Cases and authorities

Criminal law – Sexual offences – Appeal against conviction – Admissibility of evidence – Where appellant convicted of sexual offences against child complainant – Where complainant previously sexually assaulted by another person – Where complainant allegedly disclosed previous sexual assaults in detail to appellant – Where appellant sought to call evidence and cross-examine complainant regarding previous sexual assaults – Where s 293(3) of Criminal Procedure Act 1986 (NSW) prohibits admission of evidence of complainant's sexual experience or sexual activity – Whether evidence admissible under exception to s 293(3) contained in s 293(4)(a) or (b) – Whether evidence formed part of connected set of circumstances in which alleged offending by appellant occurred – Whether evidence related to relationship between appellant and complainant – Whether jury misled by description of previous sexual assaults as "physical assaults" – Whether acquittal of appellant required to avoid new trial that would be unfair to appellant because such evidence inadmissible. Words and phrases – "characterisation of sexual experience", "connected set of circumstances in which the alleged sexual assault occurred", "evidence of sexual activity", "evidence of sexual experience", "forensic disadvantage", "miscarriage of justice", "permanent stay", "power to decide whether to acquit", "probative value", "relates to a relationship", "relationship between the accused person and the complainant", "relationship of trust and confidence", "sexual activity", "sexual experience", "unfair trial". Criminal Appeal Act 1912 (NSW), ss 6, 8. Criminal Procedure Act 1986 (NSW), ss 293(3), 293(4)(a), 293(4)(b), 294CB. Evidence Act 1995 (NSW), ss 55, 56.

Negligence – Duty of care – Where the appellants ("the growers") purchased contaminated grain sorghum seed from a distributor authorised by the respondent ("the producer") – Where the growers consequently suffered pure economic loss in the form of reduced income and increased expenditure – Whether the producer owed the growers a duty to take reasonable care in its production process of the seed to avoid the risk that the growers would sustain pure economic loss by reason of a hidden defect in the seed – Whether the producer had assumed a responsibility towards the growers to take reasonable care to avoid causing them pure economic loss – Whether the salient features of the relationship between the producer and the growers established a duty of care to avoid causing pure economic loss. Words and phrases – "assumption of responsibility", "control", "disclaimer of responsibility", "duty of care", "indeterminacy", "intention", "knowledge", "proximity", "pure economic loss", "reasonable foreseeability", "salient features", "vulnerability".

CRIME – appeals – appeal against sentence – child sexual assault against multiple victims – trial judge sentenced on the basis of a concession – whether sentence manifestly excessive

COSTS — Solicitor/Client — Recovery — Solicitor’s lien — Settlement proceeds paid into Court pending costs assessment

EVIDENCE – expert evidence – admissibility of expert reports – whether expert possessed specialised knowledge – whether expert report inadmissible because of expert’s opinion being based upon facts not independently proved – evidence admitted

EVIDENCE — procedure — expert evidence — r 31.28 of Uniform Civil Procedure Rules 2005 (NSW) — application by plaintiff for leave to rely on expert report served late — whether exceptional circumstances exist — HELD — exceptional circumstances not established by plaintiff

COSTS — party/party — parties involved in property investment and development ventures — dispute about financing of several development ventures — majority of claims settled out of Court — partnership account ordered — all substantiative claims for relief determined — apportionment of costs to reflect mixed success of parties on claim and cross-claims — costs to lie where they fall in relation to settled claims — Re Minister for Immigration; Ex parte Lai Qin (1997) 186 CLR 622 — general rule that costs follow the event to be applied distributively by reference to separate “events”

APPEALS — Leave to appeal from decision of Local Court under ss 40 and 41 of the Local Court Act 2007 (NSW) — Magistrate’s decision to award costs — leave refused. COSTS — final orders — indemnity costs — offer of compromise and alternative Calderbank offer — Uniform Civil Procedure Rules 2005 (NSW) 42.14 — purpose of the Small Claims Division and the overriding purpose of s 56(1) of the Civil Procedure Act 2005 – complexity of pleadings and the inclusion of unnecessary causes of action — transfer of proceedings to the General Division — no error of principle or law demonstrated in the exercise of the Magistrate’s cost discretion.

Arbitration – Proportionate liability – Where contract for engineering consultancy provided for referral of disputes to arbitration – Where dispute as to performance of contract referred to arbitration – Where arbitration conducted pursuant to Commercial Arbitration Act 2011 (SA) – Where law applicable to substance of dispute is the law of South Australia – Where respondent claims damages for breach of contract, negligence and misleading or deceptive conduct – Where appellant denies liability – Where in alternative appellant contends liability reduced by reference to alleged concurrent wrongdoing of third party in accordance with proportionate liability laws in Pt 3 of Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ("Law Reform Act") and Pt VIA of Competition and Consumer Act 2010 (Cth) ("CCA") – Where third party not and cannot be required to be party to arbitration – Where respondent denies applicability of proportionate liability laws in arbitration – Where appellant applied to Supreme Court of South Australia for leave to obtain determination of question of law as to applicability of proportionate liability laws in arbitration – Whether proportionate liability laws in Pt 3 of Law Reform Act and Pt VIA of CCA apply in arbitration. Words and phrases – "apportionable claim", "arbitrability", "capable of settlement by arbitration", "capable of translation or adaptation", "choice of law", "concurrent wrongdoer", "express or implied choice of law", "joinder", "non‑arbitrable subject matter", "paramount object of arbitration", "party autonomy", "proportionate liability", "public policy", "rules of law applicable to the substance of the dispute", "solidary liability". Competition and Consumer Act 2010 (Cth), Pt VIA. Commercial Arbitration Act 2011 (SA), ss 1C, 5, 16, 19, 27J, 28, 34. Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), Pt 3. UNCITRAL Model Law on International Commercial Arbitration (1985), Arts 5, 16, 19, 28, 34.

PRACTICE AND PROCEDURE – urgent application for stay pending as yet unfiled application for special leave to appeal to the High Court – application of Burgundy Royale test – no substantial prospect of special leave being granted – stay refused

CRIME — appeals — appeal against conviction — unreasonable verdict — 11 counts of sexual offending by applicant against biological daughter — whether verdicts unable to be supported by the evidence — whether complainant lacked credibility — where complainant did not make contemporaneous complaint — whether complainant had motive to lie — where there were minor inconsistencies in complainant’s evidence as to tangential details — whether complainant’s version implausible CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of offence under s 66C(2) of the Crimes Act 1900 (NSW) — where s 66C(2) requires proof that complainant was under 14 years of age at time of offending — where there was reasonable doubt as to complainant’s age — where alternative charge under s 66C(4) was left to jury — whether Court of Criminal Appeal could find the applicant guilty of the alternative count

CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence on ground that indicative sentence was manifestly excessive — where applicant did not submit that aggregate sentence was manifestly excessive — where patent error was not alleged — whether alleged manifestly excessive indicative sentence caused sentencing discretion to miscarry — whether Court could re-exercise sentencing discretion on such basis

CORPORATIONS - Statutory demand - Application to set aside creditor's statutory demand - Whether there is a genuine dispute about the existence of the debt.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

COSTS – appropriate costs order where interlocutory order resolves substantive dispute – order that each party bear their own costs – no question of principle

SUCCESSION — Administration of estates – deceased’s will appoints one of her five children as executor of her estate – will divides the residue of deceased’s estate into five equal shares to be distributed among the deceased’s four surviving children and the widow of a deceased child – contest takes place in relation to the passing of estate accounts and the awarding of commission to the executor – estate accounts passed and commission awarded to the executor by the Registrar in a decision upheld on review by the Probate Judge – the executor then distributes the estate – remaining disagreement among the beneficiaries concerning monies which the executor has sought to deduct from the distribution of the share of residue to several of the beneficiaries – whether the executor has administered the estate in accordance with the passed accounts and in accordance with the will of the deceased – whether the executor gave notice of intended distribution so as to protect himself against claims for wrongful distribution – only comparatively small sums of money remain in dispute – what is the most efficient way of managing the balance of the issues in the proceedings to finality.

CONTRACT – contracts for residential building work – trial of claims for damages following dispute between owners and builder resolved by work being completed by builder – whether pleaded case extended to claim for damages for breach of contract, as opposed to deceit and statutory unconscionability – whether trial conducted on basis which departed from pleadings – whether primary judge erred in excluding valuation evidence and concluding no evidence of loss – effect of owners’ delayed payment of progress claims on their claims for damages – calculation of damages

COSTS – Security for costs – delay in making application for security – appeal date vacated if order for security made - motion dismissed

COSTS – security for costs – order for security declined on basis including that certain corporate shareholders give undertakings concerning defendant’s costs to the same effect as proffered by individuals standing behind such shareholders – where those shareholders seek to introduce carve outs to proposed undertakings – where court invited to determine what undertakings should be given

LAND LAW – possession of land – where agreement of parties for defendant to vacate property not complied with – monetary judgment entered in accordance with agreement

EVIDENCE — privileges — legal professional privilege — draft supplementary witness statement — where statement produced to court pursuant to subpoena to produce issued by defendants/cross-claimants to witness — where plaintiffs/cross-defendants assert legal professional privilege over whole or alternatively parts of document — dominant purpose test — finding that document was produced for dual equal purposes — finding that document contained reference to confidential communications properly the subject of legal professional privilege — HELD — statement to be redacted in kind and made available for inspection by the defendants/cross-claimants

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CORPORATIONS – receivers, controllers and managers – whether receiver was validly appointed – where appointment was purportedly effected by novation of previous agreement which did not validly appoint receiver.

CONTEMPT – civil contempt – breach of orders – construction of court orders – where plaintiffs seek orders that the third and fourth defendants be found guilty of contempt of court for non-compliance with court orders – where third and fourth defendants make a no case application for dismissal of certain charges – whether the terms of the court orders, made by consent by the duty judge, were clear, unambiguous and capable of compliance

CIVIL PROCEDURE — Pleadings — Amendment — Where applicant seeks to add claim under Superannuation Industry (Supervision) Act 1993 (Cth) — Section 55(3) — Whether causal connection exists between loss claimed by the applicant and alleged breach CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice, embarrassment or delay

CIVIL PROCEDURE – summary dismissal sought under UCPR rr 13.4(1)(c), 12.7 and 15.16 – underlying cause of action in tort for assault – more than a fanciful prospect of success – no intentional or contumelious default – complex proceedings involving involuntary admission under the Mental Health Act 2007 (NSW) – motion dismissed – order for referral to Registrar for Pro Bono legal assistance

CRIME – appeals – appeal against sentence – child sex offences – multiple instances of offending over two decades – where statements made in relation to special circumstances during sentencing hearing – where sentencing judge declined to vary the statutory ratio – whether statements made by sentencing judge raise procedural unfairness – whether sentence manifestly excessive – appeal dismissed

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge erred in finding that factors contributing to the disadvantage and mental health of the applicant increased the importance of community protection – Whether such disadvantage and mental health factors ought to have moderated the moral culpability of the offender – Whether the sentencing judge erred in the assessment of the indicative sentence – Whether the sentence was manifestly excessive.

CORPORATIONS – share issues – where inadvertent contravention of s 606 of the Corporations Act 2001 (Cth) – where persons concerned acted without improper intent – whether an order should be made under s 1325A of the Corporations Act 2001 (Cth).

SENTENCE – MURDER – guilty plea – joint criminal enterprise – where not possible to find offender committed physical act causing death beyond reasonable doubt or that co-offender did on balance of probabilities – discount for assistance – lengthy criminal history – Bugmy factors – totality – no finding of remorse available on evidence – lesser sentence than co-offender given lower criminality regarding motive and decision – making and stronger subjective case – hardship in custody related to inmate attacks – custody throughout COVID-19 pandemic – mental and physical health concerns – special circumstances

CIVIL PROCEDURE — Family Provision —Summary disposal — Dismissal of proceedings — Whether the proceedings were frivolous or vexatious, disclosed no reasonable cause of action or were an abuse of process — Plaintiff’s summons simply sought “right to reside” in defendant’s property as relief, but other terminology used in the “particulars” to the summons indicated that a form of family provision claim was sought — Defendant is not the nominated executor of the deceased’s Will nor otherwise an appropriate person to represent the deceased’s estate — Held that the defendant is not an appropriate party to the claim and the claim disclosed no reasonable cause of action against him

COSTS – indemnity costs – whether usual order should be displaced – where exclusive jurisdiction clause challenged and no expert evidence adduced

EVIDENCE – hearsay – exceptions – s 65(2)(c) Evidence Act 1995 (NSW) – “circumstances”

EVIDENCE – hearsay – exceptions – first hand hearsay exceptions – s 65(2) Evidence Act 1995 (NSW) – meaning of “circumstances” in s 65(2)(c) – s 66A contemporaneous representation about a person’s feelings, sensations, intention, knowledge or state of mind – hearsay representations made by deceased – whether evidence should be admitted under exceptions to the hearsay rule – section 65(2)(c) – whether circumstances in which representations were made make it highly probable that the representation is reliable EVIDENCE – hearsay exceptions – s 65(3) Evidence Act 1995 (NSW) – extracts of transcript from 2011 Inquest sought to be tendered by Crown – where Mr Geeves not represented by a lawyer at the Inquest – where Mr Geeves attended but asked no question of any witness – role of s 65(3) where evidence Mrs Geeves was too ill to attend Inquest and did not attend until last day – whether accused persons had a reasonable opportunity to cross-examine the persons who made the representations EVIDENCE – discretion to exclude evidence – whether probative value of the evidence is outweighed by danger of unfair prejudice – judge alone trial

CRIME – sentencing – murder – guilty plea in Local Court – fatal domestic violence – brutal stabbing – discovery of relationship between romantic partner and the deceased –intention to kill – Aboriginal offender – limited criminal record – on Intensive Correction Order for violence at time of murder – background of profound deprivation – PTSD caused by trauma in childhood – self-harm in custody – evidence of remorse – harm to community – consequences of murder far beyond death of a single human being – sentence imposed

CRIME – appeal against sentence – child sexual offences and sexual assault offence – where applicant sentenced for other historic and non-historic child sex offences in 2016 and subject offences pre and post-dated those offences –whether sentence judge erred in findings of objective seriousness – whether principle of totality breached by superimposing new sentence on existing sentence – whether aggregate sentence is manifestly excessive CRIME – appeal against sentence – leave to appeal out of time sought – delay due to COVID pandemic

CRIME – Crown appeal against inadequacy of aggregate sentence – 6 offences against s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) – 2 offences against s 66C(3) of the Crimes Act – Form 1 offences – a single victim – whether indicative sentences manifestly inadequate – whether offences committed whilst respondent was subject to an ADVO is an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing and Procedure Act) 1999 (“CSP Act”) – whether Form 1 offences and aggravating factors adequately reflected in indicative sentences – whether the specification of the non-parole period in standard non-parole period offences in indicative sentences was a technicality – whether offence being committed in the garage of the victim’s home was an aggravating factor under s 21A(eb) of the CSP Act – victim impact statement – s 25AA of the CSP Act – whether heightened need for specific and general deterrence – whether aggregate sentence manifestly inadequate – whether residual discretion should not be exercised – assistance to police – assessment of moral culpability – sentence increased

CRIME – appeal against sentence – where discount applied per s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – in addition to discount for early pleas of guilty – drug supply offences and firearms possession offence – determining appropriate s 23 discount – where sentencing judge suggested discount percentages at sentence hearing but applied different percentages at judgment – complaints relating to procedural fairness and failure to provide reasons

MENTAL HEALTH – high risk offender – preliminary hearing – forensic patient – interim orders sought to extend status of defendant as a forensic patient – interim orders not opposed – defendant's illness has remained treatment resistive – defendant continues to experience auditory hallucinations including commands to hurt others – statutory conditions for making of interim orders satisfied – orders made

TORTS – intentional tort – claim of historical child sexual abuse – whether the second defendant groomed the plaintiff – whether on balance of probabilities the abuse by the second defendant in October 2005 occurred – held grooming had not been established – held incident of abuse in October 2005 occurred EVIDENCE – sexual assault – complaint evidence in civil proceedings – delay in complaint – where detail of complaints is generally consistent EVIDENCE – admissions – civil proceedings – whether letter offering counselling services amounted to an admission – held the letter was not an admission NEGLIGENCE – vicarious liability – agent and principal – where vicarious liability arises in church context – where second defendant was a Sub-Deacon of the first defendant but not an employee – whether the position of power and intimacy and nature of the second defendant’s acts were connected to his role in the church – where abuse occurred whilst the second defendant was driving the plaintiff home in his car – discussion and application of Bird v DP [2023] VSCA 66 – held the first defendant is vicariously liable for the second defendants actions DAMAGES – assessment of damages – historical child sexual assault – past and future economic loss – damages by way of buffer – past and future out of pocket expenses – future care and treatment – aggravated damages

CIVIL PROCEDURE – application to make an alternative damages claim in addition to primary claim – where defendant submits they would be unable to meet the claim without further time – held alternative claim allowed to be pursued

COSTS – party/party – orders against non-parties – personal costs orders against lawyers – where plaintiff ordered to pay defendant’s costs of plaintiff’s application to rely on evidence served in the face of a guillotine order – whether plaintiff’s solicitor should pay those costs – whether costs charged to plaintiff should be disallowed

CHILD WELFARE – adoption – whether declaration of parentage should be made – whether adoption order should be made – whether adoption is in the best interests of the child – whether dispensing with the consent of the birth parents to the adoption would promote child’s welfare – whether proposed adoption plans are in the best interests of the child – whether proposed name change would be in the best interests of the child

SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship at time of death SUCCESSION — Family provision — Claim by grandchild for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether dependent at any time on the deceased — Whether factors warranting

APPEALS – motor vehicle accident – whether primary judge erred in rejecting appellant’s evidence – whether factual error involved a finding contrary to incontrovertible facts – whether the matter should be remitted for retrial in the District Court

ADMINISTRATIVE LAW – Judicial review – Whether primary judge erred in finding jurisdictional error and error of law – Failure of medical assessor to assess relevant material and make deduction based on previous injury – Whether Medical Appeal Panel of the Personal Injury Commission exceeded scope of grounds of appeal – Whether assessment de novo within grounds of appeal

CRIME – Confiscations – Restraining order – Unexplained wealth order – Order for examination under oath – Motion brought by the defendant seeking a permanent stay of the proceedings – Motion dismissed.

PRACTICE AND PROCEDURE – service outside the jurisdiction – whether leave should be granted to proceed against the respondent who has not entered an appearance.

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR r 36.15 – no omissions or oversight – dismissed PRACTICE AND PROCEDURE – costs – application for gross sum costs order against self-represented party residing overseas – significant discount – avoidance of satellite litigation – granted PRACTICE AND PROCEDURE – summary dismissal or strike out of motion seeking gross sum costs order – without merit – dismissed