to the exercise of parens patriae jurisdiction

TAXES AND DUTIES — Payroll tax — Assessment — Penalty tax TAXES AND DUTIES — Payroll tax — Assessment — Interest COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Apportionment of costs

HIGH RISK OFFENDER – application for extended supervision order – whether there is an unacceptable risk that the defendant will commit a serious offence – order made

JUDGMENTS AND ORDERS – summary judgment – where no reasonable defence pleaded – where prerequisites for summary judgment established – summary judgment ordered – no point of principle PLEADINGS – defence – leave to file amended defence – whether reasonable defence disclosed on the proposed amended defence – no reasonable defence disclosed – leave refused – no point of principle

CIVIL PROCEDURE — Court of Appeal — Application to vacate appeal

CIVIL PROCEDURE – summary disposal – judgment for plaintiff against defendant – dismissal of cross-claim – List Response struck out – where defendant/cross-claimant has failed to serve evidence in accordance with court orders and appears to have ceased to engage in the proceedings

MENTAL HEALTH – criminal proceedings – defence of mental health impairment – accused unfit to stand trial – whether accused had a mental health impairment at time of carrying out the act – whether the mental health impairment had the effect that accused did not know the nature and quality of the act and that the act was wrong – requirements of s 28(1) and (2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) met – defence of mental health impairment made out

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

EVIDENCE – Hearsay – exceptions – admission – where hearsay evidence of representations by third parties in the absence of the applicant was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW) – where the applicant objected to most of this evidence being admissible against him – whether error in admitting evidence pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – miscarriage of justice – application of proviso APPEALS – From jury verdict – misdirection or non-direction – whether the trial judge failed to direct adequately – whether the trial judge erred in his Honour’s directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – unreasonable verdict

CRIME – bail – release application – show cause test – conspiracy to import commercial quantity of cocaine – Operation Ironside – AN0M devices – admissibility of AN0M evidence – did the applicant enter into a conspiracy – strength of Crown case – long delay – cause shown – unacceptable risk test – electronic monitoring – risk mitigated – bail granted subject to conditions

CRIME – appeal – appeal against sentence –sentences for State and Commonwealth offences – contemporaneous sentences – inconsistent orders – recognizance release order to take effect during State non-parole period – need to adjust structure of sentences

CRIME — appeals — appeal against sentence — statutory mandatory minimum sentence prescribed — proper construction of s 16AAC of the Crimes Act 1914 (Cth) — reduction of mandatory minimum where provisions in s 16AAC(3) apply — error by treating provision as capping maximum discount as a proportion of the mandatory minimum, as opposed to provision setting a minimum floor SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law — whether aggregate sentencing under s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied to federal offences — whether s 53A is capable of being picked up by s 68(1) of the Judiciary Act 1903 (Cth) — whether there is a conflict between Pt 1B of the Crimes Act and s 53A(2)(b) — whether there is a conflict between s 16AAA of the Crimes Act and s 53A(2)(b) — s 53A is capable of being picked up as federal law and does not conflict with Pt 1B or s 16AAA of the Crimes Act

CIVIL PROCEDURE – pleadings – amendment –where plaintiffs’ debt claim against defendants not maintainable – where plaintiffs seek leave to amend on day of final hearing – where defendants not in position to meet claim – whether plaintiff sought to be permitted to amend pleadings – whether, in the alternative, proceedings should be dismissed – where latter course would only add costs and delay to final determination of the dispute

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether Court can retrospectively vary time for acceptance of offer of compromise — UCPR Pt 1 r 1.12, Pt 20 r 20.26(5)(a) SUCCESSION — Family provision — Nature of orders — Whether order expressed as percentage of estate can be made — Succession Act 2006 (NSW), ss 59(2), 65(2)

TORTS — trespass to land — defences — land owned by plaintiff and plaintiff’s predecessor in title used by defendant’s predecessors in title and by defendant as garden since 1960s — plaintiff aware of use by 2009 — balcony, roof overhang, concrete slab, and deck constructed by defendant on, or projecting into airspace of, plaintiff’s land in 2009-2010 without plaintiff’s knowledge — deck reconstructed by defendant in 2019 — plaintiff then became aware of defendant’s construction works — whether works impliedly licensed by plaintiff — limitation — balcony and roof overhang gave rise to continuing trespass — deck (in original form) and concrete slab statute did not EQUITY — equitable remedies — injunctions — trespass to land — mandatory injunction to remove structures — Lord Cairns’ Act damages in lieu of injunction — “good working rule” in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 — adequacy of damages — hardship — mandatory injunction awarded ESTOPPEL — estoppel by convention — discussions concerning purchase of plaintiff’s land by defendant — defendant became aware of unregistered lease between parties’ predecessors in title and asserted during discussions that lease ‘existed’ — whether mutual assumption that defendant entitled to remain in occupation indefinitely — reliance — detriment — no estoppel as to indefinite occupation by defendant LAND LAW — Encroachment of Buildings Act 1922 — application by defendant for compulsory transfer of, or easement over, plaintiff’s land to accommodate encroaching structures built by defendant — defendant’s knowledge of encroachment at time of construction — hardship — application refused LAND LAW — easements — application by defendant for compulsory easement over outdoor stairs built by defendant’s predecessor in title on plaintiff’s land — Conveyancing Act 1919, s 88K — “original architectural vision” of defendant’s predecessor in title — heritage factors — past use by defendant and defendant’s predecessors in title — easement not reasonably necessary for the effective use or development of defendant’s land — alleged necessity resulted from defendant’s own conduct in building up to his boundary — application refused

COSTS – security for costs – relevant factors – impecuniosity – strength of the claim – security for costs application not a mini trial of the merits – plaintiff to provide security for costs

CORPORATIONS – takeover offers – whether contravention of s 630 of the Corporations Act 2001 (Cth) – where any contravention was inadvertent - where persons concerned acted without improper intent – whether an order should be made under s 1325A of the Corporations Act 2001 (Cth).

ADMINISTRATIVE LAW – judicial review – error of law on face of record – jurisdictional error – review of medical assessment by appeal panel – whether medical assessor made appropriate deductions for the proportion of the impairment stemming from previous injuries and pre-existing conditions – adequacy of assessor’s reasons – failure of appeal panel to address grounds and submissions on appeal ADMINISTRATIVE LAW – judicial review – review of medical assessment by appeal panel – obligation to give reasons – adequacy of reasons

SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act 2006 (NSW) is personal and therefore not transmissible so as to survive the applicant’s death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff’s child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the proposed settlement (which included provision to the second plaintiff) ought to proceed without any further requirement for service of a Notice of Claim on the child SUCCESSION — Family provision — Interests of other potentially eligible persons — Basis for disregarding interests — Whether interests of the deceased’s former de facto spouses and the adult child of the second plaintiff can be disregarded — In circumstances where (inter alia) both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded COSTS — Jurisdiction — Whether the Court has jurisdiction to make a costs order in family provision proceedings which abate — Discussion of effect of abatement on proceedings and cases where the Court has determined that the proceedings are a nullity — Authorities indicate that it cannot be presumed that the Court has jurisdiction to make a positive costs order in favour of or against a deceased applicant — Position in respect of costs of defendant executrix is arguably different, as such costs properly incurred will ordinarily be a testamentary expense to be paid out of the estate — Notation made that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of a specific court order — Order made for defendant’s costs to be paid out of the estate on the indemnity basis

APPEALS — leave to appeal — interlocutory orders — orders for preliminary discovery — whether applicants have identified principle of general application or a question public importance or any substantial injustice — where leave to appeal denied

REAL PROPERTY — Claim to beneficial interest in land registered under the Real Property Act 1900 NSW — where primary judge made extensive credit findings — where documentary evidence inconsistent with alleged entitlement — whether primary judge entitled to draw Jones v Dunkel inference — where parties financially interdependent EVIDENCE — Credibility evidence — Cross-examination — collateral issue — where primary judge refused cross-examination — whether collateral issue substantially affected credit APPEALS — From finding of fact — Admission of further evidence — Evidence not available at hearing — informal applications — application refused

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted on two occasions of offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supply prohibited drugs, not less than commercial quantity and s 193C(2) of the Crimes Act 1900 (NSW) of dealing with the proceeds of crime – second set of offending occurred 14 months after first conviction, while respondent was serving an intensive correction order – sentence of imprisonment – relevance of principles in Council of the Law Society of NSW v Parente [2019] NSWCA 33 in circumstances of reoffending – declaration that respondent is not a fit and proper person to remain on the roll of Australian lawyers

CIVIL PROCEDURE – Parties – vexatious litigants – leave to institute proceedings – affidavit filed pursuant to s 14(3) Vexatious Proceedings Act 2008 (NSW) – whether affidavit substantially complied with requirements of s 14(3) – failure adequately to disclose details of previous applications for leave to commence proceedings – application dismissed

CIVIL PROCEDURE – subpoena to produce documents or things – abuse of process – precipitous issue of subpoenas – subpoenas issued and access obtained before defendant had entered appearance or filed defence CIVIL PROCEDURE — Hearings — Ex parte — Duty of disclosure — Orders in relation to subpoenas not just an administrative procedure — Duty of disclosure applies in Online Registry and Online Court — Scope and content of duty of disclosure

COSTS – party/party – costs orders in interlocutory proceedings – where plaintiff did not press notice of motion – plaintiff to pay defendant’s costs of notice of motion

CIVIL PROCEDURE – commencement of proceedings – where second defendant purports to bring a cross-claim against plaintiff seeking relief that could only properly be brought by first defendant – second defendant is the sole director of the first defendant – where leave is required to represent a company – leave not sought – cross-claim struck out for incompetence

CIVIL PROCEDURE – preliminary discovery – whether plaintiff may have cause of action against the defendants – whether plaintiff does not have sufficient information to make decision whether to commence proceedings

CORPORATIONS — Financial reporting — Relief from reporting obligations — Application for relief under s 1322 of the Corporations Act 2001 (Cth) — Extension of time to take specified steps — relief from liability — Whether substantial injustice. CORPORATIONS — Directors and officers — Application for relief under s 1322 of the Corporations Act 2001 (Cth) — Relief from civil liability in respect of failure to take specified steps.

COSTS – Costs order – Calderbank offer – Offer made under Uniform Civil Procedure Rules 2005 (NSW) r 20.26 – Whether offers reasonable in the circumstances COSTS – Party contesting testamentary capacity unsuccessful – Whether unsuccessful party’s costs should be paid out of the estate – Whether pursuit of claim reasonable

SUCCESSION — Intestacy — Whether person in de facto relationship with deceased at date of death and for two years before death

CIVIL PROCEDURE — admissions — admission of facts — withdrawal of admissions and other matters that operate for the benefit of another party — where defendant admitted certain matters pleaded in plaintiff’s statement of claim — where plaintiff seeks to amend statement of claim to withdraw some factual matters admitted in defence — construction and application of Uniform Civil Procedure Rules 2005 (NSW) r 12.6 CIVIL PROCEDURE — pleadings — amendment — application for leave to file an amended statement of claim — where defence admitting pleaded matters has been filed — where plaintiff’s legal representation changed — where new solicitor advised earlier pleaded matters not supported by available evidence including as to the cause of a fire — where plaintiff advised it was necessary to pursue a res ipsa loquitur case — whether amendment is purely tactical — whether leave to amend ought be granted — whether proposed amended statement of claim sufficiently pleads plaintiff’s case — leave granted

CIVIL PROCEDURE – Parties – vexatious litigants – leave to institute proceedings – affidavit filed pursuant to s 14(3) Vexatious Proceedings Act 2008 (NSW) – whether affidavit substantially complied with requirements of s 14(3) – failure to disclose at least two recent applications for leave – application dismissed

ADMINISTRATIVE LAW — standing — judicial review proceedings brought under the Supreme Court Act 1970 (NSW) — whether plaintiff has interest in proceedings beyond that of ordinary member of the public — where plaintiff pursues relief in public interest — where plaintiff pursues no personal right in proceedings — where plaintiff does not seek to gain advantage from proceedings — plaintiff does not have standing CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether plaintiff’s claims are so obviously untenable that they cannot possibly succeed — where plaintiff did not put on submissions or evidence to advance its case — where this Court not empowered to grant some of the relief sought by the plaintiff — where plaintiff’s judicial review application is misconceived CIVIL PROCEDURE — hearings — adjournment — where plaintiff requested adjournment by email to associate — where plaintiff had not complied with timelines for filing evidence and submissions — where plaintiff did not file submissions — where no explanation for failure to comply with court orders was given — where plaintiff was self-represented — adjournment application denied at hearing COSTS — security for costs — where plaintiff corporation produced no bank statements or tax returns or list of assets — plaintiff impecunious COURTS AND JUDGES — bias — where plaintiff alleged bias at hearing — where plaintiff was self-represented — where plaintiff disagreed with judge’s decisions — bias not established

EQUITY – trusts and trustees – constructive trusts – joint endeavour – where both parties had contributed to costs of the construction of a house purchased in the name of one party – where that party did not reside in the house – where the basis for contemplated arrangement that the other parties and their children would continue to live in the house was removed on the legal owner falling into financial difficulties – whether unconscionable for the legal owner to retain the benefit of contributions made by the other parties and the rise in the value of the house where this was not intended.

APPEALS — Leave to appeal — Where garnisheed amount paid into court after default judgment set aside — Civil Procedure Act 2005 (NSW) s 124A — Where defendant applied for payment out of funds in court — Uniform Civil Procedure Rules 2005 (NSW), r 41.3 — Where some funds released — Where defendant applied to vary order and obtain release of balance of funds in court — UCPR r 36.16 — Where variation application dismissed — Whether Court proceeded on misapprehension of facts or relevant law — Where inordinate delay in seeking leave — Whether prejudice occasioned to the respondent — Where underlying proceedings since been heard and judgment reserved — Whether utility in grant of extension of time or grant of leave to appeal

CIVIL PROCEDURE — time limits — extension of time — judicial review — multiple grounds of review — no reviewable error established — no explanation for delay — lack of merit — lack of public interest

LAND LAW — Torrens title— exceptions to indefeasibility — omitted easements — compensation for omission — whether omission resulted in diminution in value — whether dealing fell within terms of environmental planning instrument —memorandum of transfer creating easement was an “agreement, covenant or other similar instrument” — whether easement restricted development

EQUITY – breach of fiduciary duty – knowing receipt – whether primary judge erred in rejecting plaintiffs’ contention that defendants’ positive case was a fabrication – significance of absence of a reply alleging documents fabricated – significance of failure to issue subpoenas – whether primary judge reversed onus – whether plaintiff had established that recipients knew of breach of duty RESTITUTION – money had and received – whether recipients were volunteers – whether recipients made out cases that money was consideration for supply of sanitiser – whether claim available where money had been repaid to or at direction of person transferring the money PLEADINGS – reply – whether fabrication of documents relied on by defendant a pleadable issue – circumstances in which findings of fabrication available

CORPORATIONS – Where Defendants took possession of property used by companies that are in voluntary administration without consent of voluntary administrators or leave of the Court – Whether s 440B applied – Whether leave should be granted to take possession of the property – Whether declaration and injunction should be made

CRIMINAL LAW – Manslaughter – application for Judge alone trial – whether it is in the interests of justice to grant the orders sought – whether the nature and extent of pre-trial publicity were such as to render it in the interests of justice that the order be granted – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where the Crown case relies upon criminal negligence and in the alternative, unlawful and dangerous act – where it is assumed that appropriate judicial directions will be given to the jury – application for a Judge alone trial dismissed

COURTS AND JUDGES – Application for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – Prohibition on publication already enlivened by s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) – necessity – appropriateness of further orders – application refused