Cases and authorities

APPEALS – leave to appeal – claim for damages for sexual assault by police officers when plaintiff being apprehended – damages less than $100,000 – five day trial – no denial of procedural fairness – no error of principle or public importance – whether errors in fact-finding process – if appeal allowed, necessity for lengthy retrial – whether appropriate to grant leave to appeal

BUILDING AND CONSTRUCTION — adjudication — adjudication application — misleading deceptive conduct for purpose of s 18 of Australian Consumer Law — whether representations made by claimant to adjudicator in application is conduct in trade or commerce

COSTS – party/party – costs of appeal and primary claim – amendment to original costs order – where mixed success on appeal but appellants prevailed on principal issue – where cross-claim remitted for further hearing – where judgment below $500,000 ­­– whether UCPR r 42.34 applies PRACTICE AND PROCEDURE – funds paid into court – whether and to whom funds should be released

CONTRACTS – construction of contract – loan agreement – provision to convert amount owing into equity – whether forbearance deed converted loan into equity – whether clauses to be read in isolation or harmoniously – recital in deed cannot override the effect of the deed, properly construed CONTRACTS – variation of contract – loan agreement subject to deed providing forbearance to sue – whether obligations of guarantor of repayment of loan discharged by borrower and lender entering into deed of forbearance

LEAVE TO APPEAL — PRACTICE AND PROCEDURE — appeal against dismissal from appeal in Local Court — accountant sued for payment of outstanding fees claimed in invoices — amount in issue does not warrant grant of leave to appeal — evidence not adduced to prove basis of amounts claimed in invoices — whether plaintiff needs to do more to establish right to sums depends on whether quantum challenged by defendant — issue whether lump sum claimed in invoice with no explanation as to calculation is evidence of amount owing on invoice does not give rise to issue of principle or question of public importance in circumstances where quantum of invoices not challenged by defendant in defence and raised for the first time in closing submissions

COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — notice of motion filed more than 14 days after entry of original costs order — whether application for gross sum costs order a variation of original order

CIVIL PROCEDURE – permanent stay of proceedings – claim of vicarious liability for damages for child abuse – child abuse alleged to have occurred in 1976 at holiday camp – most relevant witnesses deceased – primary judge ordered permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – whether GLJ changed applicable principles – whether fair trial possible of primary allegation of child abuse – where appellants intended to adduce further expert evidence concerning holiday camps – leave granted and timetable for further evidence and submissions ordered

COSTS – General rule that self-represented litigants cannot recover costs for their own time – Chorley exception – Impact of Bell Lawyers v Pentelow on litigants recouping costs of employed solicitors – Inclusion of “remuneration” in definition of “costs” in the Civil Procedure Act 2005 (NSW) – Where the litigant party has obtained a costs order in their favour – Where the litigant party is also the solicitor on the record – Whether an unincorporated law firm litigant is entitled to recover costs for work done by its employed solicitors during the litigation JUDGMENTS AND ORDERS — Court of Appeal — Review of previous decision of another intermediate Court of Appeal — Whether previous decision interpreted what the High Court said or developed the common law — Court of Appeal not bound by a coordinate court’s interpretation of what the High Court said

EQUITY — General principles and maxims — Conveyancing — Statute of Frauds — Part performance — High threshold for part performance — Equivocal factors for part performance — Many equivocal acts do not add up to an unequivocal act EQUITY — Equitable interests in property — Property disputes — Assertion of legal ownership by trustee — Trusts and trustees — Evidence of trust — Where evidence of oral declaration of trust inadmissible under s 23C of the Conveyancing Act 1919 (NSW) — Doctrine in Rochefoucauld v Boustead — Doctrine not limited to where was a conditional assignment or written evidence prevented by fraud — Doctrine not limited to where property was assigned by claimant — Doctrine does not involve weighing up merits of conduct of parties APPEALS — From finding of fact — Credibility of witnesses — Challenge to credibility finding not made out

COSTS — Costs assessment — Whether gross sum costs order should be made — Whether costs should be awarded on an indemnity basis

COSTS – costs of appeal – where both parties enjoyed measure of success – costs of trial – costs order made at first instance was a ground of appeal – no substantive submissions made on that ground, despite the absence of submissions being pointed out in writing and during the hearing of the appeal – defendants belatedly seek to vary order dismissing that ground of appeal – no basis shown to vary costs order

CRIME – criminal liability – absolute liability – statutory offences – liability of nominated supervisor at a day care centre under s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) – whether “must ensure” imports a standard of absolute liability

CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 – where applicant’s defence largely funded by legal aid – whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 CRIMINAL PROCEDURE – Stay of proceedings – where applicant sought a Mosely stay during proceedings – whether a legally aided applicant can seek a Mosely stay where the Crown was at fault in relation to matter that led to termination of proceedings

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — judge alone trial — guilty verdicts on three counts — not guilty verdict on one count — whether reasonable doubt as to guilt of applicant on whole of the evidence CRIME — Appeals — Appeal against sentence — Manifest excess — whether consideration of intellectual disability sufficiently reflected in sentence

CRIMINAL LAW – appeal – appeal against sentence – sexual intercourse without consent – whether sentencing judge erred in assessing objective seriousness of offences – whether sentencing judge erred in assessing applicant’s disability – whether sentencing judge erred by having insufficient regard to applicant’s history of early childhood deprivation – whether sentencing judge erred in assessing applicant’s prospects of rehabilitation and likelihood of reoffending – whether sentencing judge erred by attributing too much weight to harm to the victim – whether sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal – pleas of guilty – appeal against sentence – insufficient regard to psychologist’s report – whether the sentencing judge failed to consider and apply De La Rosa principles to the applicant’s circumstances – error found – applicant resentenced

CIVIL LAW – freezing orders – ex parte application –– sexual abuse and neglect perpetrated by the first defendant – transfer of interest in property from first to second defendant with no consideration – claim for neglect and abuse by second defendant – concerns that property may be disposed of – orders made freezing assets

PRACTICE AND PROCEDURE — approval of settlement of a claim involving plaintiff who is under a legal incapacity — Civil Procedure Act 2005 (Cth), s 75 — settlement in interest of plaintiff and accordingly approved

PRACTICE AND PROCEDURE — approval of settlement of a claim involving plaintiff who is under a legal incapacity — Civil Procedure Act 2005 (Cth), s 75 — settlement in interest of plaintiff and accordingly approved

CHILD WELFARE – adoption – Aboriginal placement principles – definition of “Aboriginal child” – whether Secretary has made reasonable inquiries as to possible Aboriginal heritage

COMPROMISE – Settlement of proceedings – Competing views on whether proceedings settled – No binding settlement agreement JUDGMENT ON ADMISSIONS – Admissions in pleadings and written submissions – judgment granted

CRIMINAL PROCEDURE – costs – costs thrown away – where commencement of trial vacated at fault of Crown – where privately funded accused sought orders temporarily staying trial pending payment of counsels’ cancellation fees – where counsel had six weeks’ notice of trial being vacated and significant pre-trial work to occupy the notice period – whether proceeding to trial without payment of cancellation fees would cause serious unfairness to accused

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where statutory compensation sought pursuant to Real Property Act 1900 (NSW) s 129(1) — Where no causal connection between operation of provision and loss claimed

CONTRACTS — Formation — Agreement — Whether parties entered a collateral contract — Where borrower alleged collateral contract entered to forgive loan obligations in return for termination of separate joint venture agreements — Whether sufficient evidence to establish contract formation — Where parties had previously evidenced agreements in writing — Where alleged contract partly oral and partly in writing PARTNERSHIPS AND JOINT VENTURES — Joint venture agreements — Rights and duties between joint venturers — Fiduciary relationship — Whether fiduciary relationship arose pursuant to joint venture agreements — Scope of fiduciary obligation — Where joint venture properties sold after termination of joint venture agreements — Whether joint venturer placed himself in a position of conflict — Whether consent from other joint venturers obtained — Whether breach of fiduciary obligation alleged

BUILDING AND CONSTRUCTION – adjudication – judicial review – whether purported payment claim and adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) affected by jurisdictional error – where call on security by principal – where contractor procured unconditional bank guarantee – where purported payment claim and adjudication application by contractor took into account amount received by principal following call on security BUILDING AND CONSTRUCTION – contract – whether provisions in contract concerning recourse to security and unpaid monies void by reason of s 34 of Building and Construction Industry Security of Payment Act 1999 (NSW) – where provisions authorised plaintiffs to have recourse to security and unpaid monies CIVIL PROCEDURE – separate questions – determination of separate questions

LAND LAW – conveyancing – options – call options – deed providing for mutual grant of put and call options – deed signed by grantor of call option only – whether bilateral execution required for effectiveness – whether signed deed delivered by grantor – whether contractual right of rescission established

LAND LAW — Easements — Use of easements — Whether excessive use by parking and storing boats and items on right of carriageway or towing a boat by forklift of certain dimensions — Whether encroachment on or damage to servient tenement beyond right of carriageway — Whether Court should exercise its discretion to restrain defendants from use of right of carriageway in excess of the grant

COSTS — Party/Party — Bases of quantification — Indemnity basis — Genuine offer of compromise — Where offer contemplated replacement of security without specified terms — Not unreasonable to reject offer

CRIMINAL LAW — Sentence — Accessory after the fact to murder — Firearms offences — Plea of guilty — Objective seriousness of accessory after the fact to murder well below the middle of the range — Motivation of misguided loyalty — Background of disadvantage and childhood attachment issues — Explanation for gravitating to anti-social group — General deterrence

ADMINISTRATIVE LAW — judicial review —Workplace Injury and Management and Workers Compensation Act 1988 (NSW) — decision of Medical Appeal Panel — where Appeal Panel fell into jurisdictional error — failure to apply relevant criteria — failure to provide adequate reasons for its decision and disclose its actual path of reasoning— failure of Appeal Panel to correct the errors of the medical assessor—decision quashed

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where both Equity and Common Law proceedings relate to consequences of a fire which destroyed part of leased premises – whether cause of action estoppel or Anshun estoppel arises – inappropriate to express view as to outcome of the pleaded defences unless no real question exists – reasonably arguable that no cause of action or Anshun estoppel arises – summary dismissal refused

ADMINISTRATIVE LAW – judicial review – Medical Appeal Panel review of Medical Assessment Certificate by Authorised Medical Specialist – several jurisdictional errors asserted – whether the Appeal Panel took into account an irrelevant consideration – whether the Appeal Panel failed to engage with evidence – whether the Appeal Panel misapplied the Guidelines – no jurisdictional error established – Summons dismissed

BUILDING AND CONSTRUCTION — Payment claim requirements — Where alleged payment claim consisted of letter from solicitors and attached invoices — Where correspondence between attached invoices and earlier submitted payment claims — Where indebtedness asserted in letter — Whether payment claim within meaning of s 13(1) of Building and Construction Industry Security of Payment Act 1999 (NSW)

CRIME – appeal and review – post-conviction inquiry ordered pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) – where judicial officer formed the opinion that there is reasonable doubt as to the guilt of the Applicant – where matter referred to the Court of Criminal Appeal pursuant to s 82(2) for consideration of whether the Applicant’s convictions should be quashed

Trade practices – Consumer protection – Misleading or deceptive conduct – Where vehicle purchased with fuel consumption label applied in compliance with Motor Vehicle Standards Act 1989 (Cth) and Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth) – Where specific contents of label prescribed by law – Where evidence of fuel consumption of vehicle substantially exceeding fuel consumption values on label – Where proceedings commenced claiming appellants engaged in misleading or deceptive conduct, contravening s 18 of Australian Consumer Law – Whether appellants engaged in misleading or deceptive conduct in circumstances where required by law to apply fuel consumption label. Words and phrases – "apparent conflict", "apparent inconsistency", "compulsion", "conduct", "conduct in trade or commerce", "conduct required", "conflict", "contravention of s 18", "field of operation", "general prohibition", "general provision", "mandatory conduct", "misleading or deceptive", "national legislative scheme", "reconciliation of statutory provisions", "representations", "safety standard", "specific provision". Competition and Consumer Act 2010 (Cth), Sch 2, ss 2, 18, 106. Motor Vehicle Standards Act 1989 (Cth), ss 3, 5, 5A, 7, 9, 10, 10A, 10B, 13A, 14, 17, 18, 41. Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth), cll 1.1, 4.1, 4.5.1, 4.6.1, 5.1, 6.1, 6.1.1, Appendices A, B, C. Australian Consumer Law and Fair Trading Act 2012 (Vic), ss 8, 224.

Criminal law – Appeal against conviction – Second or subsequent appeal – Where applicant convicted of murder in 1985 – Where applicant's conviction depended to considerable extent upon evidence of witness with schizophrenia or schizoaffective disorder – Where reliability of witness' evidence was relevant issue at trial – Where applicant applied for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where s 353A(1) of CLCA relevantly provided "Full Court may hear a second or subsequent appeal against conviction ... if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal" – Where fresh psychiatric and psychological evidence demonstrated developments since 1985 in field of cognitive and memory deficits in people with schizophrenia or schizoaffective disorder – Where new evidence required to be fresh and compelling – Where evidence compelling if reliable, substantial, and highly probative in context of issues in dispute at trial – Whether fresh psychiatric and psychological evidence compelling – Whether fresh psychiatric and psychological evidence highly probative of relevant issue at trial – Whether in interests of justice to consider fresh evidence on appeal – Whether substantial miscarriage of justice occurred. High Court – Special leave to appeal – Where application for special leave did not purport to raise any question of legal principle – Where application for special leave argued on basis of interests of justice in particular case – Where Court required to reconsider evaluative conclusions of fact reached by Court below – Where exceptional procedural course taken – Where one aspect of application permitted to be subject of full argument on merits as if on appeal – Whether application for special leave ought to be granted. Words and phrases – "cognitive and memory deficits or impairments", "compelling", "exceptional procedural course", "expert opinion", "fresh and compelling evidence", "inconsistencies and inaccuracies", "independent corroboration", "interests of justice", "jury direction", "psychiatric and psychological evidence", "reliability", "reliable, substantial, and highly probative", "second or subsequent appeal", "special leave to appeal", "substantial miscarriage of justice". Judiciary Act 1903 (Cth), s 35A(b). Criminal Law Consolidation Act 1935 (SA), s 353A(1).

CIVIL PROCEDURE – hearings – adjournment – where duty judge fixed matter for final hearing on short notice – defendant council seeks to prepare and adduce further evidence relating to seizure of dog – where plaintiff opposes adjournment due to prejudice – whether orderly administration of justice warrants an adjournment – whether defendant council need an opportunity to obtain further evidence – hearing vacated

GUARDIANSHIP – Guardianship order – Public Guardian – Review of decisions – Appeal by son of protected person against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal appointing the Public Guardian as guardian of the protected person and appointing the NSW Trustee and Guardian for management of the protected person’s estate – Whether a stay of the Public Guardian’s appointment as guardian should be set aside to allow decisions about the accommodation and welfare of the protected person to be made.

CRIMINAL LAW – sentence – serious animal cruelty – savage attack on wild dog which attacked zookeeper’s camel – camel’s name Alice – dog’s name not known – litigation with lengthy history – concurrent intention to kill dog and to inflict severe pain – where Magistrate imposed full time prison sentence exceeding three years following summary hearing – where parties agreed two year Intensive Corrections Order appropriate – where conviction appeal withdrawn – whether concessions should be accepted – offender with impeccable history of caring for animals – no relevant criminal history – peculiar circumstances in which offences committed – offender unlikely to offend again – sentence imposed in Local Court plainly wrong and unjust – manifest excess – appeal upheld CRIMINAL LAW – appeals form Local Court – choice of forum – factors to be considered

CIVIL PROCEDURE – subpoenas – to give evidence – appeal from interlocutory decision of the Local Court – whether plaintiff can call witnesses named in Notice of Motion to attend and give evidence in appeal proceedings – Crimes (Appeal and Review) Act 2001 s 53(3)(b) confined to questions of law alone – Notice of Motion dismissed

CRIMINAL LAW – sentence – murder – killing of newborn baby by his father – gravity of offence – significance of obligation on parents to care for children – where diminished moral culpability due to offender’s PTSD – finding of special circumstances – where lack of remorse – where offender’s prospects of rehabilitation are reasonably positive – where need for general, but not specific, deterrence

COSTS – application for gross sum costs order – inadequate material provided by the applicant to allow the Court to do justice between the parties.

CONSTITUTIONAL LAW — Standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs’ have standing. CONSTITUTIONAL LAW — implied freedom of political communication – construction of impugned provisions – the nature of the burden - whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found -– structured proportionality analysis –impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance - subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid. CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) - Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid. ADMINISTRATIVE LAW — Validity of regulation – Roads Act 1993 (NSW) - Roads and Crimes Legislation Amendment Act 2022 (NSW) - regulation is valid.

CIVIL PROCEDURE – representative proceedings – whether common questions of fact or law exist – whether representative proceedings efficient and effective means of dealing with claims – substantial common questions of fact and law – questions require objective determination by the Court – determination will apply to all group members – matters of commonality across wide range of music festivals and searches – hearing of individual claims against the interests of justice – interlocutory proceedings conducted in whole the most efficient course – representative proceedings should continue – application dismissed

CIVIL PROCEDURE – application for a trial by jury of interlocutory matter pursuant to Supreme Court Act s 85 – whether trial by jury can be ordered for interlocutory matter – whether the Court is satisfied that the interests of justice require a trial by jury in the proceedings

APPEALS – Procedure – Vexatious litigants – Where recommended that Attorney-General make an application for a declaration that the applicant is a vexatious litigant

BUILDING AND CONSTRUCTION — Payment schedule requirements — Where payment claim had two distinct and substantial components — Where statement for withholding payment failed to provide any reason directed to a distinct and substantial component of a payment claim — Whether statement was sufficient to constitute “reasons” under s 14(3) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Sufficiency of reasons is to be assessed in a purposive manner

TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation” for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant’s explanation of reliance on respondent’s insurer and ignorance of right to make claim “full and satisfactory” – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide “full and satisfactory explanation” – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act TORTS – Motor vehicle accident– Late claims – Requirement that “total damages of all kinds likely to be awarded” to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant’s injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act WORDS AND PHRASES – “Full and satisfactory explanation” – “Likely to be awarded”