Cases and authorities

MENTAL HEALTH – HIGH RISK OFFENDER – preliminary hearing – forensic patient – orders for the appointment of two experts to conduct examinations of defendant and provide reports to Court – order for examination made – interim extension order sought – Court satisfied documentary material, if proved, establishes that the patient would pose an unacceptable risk of causing serious harm to others if he was no longer a forensic patient – risk cannot be adequately managed by other less restrictive means – order made

PRACTICE AND PROCEDURE – inspection of documents disclosed in proceedings – whether plaintiff and third defendant are associated with trade rivals of fifth defendant – whether there should be a restriction on inspection by plaintiff and third defendant of certain information in the documents

SUCCESSION — Construction — Conditional gifts — Whether condition involved forfeiture in the case of non-fulfilment or was merely a personal obligation — Whether condition precedent or subsequent — Testatrix bequeathed real property to the defendant (her daughter and substitute executrix of her estate) “provided that” within two years from the date of her death she pays to the plaintiff (the testatrix’s son) an amount equivalent to one-third of the market value of that property at the date of her death (“the consideration”) — If the defendant failed or decided not to pay the consideration within the time specified, the property would form part of the remaining balance of the estate (i.e. residue) — As the time period specified had not yet expired and the defendant was ready, willing and able, and had attempted to, pay the consideration amount, the consequences of non-fulfilment of the condition were in a sense moot — Nonetheless, considered that the condition was a condition subsequent SUCCESSION — Executors and administrators — Rights, powers and duties — Whether the defendant executrix was permitted to borrow funds “in her personal capacity”, secured with a registered mortgage over the property, in order to pay the consideration amount to the plaintiff — Will contained clauses empowering executrix and trustee to, inter alia, “use” or “otherwise deal with any real or personal property… on whatever terms as the trustee thinks fit” and “borrow, raise moneys from and to secure by mortgage… the payment… of any money to any persons” — Held that the powers set out in the Will, in context, were powers to facilitate the purposes specified or envisaged by the Will and to facilitate the execution of the trusts created by the Will and the disposition of property — Held that mortgaging the property in order to facilitate a beneficiary (in this case the defendant herself) raising sufficient funds to satisfy the condition of a gift, being to pay the consideration to the plaintiff, was for a purpose envisaged by the Will SUCCESSION — Executors and administrators — Discussion of executrix acting in her capacity as executrix and in her personal capacity — Meaning of executrix acting in her personal capacity EQUITY — Fiduciary duties — Breach — Whether defendant executrix breached her fiduciary duties by obtaining loan in her “personal capacity” secured by mortgage over the property — Whether such conduct demonstrated that the defendant favoured her own interest and failed to act in the best interests of the beneficiaries in the estate — Held that, where it had been accepted by the plaintiff that the defendant would have been permitted to obtain the loan in her capacity as executrix, there was no conflict between interest and duty SUCCESSION — Executors and administrators — Removal of executors WORDS AND PHRASES — “otherwise deal with”

EQUITY – General law – Derivative action at general law – Where the Plaintiff seeks indemnity from the Defendant for the costs of a derivative action that he seeks to bring in the Defendant’s name – whether the Plaintiff’s application should be determined on an ex parte basis or served on the Defendant

SUCCESSION — Family provision — Claim by adult child — Bare paternity — Where parentage testing procedure could bring proceedings to an end

LAND LAW – possession – possession sought by registered proprietor by her tutor – whether basis for doubting efficacy of power of attorney – whether defendant had established common intention constructive trust or estoppel – judgment entered

CIVIL — proceeds of crime — restraining orders made over real property — application under ss 29 & 30 of the Proceeds of Crime Act 2002 to exclude property of registered mortgagee — whether application ought to be stayed having regard to the impact on the family of the borrowers — no basis for stay demonstrated — exclusion orders made in favour of the mortgagee.

CIVIL PROCEDURE — Preliminary discovery — To identify potential defendant — Order for examination — Reasonable inquiries — Exercise of discretion — Whether prospective proceedings are speculative — Whether categories for discovery are too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.2 CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether the plaintiffs have already decided to commence proceedings — Whether scope of discovery too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.3

ADMINISTRATIVE LAW – judicial review – decision of medical assessor referred to review panel – whether review panel failed to apply the lawful test of causation – whether review panel reversed onus of proof – whether review panel failed to expose its actual path of reasoning – whether review panel made a finding when there was no supporting evidence – whether the review panel failed to consider a substantial and clearly articulated argument – whether there was jurisdictional error or error on the face of the record

APPEALS – procedure – stay pending appeal – where bankruptcy notices issued against appellant and second respondent in respect of costs order made below – whether risk that enforcement of costs order would stultify appeal and cross-appeal

ESTOPPEL — proprietary estoppel — standing by — where appellants registered proprietors — where appellants allowed respondents to occupy property long term for no rent — whether first appellant paid for property — whether first appellant asserted ownership of property to respondents — proprietary estoppel not made out APPEALS — review of findings of primary fact — whether primary judge erred by failing to make findings of fact — where evidence lost to passage of time — where multiple conflicting witnesses — error in finding on basis not put to parties or supported by evidence — evidence sufficient to support finding — findings made pursuant to s 75A of the Supreme Court Act 1970 (NSW)

PRACTICE AND PROCEDURE – Security for costs – Application for review of decision of Adamson JA – Review of decision of Registrar ordering security for costs of appeal – Consideration of public importance – Prospects of appeal – Issue of stultification – Obligations as model litigant

CRIME – Appeals – Appeal against sentence –Appropriate where facts relevant to sentencing are disputed to acknowledge in terms that facts adverse to an offender must be proved beyond reasonable doubt – No indication that sentencing judge applied something less than the correct standard of proof CRIME – Appeals – Appeal against sentence – Necessary to give reasons for finding of facts material to sentencing which are under dispute – Failure to give reasons – Resentencing by Court of Criminal Appeal CRIME – Appeals – Appeal against sentence – Parity – Where applicant’s criminality somewhat higher than co-offender and subjective case somewhat weaker – No basis for complaint in relation to parity – No lesser sentence warranted

PRIVATE INTERNATIONAL LAW – Application to serve subpoena outside Australia – whether leave should be granted to serve a subpoena in New Zealand.

CORPORATIONS – Administration – whether convening period should be extended – where extension will facilitate sales process in respect of the companies’ business. CORPORATIONS – Administration – application under s 447A of the Corporations Act 2001 (Cth) for limitation of administrators' personal liability in respect of relevant borrowings – whether it is in the interests of the companies that the borrowing takes place.

CONSUMER LAW — Enforcement and remedies — Injunctions — Default judgment — No issue of principle

CIVIL PROCEDURE – pleadings – amendment – where plaintiff proposes amendments to its list statement after the close of evidence and some months after knowing of the matters of its amended claims – where it would not be just to shut out the plaintiff from pursuing those claims

CIVIL PROCEDURE — application by plaintiff for leave to rely on expert report in reply served after guillotine order — significant delay in service of expert report — application heard two weeks before trial — previous failed attempts by plaintiff to engage experts — HELD — leave refused due to inadequate explanation of delay and prejudice to defendant

CORPORATIONS – Winding up – Voidable transactions – Separate question as to solvency of company – Whether entities were insolvent during the Relation-Back Period.

CORPORATIONS – deregistration by ASIC – reinstatement – where plaintiff and first defendant were shareholders and first defendant was sole director – where reinstatement sought to enable plaintiff to bring oppression action against first defendant or derivative action in name of company against first and second defendants – whether reinstatement should be ordered under s 601AH(2) of Corporations Act 2001 (Cth) – defendants did not oppose reinstatement – company reinstated – where first defendant intends to resign upon reinstatement of company – orders made for appointment of directors

LAND LAW – possession of land – default under loan agreement and mortgage – where principal not repaid at expiry of the loan agreement – summary judgment sought against guarantors – where defendants failed to serve evidence in response to plaintiff’s claim – defendants’ defence unarguable – summary judgment ordered

MENTAL HEALTH – forensic patient – extension of status as forensic patient – where defendant charged with aggravated sexual assault and found unfit to be tried – lifetime of alcohol abuse by defendant – neurocognitive impairment – risk of relapse – whether unacceptable risk of causing serious harm to others – consideration of other less restrictive means – two court appointed experts – expert reports – impressive progress made by defendant – a finely balanced matter – where Court accepts the views of both experts that an extended order is the least restrictive means available to adequately manage the defendant’s risk – order required to enable the establishment of therapeutic relationships and stability in the community – shorter period of time than sought by the plaintiff warranted –12 months a sufficient period – extension order made

ANIMALS – companion animals – dogs – menacing dog declaration made by authorised officer - validity ADMINISTRATIVE LAW – judicial review of menacing dog declaration – irrelevant considerations – owner’s involvement in prior dog attacks –dog’s prior history of attacks – no express limitation on matters to be considered – subject-matter, scope and purpose of legislation – no implied limitation on addressing matters complained of CIVIL PROCEDURE – judicial review – commencing proceeding – extension of time –10 months extension required – merit of claim – no prejudice to public or defendant – evidence of psychological disability

COSTS – costs referred to in offer of compromise – whether additional costs should be ordered to be paid – no point of principle

EVIDENCE – privileges – legal professional privilege – proceedings for compensation to relatives and personal injury as a result of a rockfall in a national park - defendant objected to production of a geotechnical report obtained by defendant shortly after incident – where defendant claimed the report was subject to legal professional privilege – whether report was prepared for the dominant purpose of seeking legal advice or for use in legal proceedings – where inevitable Coroner would be involved – more likely than not that civil proceedings would be instituted – letter of instruction demonstrated that dominant purpose of report was for legal advice and use in legal proceedings – claim of legal professional privilege upheld EVIDENCE – privileges – legal professional privilege – litigation – where plaintiff submitted that litigation privilege did not extend to coronial proceedings – Coroner’s Court satisfies the definition of an Australian court – litigation privilege extends to coronial proceedings

LIMITATION OF ACTIONS – defamation – Limitation Act 1969 (NSW), s 56A – extension of limitation period – “not reasonable test” – test satisfied – ongoing investigation – plaintiffs’ subjective circumstances – court’s general discretion to determine length of extension

CONTRACTS – Formation – Existence of contract – Whether parties contracted into lottery syndicate at relevant time – Where one party found to have left lottery syndicate – Where no contract existed at the relevant time EQUITY — Trusts and trustees – Whether express trust created for lottery syndicate – Where lottery syndicate had ended EQUITY — Trusts and trustees – Common intention constructive trust – Where lottery syndicate had ended and no common intention to continue legal relationship PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Carrying on business in common – Where no business was being carried on

COSTS – party/party – offers of compromise – where the appellants seek variations to the costs orders made on appeal – where appellants issued offers of compromise to the respondent prior to the commencement of the appeal proceedings – where no notice of motion to vary the costs orders was filed within 14 days of the orders being entered as required by r 36.16(3A) UCPR – whether a letter sent between the parties can be characterised as an application or an intention to make an application to vary a costs order – requirement for a notice of motion dispensed with pursuant to s 14 Civil Procedure Act 2005 (NSW) – where the appellants obtained a judgment that was no less favourable to them than the terms of the offers issued to the respondent – where offers of compromise not renewed between the trial and the appeal

ADMINISTRATIVE LAW — Jurisdictional error — Environmental Planning and Assessment Act 1979 (NSW) — where development consent granted for mine that was State significant development under Div 4.7 — where consent authority did not turn its mind to the likely effects of a necessary power transmission line which was not part of the development application in circumstances where it was proposed that it be included in a later application under Pt 5 — where the precise alignment of the power transmission line was described as unknown — whether transmission line was part of a “single proposed development that is State significant development” under s 4.38(4) — whether the likely environmental impacts of the transmission line were a matter for the consent authority or the court — whether likely environmental impacts of the transmission line were required to be considered by the consent authority — transmission line part of “single development”, but could be subject to later separate application under Pt 4 — likely impacts of the transmission line were nonetheless required to be considered as likely effects of the mine the subject of the development application — the consent authority failed to exercise its jurisdiction by failing to consider the transmission line in its determination — appeal allowed.

CRIME – Appeals – Appeal against conviction – Exclusion of evidence under s 293 of the Criminal Procedure Act 1986 (NSW) – Whether evidence of sexual experience of complainant at about the time of the commission of the alleged prescribed sexual offences – Whether evidence of sexual experience of complainant forms part of connected set of circumstances in which alleged prescribed sexual offences occurred – Evidence not forming part of such circumstances CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where offending occurred at applicant’s chiropractic studio – Where complainant has limited grasp of English – Where complainant took contemporaneous notes – Alleged inconsistencies between notes and other evidence – Where inconsistencies explicable – Verdict reasonably open to jury on all counts

CRIME – appeals – appeal against convictions – knowingly taking part in supply of a prohibited drug – large commercial quantities of methylamphetamine found on premises jointly leased by applicant and her husband – jury directions – directions sought as to (i) applicant’s power as joint tenant to prevent the storage of drugs on premises by co-tenant and (ii) inability of applicant to prevent storage of drugs on premises by husband – directions inappropriate where prosecution case based on knowing and willing participation by applicant WORDS AND PHRASES – “take part in” – “permit”

CIVIL PROCEDURE – discovery – classes or categories of documents – where parties prepared a Redfern schedule setting out their competing contentions in relation to the disputed categories for discovery – where preliminary rulings in relation to those categories were circulated – where parties resolved remaining issues and reached established position in relation to discovery

COSTS – Whether costs be ordered as to separate issues – matter did not proceed to determination of any other claims.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Costs of trustees for sale — Whether plaintiff capitulated — No issue of principle

CHILD WELFARE – adoption – adoption plan –where it is in the children’s best interests for declaration of parentage and adoption orders to be made – where applicant seeks registration of adoption plans providing for means and nature of contact with birth family post-adoption – where children’s treating expert recommends a staged approach to contact with birth parents post-adoption – where birth parents seek increased contact beyond what is proposed in adoption plans – whether adoption plans are in the children’s best interests and proper in all the circumstances

CORPORATIONS – Winding up – Voidable transactions – Application for order under s 588FF(3)(b) of Corporations Act 2001 (Cth) for an extension of the period within which an application may be brought in respect of voidable transactions

CONTRACTS — Formation — Agreement — Whether advances made by corporate trustee to first defendant a loan or gift

PROBATE — testamentary capacity — knowledge and approval — undue influence — elderly testatrix altered will so as to dilute entitlement in favour of son — whether suspicious circumstances — testimonial and documentary evidence as to capacity and knowledge and approval — whether daughter had received real property during lifetime — whether additional reasons for diluting daughter’s entitlement — significance of those reasons — probate granted in favour of son — claim for mesne profits for period of daughter’s occupation of family home — whether claim available — consideration of Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 and Richardson v Richardson [2021] NSWSC 353 SUCCESSION — claim by daughter — whether adequate provision made — whether real property received by her during lifetime — application refused

COSTS – whether costs should follow the event in the absence of submissions to the contrary – no point of principle

CONTRACTS – Interpretation – Whether payments totalling $1.3 million were made by respondent to appellant as a loan – Whether evidence established common assumption between parties as to nature of sum – Whether private uncommunicated views inconsistent with asserted characterisation – Appeal dismissed COSTS – Appeal from costs order of primary judge – Where primary judge ordered each party to bear own costs on the basis that the result was “mixed” – Where final result in proceedings was judgment in favour of AGT – Identification of relevant “event” for purposes of r 42.1 of Uniform Civil Procedure Rules 2005 (NSW) where result mixed – Apportionment of costs on an impressionistic basis – Proportionate reduction appropriate – Cross-appeal allowed APPEALS – Where cross-appeal initially brought with respect to grounds other than strictly costs – Where substantive grounds subsequently fall away – Whether leave to appeal necessary

VALUATION – Compensation for compulsory acquisition of strip of land used for road to Sydney Airport – Market value – Procedural fairness in rejecting valuation method proposed – Notice of basis of rejection – Issue raised both in submissions and on the facts – Running commentary on submissions not required VALUATION – Market value – Statutory disregard of change in value caused by public purpose – Challenge partly overtaken by subsequent case law – No disregard for change in value resulting from owner’s free choice due to suspected acquisition VALUATION – Special value and disturbance – Tax gross up – Issue not raised – No basis for criticism for failing to give reasons with respect to claim not made APPEALS – Jurisdiction of appellate court – Appeal from Land and Environment Court – Question of law – Claimed constructive failure to exercise jurisdiction to make allowance for potentialities – Matter not put as part of appellant’s case below – Complex factual issue necessitating further evidence – No constructive failure – In substance appellant had been seeking to reopen its case

OCCUPATIONAL HEALTH AND SAFETY – question submitted to Court of Criminal Appeal pursuant to s 5AE of Criminal Appeal Act 1912 (NSW) – whether pure question of law – whether appropriate to answer

Arbitration – Award – Application to set aside arbitral award – Where arbitration proceedings arose from dispute concerning contract to provide staff – Where tribunal issued first interim award on issues of liability – Where appellants repleaded their case on quantum ("Contract Criteria Case") – Where respondent objected to Contract Criteria Case on basis of res judicata, issue estoppel, Anshun estoppel and that tribunal was functus officio – Where tribunal rejected respondent's objections and issued second interim award – Where respondent applied to set aside second interim award under s 34(2)(a)(iii) of Commercial Arbitration Act 2012 (WA) – Where primary judge set aside second interim award and held tribunal was functus officio – Where Court of Appeal of Supreme Court of Western Australia dismissed appeal – Whether Court of Appeal erred in holding Supreme Court had power to set aside second interim award under s 34(2)(a)(iii) of Commercial Arbitration Act – Whether Court of Appeal erred in finding standard of review to be applied by Supreme Court is de novo review. Words and phrases – "beyond the scope of the submission to arbitration", "correctness standard", "de novo review", "estoppel", "final and binding", "functus officio", "jurisdiction", "principle of competence-competence", "res judicata", "want of authority". Commercial Arbitration Act 2012 (WA), ss 16, 34. UNCITRAL Arbitration Rules (2010), Art 34. UNCITRAL Model Law on International Commercial Arbitration (1985), Arts 16, 34.

Productivity Partners Pty Ltd v Australian Competition and Consumer Commission Wills v Australian Competition and Consumer Commission Trade practices – Consumer protection – Unconscionable conduct – Where s 21 of Australian Consumer Law ("ACL") relevantly provided that persons must not, in trade or commerce, in connection with supply of services, "engage in conduct that is, in all the circumstances, unconscionable" – Where s 224(1) of ACL relevantly provided that Court may order person to pay pecuniary penalty when that person "knowingly concerned in, or party to, the contravention" of provisions including s 21 – Where Productivity Partners Pty Ltd ("College") offered vocational education and training ("VET") courses funded through Commonwealth loan program – Where College altered enrolment process to remove safeguards ameliorating known risks of unwitting or unsuitable persons becoming and remaining enrolled at date on which VET fees became claimable by College from Commonwealth – Where Mr Wills was Chief Operating Officer of parent company of College and, for part of relevant period, acting Chief Executive Officer of College – Whether College engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Mr Wills knowingly concerned in or party to that contravention. Words and phrases – "accessorial liability", "community expectations", "community standards", "conscience", "corporate systems liability", "ecclesiastical", "essential elements", "essential facts", "essential matters", "intentionally participated", "involved", "knowingly concerned", "moral obloquy", "normative standard", "offensive to conscience", "sharp practice", "societal norms of acceptable commercial behaviour", "unconscionable conduct", "values of Australian common law". Competition and Consumer Act 2010 (Cth), s 139B, Sch 2 (Australian Consumer Law), ss 21, 22, 224(1).

Evidence – Interlocutory appeal – Admissibility – Hearsay evidence – Judicial discretion to exclude evidence – Standard of appellate review – Where s 65 of Evidence Act 2008 (Vic) applied in criminal proceeding if person who made previous representation was not available to give evidence about asserted fact – Where appellant due to stand trial for seven offences committed against one complainant – Where complainant passed away in unrelated circumstances – Where respondent notified appellant of intention to adduce evidence of previous representations made by complainant – Where trial judge ruled evidence satisfied s 65 and refused to exclude evidence of representations under s 137 of Evidence Act – Whether Court of Appeal required to apply principles in House v The King (1936) 55 CLR 499 or "correctness" standard in reviewing trial judge's decision under s 137 of Evidence Act – Whether Court of Appeal erred in assessing danger of unfair prejudice that would result from admission of evidence of representations. Words and phrases – "appellate court", "correctness standard", "discretionary decision", "evidence", "hearsay", "hearsay rule", "interlocutory", "not available", "probative value", "representation", "standard of review", "unfair prejudice". Criminal Procedure Act 2009 (Vic), ss 295, 296, 297, 300. Evidence Act 2008 (Vic), ss 59, 65, 67, 137.

Evidence – Criminal trial – Expert evidence – Opinion evidence – Credibility evidence – Admissibility – Where s 79(1) of Evidence Act 1995 (NSW) provides exception to opinion rule for evidence of opinion that is based wholly or substantially on specialised knowledge based on training, study or experience – Where s 108C of Evidence Act provides similar exception in case of credibility rule – Where appellant convicted of multiple child sexual offences against two nieces – Where respondent adduced evidence from expert witness concerning possible responses of victims of child sexual assault – Where expert gave opinion about circumstances of and responses to child sexual assault in "intra-familial" context – Where expert gave evidence that intra-familial child sexual assault often takes place within family home with other family members proximate – Whether expert evidence went beyond accepted area of expertise and was therefore inadmissible – Whether miscarriage of justice arose from failure to give general and particular directions to jury to limit use of expert evidence. Words and phrases – "area of expertise", "behaviour of perpetrators", "child sexual assault", "credibility", "credibility rule", "direction", "evidence", "expert evidence", "expert witness", "illegitimate use", "intra-familial context", "opinion rule", "responses of victims of child sexual assault", "specialised knowledge", "wholly or substantially based". Evidence Act 1995 (NSW), ss 79, 108

CONTRACT FOR SALE OF LAND – contracts signed but not exchanged – guarantor proffered by purchaser unacceptable – vendor receives higher offer from third party – whether binding contract – whether oral contract – principles at [81]-[86] – parties did not contemplate binding contract prior to exchange – Masters v Cameron inapplicable where parties had not reached finality on all terms, being acceptable guarantor, at [94]. PART PERFORMANCE – principles at [97]-[98] –incorporating special purpose vehicles to buy property not unequivocally referable to alleged agreement – paying deposit without more, insufficient at [99]. PROPRIETARY ESTOPPEL – principles at [103]-[107] – executor selling the family farm – son keen to buy farm and given opportunity to do so – son sells own farm and cattle in effort to do so – unable to raise remaining finance – farm placed on market – executor remains amenable to selling farm to son if can match highest offer – son unable to get loan – son enlists investor, who proposes to buy farm through corporation as trustee for unit trust – son has no role in corporation – son and investor have half-share in units – executor unaware of this arrangement – whether assurances made by executor to son – whether corporation can or did rely on assurances to son – whether detriment – elements not established.

CIVIL PROCEDURE – application for pro bono assistance – whether referral for representation lapsed when not fulfilled by hearing date – referral terminated – whether further referral available – two prior referrals within preceding three years – further referral precluded absent special reasons – no special reasons established CIVIL PROCEDURE – application to vacate hearing date – stay sought pending resolution of criminal appeal in District Court – whether offence committed immaterial to making of declaration the subject of the judicial review proceeding – unrepresented plaintiff seeking legal representation – no expectation of obtaining representation if hearing delayed

CIVIL PROCEDURE – application for approval of proposed settlement – child sexual assault – where tutor appears on behalf of defendant – where defendant pleaded guilty to and convicted of sexual offences committed against the plaintiff in 1997 – proceedings seeking damages for intentional torts commenced by plaintiff – settlement reached at mediation – liability not in issue as a practical matter – whether proposed settlement is beneficial to the interests of plaintiff – settlement approved

CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – whether the request for a further medical examination is reasonable – real purpose of the request is to ascertain whether malingering – improper and impermissible purpose – motion dismissed