Cases and authorities

CRIME – SENTENCE – appeal against sentence – historical child sexual assaults – two victims aged about 6 to 12 years – ongoing course of conduct over a period of years – familial relationship between applicant and victims – lengthy delay between offending and prosecution – inappropriateness of grounds of appeal complaining of weight given to particular features – relevance of applicant’s reactive depression developed as a consequence of prosecution – relevance of claims by applicant of childhood abuse – no error disclosed

High Court of Australia – Special leave to appeal – Where questions of legal principle not in issue at appeal hearing – Whether single ground of appeal concerning factual issues met criteria for special leave to appeal – Whether special leave to appeal should be revoked. Words and phrases – "question of law of public importance", "revocation of special leave", "special leave to appeal". Judiciary Act 1903 (Cth), s 35

Criminal practice – Trial – Directions to jury – Where appellant tried with two co-accused – Where appellant charged with murder, one co-accused charged with assault occasioning bodily harm and other co-accused charged with accessory after fact to murder or manslaughter – Where evidence from witness incriminated one co-accused but had potential to exculpate appellant – Where trial judge gave direction that witness' evidence should not be used unless jury satisfied beyond reasonable doubt that witness' evidence was truthful, reliable and accurate – Where direction expressed as "consistent with the directions" to be given in relation to case against one co-accused – Where appellant did not seek redirection – Whether direction would have misled jury in relation to defence case for appellant – Whether misleading in context of summing-up as a whole – Whether trial miscarried – Whether direction constituted error of law. Words and phrases – "beyond reasonable doubt", "circumstantial evidence", "error of law", "failure to seek a redirection", "joint trial", "miscarriage of justice", "misdirection", "multiple accused", "murder", "obstacle to conviction", "reasonable possibility", "Robinson direction", "summing-up", "truth, reliability and accuracy", "wrong decision of any question of law". Criminal Code (Qld), ss 632, 668

Trade practices – Consumer protection – Extraterritorial application of s 23 of Australian Consumer Law ("ACL") – Where company carrying on business in Australia selling and marketing cruises – Where contract of passage made outside Australia – Where contract was contract of adhesion incorporating set terms and conditions – Where terms and conditions included exclusive jurisdiction clause and class action waiver clause – Whether s 5(1)(g) of Competition and Consumer Act 2010 (Cth) extended application of s 23 of ACL to contract – Whether any additional territorial connection required – Whether class action waiver clause constituted unfair term under s 23 of ACL and void. Representative actions – Whether class action waiver clause contrary to Pt IVA of Federal Court of Australia Act 1976 (Cth) – Whether class action waiver clause unenforceable. Private international law – Forum – Exclusive jurisdiction clause – Whether strong reasons not to grant stay of proceedings. Words and phrases – "carrying on business", "consumer contract", "detriment", "engaging in conduct", "exclusive jurisdiction clause", "extraterritoriality", "inappropriate forum", "legitimate interests", "representative proceedings", "significant imbalance", "standard form contract", "stay of claim", "transparent", "unfair". Competition and Consumer Act 2010 (Cth), s 5(1)(c) and (g). Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law), s 23. Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33X, 33

Copyright – Infringement – Authorisation of infringement – Where s 36(1) of Copyright Act 1968 (Cth) relevantly provides copyright is infringed by person who, not being owner of copyright, and without licence of owner of copyright, "authorizes the doing in Australia" of any act comprised in copyright – Where first respondent owner of copyright in cloud-based real estate marketing system "DreamDesk" – Where fifth appellant ("Mr Stoner") director of second appellant ("Biggin & Scott") – Where Mr Stoner instructed second respondent ("Mr Semmens") to build web to print delivery system software that does not breach other companies' copyright – Where Mr Semmens and others developed "Real Estate Tool Box" software ("Toolbox") – Where Mr Stoner and sixth appellant ("Ms Bartels") established first appellant ("Real Estate Tool Box Pty Ltd") – Where Mr Semmens reproduced "DreamDesk Source Code Works", "DreamDesk Database and Table Works" and "DreamDesk PDF Works" in creating Toolbox – Where use of Toolbox involved reproduction of DreamDesk Source Code Works – Whether Biggin & Scott, Mr Stoner, Ms Bartels and Real Estate Tool Box Pty Ltd ("Biggin & Scott parties") infringed copyright in DreamDesk Source Code Works by authorising infringing acts of Mr Semmens and others in developing Toolbox and of users in using Toolbox – Whether Biggin & Scott parties infringed copyright in DreamDesk Database and Table Works by authorising infringing acts of Mr Semmens and of users in using Toolbox. Copyright – Infringement – Authorisation of infringement – Where Toolbox developed at third appellant's ("Dream Desk Pty Ltd") premises – Where fourth appellant ("Mr Meissner") sole director and shareholder of Dream Desk Pty Ltd – Where Dream Desk Pty Ltd staff assisted Toolbox development – Where DreamDesk Pty Ltd and Mr Meissner ("DDPL parties") participated in Toolbox development – Whether DDPL parties infringed copyright in DreamDesk Database and Table Works and DreamDesk PDF Works by authorising infringing acts of Mr Semmens. Words and phrases – "any act comprised in the copyright", "authorisation", "duty of control", "indifference", "infringement of copyright", "intellectual property", "nature of any relationship", "on notice of copyright infringement", "permission", "power to prevent", "reason to suspect", "reasonable person", "reasonable steps to prevent or avoid", "sanction, approve, countenance". Copyright Act 1968 (Cth), ss 36(1), 36(1A).

CIVIL PROCEDURE – pleadings – amendment – where plaintiff seeks to add vicarious liability claim and claim for aggravated and exemplary damages against first defendant – where aggravated damages claim arises from conduct of first defendant making “fraud allegations” – amendment ought be permitted unless there is no prospect of establishing entitlement to aggravated damages – matter is arguable – application for amendment granted

SENTENCING — Murder — Trial by judge alone

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave is sought by a director —Whether leave to bring derivative action should be granted — Whether the indemnity provided by the applicant is sufficient.

COSTS — security for costs — whether claim defensive — merit and strength of plaintiff’s claim — undertaking proffered unreliable

CIVIL PROCEDURE — application to set aside judgment obtained by fraud — r 36.15(1) UCPR — principles at [98]-[101] — brother and sister buy two properties — bank sells one property, with surplus paid to the sister rather than equally to both — brother obtains orders in 2018 to sell remaining property and judgment for his share of proceeds of sale — sister applies to set aside judgment and orders — orders for possession made in 2019 — sister appeals — Court of Appeal makes orders for possession in 2020 — eviction notice — one week before eviction, sister produces deed said to have been executed by brother in 2013, disclaiming his interest in the properties — deed is a forgery — Prothonotary to refer matter to relevant law enforcement authorities.

PRIVATE INTERNATIONAL LAW – where application for registration of foreign restraining order made in the United States of America contained errors – whether those errors were the product of inadvertence or intentional non-disclosure – whether the orders made should be set aside in the ‘interests of justice’

CONTRACTS – Rectification – Common intention – Proof of common intention – Proof by inference – Where appellant and respondent executed Sole Agency Agreement for marketing and sale of units in residential development – Where appellant as selling agent entitled under Agreement to “Commission” upon sale of units – Where “Commission” as defined in Agreement limited to commission payable on certain units in development – Where appellant asserts common intention that “Commission” should have extended to commission accrued prior to execution of Agreement – Where directors and managers of respondent not called to give evidence on intention as at execution of Agreement – Whether uncontradicted evidence of sole director of appellant amounts to clear and convincing proof of common intention by inference – Relief in nature of rectification denied REAL PROPERTY – Caveats – Caveatable interests – Grant of caveatable interest – Where appellant asserts caveatable interest in nature of equitable charge entitling it to judicial sale of units in development – Where Sole Agency Agreement confers right on appellant to compel sale of specified units at fixed price to itself or others and offset outstanding commission against purchase price – Where Agreement authorises appellant to lodge caveats in order to protect its entitlement to Commission – Whether grant of right to compel sale constitutes express grant of equitable charge – Whether grant of right to lodge caveats constitutes implied grant of equitable charge – Appellant held impliedly to have been granted equitable charge over units in development AGENCY – Property, stock and business agents – Restrictions on real estate agent obtaining beneficial interest in property – Where appellant as real estate agent asserts rights as equitable chargee under Sole Agency Agreement – Where appellant had not obtained client’s consent in writing in form approved by Secretary prior to execution of Agreement – Where interpretation clause in Agreement purports to sever any term or provision of agreement repugnant or contrary to any law – Whether appellant obtained beneficial interest in property in contravention of Property and Stock Agents Act 2002 (NSW) s 49(1) – Whether interpretation clause accordingly severs clauses of Agreement that impliedly grant equitable charge to appellant – Held that clauses impliedly granting equitable charge to appellant not severed from Agreement

CRIMES – appeals – application for leave to appeal against sentence – where applicant sentenced for 34 offences, including aggravated break and enter and commit serious indictable offence – whether error in relation to finding of no evidence of remorse – whether sentencing judge erred by giving insufficient regard to impact of COVID-19 – whether sentence manifestly excessive – consideration of principles of remorse – no error found in sentence imposed

CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel

CRIME – Appeals – Appeal against conviction – Sexual assault offences – whether identification direction was erroneous – whether guilty verdicts were unreasonable

CIVIL PROCEDURE – judgment against builder – builder engages in ‘phoenixing’, transferring assets to third party for nil consideration – no appearance by third party – whether freezing order should be continued against third party – where third party run by director of defendant builder, risk of further asset disposal to frustrate judgment.

CRIMINAL TRIAL – murder and attempted murder – application by media for access to trial exhibits – jury retired to consider verdict – submissions made by parties – where accused’s case is that he is not criminally responsible on the grounds of mental health impairment – where outstanding charge of murder in Queensland – where certain material sought has a confronting quality – access granted to certain CCTV footage and body worn video of arrest – access denied for police interviews, CCTV at Shortland Correctional Centre, and other material.

CIVIL PROCEDURE – division of issues for determination – need to avoid conflicting factual findings between judges asked to address the same questions in different context

EQUITY – Trusts and trustees – variation of trusts – Trustee Act 1925, s 86A – jurisdiction – doctrine that Court’s powers do not extend to approval of resettlement – discretionary family trust established in 1974 with vesting date in 2024 – proposed arrangement to extend vesting date to 2054 and add descendants of existing named family member as members of beneficial class – whether a “variation” of the existing trust – scope of Court’s power – application for approval on behalf of contingent members of beneficial class – benefit to persons for whom approval is sought – claimed tax savings – need for contradictor – application not approved in current form

CIVIL PROCEDURE — pleadings — amendment — delay — interests of justice — amendment permitted CIVIL PROCEDURE — pleadings — amendment —defendant subject to deed of company arrangement — leave required under Corporations Act 2001 (Cth) — amendment refused

CORPORATIONS – Winding up – Alleged irretrievable breakdown of relationship between directors and shareholders – Whether provisional liquidator should be appointed.

CORPORATIONS — plaintiff undertakes property development with related company as builder — plaintiff has two directors, one of which is also director of builder — common director appoints wife as secretary of plaintiff, without other director’s knowledge — common director obtains three loans for builder in the name of, or guaranteed by, plaintiff and secured over plaintiff’s property — substantial purpose of loans was for builder’s other property developments — finance documents executed by common director and wife. SECRETARY — constitution required directors to appoint secretary — meeting did not take place — whether directors passed informal resolution through ‘meeting of the minds’ — second defendant unaware of appointment until after first transaction — whether second director ratified appointment by inaction — no ratification in absence of full knowledge of material facts. DIRECTORS AND OFFICERS — authority —constitution and trust deed required resolution to borrow money — no written resolution — whether directors passed informal resolution through a ‘meeting of the minds’ — whether common director conferred with authority to borrow money without conferring with second director — no actual authority. STATUTORY ASSUMPTIONS – s129 Corporations Act — “dealings with a company” — whether lenders entitled to rely on assumptions — common director negotiating loans with lenders to the knowledge of second director, who took no steps —inaction conferred ostensible authority on common director — lenders entitled to rely on statutory assumptions that wife validly appointed — lenders did not actually know or suspect that assumptions were incorrect — knowledge of lenders’ solicitor could not be imputed for purpose of s 128(4), Corporations Act — plaintiff not entitled to have transactions set aside. DIRECTORS’ DUTIES — statutory and fiduciary duties — common director breached duties in obtaining — loans obtained without knowledge of second director — compensation order to follow under section 1317H of Corporations Act. LEGAL PROFESSION — fiduciary duties — plaintiff’s solicitor proceeded to act for lenders — whether solicitor retained by plaintiff in respect of finance — whether solicitor in breach of duty to avoid conflicts between interests of clients — for first loan, solicitor had broad retainer including in respect of finance and was actively assisting the plaintiff to obtain finance — solicitor in a position of conflict by acting for lender on first loan — solicitor failed to obtain fully informed consent of plaintiff before acting for lender, where solicitor acting for corporation has a duty to ensure that their instructions are truly the instructions of the client — in breach of fiduciary duty to avoid conflicts with respect to first loan — solicitor aware of disconformity between borrower and recipient of the loan funds — solicitor made no enquiry of second director — breach of fiduciary duty. EQUITABLE COMPENSATION — causation — assessing compensation where ‘conflict of duty and duty’ — purpose of duty to avoid conflicts is to ensure that solicitor does not prefer one client’s interests over the other — by acting in breach, solicitor disregarded plaintiff’s best interests and focussed instead on lender’s interests — had solicitor had regard for plaintiff’s interests, solicitor would have taken steps to ascertain where plaintiff’s interests lay — second director would have been notified of unauthorised loans, which would not have gone ahead — relevance of independent solicitor — solicitor liable to compensate plaintiff for indebtedness incurred as a result of entering and refinancing first loan. CIVIL LIABILITY ACT — equitable obligations —whether claim against solicitor apportionable under Part 4 of the Civil Liability Act 2002 (NSW) — s 34(1) of Civil Liability Act requires failure to take reasonable care to be an element of the plaintiff’s cause of action — claim against solicitor was a claim for breach of ‘no conflicts’ duty — failure to take reasonable care not an element of claim — claim not apportionable. PROFESSIONAL STANDARDS SCHEME — whether solicitor’s liability limited — scheme not in force when act or omission giving rise to cause of action occurred.

CONTRACTS – construction – interpretation – where plaintiff and first defendant entered into a deed whereby the plaintiff would, inter alia, assign options for the purchase of existing real property to the first defendant – where a term of the deed provided that, pending the payment of a development fee, the plaintiff shall be entitled to a charge over various properties – whether said deed term created a valid charge over the relevant real property in dispute EQUITY – general principles and maxims of equity – equity regards as done that which ought to be done – a party is not entitled to take advantage of its own wrong – where the deed provided that the first defendant must lodge a development application with a local council in accordance with a development scheme and pursue the application to its resolution by the council – where lodgement of a development application was a precondition for the obligation of the first defendant to pay a development fee to the plaintiff – where the defendant failed to lodge and pursue a development application that complied with the deed – consideration of the extent to which equitable maxims may be relied on where the precondition for the plaintiff’s entitlement to payment of money failed to arise due to the defendant’s breach of contract and where the precondition requires third party development consent

JUDGMENTS AND ORDERS – proposed orders – form of orders to give effect to principal judgment COSTS – party/party – costs of separate determination of questions – costs of cross claim –costs of notices of motion

COSTS – party/party – costs orders in interlocutory proceedings – whether order for costs of application to extend caveat should be made now or be the parties’ costs in the cause

CIVIL PROCEDURE — Notice of motion — dismissal of proceedings sought — whether plaintiff’s claims are frivolous and vexatious — abuse of process — Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1) — further proceedings to advance arguments already rejected by the Court of Appeal — failure to plead material facts — the just, quick and cheap resolution of the real issues in proceedings — Civil Procedure Act 2005 (NSW), s 56 — proceedings dismissed.

APPEALS — Procedure — Further evidence on appeal — appeal from Local Court — Local Court Act 2007 (NSW), s 39 — Whether plaintiffs could tender evidence on appeal not relied on at first instance and for which leave had not been sought — Uniform Civil Procedure Rules 2005 (NSW), r 50.16 — Appeal confined to an error of law — evidence could only raise questions of fact — not for this Court to determine - receipt of evidence not relied on upon first instance refused APPEALS — Procedure — whether a question of law raised for the first time on appeal could be considered — only in exceptional circumstances —expedient in the interests of justice to consider the new legal arguments raised on construction questions CONTRACTS — Construction — Interpretation —Consideration — whether there was a binding contract which varied a lease — whether any consideration was given — no consideration when a promisor promises to do something they are already bound to do — past consideration is not good consideration — no additional consideration given —appeal dismissed

LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — abuse of process — defamation proceedings — applicant’s predominant purpose an ulterior purpose to maintain contact with respondent — whether finding of ulterior purpose erroneous — whether ulterior purpose sufficient to make proceedings abuse of process where also pursuing legitimate remedy — ulterior purpose need not be sole purpose LEAVE TO APPEAL — PRACTICE AND PROCEDURE — alleged denial of procedural fairness — where applicant read extensive affidavit near the end of hearing — where applicant sent submissions to primary judge without leave after judgment reserved LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — Anshun estoppel — whether subsequent interlocutory application for dismissal can be brought in same proceedings

COSTS — Application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) — Where history of delay and acrimony between parties — Where order capping recovery of costs previously made — Where sufficient material before the Court to warrant making gross sum costs order — Quantification and appropriate discount

CIVIL PROCEDURE — Non-party costs order — Where director caused company to oppose an application under s 247A of the Corporations Act 2001 (Cth) to inspect the books of the company — Where company subsequently passed into liquidation and liquidator provided plaintiff with documents sought — Where proceedings dismissed where they had no further utility — Whether costs orders should be made in favour of the plaintiffs against non-party director.

SENTENCING — Accessory after the fact to murder — Plea of guilty at trial

CIVIL PROCEDURE – notice of motion for liability issues to be determined separately to quantum – UCPR r 28.2 – where both defendants deny liability - where plaintiff is a mentally and physically disabled child with a complex leg injury that requires further skeletal growth before definitive surgery and outcome can be known – fall from horse when in the care of the defendants – lay witnesses – potential lengthy delays before damages can be fully assessed– application granted

COSTS – Party/party – General rule that costs follow the event – Where parties narrowed the issues in dispute after the hearing of this proceeding commenced – Where defendant successful in defence of issues contested in hearing – Whether order for costs should be made for period prior to narrowing of issues.

PRACTICE AND PROCEDURE — judgments and orders — application for claim brought by third plaintiff to be dismissed and cross-claim brought by first cross-claimant to be discontinued and the proceedings be otherwise dismissed which would have the effect of resolving hard fought, complex and long-running proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 12.1 — no order as to costs

COSTS — party/party — indemnity basis — Calderbank offers — offers required the parties to mutually release each other in respect of all claims both known and unknown — whether rejection unreasonable — removal of caveats pending appeal

MENTAL HEALTH — application for extension as forensic patient — whether unacceptable risk — whether cannot be adequately managed by less restrictive means — defendant has treatment resistant paranoid schizophrenia, neurocognitive impairment and profound neurosensory deafness — expert evidence establishes that a less restrictive means of treatment is available through a community treatment order — experts concurred that the threshold question was marginal in this case — not satisfied to the requisite high degree of probability that the s 122 condition is satisfied

APPEALS — Leave to appeal — Interlocutory decision — Challenge to refusal of application to transfer proceedings — Restraint in interfering with interlocutory decisions on a matter of practice or procedure — Whether reasonably arguable that any House v The King error — Whether reasonably clear injustice

MORTGAGES – claim by mortgagee for possession of land following default by mortgagor – default judgment entered and writ of possession issued – application for stay of execution of writ – hardship and sale of property under way – stay granted until January 2024 to allow sale plans to progress

CRIME – sentencing – murder

SUCCESSION — executors and administrators — application by executor and trustee of estate to be substituted by the NSW Trustee and Guardian — where beneficiary seeks termination of trust and the funds held on trust — Saunders v Vautier — whether trustee acted unreasonably by failing to obtain judicial advice

JUDGMENTS AND ORDERS – amending, varying and setting aside – where orders made in 2019 for appointment of trustee to sell co-owned property under Property Law Act 1958 (Vic) – ability to vary orders concerning sale – application of Woods v Sherriff of Queensland – variations made COSTS – solicitor/client – ability for sale trustee to recover costs – where delay in seeking extension of date for sale – where application had to be brought – sale trustee costs limited to those would have incurred in bringing application at relevant time

COSTS — Party/Party — bases of quantification — indemnity basis — Calderbank offer — no issue of principle

COSTS – Party/party – Where plaintiff narrowed the scope of the document access application under s 247A of the Corporations Act 2001 (Cth) at the hearing – Where defendant failed in its cross-claim – Whether costs orders should be made in regard to the plaintiff’s claim and the defendant’s cross-claim

CORPORATIONS — Winding up — Liquidators — Remuneration — Application for determination by court — Where liquidator’s affidavit overstated complexity of the liquidation — Where liquidator’s affidavit failed to explain delays in winding up process that called for explanation — Where liquidator failed to discharge onus of proving that amount claimed is reasonable remuneration — Where amount of remuneration claimed for work relating to these proceedings unreasonable given deficiencies in liquidator’s affidavit — Remuneration fixed in lesser sum than amount claimed — No question of principle

CRIME – sentencing – constructive murder – 21-year-old – sound prospects of rehabilitation – family support – parity with co-accused

DEFAMATION – defamatory matter – capacity to convey pleaded imputations DEFAMATION – online publication – Facebook post – extent of publication – where proof of publication to only two online readers – relevance to damages DEFAMATION – defences – common law qualified privilege –reply to online attack – where parties agreed matter complained of was published on occasion of privilege and was sufficiently connected to the occasion of privilege – malice – where witness and contemporaneous documents demonstrated publisher’s state of mind – whether appellant discharged burden of proving malice

COURTS AND JUDGES — Apprehended bias —Where complaints on appeal concerning evidentiary rulings and time limitation on cross-examination of witness — Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to issues — Where no basis identified for finding that judge decided case other than on legal or factual merits COURTS AND JUDGES — Actual bias — Whether judge pre-judged appellant’s case — Where no basis for inferring that judge was not open to persuasion CONSUMER LAW — Misleading or deceptive conduct — Whether Health District or recruitment agency misrepresented nature or location of appellant’s appointment to provide locum services as visiting medical officer (VMO) — Where appellant confirmed her correct understanding of the nature of locum role in contemporaneous emails and conversations CONTRACTS — Breach of contract — Where appellant agreed to provide locum services as VMO under locum agreement — Where appointment terminated — Whether Health District’s discretion in locum agreement to determine amount of work “during the term” of agreement authorised termination EQUITY — Breach of confidence — Where no evidence that Health District received confidential information TORTS — Economic torts — Injurious falsehood — Malice — Where notification concerning appellant made to Australian Health Practitioners Regulation Authority (AHPRA) — Where Health District responded to inquiry from Health Care Complaints Commission (HCCC) to provide documents and reports — Whether statements made to AHPRA and HCCC involved malice — Where challenge to findings that statements made in good faith TORTS — Economic torts — Injurious falsehood —Where email inadvertently sent by recruitment agency to appellant and another employee of recruitment agency — Whether statement made to third party — Whether email malicious — Where recruitment agency decided not to arrange further VMO placements for appellant APPEALS — From exercise of discretion — Procedural decisions — Where refusal of application to re-open case — Whether House v The King-type error established — Where no such error identified

CRIME — Appeals — Crown appeals against sentence — Commonwealth and State drug offences – import commercial quantity of border controlled drug – whether manifest inadequacy – whether sentencing judge determined objective seriousness – where co-offender received higher sentence – whether co-offender’s sentence and comparative cases demonstrative of error – subjective cases – whether sentences encompassed the whole of the criminality