Cases and authorities

ASSOCIATIONS AND CLUBS — meetings — validity — where members of association were issued debentures — whether certain debenture holders are no longer members on the basis of unpaid fee — whether debenture holders who are no longer members are able to vote at a general meeting

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Effect of contractual right to indemnification for costs — No issue of principle

ADMINISTRATIVE LAW – Summons seeking judicial review of decision made under the Australian Harness Racing Rules – Plaintiff presents a horse to race with a prohibited substance in its system – Plaintiff found guilty by stewards of Harness Racing New South Wales of breaching rule 190(1) – Plaintiff contends he was blameless – Whether decision is affected by jurisdictional error – Whether decision is affected by error on the face of the record – Whether Tribunal has erred in directing itself as to question of culpability and to standard of proof – Whether the Tribunal’s fact finding process was illogical, irrational or legally unreasonable – Whether Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that no other penalty other than disqualification was available – Application of categories discussed in McDonough

CIVIL PROCEDURE – subpoenas – application for review of Registrar’s decision to refuse leave to issue subpoenas – UCPR 49.19 – where subpoenas proposed to be issued in proceedings seeking revocation of an extended supervision order pursuant to s 13 Crimes (High Risk Offenders) Act 2006 (NSW) – where claim not yet sufficiently pleaded to permit principled decision concerning legitimate forensic purpose

CRIME – sentencing – finding of special circumstances – “very minor adjustment” of non-parole period intended – no adjustment downwards, but slight increase in default ratio of non-parole period to head sentence – need to re-exercise sentencing discretion – manner of re-exercising discretion where parties do not challenge aspects of sentencing judge’s findings

CRIME — Appeals — Application for leave to appeal against sentence — Persistent sexual abuse of a child — Sentence after trial — Fact finding on sentence

CRIME – appeal against conviction – leave to appeal– challenge to jury directions – no objection taken at trial to proposed directions – no redirection or further direction sought – whether miscarriage of justice – application of Supreme Court (Criminal Appeal) Rules 2021, r 4.15 CRIME – miscarriage of justice – tendency evidence – context evidence – single count indictment – evidence of uncharged incident admitted as tendency and context evidence – jury directed to disregard evidence of uncharged incident if not satisfied it occurred – whether jury required to be directed that doubt as to uncharged incident should be considered in assessing complainant’s evidence as to charge – inconsistency between Markuleski direction and proper consideration of tendency evidence and context evidence

CRIME – appeal against sentence – s 66EA offence – jury trial – fact finding after trial – obligation to find facts consistent with the verdict of the jury – where sentencing judge accepted the evidence of the complainant as reliable – no basis advanced by applicant before sentencing judge to distinguish aspects of the complainant’s evidence – sentence imposed on the basis that whole of complainant’s evidence accepted – application raising a point not made at first instance – delay in bringing application significant and not fully explained – extension of time refused

EVIDENCE – Tendency evidence – Criminal proceedings – Where accused seeks leave, pursuant to s 97 of the Evidence Act 1995 (NSW), to adduce evidence that at the time of his death, the deceased had a tendency to act in a certain way – Where accused alleges that tendency evidence is relevant to the conduct of the deceased at the time of or immediately before the confrontation that led to the deceased’s death, and therefore relevant to support the accused’s case he was acting in self-defence – Whether the tendency evidence has “significant probative value” under s 97(1)(b) – Accused’s application to rely on tendency evidence granted

CIVIL PROCEDURE – pleadings – amendment – late application for amendment – late briefing of new counsel – proceedings commenced in 2020 – loss of ten hearing days in October 2022 – proposed amendment essentially the same as the case propounded in June 2023 – no forensic prejudice – imperative the matter proceed – leave granted

NEGLIGENCE – workplace injury – occupier’s liability – plaintiff suffered jolt when descending elevator stopped without warning during planned power interruption – power testing conducted by other employees at the workplace – no steps taken to ensure lifts were not being used – no warnings given – litigation conducted on basis that plaintiff’s employer was not sued – plaintiff sued two related companies which owned the land and operated the business – whether related companies liable in negligence as occupiers – whether evidence capable of sustaining findings of breach attributable to related companies, as opposed to attributable to plaintiff's employer – appeal allowed and judgments entered in favour of defendants

NEGLIGENCE – Personal injury – Causation – Physical and psychological injuries – Multiple possible causes of injury – Appellate intervention in the provisional assessment of damages COSTS – Indemnity costs – Offers of compromise Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) – Discretion to “order otherwise”

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Crown and ministerial employees – Termination of a senior executive for alleged misconduct in failing to comply with directions ADMINISTRATIVE LAW – Unreasonableness – Obvious inquiry into critical fact – Fact in question not critical – No obvious inquiry – Claim that directions to employee unlawful for non-compliance with industrial award and for contravention of Anti-Discrimination Act 1977 (NSW) – No unlawfulness established – Delegation of power – Materiality where decision-maker not authorised to make decision – Relevance of materiality to discretionary grant of relief ADMINISTRATIVE LAW – Hearing rule – Notice – Adverse information credible, relevant and significant to decision – Substance of information already put – No requirement for running commentary upon decision-maker’s opinion about evidence – Remaking of first decision – Whether notice needed to be given of second decision – Notice was required of second decision

CRIMINAL PROCEDURE – Trial – Crown application for view of alleged crime scene – Where Crown application supported by the accused – Whether the view will assist the jury in resolving issues of fact and in understanding the evidence – Application for view granted

CRIMINAL LAW – murder trial – whether representation made by an unavailable witness, (Amber Haigh), should be received into evidence pursuant to s 65(2)(c) of the Evidence Act 1995 (NSW) – whether probative value of evidence is outweighed by the danger of unfair prejudice to the defendants

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – person no longer under legal incapacity – tutor removed

COSTS – Party/party – Specified gross sum – no issue of principle

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 – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme.

PROCEDURE – costs – general rule that costs follow the event – whether reason shown to depart from general rule – where creditor opposed distribution by liquidator.

CIVIL PROCEDURE – subpoenas – review of Registrar’s decision to set aside – subpoena issued in administrative law proceedings – review of decisions to place plaintiff in protective and segregated custody whilst on remand – legal unreasonableness – where decision-makers provided statements of reasons – where subpoena sought documents relating to the preparation of those reasons – where plaintiff seeks to challenge credit of decision-makers through cross-examination – misapprehension of administrative law proceedings – credibility not in issue – not a merits-based inquiry – except in two instances decisions-makers have appropriately annexed documents they relied on – legitimate forensic purpose in seeking documents referred to but not annexed – remainder of subpoena goes beyond what is needed for proper conduct of proceedings – subpoena set aside except for two paragraphs

CRIMINAL LAW – evidence – admissions by conduct – lies and consciousness of guilt – statements made by accused near the scene of the murder – no adult, lawyer or support person present – statutory prohibition on admissibility – whether exception to prohibition established – where questions asked in urgent circumstances – accused member of suburban gang – differences leading to violent confrontation – overview of prosecution case – eye witness testimony by other witnesses – taking the contempt charge rather than an affirmation or oath – repeated mantra of “no comment” – circumstantial case – assessment of accused’s vulnerability – palpable fear and confusion – satisfactory explanation of absence of adult – a lot happening – other factors militating against admission of evidence – evidence not admissible

CRIMINAL LAW – open or closed court – where accused a child at time of alleged offence – where accused adult at time of trial – application of statute – application of authorities – court must remain open to the public

CRIME — appeals — appeals against sentence — whether sentencing judge failed to make findings regarding mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) —— whether reasons inadequate — error resulting in re-sentence — no lesser sentence warranted

CRIME – Sexual offences – Sexual assault – Consent – Section 61HE of the Crimes Act 1900 (NSW) – Relevance of complainant’s substantial intoxication to issue of consent – Confusing drafting of statutory provision – Whether no free and voluntary agreement taking account of all circumstances – Not necessary to show what was said and done indicating consent was caused by intoxication APPEALS – From jury verdict – Misdirection – Real chance that the misdirections could have affected the jury verdict – Miscarriage of justice established

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where plaintiff does not have capacity to conduct proceedings – Where plaintiff cannot be examined by a psychiatric expert.

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.

CIVIL LAW – proceeds of crime – restraining orders against 20 defendants – one defendant brings a motion alleging negligence by the Official Trustee in the management of restrained real property – failure to make mortgage repayments – default in mortgage – penalties charged – where mortgagee seeks to exercise right of sale – separate negligence proceedings – motions to stay or adjourn negligence proceedings and negligence motion – whether duplication of proceedings – where Judge ordered or suggested proceedings should be brought by separate proceedings – whether cause of action proceeds of crime – whether any damages for negligence would inevitably be subject of restraining orders – where forfeiture orders to be determined in the future – where Judge who made ex parte restraining orders allocated motion to stay proceedings – unfortunate happenstance

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where no other practical means of vehicular access to plaintiffs’ garaging at rear of property — Whether easement reasonably necessary for effective use and development of plaintiffs’ land where plaintiffs obtained development consent for garaging at front of property — Where effects of proposed easement relatively minor— Whether impact can be adequately compensated — Whether discretion to impose easement should be exercised — Determination of adequate compensation for imposition of easement — Easement imposed — Determination of costs deferred

CORPORATIONS – Liquidation – Application for directions – ownership of assets realised in liquidation of a corporate group – which company is true employer of employees in a corporate group status of intercompany loan.

PROCEEDS OF CRIME — Application for leave to apply for exclusion from forfeiture order and compensation order

CRIME – sentencing – murder – bashing of child – offenders found guilty of murder on various bases of liability following judge alone trial – premediated and violent assault captured on video and posted to social media – rejection of submission that life sentence appropriate for one offender – reduced moral culpability on accounts of early disadvantage and cognitive impairment – significant criminal histories taken into account – issues of parity – special circumstances considered

CRIME – child sex offences – registration under s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW) – registrable person – whether a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A of the Child Protection (Offenders Registration) Act – meaning of “sentenced” in s 3A of the Child Protection (Offenders Registration) Act – a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A – summons dismissed STATUTORY INTERPRETATION – definitions – interpretation of definition by reference to term defined – meaning of “sentence” in s 3A of the Child Protection (Offenders Registration) Act – immediate context – consistency of operation – a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A – summons dismissed

APPEALS – competency of appeal – where dismissal of contempt proceedings – whether proceedings for civil or criminal contempt – where criminal contempt not established – where finding of civil contempt but proceedings dismissed – whether appeal incompetent – characterisation of contempt proceedings – whether remedial or coercive, not punitive – time at which character of proceedings assessed CONTEMPT – breach of undertakings given to Court – whether civil or criminal contempt – whether error in characterising proceedings as criminal only – where statements of charge particularised breaches of undertakings as contumacious – whether allegation of contumacy determinative – where double aspect of contempt proceedings – whether procedurally unfair to find civil contempt

CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant’s written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant’s mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence

CRIME — appeals — appeal against conviction — inconsistent verdicts — whether guilty verdict on count of aggravated indecent assault was inconsistent with acquittal on count of aggravated sexual assault — where sole evidence of both counts was that of the complainant — where the two counts allegedly occurred in sequence — whether there was a rational explanation for the different verdicts CRIME — appeals — appeal against conviction — unreasonable verdict — whether guilty verdicts could be supported having regard to the evidence — where large majority of the evidence was that of the complainant — where there were inconsistencies in complainant’s evidence — whether complainant’s evidence lacked credibility — whether it was unreasonable for the jury to accept the complainant’s version — where complainant was a 14-year-old indigenous boy

CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed

BAIL – juvenile applicant– whether bail concerns give rise to an unacceptable risk– risk of failing to appear – risk of serious offences – strong Crown case – protective factors – Bail Casework 22C plan – long criminal history for similar offences – history of non-compliance with bail – breaches of bail occurred at proposed bail address – observations on s 22C of the Bail Act – relevant offence – motor theft offence – relevant young person – meaning of a high degree of confidence – release application refused

COMMERCIAL — Claim for monies due arising out of historic commercial arrangements — Between 1997 and April 2001 the parties negotiated a proposed merger of P1’s business into D’s business and employment of P2 (P1’s sole director) — An Income (Non-Capital) Redeemable Preference Share Agreement (“RPS Agreement”) and attached Employment Agreement were prepared by solicitors and arrangements proposed for a settlement and exchange of executed agreements in early April 2001 — D attended by its then sole director — Dispute regarding whether anyone on the part of the plaintiffs attended — P2 subsequently employed in D’s business — Part payments made by D referable to an initial $200,000 Redemption Amount over a 15 year period — Dispute as to whether D liable for non-payment of Redemption Amount in full, dividends during the redemption period and interest on dividend sum under the RPS Agreement — D disputes liability and claims alternative oral arrangements were made in November 2003 (“Oral Agreement”) and the parties conducted their business affairs on the basis of assumptions consistent with the Oral Agreement (“estoppel claim”) — D further asserts that the plaintiffs’ claims are statute barred (“limitation claim”) — Held plaintiffs’ claims succeed and defences rejected EVIDENCE — Competence to give evidence — Witness in giving evidence exhibits a form of dysphasia — Whether witness competent to continue to be cross-examined CONTRACTS — Exchange of counterparts — Issue regarding when parties intend to be bound by contractual arrangements CORPORATIONS — Share capital — Classes of shares — Requirements for issuing redeemable preference shares CORPORATIONS — Directors — Means of passing and recording of resolutions ESTOPPEL — Conventional estoppel — No issue of principle LIMITATION DEFENCES — Whether claim for breach of contract barred as being out of time by operation of s 14(1)(a) Limitation Act 1969 (NSW) — Requirements for confirmation of cause of action under s 54 Limitation Act 1969 (NSW) WORDS AND PHRASES — Occam’s razor

COSTS — Party/Party — Payable out of a fund — Deceased estate — where indemnity costs sought following delinquency in defendant’s carriage of the case — whether indemnity costs should be ordered — no question of principle

COSTS – costs assessment – costs agreement between solicitor and principal of corporate client – associated third party payor – effect of non-disclosure – costs agreement void – whether solicitor nonetheless entitled to be paid for legal services provided to the client – Legal Profession Uniform Law 2014 (NSW) s 171(1); s 178(1) COSTS – costs assessment – time to appeal to the Court under UCPR 50.3 – material date for determination by costs review panel under UCPR 50.2 – extension of time

MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) – Informal application that appellant’s name appearing in a published judgment be replaced by pseudonym – Unwarranted assumption that Personal Injury Commission’s acceptance of pseudonym would be adopted – PTSD and major depressive order alone not sufficient to justify order – Criteria require more than that an order be “convenient, reasonable or sensible, or to serve some notion of the public interest” – No evidence of significant risk of harm

APPEALS – leave to appeal – interlocutory judgment – application to appoint administrator pendente lite –executor granted probate in common form – application to prevent executor recovering costs from estate – application to recoup costs already paid – whether executor protecting personal interests – whether executor obliged to seek judicial advice - principles governing leave to appeal from interlocutory procedural orders – applicant was not joined by parties with prior interests

CORPORATIONS — Receivers and managers — Appointment of liquidator as receiver of trust property.

COSTS – Costs in respect of application to terminated deed of company arrangement – Where company and deed proponent equally opposed the application.

SUCCESSION — will — construction — testamentary grant of right to occupy property — property expenses payable by “my Estate” — whether a reference to deceased estate or trust estate — superannuation entitlements — whether separate gift or estate residue — deceased submits redemption application before death — ademption

EQUITY – interlocutory application for interim relief pending final hearing – injunction sought to restrain defendant from dealing with property or acting on notice of termination of lease until further order – whether serious question to be tried – whether balance of convenience favours interim relief to be granted – where director of plaintiff gives personal undertaking as to damages

SUCCESSION — Funeral arrangements and disposal of deceased’s remains — Dispute between the plaintiff (an estranged daughter of the deceased) and the defendant (her mother, the deceased’s long-separated wife being the nominated executrix under a distant Will) in relation to funeral arrangements and disposal of the deceased’s remains by cremation after being held by the coroner — Plaintiff brought urgent application before the Court seeking, amongst other relief, release of the deceased’s body for immediate cremation, in circumstances where there was little clarity as to who had control or possession of the body or its the precise location — Subsequently, the plaintiff and the Court were informed by the funeral director that the deceased’s body had been cremated shortly before the plaintiff’s initial approach to the Court — After initial listings, it became apparent that the plaintiff’s claims could be separated between issues relating to the distribution of the deceased’s ashes (“ashes issues”) and other issues relating to probate and administration of the deceased’s estate (“probate and other issues”) — Given the need for the orderly disposal of the deceased’s remains with respect and without undue delay, it was appropriate to resolve the ashes issues in the first instance as a separate question — Following discussion with the parties and funeral director, an arrangement was made by consent in relation to the ashes issues, leaving the probate and other issues to be subsequently dealt with by the Court if the plaintiff still wished to agitate them HEALTH — Burial and cremation — Sources of law — Discussion of the various provisions of legislation and the general law which bear upon burial law in NSW, including in the Coroners Act 2009 (NSW) (“Coroners Act”) and the Supreme Court’s inherent jurisdiction — In light of the extensive statutory provisions and general law which bear upon this area, the precise nature and extent of the authority of a person to arrange for the disposal of a deceased body, as well as any cognate issues which may arise, will necessarily be fact and issue specific — Discussion of issues that have previously arisen in caselaw CORONIAL LAW — Jurisdiction — Discussion of the coroner’s role and jurisdiction in relation to reportable deaths and practice where there are disputes between interested parties as to the release and disposal of the deceased’s body — Discussion of the meaning of “inquest” and “senior next of kin” as those terms are used in the Coroners Act SUCCESSION — Burial law — Discussion of the nature and purpose of the Court’s inherent jurisdiction to deal with the disposal of a deceased person’s remains — Discussion of main types of disputes dealt with under the jurisdiction and the Court’s approach to resolving them — Discussion of circumstances in which such applications are made to the Court and the (often informal) nature of information and materials that are available to the Court to determine the matter ALTERNATIVE DISPUTE RESOLUTION — Burial law — Discussion of merits of mediation and Court explored consensual outcomes CIVIL PROCEDURE — Separate determination of questions — The imperative of the orderly disposal of the deceased’s remains with respect and without undue delay justified determination of the ashes issues in the first instance as a separate question

CIVIL PROCEDURE – proceeds of crime – where Commissioner has utilised production order power in s 202 of the Proceeds of Crime Act 2002 (Cth) to obtain property-tracking documents following the commencement of proceedings – where fourth defendant is disputing the use of the documents obtained – whether the Commissioner used the production order power for the sole or dominant purpose to obtain documents for use in the proceedings – whether use of the s 202 power by the Commissioner gave an unfair advantage to the Commissioner amounting to a contempt of court – requisite sole or dominant purpose not established – no relevant advantage secured by Commissioner, or disadvantage occasioned to the fourth defendant, by use of s 202 power to amount to contempt of court – fourth defendant’s cross summons dismissed

COSTS – party/party – whether there should be a departure from the general rule that costs follow the event – orders made under the Limitation Act extending the time for plaintiff to commence proceedings – defendant unsuccessfully resisted extension application on basis that delay precluded a fair trial – defendant bear plaintiff’s costs of the extension application

PROFESSIONS AND TRADES – health practitioners – registration as specialist – practitioner formerly practised as specialist anaesthetist – practitioner deregistered following misconduct – practitioner subsequently registered as a medical practitioner – practitioner applied for specialist registration as an anaesthetist – Medical Board of Australia refused application – NCAT dismissed appeal – NCAT found applicant not a fit and proper person, and unable to practise as specialist anaesthetist competently and safely – whether material error of law in NCAT's decision – consideration of Health Practitioner Regulation National Law – consideration of Medical Board of Australia and NSW Board of Medical Board of Australia