Cases and authorities

COSTS — Solicitor/Client — Recovery — Where personal injury proceedings resulted in a settlement in favour of the client – Where the client’s legal fees, Medicare charges and Centrelink charges are to be paid out of the settlement proceeds – Where the client was represented at different times throughout the proceedings by two different law firms, each of which seek orders that their bills of costs be paid out of the settlement proceeds – Where the client contests the quantum of the legal fees on the footing that they are excessive – Where the Third Defendant is under a statutory obligation to pay to Medicare and Centrelink charges for which the client is liable before releasing the remaining settlement monies –Held the settlement monies, less the Medicare charges and Centrelink charges, are to be paid into the Court pending formal costs assessment of the separate law firms’ bills of costs

EQUITY – Equitable interest in real property – Dispute about beneficial ownership

CIVIL PROCEDURE — abuse of process — where former solicitors claim payment for legal costs — where client recovers legal costs as damages from third party in Court of Appeal — where client subsequently argues that not liable for the costs CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — where applicant’s submissions do not raise any point of principle or general importance, or disclose any substantial injustice — where applicant’s success would make no practical difference APPEALS — appeal from Local Court under s 39 or s 40 of Local Court Act 2007 (NSW) — whether findings of fact can be made on appeal

CRIME – criminal liability – absolute liability – statutory offences – whether the offence of driving a motor vehicle while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug is an offence of strict or absolute liability – statutory interpretation of s 111(1) of the Road Transport Act 2013 (NSW)

CRIME – appeals – appeal against sentence – parity – disparity between sentences of co-offenders after sentencing judge found applicant’s sentence should be slightly longer than co-offender’s – whether sentencing discretion miscarried – appeal allowed – applicant resentenced

CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

SUCCESSION – Contested probate – validity of will excluding second of two sons – Testamentary capacity – deceased struggled with memory and taking care of herself – whether evidence showed significant cognitive decline in deceased – what weight to give expert report on capacity – what weight to give evidence of solicitor who made will –consideration of statement of reasons – Lack knowledge and approval – brief and simple will – where solicitor and deceased spoke neither English nor deceased’s native language when making will – Undue influence – where first son was deceased’s live-in carer – dominant and controlling – whether circumstances allowed inference of pressure or coercion – distinction between undue influence in probate and equity SUCCESSION – Probate and administration – extent of estate – whether either son owes debt to deceased’s estate – unattested deed of loan between deceased and second son – whether enforceable as contract – whether consideration present – whether loan actually paid – whether intention to create legal relations – limitation period – where first son was deceased’s guardian and power of attorney and withdrew funds for his own use – whether funds were loans or improper withdrawals SUCCESSION – Family provision – Claim by adult child in case will found invalid – moderate estate entirely in cash – last valid will divided estate equally between sons – interim provision to first son – where first son deceased’s long-term carer – close relationship – poor employment prospects – 60 years old – dominant and controlling during deceased’s old age – whether to make order for final provision – whether proceedings commenced within time

CIVIL LAW – forensic patient – expiration of limiting term – extension of status as forensic patient – claw hammer – opinions of mental health experts – interim relief granted

CIVIL PROCEDURE – Stay of proceedings – Inherent power – Where self-represented plaintiff is not capable by reason of psychological condition of conducting litigation.

CIVIL PROCEDURE – parties – impecunious and incarcerated plaintiff – application for pro bono assistance – inability to obtain legal assistance – claims in respect to publication of plaintiff’s identity contrary to court orders – referred for pro bono assistance

HIGH RISK OFFENDERS — application for extended supervision order — contact and non-contact sexual offending in relation to children – unacceptable risk test met – dispute about duration of order and conditions – index offences committed while on parole – order imposed

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for serious indictable offences – where proceedings commenced before leave was sought – where plaintiff alleged negligence when in the care of the Minister as a child and when incarcerated in juvenile institutions – alleged sexual assaults – leave granted

SENTENCE – murder – stabbing – trial before jury – initially allegations of mental illness and substantial impairment – guilty pleas entered to all charges on day 10 of the trial – stabbing motivated by obsession and jealousy – remorse – mental illness issues – prodromal schizophrenia diagnosed after offences – De La Rosa factors – specific and general deterrence SENTENCE – break and enter with intent to commit serious indictable offence – assault – using carriage service to harass – s 166 Criminal Procedure Act

COSTS – Offer of Compromise under UCPR, r 20.26 – whether Offers of Compromise complied with r 20.26 – Where an offer does not describe with precision what it is seeking with respect to costs.

EQUITY – charitable trusts – relationship with statute – distinction between charitable trust created pursuant to statute and recognised in equity and “statutory trust” created by statute which ceased when statute repealed – Necropolis Act 1867 (NSW) authorised vesting of land in separate trustees for denominational burial grounds at Rookwood – whether charitable trust recognised in equity thereby created – Necropolis Act repealed – new provisions extinguish any charitable trust over the land – whether new provisions extinguish charitable trust over proceeds of operation of burial ground PARTIES – declaratory relief – absence of contradictor – plaintiffs join Attorney General and seek declaration over existence and nature of charitable trust – Attorney supports plaintiffs’ submission that charitable trust exists, but disputes plaintiffs’ submission that its purpose has changed – whether declaratory relief available and appropriate STATUTES – statutory consolidation – Necropolis Act 1867 (NSW) repealed and replaced by Necropolis Act 1901 (NSW) – whether change in wording effected a change in charitable purpose – principles of construction applicable to consolidating statutes

ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker erred in construing the consultation requirements in s 99(3)(a)(iii) of the Rail Safety National Law –– whether primary judge erred in declaring the decision maker’s decision invalid ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker misunderstood the nature of the opinion required to be formed under ss 99(3)(a)(i) and 99(3)(a)(iii) of the Rail Safety National Law –– whether decision maker misapprehended nature of opinion required to be formed under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law –– whether decision maker’s decision is invalid CIVIL PROCEDURE –– Court of Appeal –– leave to amend Notice of Contention –– whether respondent’s amendment prejudices the appellant –– whether respondent can raise new points on appeal –– leave to amend granted –– respondent constrained by evidence adduced at first instance COURTS AND JUDGES –– judges –– duty to accord procedural fairness –– obligation to decide the case on the bases argued STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(i) –– whether primary judge erred in declaring s 99(3)(a)(i) a deeming provision –– consideration of the text, context and legislative purpose of s 99(3)(a)(i) –– effect of phrase “persons likely to be affected” STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(iii) –– whether the term “representing” means “entitled to represent” –– consideration of the text, context and legislative purpose of s 99(3)(a)(iii)

DEFAMATION – appeal from order granting leave to amend – adequacy of pleading and particulars – amendment to pleading introduced matters arising after commencement of Defamation Amendment Act 2020 (NSW) – operation of concerns notice to matters introduced by amendment – whether sufficient particulars of serious harm to reputation provided – whether sufficient particulars of publication provided – significance of claims of denial of procedural fairness in deciding points of law adversely to defendant

CRIME – Appeals – Appeal against sentence – Assessment of objective seriousness of offence – Assessment by sentencing judge not open – No failure to take into account totality of evidence – Applicant resentenced

CIVIL PROCEDURE — interim preservation — freezing orders – application to discharge ex parte freezing orders — HELD — freezing orders discharged and a new form of freezing orders made

CRIME – bail – release applications – show cause – unacceptable risk – bail concerns – Operation Ironside – AN0M devices – applications heard together – significant common features resulting substantial overlap in the arguments – not an invitation to arbitrary decision-making – not open to ignore statements of principle when not convenient – AN0M evidence issue - Bail Act 2013 (NSW), s 74 – show cause test – unacceptable risk test – home detention conditions – electronic monitoring condition – bail granted with conditions

COSTS – cross-claimant successful on claim advanced at trial – two other claims not pressed at last moment – length of trial reduced – cross-defendant incurred costs relating to claims not pressed – what costs order should be made to reflect these matters

SUCCESSION — probate and administration — application for appointment of administrator pendente lite pursuant to s 73 of the Probate and Administration Act 1898 (NSW) or the inherent jurisdiction of the court — HELD — not necessary nor appropriate in the circumstances for court to appoint an administrator pendente lite SUCCESSION — probate and administration —application for order preventing executor from using estate funds for legal expenses in the future — HELD — executor entitled to be indemnified by the estate for costs incurred as an incident of the administration of the trust estate SUCCESSION — probate and administration —application for order requiring executor to repay estate funds already used for legal expenses — HELD — executor not obliged to repay money spent from the estate on legal expenses

CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — where the plaintiff fails to satisfy any of the elements of Uniform Civil Procedure Rules 2005 (NSW) r 5.3 — where the plaintiff brought the application for an extraneous purpose and the court would exercise its discretion to refuse it

COSTS — timing — costs payable forthwith — where the plaintiff relies on Morningstar factors — where the first defendant submits that a costs order at this stage in the proceedings would stultify his defence and cross-claim and function to punish him — HELD — on balance the default position under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 applies COSTS ­— party/party — general rule that costs follow the event — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — where the plaintiff submits that costs should be payable as a gross sum — where a contested assessment of costs would expose the plaintiff to irrecoverable expense, delay and aggravation — HELD — gross sum costs awarded JUDGMENTS AND ORDERS — amending, varying and setting aside — where the cross-claimant submits that the principal judgment failed to account for the filing of a Notice of Intention to Appeal in respect of related proceedings — where no Notice to Appeal has been lodged and the cross-claimant is out of time to do so — HELD — orders varying principal judgment refused

CRIME – sentencing – murder – matricide – significant background of deprivation and disadvantage – mental health impairments – moral culpability

CIVIL PROCEDURE – interlocutory injunctions – corporate group presently in default under Syndicated Facility Agreement – where minority shareholders acquired at par the rights of lenders under Syndicated Facility Agreement – where such acquisition said to be in breach by directors of their fiduciary duties to the corporate group members – where interlocutory orders made by vacation duty judge restraining exercise of acquired rights – whether serious question to be tried whether that injunction should be continued – where balance of convenience lies

WORKERS COMPENSATION — Medical assessment — Appeal against Medical Assessment Certificate – whether Appeal Panel merely conducted a preliminary review and failed to determine the appeal – whether the Panel’s failure to re-examine the plaintiff despite her request constitutes reviewable error ADMINISTRATIVE LAW — Whether reviewable error of law — review of finding of fact — where some probative evidence to support finding

APPEALS – costs – consequential orders – no question of principle

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

LAND LAW – Caveats – Removal of caveat – extension of operation of caveat - Removal by order of court – Balance of convenience – where re-finance is sought by party on caveated property – where incoming financier will not offer refinance while property is subject to caveat – where on the evidence, there is doubt as to Defendant’s capacity to meet loan obligations – where Plaintiff resists refinance on the basis that refinance will diminish the value of her security in the property – whether alternative security can be offered.

COSTS – Protective jurisdiction – Ordinary rule – What, in all the circumstances, is the proper order for costs? – Welfare principle informs Court’s discretion

PARNTERSHIPS AND JOINT VENTURES — dissolution — winding up — appointment of receiver PARTNERSHIPS AND JOINT VENTURES — winding up — accounts LAND LAW — co-ownership — statutory trust for sale — appointment of trustees

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – personal injury proceedings – where risk that plaintiff’s damages will exceed the jurisdiction of the District Court

LAND LAW – possession of land – where registered proprietor made bankrupt – trustee registered as registered proprietor – where no defence to trustee’s claim for possession – where local Council issued an order preventing habitation of the property – life-threatening condition of property – trustee’s concern for liability if council’s order not complied with – defence struck out – judgment for possession

CIVIL PROCEDURE — Defendant outside Australia — Hague Convention — Originating process – Order for substituted service made – Whether to discharge substituted service order under UCPR r 11.6 or r 12.11 – Whether originating process could not be practicably served in the manner required by law, within meaning of UCPR r 10.14(1) – Whether Court should make an order under UCPR r 10.14(3) confirming service or under UCPR r 2.1 dispensing with the requirements of the rules relating to service where the Defendant was aware of the proceedings – Orders made confirming service

COSTS – costs assessment Uniform Law costs – determination of review panel – appeal to Supreme Court – where delay in instituting appeal – where second plaintiff later joined to proceedings – whether second plaintiff entered into client-solicitor relationship or was contractually bound as a third party payer and liable to pay costs – question of jurisdictional fact for review panel

APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to bring claim by both the first and fifth appellants – whether case not fought at trial may be propounded on appeal – possibility that additional evidence might have been called at trial and different findings made if new issue had been raised at trial

PROFESSIONS – Legal Practitioners – misconduct and discipline – legal practitioners directed to show cause why judgments and papers should not be referred to Legal Services Commissioner – no submissions provided by legal practitioners – judgments and papers referred to Legal Services Commissioner

CRIME — Appeals — Appeal against sentence — By Crown — Where parties agree sentence miscarried — Offence which carries life imprisonment erroneously attached to Form 1 — Matter remitted to District Court

CRIME – appeals – appeal against conviction – circumstantial evidence – standard of proof of intermediate facts – whether higher standard of proof applies to certain non-indispensable intermediate facts

SENTENCING – appeal against sentence – aggravating factors – dangerous driving occasioning death – moral culpability – objective seriousness – where the applicant was “showing off” his vehicle; grossly disregarded the speed limit and was found to have engaged in aggressive driving

Statutes – Construction – Where Sch 1A of Carriage of Goods by Sea Act 1991 (Cth) contained amended Hague-Visby Rules (the "Australian Hague Rules") – Where Art 3(8) of Australian Hague Rules provided that any clause in contract for carriage of goods by sea relieving or lessening carrier's liability for loss or damage to goods otherwise than as provided for in Australian Hague Rules shall be void – Where arbitration clause in bill of lading provided for resolution of disputes between carrier and shipper by arbitration in London under English law – Where arbitration commenced – Where shipper commenced proceedings in Federal Court of Australia and sought to restrain arbitration – Where carrier sought stay of Federal Court proceedings in favour of arbitration – Where carrier undertook to admit in London arbitration that Australian Hague Rules as applied under Australian law were to apply in arbitration – Where Federal Court made declaration by consent to similar effect – Whether arbitration clause in bill of lading rendered inoperative by Art 3(8) – Whether conduct of arbitration would relieve or lessen carrier's liability – Whether carrier's undertaking and Federal Court's declaration should be taken into account – Proper approach to standard of proof under Art 3(8). Words and phrases – "arbitration", "arbitration clause", "Australian Hague Rules", "balance of probabilities", "burden of proof", "carrier's liability", "contract of carriage of goods by sea", "declaration", "declaration by consent", "foreign arbitration", "lessen the carrier's liability", "liability would be relieved or lessened", "ordinary civil standard of proof", "standard of proof", "undertaking". Carriage of Goods by Sea Act 1991 (Cth), ss 4, 7, 8, 9, Schs 1, 1A, Art 3(8). International Arbitration Act 1974 (Cth), ss 7, 39.

Criminal law – Appeal against conviction – Criminal liability – Statutory complicity – Where s 324(1) of Crimes Act 1958 (Vic) provided, "if an offence ... is committed, a person who is involved in the commission of the offence is taken to have committed the offence" – Where s 323(1)(c) of Crimes Act provided person is "involved in the commission of an offence" if person "enters into an agreement, arrangement or understanding with another person to commit the offence" – Where respondent convicted of offences of supplying drug of dependence to a child and sexual penetration of a child under 12 on basis of ss 323(1)(c) and 324(1) – Where prosecution relevantly alleged respondent and two co‑accused entered into agreement, arrangement or understanding to supply cannabis to two complainants (aged 11 and 12), and then sexually penetrate complainant (aged 11) – Where element of supply offence that child in fact be under 18 years of age – Where element of sexual penetration offence that child in fact be under 12 years of age – Where knowledge of age not an element of either offence – Whether prosecution required to prove that accused knew, at time of entering agreement, ages of complainants or that complainants were under specified age – Whether substantial miscarriage of justice resulted from failure to direct jury to be satisfied beyond reasonable doubt that parties to agreement knew ages of complainants – Whether fault element in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 applicable to s 323(1)(c) – Whether prosecution required to prove that accused knew or believed, at time of entering into agreement, essential facts that made conduct an offence, where knowledge or belief not an element of the offence itself. Words and phrases – "accessorial liability", "agreement", "agreement, arrangement or understanding", "agreement to commit an offence", "complicity", "derivative liability", "essential facts", "group activity", "involved in the commission of an offence", "joint criminal enterprise", "primary liability", "statutory complicity". Crimes Act 1958 (Vic), s 49A, Subdiv 1 of Div 1 of Pt II. Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71

CORPORATIONS – winding up – insolvency – application by substituted creditor – service of creditor’s statutory demand – failure to comply with creditor’s statutory demand – whether presumption of insolvency negatived.

CORPORATIONS - Shares - application for curative orders pursuant to s 1322(4)(c) of the Corporations Act 2001 (Cth) - relief from liability arising from failure to give notice of share buy-back within time - whether extension of time may be granted - where no substantial injustice from delay in notification.

COSTS – Security for costs – Review of registrar decision – Court’s discretion – Discretion to intervene in Registrar decision – Whether solicitors standing behind litigation – Whether beneficiaries of a trust obtaining benefit of litigation

EVIDENCE – context evidence – opinion rule – where contextual background of proposed evidence capable of informing the likelihood of events the subject of proceedings – no unfair prejudice occasioned