Cases and authorities

CRIME – Appeals – Appeal against sentence - By Crown against inadequacy – child sex offence – using a carriage service to “groom” a person under 16 years of age – whether wrong sentence was imposed – where s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) is invoked – meaning of “exceptional circumstances” – in what circumstances does the “exceptional circumstances” test apply – whether sentencing judge erred in finding there were exceptional circumstances – whether the respondent voluntarily withdrew from the offending – whether the respondent’s conduct amounted to cooperation such that a five percent discount was warranted –respondent is of prior good character – respondent maintained a plea of not guilty and failed to show contrition or remorse – suspended sentence remains a sentence of imprisonment – where the Director sought leave to withdraw submission – leave not granted – appeal dismissed

CRIMINAL LAW – leave to appeal interlocutory decision of District Court setting aside subpoenas issued by applicant and refusing to grant applicant leave to issue further subpoena – relevance of delay on sentence – delay as a mitigating factor – no error established – application refused

CRIME – appeals – appeal against sentence – four separate sets of offences – possess unauthorised pistol – appeal against sentence – where Crown did not elect to proceed on indictment for Table 2 offence but sentencing judge relied upon indictable maximum penalty instead of summary maximum penalty – Crown conceded error – resentence

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — where six separate proceedings on same issue — whether issue estoppel — no question of principle

CHILD WELFARE – adoption – application by adult adopted person to discharge adoption order – whether an exceptional reason shown – where irretrievable breakdown of relationship between applicant and adoptive parents

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where respondent does not have standing to pursue action against the respondents — where no reasonable cause of action disclosed — where allowing matter to proceed would amount to an abuse of process — application for summary dismissal against fourth and fifth defendants granted

CLIENT LEGAL PRIVILEGE – waiver – whether executor can waive testator’s privilege to advance personal interests – at [6]-[10] ESTOPPEL BY REPRESENTATION – 30 years ago, farming parents offer to buy land for son in recognition of years of unpaid labour – son asks for second house to be built on farm instead – parents represent that the house and surrounding land (the Lot) are his – 8 years later, parents transfer farm to the son and his brother as tenants-in-common in equal shares – son’s interest not discussed at time of transfer, nor mentioned in parents’ later wills – principles at [160]-[167], [171], [173] – whether representations made by the parents subject to conditions, at [174] – son has equitable interest in the Lot. PERSONAL EQUITY – principles at [182]-[188] – whether brother held his half-share on trust for the son – brother knew of the other’s equitable interest –whether necessary to find “superadded” factor such as acknowledgement, agreement or undertaking to act in accordance with equitable interest – Presbyterian Church v Scots Church [2007] NSWSC 676 considered – not necessary where brother not a third party – brother’s legal interest subject to constructive trust in respect of the Lot. ESTOPPEL BY ACQUIESCENCE – principles at [200]-[201] – son undertakes renovations on the Lot over 20 years – his brother remains silent – brother estopped from denying equitable interest in Lot. JUDICIAL SALE – s 66G(1), Conveyancing Act 1919 (NSW) – principles at [242]-[247] – not relevant to discretion that son’s interest is more than 50% – Callahan v O’Neill [2002] NSWSC 877 considered –order refused where inconsistent with equitable obligation. PARTNERSHIPS – date of dissolution – s 32(c), Partnership Act 1892 (NSW) – principles at [135]-[137] – ‘in principle’ agreement to dissolve partnership – infer partners did not wish to continue the partnership from date of AVO. PARTNERSHIP ASSETS – whether farm is a partnership asset – ss 20(1), 21, Partnership Act 1892 (NSW) – principles as [143]-[146] – no express agreement – whether implied agreement – farm not included in partnership accounts – farm was partners’ personal property. REALISING PARTNERSHIP ASSETS – whether a buy-out order should be made – principles at [251]-[261] – brothers continue to farm separately – some assets are fixtures, warranting a buy-out by owner of farm where asset is affixed – consideration of cost of appointing receiver – unlikely to produce better outcome on sale of second-hand farm equipment and vehicles. UNCLEAN HANDS – principles at [210] – mortgage payments paid by partnership 50:50, without taking into account son’s interest in the Lot – son did not control payment of mortgage – no relation between alleged impropriety and equitable interest. LACHES – principles at [215]-[217] – equitable interest not raised when legal title was transferred – parents since passed away – no knowledge that brother did not deny equitable interest until shortly before action. EQUITABLE COMPENSATION – principles at [235]-[237] – difficulty in ascribing value to the Lot where no separate title – market value with separate title discounted to reflect possibility that farm would be sold notwithstanding parents’ wish to keep it in the family and the parents unable to buy their son another property.

APPEALS – appeal from Local Court decision – whether error of law was made – wrong finding of fact does not amount to an error of law – wrong reasoning by which fact is arrived at does not amount to an error of law – error of law not made out – appeal dismissed

CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

CORPORATIONS — Winding up — Statutory demand — Whether there was no arguable basis for an order for payment into Court on an interlocutory or final basis, prior to hearing an application to set aside a creditor’s statutory demand.

CORPORATIONS — Winding up — Liquidators — Remuneration — Where liquidators seek orders relating to the distribution of a surplus in respect of the liquidation and as to their remuneration

CORPORATIONS – winding up – whether just and equitable – where company has no director ordinarily resident in Australia – where significant issues require corporate decisions to be made.

PRATICE AND PROCEDURE – Inherent jurisdiction of the Court to stay execution of a writ for possession on grounds of hardship – Where the applicant is in unlawful occupation of crown land and has been so for years – Where judgment for possession was given by this Court on 14 July 2023 and affirmed by the Court of Appeal on 6 February 2024 – Where the applicant has had every opportunity to vacate but has taken no steps to do so – HELD: Hardship not established but any hardship has been caused by the applicant himself and he should not be entitled to take advantage of his own wrong

CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where multiple putative fathers identified – where reasonable inquiries made to identify and locate the father

CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success

FAMILY PROVISION – Succession Act 2006 (NSW) ss 59, 70, 75, 80(2)(a) – Claims for family provision – Where plaintiffs fail to establish that the will did not make adequate provision for their maintenance, education or advancement in life – Notional estate order – Where the plaintiffs fail to establish, with respect to a relevant property transaction, that it was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate – Necessity for a plaintiff to make full and frank disclosure of their financial and material circumstances – Remarks on the obligation on legal practitioners to ascertain whether, at or about the time of the hearing, there has been such a change – Failure to make disclosure – HELD proceedings dismissed

APPEALS – stay of execution – whether transfer of land and property to successful plaintiff should be stayed pending appeal – whether successful plaintiff entitled to Mareva relief pending appeal – stay of execution and limited Mareva relief granted

CRIME – Appeals – Appeal against conviction – whether jury verdict unreasonable – collision between applicant’s and deceased’s vehicles – where applicant convicted of dangerous driving occasioning death while under influence of intoxicating liquor against Crimes Act 1900 (NSW) s 52A(1)(a) – defences – where applicant relied on defence under Crimes Act s 52A(8) that death not in any way attributable to his intoxication – where applicant bore onus of proving defence on balance of probabilities – whether jury bound to find defence proven on whole of evidence – whether only available finding was that collision occurred in applicant’s lane and therefore not attributable in any way to applicant’s intoxication – assessment of evidence – whether jury bound to find eye witness’s account unreliable – jury’s advantage in assessing witnesses – assessment of expert evidence – validity of assumptions made by experts

CRIME – appeals – appeal against conviction – fraud – dishonestly obtaining financial advantage by deception – offender overpaid herself salary, overtime and superannuation – problem gambling – evidence of offender’s ATM withdrawals at casino – whether relevant and not unfairly prejudicial EVIDENCE – cross-examination – whether trial judge erred in not allowing defence questions directed to motivation to lie – whether questioning capable of supporting an inference that witness had motivation to lie – questions peripheral and not capable of supporting the inference sought by the defence CRIMINAL PROCEDURE – appeal – directions to jury – jury directed that monetary amount in each count on the indictment need not be proven beyond reasonable doubt – particulars are not elements of offence – only elements required to be proved beyond reasonable doubt CRIMINAL PROCEDURE – appeal – directions to jury – whether summing up unbalanced – summation to be examined as a whole – whether trial judge dismissive of defence case

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Continuing detention – Where appellant citizen of Iran – Where appellant arrived in Australia as unlawful non-citizen and held in immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") – Where appellant's application for Safe Haven Enterprise Visa refused and finally determined – Where s 198(6) of Act imposed duty upon officers of Department of Home Affairs to remove appellant from Australia as soon as reasonably practicable – Where s 196(1) of Act required appellant to be kept in immigration detention until removed from Australia – Where appellant refused to cooperate in administrative processes necessary to facilitate removal of appellant to Iran – Where no country identified where appellant might be removed other than Iran – Where appellant applied for writ of habeas corpus on basis that continuing detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 – Whether continuing detention of appellant exceeds constitutional limitation identified in NZYQ – Whether real prospect of removal of appellant to Iran becoming practicable in reasonably foreseeable future. Words and phrases – "alien", "consent", "constitutional limitation identified in NZYQ", "continuing detention", "executive detention", "habeas corpus", "Lim principle", "non-cooperation", "non-punitive purpose", "penal", "practicable", "protection finding", "punitive", "real prospect", "reasonably capable of being seen to be necessary", "reasonably foreseeable future", "refusal to cooperate", "removal from Australia". Constitution, Ch III. Migration Act 1958 (Cth), ss 36, 48B, 189, 195A, 196, 197C, 198. GAGELER CJ, GORDON, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[1] held that the continuing detention under ss 189(1) and 196(1) of the Migration Act 1958 (Cth) ("the Act") of an alien required to be removed from Australia under s 198(1) or s 198(6) of the Act exceeds the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. NZYQ further held that where an alien detainee who seeks a writ of habeas corpus establishes reason to suppose that their continuing detention exceeds the constitutional limitation, the detainer bears the legal burden of establishing that the constitutional limitation is not exceeded.[2] The application of those principles in NZYQ to hold that ss 189(1) and 196(1) of the Act did not validly apply to authorise the continuing detention of the alien detainee in that case was noted to have been in a factual context in which the detainee had cooperated with officers in the undertaking of administrative processes directed to facilitating his removal from Australia.[3] This appeal concerns the application of those principles to a case in which an alien detainee who claims that their continuing detention exceeds the constitutional limitation identified in NZYQ has refused to cooperate in the undertaking of administrative processes necessary to facilitate their removal from Australia. Factual background and procedural history The appellant, ASF17, is a citizen of Iran. He arrived in Australia as an unlawful non-citizen at the age of 27 in 2013. Except for a short period during which he held a bridging visa between 2013 and 2014, he has been held in immigration detention continuously since his arrival. While in immigration detention, ASF17 in 2015 made an application for a Safe Haven Enterprise Visa ("SHEV"). The application was refused by a delegate of the Minister for Immigration and Border Protection in 2017. An application for judicial review of the decision of the delegate was dismissed by the Federal Circuit Court of Australia in 2017[4] in a decision which was upheld on appeal to the Federal Court of Australia in 2018.[5] The final determination of his application for a SHEV which occurred upon the dismissal of the appeal in 2018 engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Act to remove ASF17 from Australia as soon as reasonably practicable. Unlike the plaintiff in NZYQ,[6] ASF17 has never formally requested to be removed from Australia so as to engage the other duty to remove imposed on officers of the Department by s 198(1) of the Act. For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran. Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees. The Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay ("the third country removal policy"). Considerations underpinning the third country removal policy include the potential for diplomatic controversy were someone to be removed to a country which had not agreed to accept them and the lack of any basis for generally considering that a country would agree to accept anyone who has no right of residency or long-term stay in that country. The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as "intractable". In 2023, barely a week after the pronouncement of the orders in NZYQ, ASF17 applied to the Federal Court of Australia for a writ of habeas corpus on the basis that his continuing detention exceeded the constitutional limitation identified in those orders. In support of that application, ASF17 filed affidavits deposing to his reasons for refusing to return to Iran. Those reasons included that he is bisexual and that he feared being harmed in Iran because of his bisexuality. He gave an account of having been caught by his wife in bed with a man in Iran and of his wife having reported the incident to police who had attempted to arrest him. He had not claimed to fear being harmed in Iran because of his sexual orientation in his application for a SHEV in 2015 and the delegate of the Minister for Immigration and Border Protection had accordingly not considered whether he had a well-founded fear of persecution because of his sexual orientation in refusing the application in 2017. Responding to the application for a writ of habeas corpus, the Commonwealth accepted the burden of establishing that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ. The Commonwealth sought to discharge that burden by establishing that ASF17 could be removed to Iran were he to cooperate in returning voluntarily to Iran. Having been given appropriate expedition, the application for a writ of habeas corpus was heard by the primary judge, Colvin J, in a three-day hearing which involved extensive cross-examination of ASF17. His Honour dismissed the application for reasons set out in a reserved judgment delivered three weeks later.[7] ASF17 appealed from the decision of the primary judge to the Full Court of the Federal Court of Australia under s 24 of the Federal Court of Australia Act 1976 (Cth). The appeal was removed into this Court on the application of the Attorney-General of the Commonwealth under s 40(1) of the Judiciary Act 1903 (Cth). On the hearing of the appeal in this Court, leave to intervene was granted to AZC20, an alien and former detainee who had been granted a writ of habeas corpus by Kennett J in AZC20 v Secretary, Department of Home Affairs [No 2][8] during the period between the pronouncement of the orders in NZYQ and the commencement of the hearing before Colvin J. While "ordinarily" intervention will not be permitted to a party who may only suffer an "indirect or contingent affection of [their] legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court",[9] there were circumstances peculiar to AZC20 which warranted the Court granting the limited intervention he was afforded. AZC20 had been released from detention pursuant to the writ of habeas corpus granted by Kennett J in AZC20. Kennett J's decision was the subject of an appeal by the Secretary of the Department and the Minister for Immigration, Citizenship and Multicultural Affairs; however, that appeal was discontinued. Even so, neither the Minister nor the Secretary disavowed any intention to detain AZC20 in the event that the appeal in this matter failed in relation to the scope of the principle in NZYQ, even though there may be no change in the factual circumstances affecting the prospect of his removal. Thus, although AZC20 secured his release from detention based on a judgment concerning the scope of the principle in NZYQ, absent a grant of leave to intervene he faced the prospect of being re‑detained without being heard. Moreover, the arguments sought to be presented by AZC20 as intervener were shown by his written application for intervention to be additional and complementary to those presented by ASF17. The primary judge's findings of fact Before examining the path of reasoning of the primary judge to reach the conclusion that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ, it is convenient to record his Honour's principal findings of primary fact. The primary judge found, on the basis of a formal concession by counsel for the Commonwealth, that sexual intercourse between males is illegal in Iran and can attract the death penalty.[10] The primary judge accepted that ASF17's present sexual orientation is bisexual and found that he has had recent sexual encounters with men while in immigration detention.[11] However, the primary judge did not accept the truthfulness of the account given by ASF17 of having been caught by his wife in bed with a man in Iran,[12] did not accept that ASF17 was telling the truth about why he did not want to return to Iran,[13] and did not accept that ASF17 was willing to be removed to a country other than Iran.[14] The primary judge found that ASF17 did not have a genuine subjective fear of harm in Iran and that the reason ASF17 was refusing to undertake voluntary actions to assist in his return to Iran was that he wanted to remain in Australia.[15] Though ASF17 challenged those findings of the primary judge as to his credibility, and sought in substitution a finding that his refusal to cooperate in bringing about his return to Iran was because he had a genuine subjective fear of harm in Iran, his counsel advanced no convincing basis for disturbing any of those findings as either "glaringly improbable" or "contrary to compelling inferences".[16] In particular, ASF17's counsel advanced no reason to consider that the primary judge mischaracterised ASF17's central contention concerning his claim to fear harm in Iran by reason of his bisexuality when stating that the contention "depended upon his account as to events that occurred in Iran when he said he was found by his wife in bed with another man and the alleged consequences of that event".[17] In the result, ASF17 advanced no basis for doubting the primary judge's summation that ASF17 "has made a voluntary decision not to cooperate in meeting with Iranian authorities to facilitate his removal to Iran, a decision which he has the capacity to change but which he chooses not to change".[18] Following on from that summation and bearing centrally on whether there is a real prospect of removal to Iran becoming practicable in the reasonably foreseeable future, the primary judge found that, if ASF17 cooperated by writing a letter to Iranian authorities and by providing such other information as may be requested by Iranian authorities, the Commonwealth would be able to obtain travel documents for him to travel to Iran.[19] ASF17 has not challenged that finding. His counsel sought to argue on the appeal that the Commonwealth had not established that he could have been removed to Iran even if he had travel documents. But that argument was not open to him on the appeal given the basis upon which issues of fact had been joined before the primary judge. As the primary judge correctly recorded, ASF17 accepted before the primary judge "that the evidence adduced by the Commonwealth establishes that, with his cooperation, he could be removed to Iran".[20] Finally, the primary judge found that there is no country other than Iran to which it may be possible to effect ASF17's removal.[21] Despite that finding not being challenged in ASF17's grounds of appeal, his counsel argued on the appeal that the evidence before the primary judge was insufficient to support such a global conclusion. The thrust of the argument was to the effect that adherence by officers of the Department to the third country removal policy had so "straitjacketed" investigation of whether there is a country other than Iran to which ASF17 might be removed as to make impossible a conclusion that there is no such country. The Solicitor-General of the Commonwealth correctly noted in response to the argument that for ASF17 to point to a theoretical possibility of removal to an unidentified third country cannot assist him in circumstances where the Commonwealth has accepted the legal burden of establishing that there is a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future and where the only country to which the Commonwealth has sought to establish that there is a real prospect of removing him is Iran. The primary judge's process of reasoning Reasoning to the conclusion that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ, the primary judge adopted and acted upon the view that "in determining whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future there is to be regard to all actions that might be taken with the cooperation of the person being detained, save only for instances where the person is incapable of cooperating".[22] His Honour explained that view to encompass regard to all actions as might be taken with the cooperation of the detainee "irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place".[23] The primary judge distinguished AZC20 as a case in which the detainee was incapable of cooperating due to mental health problems,[24] specifically disagreeing[25] with the view expressed by Kennett J in that case to the effect that regard is to be had to actions that might be taken but are not being taken due to the non-cooperation of the detainee only where the detainee has embarked on "a deliberate strategy of preventing their removal from Australia".[26] ASF17 challenged the primary judge's process of reasoning on two principal grounds. The first and broadest of those grounds was to the effect that, as a detainee has no statutory duty to cooperate in their own removal from Australia, non-cooperation on the part of a detainee in the undertaking of an administrative process necessary to facilitate their removal from Australia is to be regarded as an objective fact which can suffice to negate the existence of a real prospect of removal becoming practicable in the reasonably foreseeable future no matter what the reason for the non-cooperation. The second ground of challenge to the primary judge's process of reasoning was in the alternative to, and was narrower than, the first ground. Drawing on language used in Plaintiff M47/2018 v Minister for Home Affairs,[27] this ground was ultimately formulated in terms that non-cooperation can operate to negate a real prospect of removal becoming practicable in the reasonably foreseeable future if the detainee has a "good reason" for not cooperating. It was argued for ASF17 that a genuine subjective fear of harm can amount to a "good reason", as can any other reason which does not involve the detainee acting deliberately to frustrate removal. AZC20 advanced a variation of the second of those grounds. AZC20 emphasised that the question whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future was said in NZYQ to be one of constitutional fact.[28] In forming the evaluative judgment necessary to decide that question, AZC20 argued, non-cooperation on the part of the detainee may be a relevant factor but cannot be determinative. It was said that non-cooperation covers a spectrum of conduct. The relevance of the reason a detainee may have for not cooperating in doing something which would facilitate their removal to the prospect of removal becoming practicable in the reasonably foreseeable future, according to AZC20, is that the quality of the reason for the detainee being uncooperative in the past and in the present is probative of the likelihood or unlikelihood of the detainee remaining uncooperative in the reasonably foreseeable future. A "good reason" for non‑cooperation, according to AZC20, translates to a reason sufficient to justify the conclusion of fact that the detainee is likely to continue to have that reason and so to continue to be uncooperative into the reasonably foreseeable future. The Solicitor-General of the Commonwealth rejected the notion that the evaluative judgment necessary to decide the question of constitutional fact can be formed without regard to the constitutional principle from which the question whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future is derived. He argued that deliberate non-cooperation on the part of a detainee in the undertaking of an administrative process necessary to facilitate their removal from Australia suffices to prevent the constitutional limitation identified in NZYQ from being engaged so that no question arises as to whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future. He argued in the alternative for the view adopted and acted upon by the primary judge. The appeal should be dismissed for the following reasons. The constitutional limitation The constitutional limitation unanimously expressed in NZYQ in terms that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when "there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future" was unanimously explained in NZYQ[29] to follow directly from the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[30] and to be an appropriate expression of the Lim principle in the context of the Act. That explanation of the constitutional limitation was given in NZYQ against the background of the Lim principle having been unanimously explained to mean that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved"[31] and against the background of the application of the Lim principle having been further explained by six members of the Court to be "ultimately directed to a single question of characterisation",[32] though one which requires an assessment of both means and ends.[33] The precise question of characterisation to which the question whether there is a real prospect of removal of an alien from Australia becoming practicable in the reasonably foreseeable future is directed is whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified, at the point in time when an application for a writ of habeas corpus is determined, as reasonably capable of being seen to be necessary for the identified statutory purpose of removing the alien from Australia under s 198(1) or s 198(6) of the Act. The question is one of characterisation in that, unless the detention is justified at that time on the basis of there then being a real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future, the application of ss 189(1) and 196(1) of the Act to authorise the continuing detention of the alien must be characterised by reference to the default characterisation of detention as "penal or punitive" and for that reason as repugnant to Ch III of the Constitution.[34] The notions of practicability and of the reasonably foreseeable future embedded in the expression of the constitutional limitation were unanimously explained in NZYQ to be "essential to anchoring the expression of the constitutional limitation in factual reality"[35] and to accommodate "the real world difficulties that attach to such removal".[36] For the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be practicable, there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act. Before noting the range of difficulties of a practical nature that can attach to removal of an alien detainee under s 198(1) or s 198(6) of the Act, it is appropriate to turn attention to the statutory constraint on the duties of removal imposed by those provisions that can arise through the operation of s 197C(3) of the Act. Section 197C(3) of the Act operates to prevent s 198(1) and (6) from requiring or authorising involuntary removal of an alien to a country if the alien has made a valid application for a protection visa which has resulted in an extant "protection finding" in respect of that country. A "protection finding" includes a finding by the Minister administering the Act that the alien meets the criterion for the grant of a protection visa in s 36(2)(a) (as a person in respect of whom Australia has protection obligations because the person is a refugee) or s 36(2)(aa) (as a person in respect of whom Australia has complementary protection obligations because of substantial grounds for believing that there is a real risk that the person will suffer significant harm[37] as a necessary and foreseeable consequence of being removed from Australia to a receiving country) even if the alien has been refused or denied a protection visa.[38] The operation of s 197C can be illustrated by reference to the circumstances of ASF17. Section 197C(3) of the Act would operate to prevent involuntary removal of ASF17 to Iran if: ASF17 had raised a claim to fear harm in Iran in his original application for a SHEV, which resulted in a finding under s 36(2)(a) or s 36(2)(aa); or the bar imposed by s 48A against ASF17 making a further application for a protection visa were to be lifted in the exercise of the personal non-compellable power conferred on the Minister by s 48B and a further application by him raising a claim to fear harm in Iran by reason of his sexual orientation were made resulting in a finding under s 36(2)(a) or s 36(2)(aa); or the Minister were to make such a finding in the course of considering the exercise of the personal non-compellable power conferred on the Minister by s 195A. Section 197C(1) combines with s 197C(2) to make clear that, in the absence of an extant protection finding in respect of a country which engages the operation of s 197C(3) of the Act, the power and duty to remove an alien detainee under s 198(1) or s 198(6) of the Act is not affected by any non-refoulement obligations Australia may or may be claimed to have in respect of that alien. The statutory consequence is that a claim on the part of a detainee facing removal to fear harm in a country to which the detainee might be removed is insufficient to preclude removal to that country irrespective of whether that claim might be found on investigation to be genuine or well-founded. The scheme of the Act accommodates eleventh‑hour claims of that nature exclusively through the potential for the exercise of one or other of the personal non-compellable powers conferred on the Minister by s 48B or s 195A.[39] Conversely, where an alien detainee has the benefit of a protection finding, the power and duty to remove the detainee is affected by Australia’s non‑refoulement obligations under s 197C, and whether there is a real prospect of removal of the detainee from Australia becoming practicable in the reasonably foreseeable future is then relevant to whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified. That is, it would be punitive to detain an alien with the benefit of a protection finding if there were no real prospect of removal of the detainee from Australia becoming practicable in the reasonably foreseeable future to any country other than the country the subject of the protection finding. Real world difficulties may well be encountered at the initial stage of identifying a country to which the detainee might permissibly be removed under s 198(1) or s 198(6). The difficulties may be especially grave and persistent in the case of an alien detainee who is stateless or whose removal to their country of origin is precluded by s 197C(3). Indeed, intractable difficulties of that nature were the root of the problem in NZYQ and before that were the root of the problem in Al-Kateb v Godwin.[40] Difficulties of that nature have arisen in other cases before the Court.[41] Difficulties of that nature are categorically not the problem in this case. There has been no difficulty identifying a country to which ASF17 might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act. As an Iranian citizen, he might permissibly be removed to Iran. Where a country has been identified to which a detainee might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act, the question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future. The steps practically available to be taken can be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate. That such steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them reflects the nature of the constitutional limitation to which the inquiry is directed. The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non‑punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal. The point is illustrated by the reasoning in Lim itself. As summarised by McHugh J in Re Woolley; Ex parte Applicants M276/2003,[42] "[i]n Lim, the Court regarded the ability of a detainee to bring about the end of his or her detention by requesting removal to be a critical element with respect to the constitutionality of the detention regime". In concluding that the continuing detention of long-term alien detainees under the regime considered in Lim was properly characterised as "non-punitive", Brennan, Deane and Dawson JJ, with whom Mason CJ relevantly agreed, stressed with reference to the precursor of s 198(1) of the Act[43] that it lay within the "power" of a detainee to bring their detention to an end by requesting to be removed with the result that detention could continue only if the detainee "elect[ed]" to remain in Australia by failing to make that choice.[44] McHugh J referred to the same provision as making it "impossible to regard [the regime] in its ordinary operation as a punishment", adding that "for the purpose of the doctrine of the separation of powers, the difference between involuntary detention and detention with the concurrence or acquiescence of the 'detainee' is vital".[45] Properly understood, Plaintiff M47/2018 is a further illustration. There, the Court was unanimous in refusing to draw the invited inference that there was "no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future" in circumstances where the plaintiff, who had been in immigration detention for almost a decade, had failed to cooperate by providing accurate and verifiable information which might assist in his removal by establishing his identity and country of origin.[46] References in the reasons of Kiefel CJ, Keane, Nettle and Edelman JJ to the plaintiff having "no good reason" for his non‑cooperation are fairly to be read in context as references to his failure to provide the requisite information not being explicable on the basis of incapacity by reason of, for example, any medical condition or mental illness.[47] The critical consideration was that it was within the "power" of the plaintiff to provide the information.[48] The reasons of Bell, Gageler and Gordon JJ were to substantially identical effect in recording that there was "nothing in the special case to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background" and in drawing the inference that "the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity".[49] To sum up in language used by French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[50] to which attention was drawn in NZYQ,[51] "[a] detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came".[52] That, in a nutshell, is what ASF17 has tried and failed to do. Conclusion The statutory position of ASF17 is unambiguous. His removal from Australia is required by s 198(6) of the Act. In the absence of an extant protection finding, which would engage the operation of s 197C(3), his removal to Iran is permissible under s 198(6). The litigious position of ASF17 is correspondingly uncompromising. He has not sought a writ of mandamus to compel his removal from Australia. No question has therefore arisen as to whether his removal from Australia, whether to Iran or to anywhere else, could be compelled under s 198(6) of the Act. He has not sought that the Minister exercise any personal non-compellable power under s 48B or s 195A which may result in a protection finding by reason of his claimed fear of harm in Iran based on his sexual orientation. He has sought only a writ of habeas corpus. By it, he has sought to secure his immediate release from detention in Australia. The sole question which has arisen, and on which issue has been joined at the hearing and on appeal, is whether ASF17's continuing detention in Australia under ss 189(1) and 196(1) for the purpose of removal under s 198(6) exceeds the constitutional limitation on the valid application of ss 189(1) and 196(1) identified in NZYQ. ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so. On those undisturbed findings of primary fact, the evaluative characterisation of the primary judge, that there is a real prospect of removal of ASF17 from Australia to Iran becoming practicable in the reasonably foreseeable future, such that the constitutional limitation identified in NZYQ has not been exceeded, is correct. ASF17's continuing detention under ss 189(1) and 196(1) of the Act does not exceed the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution. The appeal will be dismissed with costs.

CORPORATIONS — application under s 471B of the Corporations Act seeking leave to commence proceedings against company being wound up — where the plaintiff seeks to bring defamation proceedings against the company — where the expiration of the relevant limitation period is imminent — where no real prejudice would be caused to the company or its creditors — where the liquidation process would not thereby be delayed — where granting leave is necessary to do justice between the parties notwithstanding delay on the plaintiff’s part

SUCCESSION – Probate - Where deceased made two wills and the evidence is that at the time of the second will he lacked testamentary capacity due to Alzheimer’s disease – Although orders were sought by consent the Court must satisfy itself on an evidentiary foundation that there was lack of capacity at the time of the second will and capacity at the time of the first will – HELD: Probate granted of the first will and a declaration made that at the time he made it the testator had testamentary capacity

PRACTICE AND PROCEDURE – Whether a director should be joined as additional Plaintiff in proceedings brought by a company – where the director has no apparent cause of action against the Defendant in the proceedings – leave of the Court refused. PRACTICE AND PROCEDURE – Whether the Court should dispense with Uniform Civil Procedure Rules 7.1-7.2 so as to permit director to represent company in proceedings.

SUCCESSION – Succession Act s 10(3) – Where plaintiff attests a will and is also the main beneficiary under it – Whether the Court is satisfied that the testator knew and approved of the disposition and that it was given or made freely and voluntarily by him, so that the beneficial disposition is not void to the extent that it concerns the plaintiff – Held the Court is so satisfied – Short minutes of order made

SUCCESSION – Probate - Review of Registrar’s decision declining to grant probate of a copy of a will – Presumption of revocation by destruction – Rebuttal of Presumption – Where the will makes a careful and complete disposition of the testator’s property – Where solicitor’s who prepared it hold other original documents executed by the deceased but do not have the original will and no other will can be found – Where the revocation would have no effect on who would take the estate because it would devolve on intestacy as it does under the will – Presumption rebutted, will admitted to probate

SUCCESSION – Informal will in a notepad – Succession Act 2006 (NSW) s 8 – Whether the deceased intended the document to form his will – Held: He did.

CIVIL PROCEDURE – pleadings – particulars – where plaintiff has served all evidence on which it relies to prove its claim – where defendants seek particulars of the plaintiff’s claim concerning the unpaid direct costs claimed from the defendants in respect of various construction projects – where plaintiff has not sought to identify or prove those unpaid direct costs claimed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

Application under s 78(1) of the Crimes (Appeal and Review) Act 2001 for inquiry into sentence – two serious violence offences – domestic violence context – unsuccessful application to Court of Criminal Appeal for leave to appeal against sentence – primary complaint in relation to appraisal on sentence of expert medical evidence on mental health – no new material or arguments – no doubt or question as to any mitigating circumstances or any part of the evidence – whether special facts or special circumstances that justify the taking of further action

CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where cross-claimants allege that but for cross-defendants’ alleged misleading or deceptive conduct it would have engaged alternative contractor to construct coal handling plant in accordance with number of counter factual circumstances – where cross-defendants’ experts identified factual operational matters that would allegedly also occur in the counterfactual circumstances – where cross-defendants amended their Cross-Claim Response to reflect these matters – where cross-claimants seek to amend Cross-Claim List Statement to meet that claim – where cross-claimants’ current case might fail absent such amendment – where trial date imminent – whether directions can be made to ensure cross-defendants not prejudiced

EQUITY – injunctions – urgent interlocutory relief – where plaintiff’s previous injunction restraining defendant landlord from entering premises discharged – where plaintiff continued to conduct business on premises despite re-entry and re-possession by defendant landlord – where plaintiff no longer has entitlement to remain on premises

CORPORATIONS – Directors and officers – Whether Second Defendant was a de facto or shadow director of the company. CORPORATIONS – Directors and officers – Breach of duties under ss 180–182 of the Corporations Act 2001 (Cth) – Breach of fiduciary duties – Whether directors caused company to enter uncommercial transactions – Whether directors caused funds to be transferred to related entity absent any benefit to the company – Whether directors procured loan to the company while it was insolvent. CORPORATIONS – Whether transactions amount to unfair preferences, uncommercial transactions, unreasonable-director related transactions and insolvent transactions under Part 5.7B of the Corporations Act 2001 (Cth).

CRIME – sentence – murder – shooting of the President of the Bandidos Western Chapter - five co-offenders –verdict after trial – factual findings on sentence following verdicts of guilty by a jury – numerous disputes as to factual findings – sentenced on the basis of a joint criminal enterprise to shoot the deceased with an intention to inflict grievous bodily harm upon him – where offenders and their associates were subject to intimidation and violence at the hands of the Bandidos – motivation for the offending reduces the objective seriousness of the offence – parity – hardship in custody – offenders sentenced

DAMAGES – Intentional Torts – child sexual assault – assessment of damages – past economic loss – future economic loss – damages by way of buffer – future out of pocket expenses – aggravated and exemplary damages

JUDGMENTS AND ORDERS – motion to set aside and vary orders – application under Uniform Civil Procedure Rules, r 36.16 – whether there was any misapprehension as to different findings and conclusions of law in the primary reasons – whether loss of chance claim for damages was excluded – no basis for amending orders is established

NEGLIGENCE – professional negligence – solicitors advising on large-scale property development – failure to include key clause in joint venture agreement NEGLIGENCE – causation – loss of chance – alleged loss of chance to amend joint venture agreement to include clause – alleged loss of chance to consummate joint venture with alternative partner NEGLIGENCE – damages – ascertainment of quantum – loss from inability to develop land in accordance with desired joint venture agreement – land still not fully developed – forecasting how hypothetical development would have proceeded EVIDENCE – opinion evidence – forecasting hypothetical property development outcomes

APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment disposing of appeal from review of a costs assessment – costs disputes as satellite litigation – fourth hearing with respect to costs assessment – need for strong likelihood that no further proceeding would result – leave refused COSTS – assessment of costs – review of costs assessment by review panel – functions of review panel – whether nature of review changed in 2014 with enactment of Uniform Law – whether review panel has function of determining the costs of the review and who should pay them

PRACTICE – interlocutory relief pending appeal – application for leave to appeal from interlocutory injunction preventing steps being taken in pending Malaysian proceedings – whether applicant should be permitted to advise High Court of Malaya of existence of appeal and hearing set down at end of May – whether applicant should be permitted to apply to adjourn Malaysian proceedings – whether interlocutory orders necessary to protect subject matter of appeal – limited relief granted

LAND LAW — Indigenous land rights — Aboriginal Land Rights Act 1983 (NSW) — Claimable Crown lands — Lawfully used or occupied for the purposes of s 36(1)(b) — Definition of “land” — Where land claimed is subject to a lease granted by the Crown — Where no lawful physical use of the land by tenant — Whether a “use” of the land may include a non-physical use — Claimable Crown lands include all estates and interests in the land — Multiple concurrent users with different “uses” and purposes must be considered independently — Leasing of the land by the Crown is a valid “use” of the estate in fee simple — Minister’s decision an error of law and legally unreasonable — Appeal allowed.

CIVIL PROCEDURE – Default judgment – Setting aside – whether reasonably arguable defence on the merits – where the primary judge failed to have regard to the tension in some authorities on the requirements to establish the proposed equitable unconscionability defence – where the proposed defence under the Contracts Review Act 1980 (NSW) raised an issue of principle, namely whether the unjustness of a contract can be established by reference to matters of which the counterparty was ignorant when the contract was entered into EQUITY – Unconscionable conduct – standard of knowledge of the applicant’s special disability or disadvantage required on the part of the other party – whether mere inadvertence or indifference on the part of the stronger party is sufficient as opposed to establishing exploitative or predatory conduct – relevance of the distinction between active and passive conduct on the part of the stronger party EQUITY – Undue influence – Rule in Yerkey v Jones – Effect on third parties – where the applicant claimed to be under the control and influence of her husband – whether actual or constructive knowledge is required on the part of the third party or rather, whether notice of the weaker party’s disadvantage is sufficient

CRIMINAL LAW – appeal – appeal against conviction – sexual touching contrary to 66DB(a) Crimes Act 1900 (NSW) – aggravated detention with intent to obtain advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW) – whether Crown’s closing address caused a miscarriage of justice – asserted reliance on matters not the subject of evidence – asserted reliance on matters subject to a tendency application brought by the applicant but successfully objected to by the Crown – asserted use of inflammatory words – whether verdicts unreasonable – whether the complainant’s credibility is undermined because of her agitated presentation when giving evidence – whether complainant’s evidence can be accepted having regard to its evolution from her initial complaint to pre-trial evidence – whether independent objective evidence undermines the alleged timing of events – leave granted – appeal dismissed

CRIME – Murder – s 18(1)(a) Crimes Act 1900 (NSW) – Attempted robbery whilst armed with a dangerous weapon – s 97(2) Crimes Act CRIME – Constructive murder – Joint criminal enterprise – Extended joint criminal enterprise – Elements of constructive murder – Whether trial judge erred in directing jury – Not necessary that the act causing death must be done by the accused, or be within the scope of a joint criminal enterprise – Acts of those involved in the JCE are attributed to each other – No further mental element required as regards death DEFENCES – Self-defence – Availability to constructive murder – Self-defence unavailable EVIDENCE – Tendency evidence – Test for admitting tendency evidence – Significant probative value within the meaning of s 97(1)(b) Evidence Act 1995 (NSW) – Balancing with unfair prejudice under s 101 Evidence Act – Unnecessary to identify specific reasons behind tendency – Importance of framing tendency – Levels of generality – Danger in framing tendency evidence in too wide or narrow a manner – Evidence has significant probative value – Evidence unlikely to unfairly prejudice applicant – Applicant did not seek further directions on the point at trial SENTENCE – Whether sentence was manifestly excessive – Need to tailor sentence for constructive murder to circumstances of the case – Serious offence – Multiple aggravating factors – Lack of remorse or insight into moral culpability – Sentence not manifestly excessive

CRIME — Complicity — Differences between accessorial liability, joint criminal enterprise, and extended joint criminal enterprise — Whether and to what extent common law principles of complicity apply to murder under s 18(1)(a) of the Crimes Act 1900 (NSW) — Whether accessorial liability is consistent with charge of constructive murder CRIME — Constructive murder — History thereof — Decision in R v Sharah (1992) 30 NSWLR 292 explained and distinguished — No generic requirement that a participant in a joint criminal enterprise to commit the foundational offence foresee possibility of the act or omission causing death JURY DIRECTIONS — Directions as to constructive murder and accessorial liability — Direction as to need for foresight of act causing death erroneous but not establishing a miscarriage of justice — Directions only prejudicial to prosecution case — Necessity of taking directions in context — Directions regarding lack of prior convictions reflected understanding between judge and parties CRIME — Unreasonable verdict — Unavailability of one chosen pathway to conviction does not render verdict unreasonable — Verdict not unreasonable CRIMINAL PROCEDURE — Whether to order retrial under s 8(1) of the Criminal Appeal Act 1912 (NSW) — Factorial approach — Seriousness of murder charge — Strong case in joint criminal enterprise — Potential case not significantly different to case made at trial — Legal issues raised difficult — Retrial ordered — Whether sentence for foundational offence should be set aside

EQUITY — specific performance — contract for sale of land — corporate purchaser’s obligations guaranteed by sole shareholder and director — purchaser defaulted under contract — specific performance ordered against purchaser and guarantor

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CIVIL PROCEDURE — Notice to Produce — Application to set aside — Abuse of process — Legitimate forensic purpose — Client legal privilege

CRIME – murder – trial by judge alone – two counts – consideration of the defence of mental health impairment –no dispute that the accused committed the physical elements of murder – where accused stabbed both of his parents and thereby caused their deaths –where accused suffered from a mental health impairment that, at least, led to the consequence that he did not know the fatal acts were morally wrong – expert evidence unanimous about establishment on balance of elements of defence – extensive agreed facts – where accused had lengthy history of substance abuse and mental illness – special verdicts of act proven but not criminally responsible

OCCUPATIONS – health practitioners – findings of unsatisfactory professional conduct and professional misconduct against medical practitioner following Stage 1 hearing – application for leave to appeal – whether case established for grant of leave – where application did not challenge most aspects of decision – whether clear case of error as to concession by expert in cross-examination – where any error was not shown to be anything other than a minor contribution to findings – leave refused

COSTS – application for costs when statement of claim and cross-claims dismissed by consent – whether basis made out for leave to appeal from decision of primary judge to make no order for costs – where applicant unrepresented for some of period – where applicant sought only to challenge the absence of costs orders in some claims dismissed against him, leaving in place one costs order adverse to him and an absence of costs orders for his own cross-claims – where narrower application had not been advanced to primary judge – whether any question of principle or substantive injustice had been established – leave refused

APPEAL – appeal as of right or by leave – where primary judge made findings as to termination of partnership but left many issues unresolved – appeal interlocutory and required leave PARTNERSHIP – primary judge rejected plaintiffs’ claim that partnership terminated on 30 June 2019 – primary judge disbelieved all witnesses – whether challenges to factual findings made out