Cases and authorities

CONTRACTS — Remedies — Damages — Whether party is entitled to recover damages for breach of contract CONTRACTS — Remedies — Specific performance — Where contract is part of parties’ larger commercial relationship ESTOPPEL — Promissory estoppel — Relief — Application of legal principles

APPEALS — leave to appeal — interlocutory decisions — adoption of report by referee — leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — whether application brought out of time — construction of s 3B – distinction between “completion” and “practical completion”

OCCUPATIONS – Legal practitioners – Barristers – Removal from roll of barristers – where barrister repeatedly and wilfully disobeyed injunctions preventing him from legal practice and advertising or presenting that he was able to engage in legal practice – where he pleaded guilty and was found to have committed 16 counts of contempt for continuing to practise – where he committed 12 contraventions of suspended imprisonment conditions

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Importation of border-controlled drug — Where the co-accused was the applicant’s abusive partner — Where the applicant was subordinate to her co-accused in the importations— Evidence of a non-financial motive — Whether the sentencing judge failed to take into account that the applicant was acting at the direction of an abusive partner in committing the offences in regard to general deterrence and denunciation — failure to make a finding as to moral culpability

CIVIL LAW – audio visual link – undertaking by plaintiff’s lawyers – no question of principle

COSTS – Order for costs thrown away by amendments.

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.

RECTIFICATION — commercial contract — common intention — proof — internal communication between plaintiff and solicitor — relevance and significance — defendant’s intention — whether Jones v Dunkel inference should be drawn CONTRACT — interpretation of commercial contract for sale of land — right of recission — interpretation by reference to context — potentially contaminated land — contaminated land legislation and Environmental Protection Authority guidelines — relevance of expert opinion evidence

SENTENCING – murder – young mother suffocated her 11-month-old daughter – early plea of guilty – facilitated the administration of justice – mental impairment and objective seriousness – mental impairment and moral culpability – special circumstances

ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where medical assessor’s assessment upheld by appeal panel – where appeal panel erred by misunderstanding the applicable legal test – whether panel failed to exercise its statutory functions according to law – whether same conclusion would have been arrived at regardless of error – matter remitted for reconsideration by different Appeal Panel

APPEALS — Leave to appeal — Interlocutory decisions —— leave to appeal refused

Criminal practice – Trial – Directions to jury – Tendency – Where respondent due to stand trial on charges of sexual offences committed against two children of former partner – Where prosecution served tendency notice stating intention to rely on evidence of uncharged and charged acts to support alleged tendency on part of respondent – Where respondent applied to trial judge for ruling about form of direction to be given to jury regarding standard of proof to be applied when addressing evidence of charged acts to determine whether alleged tendency established – Where trial judge ruled jury be directed that, before they use charged acts for tendency purposes, they must find that conduct to be proved beyond reasonable doubt – Where Court of Appeal upheld trial judge's proposed direction and found to direct otherwise would invite jury to engage in "circular reasoning" and "apply a less rigorous standard of proof" to charges than beyond reasonable doubt – Whether trial judge's proposed direction precluded by s 61 of Jury Directions Act 2015 (Vic) – Whether, in any event, erroneous for trial judge to give proposed direction. Words and phrases – "beyond reasonable doubt", "charged act", "elements of the offence", "intermediate fact", "jury", "jury direction", "standard of proof", "tendency", "tendency direction", "tendency evidence". Jury Directions Act 2015 (Vic), ss 61, 62.

Criminal practice – Trial – Directions to jury – Conspiracy – Where respondent found guilty of conspiracy to import commercial quantity of border controlled drug contrary to ss 11.5(1) and 307.1(1) of Criminal Code (Cth) – Where s 11.5(7A) provided that any special liability provisions that apply to an offence apply also to offence of conspiracy to commit that offence – Where s 307.1(3) provided absolute liability applies to physical element of offence of importing border controlled drug – Where Court of Appeal of Supreme Court of South Australia found element of conspiracy charged was that conduct in which conspirators agreed to engage would have resulted in importation of a commercial quantity had agreement been successfully executed – Where Court of Appeal found evidential material concerning what would have been imported confined to conduct in which respondent agreed to engage and circumstances in which respondent believed and intended conduct to be carried out – Whether trial judge failed to properly direct jury on element of offence regarding quantity – Whether trial judge's directions wrongly permitted jury to have regard to conduct of co‑conspirators engaged in outside of respondent's presence in determining scope of conspiratorial agreement. Words and phrases – "absolute liability", "agreement to import a commercial quantity of a border controlled drug", "conspiracy", "co‑conspirators rule", "elements of the offence", "intention", "pursuant to the agreement", "scope of the conspiracy", "special liability provision". Criminal Code (Cth), ss 11.5(1), 11.5(2), 11.5(2A), 11.5(7A), 307.1(1).

APPEAL – finding that appellant’s main witness unreliable – whether evidence as to business practice affected – reliance on commerciality – inferences drawn from circumstances and context – failure of trial judge to be satisfied of case for party bearing onus of proof – absence of basis to reject findings of fact CONTRACTS – formation – contract alleged to have been formed by exchange of emails – respondent disputed the existence of the two emails – no electronic record of emails – only explanation of absence from respondent’s server was deletion prior to migration to cloud in 2017 – deletion not relied on by appellant – hardcopy of emails relied on by appellant – irregularities between disputed emails and undisputed emails – belated discovery implausible

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – allegations of sexual abuse against a priest – post-traumatic stress disorder – leave granted – no question of principle

CIVIL PROCEDURE – allegation of sexual abuse – legitimate concern that defendant divesting assets – realism concerns current cost of living – hearing date set in May – interim freezing orders made – case management orders made

CRIMINAL LAW – practice and procedure – expert evidence – three psychiatrists – evidence to be given concurrently – s 275C of the Criminal Procedure Act 1996 (NSW) – order made - reasons

CRIMINAL LAW – juries – application for discharge of jury – application precipitated by recent tragic events at Bondi Junction and Wakeley – media attention – media reports linking tragic event with mental illness and references to drug use – entitlement to a fair trial – jury will be exposed to expert opinions regarding the operation of mental illness and how a forensic patient is dealt with – accused’s foreshadowed judge-alone application if jury is discharged ­– jury concerns – capacity to follow directions – question raised from a juror about a media article and whether permitted to show other jurors – counsel encounter with a juror – counsel in civilian clothes and without a wig – discharging the jury would be "an overly sensitive approach" – discharge would suggest a lack of trust in the jury system – no real risk established to the fairness of the trial – application refused

SUCCESSION — Construction — General principles — Structure and scheme of will — Where share of son under will reduced by unpaid loan amount SUCCESSION — Family provision — Claim by adult son — Whether inadequate and proper provision — Where adult son able-bodied and in comparable financial position to beneficiary resisting further provision

CORPORATIONS — winding up — practice and procedure — application to transfer proceedings to the Federal Court of Australia — where related Federal Court proceedings are on foot — where the same issues arise and the same primary outcome is sought in both the Supreme Court and Federal Court proceedings — where the transfer of proceedings is in the interests of justice

PRIVATE INTERNATIONAL LAW – Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v) – Section requires the Court to set the registration of a foreign judgment aside where the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and he did not appear - Application to set aside registration of a judgment of the High Court of the Hong Kong Special Administrative Region, Court of First Instance – Where defendant did not receive notice of the Hong Kong proceedings until after judgment was given – Where defendant did not appear in the Hong Kong Court to defend the judgment – Where defendant moved the Hong Kong Court to set aside its judgment before making the application to this Court – Whether by doing so defendant appeared (or did not not appear) within the meaning of the section – HELD defendant did not appear – Registration of the foreign judgment set aside CIVIL PROCEDURE – Application by plaintiff for monies paid by consent order into Court by defendant to be paid by the Court into the Hong Kong Court – Alternatively to be kept in Court pending determination of a proposed claim in the Court by plaintiff against defendant – HELD application refused on various grounds including that the monies were paid into Court under a consent order to abide orders of this Court, not orders of the Hong Kong Court, and defendant’s entitlement to have the registered judgment set aside is not susceptible to the condition that monies stay in Court pending plaintiff’s proposed proceedings

BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – adjudicator determined that the payment schedule did not contain valid reasons for withholding payment and that the adjudication response advanced new reasons which the adjudicator was not permitted to consider – whether the adjudicator failed to comply with mandatory requirements of Act – whether there was a substantial denial of procedural fairness – jurisdictional error not established

CIVIL PROCEDURE — Pleadings — Where r 9.1(1) of Uniform Civil Procedure Rules 2005 (NSW) has not been complied with — Application of s 63 of the Civil Procedure Act 2005 (NSW) — Where applicant seeks that cross summons and cross list statement be taken, nunc pro tunc, to have been validly filed and validly served CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice — Where cross defendant seeks that cross summons and cross list statement be struck out due to prejudice caused by delay

Statutes – Construction – Non-compliance with condition precedent to exercise of statutory jurisdiction – Consequences for validity of exercise of jurisdiction – Where appellant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister decided under s 501CA(4) not to revoke original decision – Where appellant's migration agent applied to Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision – Where s 29(1)(c) of Administrative Appeals Tribunal Act 1975 (Cth) provides that application to Tribunal for review of decision "must contain a statement of the reasons for the application" – Where application made by appellant's migration agent contained no statement of reasons for application – Whether non-compliance with requirement of s 29(1)(c) resulted in invalidity of application such that jurisdiction of Tribunal to review decision not engaged – Whether legislative purpose to invalidate application and deprive Tribunal of jurisdiction for want of compliance with requirement of s 29(1)(c). Words and phrases – "application for review of a decision", "capricious", "condition precedent to the exercise of a statutory jurisdiction", "imperative language", "imperative term", "insufficient statement of reasons", "jurisdiction", "legislative history", "legislative intention", "legislative purpose", "mechanism for review", "must contain", "non-compliance", "permissive term", "statement of the reasons for the application", "statutory context", "statutory scheme". Acts Interpretation Act 1901 (Cth), s 36. Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 29(1)(a), 29(1)(b), 29(1)(c), 29AB, 33(1)(b), 33(2A)(a), 40(1)(a), 42A(5)(b), 43(1), 43(6), 69C. Administrative Appeals Tribunal Amendment Act 2005 (Cth), Sch 1, item 95. Migration Act 1958 (Cth), ss 500(1)(ba), 500(6B), 501G(1).

PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents’ submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed

CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Notices — Court’s power to order that notice be given to group members — Proposed notice referred to intention to apply for order excluding group members who had neither opted out nor registered from receiving potential prospective settlement sum JUDGMENTS AND ORDERS — Court of Appeal — Where Full Court of Federal Court (Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47) had held that previous decision of Court of Appeal (Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104) was “plainly wrong” — Where disagreement with that characterisation — Whether Court of Appeal should depart from Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104 STATUTORY INTERPRETATION — Context — Whether general words in statute should be read down to conform with surrounding provisions and purpose of the legislation

NEGLIGENCE — Personal injuries — where the plaintiff tripped and fell down a flight of stairs in the Republic of Nauru — law of Nauru applies, which is broadly similar to common law — where the height of an exposed metal lip on an aluminium frame attached to the edge of the top stair from which the plaintiff fell was subject to different measurements by a lay person (6.25mm) and two experts (2 to 2.5mm) — whether the primary judge erred in finding the height was 6.25mm and not 2 to 2.5mm — whether any error was material NEGLIGENCE — Causation — Factual causation — whether the primary judge erred in finding that the lip which had a missing yellow non-slip strip caused the plaintiff’s fall when his boot caught on it NEGLIGENCE — Breach — Foreseeability of risk — Standard of care — whether the absence of a “non-slip” strip from the stair frame was obvious and reasonable precautions were required to be taken to address the risk of harm

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – nunc pro tunc – ancient and foreign tongue – Felons (Civil Proceedings) Act 1981 (NSW) – sad history –­ historic sexual assault – plaintiff in Minister’s care – a harrowing read – duty list – patent absurdity

SUCCESSION — Dispute regarding costs payable consequent upon contested hearing relating to construction and rectification of the deceased’s last Will and estoppel claim — Approximately 9 months after commencement of proceedings defendant appointed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 7.10(2)(b) to represent the deceased’s estate — Estoppel claim successful having practical effect of giving the plaintiff property to which he would not otherwise be entitled having regard to the dismissal of the construction and rectification claims SUCCESSION — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 93(3) of the Trustee Act 1925 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”) displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (on facts – Yes) — Whether defendant acted reasonably in rejecting offers (on facts – No) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order — On facts plaintiff proposed a partial ‘otherwise’ order — Held partial order otherwise made ordering plaintiff to pay defendant’s costs of construction and rectification claims up to the time of the first offer SUCCESSION — Costs — Discussion of means of appraising whether the cost or expense which is the focus of the indemnity sought is ‘properly’ or ‘reasonably’ incurred SUCCESSION — Representative orders — Nature and scope of an estate representative’s role bearing upon costs — Discussion of sources of a representative’s obligations and entitlements — Discussion of options for representatives in estate proceedings to protect themselves as to costs liability, specifically by seeking indemnity and judicial advice — Discussion of jurisdiction (equitable and statutory) to provide for representation of an estate — Discussion of various UCPR Part 7 representation orders and choices, and the connection and interaction between them — Specific discussion regarding representative orders under UCPR r 7.10(2)(b) SUCCESSION — Representative appointment pursuant to UCPR r 7.10(2)(b) — Reference to historical background — Requirements for consent and independence — Discussion of terms of appointment — Discussion regarding nature and scope of a UCPR r 7.10(2)(b) appointee’s obligations and entitlements — Discussion regarding availability of indemnity and judicial advice to UCPR r 7.10(2)(b) appointee COSTS — Indemnity — Discussion regarding how one assesses whether a party is substantively acting in his or her own interest as opposed to acting in a representative capacity COSTS — Set-off of costs orders favouring either side LAW REFORM — It is timely that there be an amendment (or at least consideration of an amendment) to the CPA and UCPR to clarify the position of whether a r 7.10(2)(b) representative may be given judicial advice

CORPORATIONS — winding up — substitution of applicant for company to be wound up — where substitute applicant might otherwise have applied for an order winding up the company

CORPORATIONS — winding up — statutory demand — where the presumption of insolvency applies

CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporations has irretrievably broken down — appointment of liquidators with consent

CORPORATIONS — winding up — substitution of applicant for company to be wound up — where substitute applicant might otherwise have applied for an order winding up the company

CORPORATIONS – external administration – liquidators – supervisory jurisdiction – whether inquiry into the conduct of liquidator should be ordered – where the liquidator failed to comply with a subpoena for production of documents – where liquidator has now agreed to regime for production.

APPEALS — Procedure — Stay pending appeal — No issue of principle LAND LAW — Co-ownership — Statutory trust for sale — Writ for possession

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether circumstances warrant departure from principle that costs follow the event

COSTS — Party/Party — Bases of quantification — Indemnity basis — Where plaintiff’s director must have been aware that basis of claim was false

LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Frivolous or vexatious proceedings — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed

CRIME – murder – specially aggravated kidnapping – judge alone trial –extremely violent bashing of 16-year-old in two phases by multiple assailants – multiple bases of liability alleged – witness credibility issues – consistent theme supported by objective evidence – murder proved for one accused and conceded by other – defence of substantial impairment by cognitive impairment not established

COSTS — indemnity basis — where successful party seeks indemnity costs — where unsuccessful party seeks capped costs order pursuant to s 98(4)(d) Civil Procedure Act 2005 (NSW) — where unsuccessful party had ulterior motive and no chance of success — where no principled or evidential basis for capped costs — HELD — indemnity costs payable and no cap imposed

CIVIL PROCEDURE – summary disposal – application seeking judgment entered against first defendant – where first defendant has disengaged from proceedings – proceedings set down for the assessment of damages

CIVIL PROCEDURE – summary disposal – application for dismissal of proceedings for want of due despatch – where first defendant/cross-claimant has disengaged from proceedings – whether gross sum costs order should be made against first defendant/cross-claimant in favour of third cross-defendant

TAXES AND DUTIES — payroll tax — exemptions TAXES AND DUTIES — payroll tax — liability — contractors TAXES AND DUTIES — payroll tax — wages — deemed employees TAXES AND DUTIES — payroll tax — wages — payments under relevant contracts TAXES AND DUTIES — payroll tax — wages — taxable wages

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order pursuant to s 10B of the Act – whether defendant is a “supervised offender” – whether index offence is a “serious violence offence” as defined in s 5A – whether a court ought to consider the evidence and circumstances constituting the elements of the offence in determining whether the index offence is a “serious violence offence” – “what matters” is the elements of the offence said to constitute a “serious violence offence” – summons dismissed

CIVIL PROCEDURE – Civil Procedure Act 2005 (NSW) ss 149B, 149E – Application for transfer of proceedings instituted in this Court to the Land and Environment Court of New South Wales for the predominant purpose, not of seeking the substantive relief claimed in this Court, but of transferring the proceedings to that Court to have the outcome that that Court will have jurisdiction with respect to issues having arisen in proceedings in that Court in respect of which it may not have jurisdiction – Where no application is made to that Court to transfer the proceedings, or any part of them, in that Court to this Court – HELD the application for transfer should be refused because it is an abuse of the processes of this Court – HELD FURTHER that it is in any event not more appropriate for the proceedings to be heard in that Court than this one

CRIME – appeal and review – appeal from Local Court to Supreme Court – where appeal directed towards decision of Local Court magistrate to refuse leave to withdraw guilty pleas – whether plaintiff has been “convicted” by the Local Court for the purposes of ss 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff is a person against whom an interlocutory order has been made in relation to summary proceedings and can only proceed under s 53(3)(b), requiring a “question of law alone” and leave of the Supreme Court – no “question of law” arising – no basis to grant leave – leave to appeal refused – conviction appeal pursuant to ss 52(1) or 53(1) – prosecution proceeding on agreed basis – no “question of law” arising – no basis to grant leave – leave to appeal refused

CIVIL PROCEDURE – Pleadings – Amendment – Plaintiff sought to add further defects to existing cause of action – Whether Second Defendant would be irremediably prejudiced if amendments allowed – Whether Second Defendant has established viable and realistic cross-claims in respect of defects – Whether order should be made for amendments to take effect from date of commencement of proceedings

ADMINISTRATIVE LAW – summons seeking judicial review of decisions made under the Australian Harness Racing Rules – where plaintiff was issued with directions to produce his mobile phones to stewards of Harness Racing NSW – where plaintiff contends that directions ultra vires to the extent they infringe legal professional privilege ADMINISTRATIVE Law – Remedies – Equitable remedies – Injunction – where plaintiff seeks interlocutory injunction to restrain the stewards from imposing a penalty for his refusal to comply with the direction to produce his mobile phone – whether the summons raises a serious issue to be tried – where plaintiff has available other avenues of appeal against any penalty to be imposed – whether an injunction should be granted in such circumstances – where impugned decisions relate to matters of public interest – application of principles discussed in New South Wales Bar Association v Stevens

CRIME — Appeals — Appeal against conviction and sentence — Murder MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Special verdict of act proven but not criminally responsible — Where applicant diagnosed with schizophrenia after conviction

SENTENCING — relevant factors on sentence — whether sentencing judge failed to consider, or mistook the facts in relation to, pressure exerted by the offender’s mother and ex-partner to commence and continue social security fraud SENTENCING — resentence — relevant factors on sentence — relationship between moral culpability and objective seriousness — where duress is present — significance of general deterrence in sentencing for social security fraud