Cases and authorities

WORKERS COMPENSATION – Police Superannuation Scheme – where a member seeks to have a further infirmity certified under s 10B(1) or his earlier certification of infirmity amended to include an additional infirmity for the purpose of being entitled to increased annual superannuation allowance pursuant to ss 10 and 10B of the Police Regulation (Superannuation) Act 1906 (NSW) STATUTORY INTERPRETATION – whether an additional infirmity may be certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) in circumstances where a previous certification of a different infirmity was made prior to the police officer’s discharge

COSTS – whether third party costs order should be made. COSTS – Security for costs – payment of funds out of Court.

DAMAGES – Nominal damages – Whether interest payable on nominal damages CORPORATIONS – Contravention of ss 181 and 182 of Corporations Act 2001 (Cth) established – Whether declaration should be made COSTS – Claims against Fifth Defendant dismissed – Whether a Sanderson or Bullock order should be made against the First and Third Defendants COSTS – Application of UCPR r 42.34 – Whether there should be no order as to costs having regard to outcome of Plaintiffs’ various claims – Whether costs should be apportioned between such claims COSTS – Offers of Compromise and Calderbank Offers – Whether costs incurred after the date of any such offer are payable on an indemnity basis

APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose

RESTRAINT OF TRADE – employment contract – interlocutory inunction – prima facie case – plaintiff member of corporate group – arguable interest to support restraint – hardship – lack of evidence of defendant’s financial position – delay – injunction refused

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due dispatch – delay occasioned by the plaintiff’s repeated non-compliance with case management court orders – delay attributable to (i) plaintiff’s failure to put his solicitor in funds and (ii) solicitor’s pressing personal circumstances – plaintiff desirous of further progressing the proceedings – inappropriate to dismiss proceedings. CIVIL PROCEDURE – occupations – legal practitioners – application for leave to file notice of intention of ceasing to act – relationship between plaintiff and solicitor irretrievably broken down – cause shown – leave granted.

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – marriage certificate – no valid will – where NSW Trustees and Guardian and sons of the deceased wish to take no part in proceedings – where the sons make no claim against the deceased’s estate – deceased’s wife appointed as representative with consent.

LIMITATION OF ACTIONS – whether proceedings brought out of time – whether interim occupation certificate authorised occupation and use of the “whole of the building” for the purposes of the Home Building Act 1989 (NSW) CIVIL PROCEDURE – pleadings – application to strike out – whether claims under the Home Building Act 1989 (NSW) and Design and Building Practitioners Act 2020 (NSW) adequately articulated – whether necessary to prepare a schedule setting out the risks and steps to manage those risks

CRIMINAL LAW – murder – special verdict – defence of “mental health impairment” – where experts and parties agree defence is established – man kills wife of 51 years by strangulation – evidence of delusions – hearing voices – where statements to police inconsistent with history of delusions provided to doctors – explanation by expert psychiatrist – “plethora” of evidence of mental illness – where defence lawyer briefs psychiatrist shortly after accused man charged – strong evidence accused still mentally ill – presumption accused not mentally ill – onus of proof on accused – defence established – special verdict entered – consequential orders made for detention of the accused and referral to the Mental Health Review Tribunal

HIGH RISK OFFENDERS – extended supervision orders – violent offender – where defendant does not oppose making of ESO – where dispute is limited to the length of the ESO and conditions to be imposed – extended supervision order imposed

STATUTORY INTERPRETATION – Power of Commissioner of Police to appoint police officers – Meaning of “position” – Anthony Hordern principle – Extrinsic materials – Seeking to give practical and coherent effect to statutory regime ADMINISTRATIVE LAW – Jurisdictional error – Characterisation of exercise of statutory power where multiple powers available – Practical difference in operation of statutory powers under separate provisions – Power of dismissal under s 80(3) of Police Act 1990 (NSW) not available – Dismissal quashed STATUTORY INTERPRETATION – Meaning of “first appointed” – Suggested use of subordinate legislation to construe Act – Not appropriate where subordinate legislation not drafted when Act enacted WORKERS COMPENSATION – Protection of injured workers – Reinstatement of worker – Interaction with police legislation – Implied grant of power to State public sector employers to reinstate workers

BUILDING AND CONSTRUCTION — Contract — Damages — Defects — Concrete slab not constructed in accordance with specifications BUILDING AND CONSTRUCTION — Contract — Dispute Resolution — Experts and expert evidence — Where experts disagree on extent and quantum of damages CONTRACTS — Remedies — Damages — Loss or damage — Where defects are agreed but extent of damage and rectification are not CONTRACTS — Remedies — Damages — Loss or damage — Whether to deduct settlement figure of another defendant from judgment sum

CRIME – Bail – Show cause – Strength of the prosecution case for a murder charge and serious drug charges – Time elapsed until trial – Applicant’s conditions of custody and safety – Proposed bail conditions – Bail refused.

COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end

JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Second application under UCPR, r 36.16(3A) – Applicant seeking to reagitate issues for second time – No basis for re-opening established – Application vexatious and an abuse of process

PRACTICE AND PROCEDURE — whether a vexatious proceedings order should be made — where litigant had reagitated the same points on multiple occasions after proceedings in the Court of Appeal and rejection of special leave application — whether sufficient frequency of institution of proceedings for the purposes of s 8(1) of the Vexatious Proceedings Act 2008 (NSW) — vexatious proceedings order made

CRIME — drug offences — supply prohibited drug psilocybin — commercial quantity — whether weight of prohibited drug included weight of mushrooms in which psilocybin naturally found — construction of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW)

CRIME – appeals – appeal against conviction – where applicant charged with specially aggravated break, enter, and commit assault occasioning actual bodily harm – joint criminal enterprise to break and enter victim’s home, commit common assault, and steal cash – whether guilty verdict was unreasonable or unsupported by the evidence – three particulars – evidence sufficient to find agreement to assault made before breaking and entering – evidence sufficient to find that infliction of actual bodily harm was foreseen as a possibility in carrying out the joint criminal enterprise – discussion of whether prohibited to combine legal concepts of extended joint criminal enterprise and committing the offence in company – concepts able to stand together – consideration of Markou v R – in that case only the assault itself required to be proven to have been committed in company, not the consequence of actual bodily harm – whether miscarriage of justice occasioned by trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise – oral directions sufficient – no sign of any difficulties in jury’s understanding – appeal dismissed

CONSUMER LAW — Misleading or deceptive conduct — Liability of intermediaries — Claim fails on the facts — No issue of principle

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – financial position of plaintiff’s mother relevant to consideration of plaintiff’s interests – settlement approved

PRACTICE AND PROCEDURE – costs – whether it was appropriate to commence proceedings in the Supreme Court – whether it was necessary to seek declaratory relief – whether successful plaintiff is entitled to costs where the amount in issue did not exceed $500,000

CRIMINAL LAW – murder – extended joint criminal enterprise – directed verdict – whether there is no evidence upon which a jury could convict – circumstantial evidence – whether inferences contented by the Crown are available

CIVIL PROCEDURE — Preliminary discovery — whether plaintiff may have a claim for relief – where plaintiff asserted the defendant company may have failed to comply with its taxation obligations – whether, if established, asserted failures capable of justifying winding up of the defendant company

HIGH RISK OFFENDERS – post-sentence orders under Division 105A Criminal Code Act 1995 (Cth) – application for extended supervision order – whether satisfaction on balance of probabilities of unacceptable risk of defendant committing a serious Part 5.3 offence – statutory interpretation of temporal requirements of crucial test – where defendant convicted of making a document connected with preparation for a terrorist act when 18-years of age – defendant denied parole – eight years in continuous custody – interim supervision order imposed – expert evidence – limitations of predictions of risk of recidivism – difficulties in determining realistic possibility of risk – grievance based reasoning – evidence of previous misconduct in custody through communications with unauthorised associates – perceived risk based on possibility of subsequent deterioration based on association with Islamic extremists – many concerning contacts to remain in gaol for the period of the order sought – where defendant has renounced extremist views – significant progress in custody – strong family support –concern about potential risk of committing serious Part 5.3 offence, but not satisfaction on balance of probabilities that such a risk will develop – not satisfied any risk will come to fruition within period of order sought – not satisfied any risk is unacceptable – statutory test not fulfilled – amended summons dismissed

Immigration – Visas – Cancellation of visa – Where plaintiff found guilty of robbery offences when under 16 years of age before Children's Court of New South Wales – Where plaintiff committed subsequent robbery offences as adult – Where plaintiff's visa cancelled under s 501(2) of Migration Act 1958 (Cth) – Where delegate of Minister took into account "National Police Certificate" that listed robbery offences committed by plaintiff when under 16 years of age – Where "National Police Certificate" described plaintiff as being "convicted" of offences dealt with by Children's Court – Where delegate advised that plaintiff had "serious convictions" from 13 years of age – Where, at time of offending, s 14(1)(a) of Children (Criminal Proceedings) Act 1987 (NSW) prohibited Children's Court from proceeding to, or recording, any conviction if child was under 16 years of age – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence – Whether delegate erroneously took into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age – Whether delegate's decision affected by jurisdictional error. Words and phrases – "conviction", "criminal history", "finding of guilt", "for any purpose", "jurisdictional error", "materiality", "proceeding to conviction", "recording of conviction", "taken to be", "visa cancellation". Children (Criminal Proceedings) Act 1987 (NSW), s 14. Crimes Act 1914 (Cth), ss 85ZM, 85ZR, 85ZS. Migration Act 1958 (Cth), s 501(2). GAGELER CJ. I agree with Beech-Jones J. GORDON J. I agree with Beech-Jones J. EDELMAN J. I agree with Beech-Jones J. GLEESON J. I agree with Beech‑Jones

CRIME – jury discharge – where juror is alleged to have googled information or searched for material relating to the case – whether a fair-minded lay observer might reasonably apprehend that the jury might not discharge its duties in accordance with the law

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 – leave granted

COSTS — claim for debt — defendant made bankrupt before final orders made — proceedings stayed — stay does not prevent costs order being made — whether plaintiff would have succeeded in the proceedings — defendant ordered to pay costs

CIVIL PROCEDURE — interim preservation — freezing orders — variation of

COSTS – party/party – self-represented litigant – where application made by defendant for gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following summary dismissal of plaintiff’s claim – where conduct of the plaintiff significantly increased costs and disbursements incurred by the defendant – application granted

COSTS – party/party – self-represented litigant – where unsuccessful plaintiff alleged multiple grounds for an exception to general rule that costs follow the event – where defendant sought indemnity costs on the basis of “walk-away offer” in Calderbank letter

CIVIL PROCEDURE – notice of motion – order seeking settlement approval – settlement identified

CONSUMER LAW — First plaintiff embarks upon a career change and engages in training to qualify as a mortgage broker — First plaintiff claims first defendant arranged for mentoring of the first plaintiff — First plaintiff claims the first defendant made ownership and investment representations regarding a mortgage broking business (MAP Business) and induced the first plaintiff and his wife (the second plaintiff) to sell properties and transfer proceeds to the first defendant based on a promise of a 50% interest in the mortgage broking business, which were misleading and deceptive in that the first defendant had no such interest to sell — Other claims in relation to breach of mentoring agreement and sales and marketing promises CONSUMER LAW — Misleading or deceptive conduct — Discussion regarding the operation of the Australian Consumer Law (ACL) as a law of the Commonwealth and as a State “application” law — Discussion of s 6(3)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) — CCA extends the operation of s 18 of the ACL (in addition to certain other parts of the ACL) to persons who are not corporations where the impugned conduct involves the use of postal, telegraphic or telephonic services — The expression “postal, telegraphic or telephonic services” extends to conduct involving the use of the internet CONSUMER LAW — Misleading or deceptive conduct — Measure of damages — ACL, sections 18 and 236(1) UNREPRESENTED LITIGANTS — Content of procedural fairness PLEADINGS — Discussion (obiter) of pleading of claims in fraud and restitution TRUSTS — Discussion (obiter) regarding intention to create a trust and claims involving Quistclose trusts

CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manslaughter — Where sentencing judge took account of evidence not tendered in sentence proceedings — Whether miscarriage of justice occurred CRIME — Appeals — Appeal against sentence — Where applicant had a background of profound childhood deprivation — Whether sentencing judge failed to give meaningful consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CRIME — Appeals — Appeal against sentence — Where sentencing judge erred in failing to consider special circumstances

CRIME – appeals – appeal against sentence – whether obligation on a sentencing judge to make a finding of fact about an offender’s unlikelihood of re-offending – no such obligation on the evidence relevant and known to the court – where the sentencing judge made a “neutral” finding – appeal dismissed

Criminal law – Sentence – Calculation – Statutory interpretation – Maximum penalty – Persistent child sexual abuse offence – Where s 66EA of Crimes Act 1900 (NSW) came into effect from 1 December 2018 with maximum penalty of life imprisonment – Where previous s 66EA of Crimes Act provided for maximum penalty of 25 years – Where appellant pleaded guilty to offence of being an adult who had maintained an unlawful sexual relationship with child – Where appellant sentenced under current s 66EA to eight years imprisonment – Where maximum penalty of life imprisonment served as "valuable guidepost" in sentencing – Where appellant's offending occurred prior to commencement of current s 66EA and appellant pleaded guilty after current s 66EA commenced – Whether replacement of s 66EA of Crimes Act constituted new offence or increase in penalty for "offence" which already existed for purposes of s 19 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Procedure Act") – Meaning of word "offence" in s 19 of Procedure Act – Where retrospective operation of s 66EA offence – Whether maximum penalty for offence committed by appellant remained 25 years imprisonment by operation of s 19 of Procedure Act – Whether significant differences between former and current s 66EA of Crimes Act such that they are not same offence. Words and phrases – "child sexual abuse", "differences of substance", "increased penalty", "life imprisonment", "maximum penalty", "new offence", "offence", "persistent sexual abuse of a child", "retrospective", "retrospective offence", "sentence". Crimes Act 1900 (NSW), s 66EA. Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 25

OCCUPATIONS – legal practitioners – misconduct and discipline – complaint to professional body – practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – admission of breach of duty of care – whether proposed settlement in best interests of plaintiff – settlement approved

CRIMINAL LAW – application for review of conviction and sentence – sexual touching – common assault – “groping” – three separate victims – offences committed on the dancefloor of nightclub – associated offences of assaulting security staff and resisting police – two separate incidents – second incident occurred when applicant on bail for the first incident – applicant with psychological issues – no previous convictions – offences out of character – whether case should have been diverted under mental health legislation – whether convictions should have been recorded – where matter considered carefully by Magistrate – where appeal to District Court succeeded in part – rejection of ambitious submission made by lawyer in District Court that objective seriousness less because nightclubs “sexually charged arenas” – where solicitor “struggled to find the words” to articulate submission – whether appearance of doubt or question around conviction or sentence – nature of jurisdiction – whether Court should refuse to consider application because issues fully considered in courts below – discretionary decision to consider case on its merit – application dismissed

COSTS – application to vary costs order – defendant opposed application – apportionment not appropriate – order standing – alternate consideration of apportionment - legal principles for costs apportionment – parties shared mixed success in primary judgment – success broadly equivalent - costs order remains unaltered.

CIVIL PROCEDURE – default judgment – setting aside – proceedings for possession of land and liquidated sum – where company and its director entered into a loan agreement – where earlier judgment had been obtained against the director for possession of other land and for a liquidated sum – where writ of possession executed – non-disclosure and irregularity – whether Court ought to have been notified of prior judgment on an ex parte application for default judgment – whether default judgment entered irregularly by reason of non-disclosure – held information not relevant nor material – requirements of UCPR rr 16.4, 16.8 and 36.8 to obtain default judgment satisfied – no injustice occasioned by failure to provide further information – no irregularity CIVIL PROCEDURE – default judgment – setting aside – bona fide defence on merits – where draft defence relies on statutory unconscionability – asserts defendant under special disadvantage given (1) sole director’s advanced age and minimal income and (2) loss made in the 2022 tax year – where nothing about the defendant’s position in 2022 was provided to the plaintiff – whether general law concept of special disadvantage applies to a corporation – not unarguable that defendant might be found to be at a special disadvantage given director was the controlling mind – authorities leave open the possibility that a company can rely on unconscionability by reason of its special disadvantage – not unarguable that loan was unconscionable given evidence there might have been difficulty servicing the loan – bona fide defence exists – default judgment set aside

CRIME – admissibility – evidence – telephone intercept material relating to violence, drugs and participation of others – where accused objects to the content of certain telephone intercept material – whether probative value of certain telephone intercept material is outweighed by the danger of unfair prejudice to the accused – Evidence Act 1995 (NSW) s 137

CRIME – judge-alone trial – accused charged with murder – proposal to plead guilty after trial commenced – plea of guilty may not have been rationally based and in the interests of the accused – question as to fitness to be tried under Pt 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – inquiry held – accused fit to be tried.

CORPORATIONS — winding up — grounds for winding up — liquidators — where the parties nominate different proposed liquidators — where consideration of cost paramount

CIVIL PROCEDURE — Default judgment — Where no defence filed and no steps taken by the defendant in the proceedings — HELD — Default judgment entered

CRIMINAL LAW – procedure – joinder – joint or separate trials – whether prejudice caused by joint trial will cause positive injustice

CIVIL PROCEDURE – application for leave for a felon 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

CIVIL PROCEDURE – application for leave for a felon 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