Cases and authorities

HIGH RISK OFFENDER – preliminary hearing – application for interim orders sought to extend the status of defendant as a forensic patient – application to appoint two psychiatrists, registered psychologists or medical practitioners to conduct separate examinations of the defendant – substance abuse disorder – interim orders not opposed– orders made

BUILDING AND CONSTRUCTION – contract –construction of residential unit development in Gosford – where builder agreed to fund first $37 million of development – where builder procured that its Chinese parent company caused its bank to issue standby letter of credit to secure that obligation – where builder contended it had provided the $37 million finance by entering into loan agreement – whether builder had performed its obligation to finance – where receivers appointed to developer – where developer by the receivers made demand under the letter of credit – whether demand invalid and of no effect CIVIL PROCEDURE – pleadings – Commercial List Statement – where case propounded was that developer not entitled to make demand under letter of credit because letter of credit security for provision of $37 million finance and that such finance had been provided by entry into loan agreement – whether builder had established that case BANKING AND FINANCE – instruments – standby letter of credit – proper law of letter of credit – letter of credit subject to Rules on International Standby Practices ISP98 – how ISP98 should be construed – whether Official Commentary available in aid of construction of ISP98 – where receivers appointed to beneficiary – where demand made under letter of credit by receivers – whether rules in ISP98 concerning transfer by operation of law engaged – whether bank entitled to suspend payment pending provision of documents by beneficiary PRIVATE INTERNATIONAL LAW – orders with extraterritorial effect – where Chinese Court made a Civil Ruling that bank suspend payment under standby letter of credit issued by bank in Shanxi in the People’s Republic of China – whether this Court should order bank to make payment – whether judgment should be entered against bank – whether judgment should be suspended pending approach to Chinese Court or recognition of judgment in the People’s Republic of China

PRACTICE AND PROCEDURE – application to review decision made by Registrar to dismiss proceedings – where plaintiff failed to follow Registrar’s direction – extensive procedural history

NEGLIGENCE - Causation – Duty of care – Personal injury – Breach – Civil Liability – Personal Injury – Cruise – Broken wooden step – Credibility – Neck injury – Shoulder injury – Psychological – Asymptomatic preconditions – Factual Causation – Balance of probabilities – But for test – Necessary condition – Scope of liability – Damages – Non- economic loss – Economic loss

CRIME – Appeals – Appeal against conviction – Child sexual assault offences – applicant convicted of several counts and acquitted of several other counts – whether the verdicts were inconsistent or unreasonable – whether the prosecution submissions to the jury were materially prejudicial

CRIMINAL LAW – application to discharge the jury – non-responsive answer by witness – no fault of the prosecutor – no malicious intent by seemingly frightened witness – witness life partner of the accused who did not take an objection under s 18 – reference to a “sawn-off shotgun” – where murder under investigation committed with a shotgun – incident referred to evidence not relevant and related to an incident in 2017 – murder alleged committed in 2021 – prejudice and fair trial – whether “mishap” able to be cured by direction – circumstances of occurrence – where judge’s intervention to stop the witness may have highlighted the problem – consideration of authorities – relevant considerations

CRIME – SENTENCING – manslaughter – factual dispute on sentence – plea to manslaughter on charge for murder – 25% discount – drug charges – totality – parity – sentence imposed

CRIMINAL PROCEDURE – costs – Suitors’ Fund Act 1951 (NSW) – discharge of jury – no fault of parties – certificate granted

MENTAL HEALTH — forensic patient — extension of status as forensic patient – application for interim extension order – previous extension order imposed for significant period – where defendant suffers from intellectual disability – extensive criminal record – where defendant on the Child Protection Register and subject to restricted liberty due to Child Protection Prohibition Orders – whether satisfied that the defendant poses unacceptable risk of causing serious harm to others if extension order not made – whether risk can be adequately managed by less restrictive means – where interim order neither consented to nor opposed by defendant – interim extension order made

CHILD WELFARE – adoption – intercountry adoption – child adopted in Rwanda – where that adoption recognised in Australia – where adoption in Rwanda did not have effect of terminating legal relationship between adopted child and her pre-adoption parents – where order sought under Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) terminating that legal relationship

CRIMINAL PROCEDURE – Joinder application – Application by DPP to be joined as defendant to appeal from interlocutory orders of Local Court – Where DPP purported to take over prosecution in Local Court – Where plaintiff alleged that DPP failed to comply with legislative requirements to validly take over prosecution

COSTS — Party/Party — costs of motions — plaintiff seeks gross costs order — defendants seek order that only one of them bear part of plaintiff’s assessed costs — gross order for costs of motions made against all defendants

CIVIL PROCEDURE – Pleadings – Amendment – Where existing statement of claim to be struck out – Where plaintiff seeks leave to proceed on proposed amended statement of claim alleging serious wrongdoing – Where proposed amended statement of claim still seeks to impugn judgments of other courts and fails to comply with requirements of the Uniform Civil Procedure Rules 2005 (NSW) – Whether leave should be granted – Whether proceedings should be dismissed or plaintiff given a further opportunity to replead – Final opportunity to replead to be given

CIVIL PROCEDURE — Separate determination of questions — Where plaintiff seeks the questions of liability and quantum to be heard separately — Whether questions of liability and quantum can be separated — Whether separate hearing should be ordered as to liability and quantum. CIVIL PROCEDURE — Parties — Addition of defendant — Where existing defendants opposed amendment on the basis of long-standing complaint that they had not been given proper particulars —Where plaintiffs consented to direction to provide further particulars — Whether joinder of new defendant through amendment of the statement of claim should be ordered.

LAND LAW — adverse possession — rural Torrens title land — where plaintiff registered proprietor seeks declarations in response to defendant’s application for possessory title — where defendant claims possession of lots by he and his family since September 1996 — whether plaintiff consented to defendant and family using the lots for grazing cattle — whether defendant’s acts establish factual possession — whether intention to possess where defendant believed he and his family owned the lots — whether plaintiff’s acts broke chain of possession — found that defendant and family in adverse possession for more than 12 years — extinction of title of plaintiff registered proprietor if Limitation Act 1969 (NSW) had applied

CONTEMPT — Sentence — Refusal to give evidence — Where contemnor refused to give evidence due to fears for his safety and the safety of his family — No actual adverse consequences to the result — Significant addiction — Mental health issues that directly impacted upon the contemnor’s conduct — Plea of guilty — Imprisonment — Suspension of punishment

CIVIL PROCEDURE – pleadings – striking out – tendency to cause prejudice, embarrassment or delay – where statement of claim runs to 39 pages and 111 paragraphs – where pleadings disclose multiple causes of action at common law and by statute, and claims for equitable relief – where motion to strike out was filed without any correspondence to plaintiff asserting matters complained of – whether statement of claim unnecessarily prolix and confusing by virtue of length and multiple cross-references – whether prayers for relief claimed flow from cause of action – held criticisms levelled without foundation – length of the statement of claim does not derive from any defect – infelicities in prayers for relief no basis for striking out – sufficient clarity to enable a defence to be pleaded – notice of motion dismissed

WORKERS COMPENSATION – claim for compensation – where defendant suffered injury to lumbar spine – where defendant had pre-existing pathology of the lumbar spine – “medical dispute” over degree of whole person impairment (“WPI”) – where initial Medical Assessor allowed deduction of one third for impairment of the lumbar spine due to pre-existing condition – initial Medical Assessment Certificate contained demonstrable error – matter referred to Medical Appeal Panel (“MAP”) – where MAP held that proportion for deduction could not be determined - where MAP allowed deduction of one tenth for impairment of the lumbar spine applying s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where no reasons were given for MAP’s conclusion that proportion of impairment due to pre-existing condition could not be determined – held MAP erred by applying subs (2) without reasons sufficient to see if there was an error of law – lumbar spine determination quashed WORKERS COMPENSATION – medical assessment – application of Workers Compensation Guidelines – where defendant had gastrointestinal issues he attributed to the use of medications post-surgery – where evidence suggested three matters might have contributed to gastroesophageal reflux – where MAP simply adopted doctor’s findings and made no further comments – whether reasons of the doctor adequately identified a “sign” and a “symptom” to satisfy the Guidelines for upper digestive tract impairment – held reasons inadequate to justify adopting doctor’s assessment – doctor does not adequately consider competing contentions about cause of the ongoing impairment – assessment concerning the digestive tract quashed ADMINISTRATIVE LAW – review of Medical Appeal Panel decision – inadequacy of reasons – error of law – decision of Medical Appeal Panel quashed – matter to be remitted to a differently constituted Appeal Panel

COSTS – party/party – appeals – general rule that costs follow the event – whether costs orders below should be amended where part of the appeal is successful

CRIME – appeal against sentence – serious sexual offending against teenage step-daughters – offences a small part of broader course of conduct interstate – earlier convictions and sentences interstate – totality – question of extra-curial punishment – question of manifest excess

CRIME – Sentence – offences of sexual intercourse with child aged between 14 and 16 – grooming child for sexual activity – produce child abuse material and other like offending – question of manifest excess – need for some accumulation of sentence to reflect offences against three children - subjective case contradictory and unsupported by objective evidence – absence of remorse – offender who blamed 13 year old victims - prioritisation of rehabilitation in imposition of sentence of offender of 35 years as a “young person” – conclusions favourable to applicant

CRIMINAL LAW – evidence – text message sent between organiser of murder and alleged shooter – “Sicario Soldado” – Hitman Soldier – IMDb – temporal proximity to killing provides evidence with some probative value – context of other message sent a few moments earlier - No Country for Old Men – potential for unfair prejudice – evidence excluded

COSTS — where Commissioner successfully defended action arising out of Proceeds of Crime Act 2002 (Cth) — indemnity costs sought — Calderbank letters – ordinary costs order made

CRIME – Proceeds of crime – Restraining Orders

HIGH RISK OFFENDERS — application for interim supervision order — index offending of two counts of aggravated sexual assault of a person under the age of 16 years — defendant has been subject to three extended supervision orders — satisfied that the matters if proved at the final hearing those matters would justify the making of an extended supervision order

RESTRAINT OF TRADE — commercial contract — plaintiff provides merchants with EFTPOS facility to accept payments by card — defendant provides merchants with point of sale (POS) terminals and software — plaintiff appoints defendant as agent — defendant keen to develop and provide similar services to merchants — 3 year contract includes 6 month exclusive dealing period in respect of defendant’s pursuit of those ambitions — restraint of trade clause prevented defendant from soliciting plaintiff’s merchants for 12 months — exclusive dealing period expires — defendant becomes a ‘payment facilitator’ and solicits plaintiff’s merchants — whether defendant’s services fall within restraint clause — Restraint of Trade Act 1976 (NSW) section 4 considered — principles at [116]-[119] — onus of proving restraint is reasonable or against public policy — restraint of trade valid – injunction granted.

APPEALS — Procedure — Vexatious litigants — Where allegations of bias and misconduct without merit — Whether ss 6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW) depend on subjective intent — Whether ss 14 or 17 of the Limitation Act 1969 apply to vexatious proceeding orders — Whether proceedings conducted in a rude and offensive manner can be vexatious — Whether order should be made requiring that leave to institute proceedings be given by Supreme Court — Whether time limit should be imposed on order — No House v The King error established for the discretionary making of vexatious proceeding orders

Evidence – Criminal trial – Joint trial – Discretionary exclusion rule – Where appellant and co‑accused convicted of murder and supplying large commercial quantity of methylamphetamine – Where appellant sought to lead evidence at trial that co‑accused admitted participation in several homicides and other criminal violence to establish defence of duress – Where evidence excluded because unfairly prejudicial to co‑accused – Where s 135(a) of Evidence Act 1995 (NSW) permits court to refuse to admit evidence if probative value substantially outweighed by danger of unfair prejudice to "a party" – Whether "a party" includes co‑accused in joint criminal trial. Words and phrases – "a party", "discretionary exclusion", "evidence", "interests of justice", "joint criminal trial", "joint indictment", "jointly charged", "proceeding", "reasons of principle and policy", "right to adduce admissible evidence", "unfairly prejudicial". Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29, 29A. Evidence Act 1995 (NSW), ss 9, 135(a).

Criminal practice – Appeal – Miscarriage of justice – Juror or jury misconduct – Where following trial by jury appellant convicted of six sexual offences – Where after entry of verdicts juror delivered note causing trial judge to authorise Sheriff to conduct investigation under s 70(7) of Jury Act 1995 (Qld) – Where investigation revealed conduct involving juror undertaking internet research about definitions of and sentences for certain offences, juror informing other members of jury about research, and other members of jury not informing trial judge – Where conduct contrary to directions of trial judge – Whether conduct gave rise to miscarriage of justice. Words and phrases – "capacity to prejudice", "discharge a juror", "disobedience", "double might", "fair-minded lay observer", "independent research", "integrity of the jury system", "integrity of the trial process", "internet research", "irregularity", "juror misconduct", "jurors", "jury directions", "jury trial", "misbehaviour", "miscarriage of justice", "practical injustice", "procedural fairness", "proviso", "reasonable apprehension of bias", "substantial miscarriage of justice". Criminal Code (Qld), s 668E. Jury Act 1995 (Qld), ss 50, 53, 54, 56, 60, 69A, 70.

CONTEMPT – Criminal contempt – barrister serving suspended sentence for earlier contempts for breach of undertaking and injunction – further breaches – plea of guilty – significant new psychiatric evidence – cognitive decline – whether suspension of sentence should be lifted – Griffiths remand – approach to imposition of punishment for further breaches

CIVIL PROCEDURE – settlement approval – whether settlement in best interests of person under disability – where settlement previously disapproved – change in proposed settlement – settlement approved

CIVIL PROCEDURE – Summary disposal – Application to dismiss proceedings – Where plaintiff sought compensation for workplace injury – Where plaintiff directed to amend statement of claim on two prior occasions – Where no realistic hope plaintiff would comply with rules if granted adjournment

EVIDENCE – Where second and fifth plaintiffs have made affidavits and defendants require them to attend for cross-examination – Whether witness ‘not available’ within the meaning of Evidence Act 1995 (NSW) s 63(1) – Where witnesses reside overseas – Where application for witnesses’ evidence to be given by audio visual link dismissed on prior occasion – Whether ‘all reasonable steps’ taken to secure witnesses’ attendance – Where witnesses are the second and fifth plaintiffs – Guojin Huang v Jinghong Wei [2022] NSWSC 222 distinguished – Plaintiffs have not taken all reasonable steps to facilitate or secure attendance of second and fifth plaintiffs – Affidavits not admissible under Evidence Act 1995 (NSW) s 63

CIVIL PROCEDURE – discovery – application for discovery before service of lay evidence – where plaintiffs seek discovery over client documents retained by former solicitors – whether there is a risk that plaintiffs will use documents for improper purpose – application granted

CIVIL PROCEDURE — Hearings — Ex parte — where the defendant was made aware of the hearing date on multiple occasions by the plaintiff — whether the court should proceed in the absence of the defendant. FAMILY LAW — Jurisdiction — Appropriate forum — where the plaintiff seeks to enforce a term sheet entered into pursuant to a financial agreement which sought to divide the parties’ assets — whether summons concerned a “matrimonial cause”. CONTRACTS — Remedies — Specific performance — where the first two steps in the term sheet were carried out — where the defendant did not respond to requests to complete the final step in the term sheet — whether specific performance, as opposed to damages, was the appropriate approach.

COSTS — Security for costs — Relevant factors — Representative proceedings — Where proceedings brought in part for benefit of others — Plaintiff holds significant equity in real property — Funding agreement in place among the group members — Strong arguable case — No order for security

EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Superannuation – where respondent was a NSW Police Officer who resigned in 1999 – where respondent applied for superannuation allowance under Police Regulation (Superannuation) Act 1906 (NSW), s 10B, relying on depressive illness – where Act amended after resignation but before application – whether question of incapability considered by primary judge in requisite sense – whether respondent was incapable, in a permanent or persistent sense, from carrying out the functions of a police officer as at the date of his resignation – whether applicable version of s 10B was that in force as at the date of resignation or application – whether primary judge had regard to the infirmity, as distinct from a susceptibility to an infirmity on question of incapability

CRIMINAL LAW – murder – discharge of a juror – where juror a contract worker and offered work set to start shortly and within trial estimate – where focus on personal matters impairs ability to discharge functions as a juror

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where summons brought by self-represented plaintiff sought to reagitate matters already decided and for which avenues of appeal exhausted APPEALS – jurisdiction of appellate court – Supreme Court – appeal from decision of Associate Justice to single Divisional Judge

CIVIL PROCEDURE — Representative proceedings — Court approval – where group members were persons who had acquired shares in AMP – where group members alleged they suffered loss or damage by reason of conduct engaged in by AMP – where success by the plaintiffs was not guaranteed – whether the settlement was fair and reasonable.

HIGH RISK OFFENDER – Preliminary hearing – Application for interim detention order – Serious violence offences – Whether supporting material would if proved justify the making of a continuing detention order – Application not opposed

HIGH RISK OFFENDERS — Extended supervision orders — whether unacceptable risk of committing a serious violence offence exists — where defendant has history of violent offending — risk assessment reports — high degree of risk of further violent offending agreed by experts — whether orders seek to impermissibly control rather than supervise — extended supervision orders made

EVIDENCE – privileges – client legal privilege – communications with in-house lawyer

CRIMINAL LAW – evidence – admissibility of admissions not recorded electronically – three conversations not recorded – whether reasonable excuse for failure to record – police evidence largely rejected – spontaneous statement by the accused and attempt by police to adopt it in recorded interview – reasonable excuse established – evidence admissible – where 18 minute interrogation in interview room containing recording equipment – “rapport building” – “conversation management” – phrases devoid of meaningful content in context of interrogation – no reasonable excuse – evidence rejected – where conversation held in cells – accused in Corrective Services custody at police station – police concern that Corrective Services would not permit telephone or handheld recording device – no application to take handheld recording device into cells – no application to have accused transferred back to police custody – reasonable excuse not established – evidence inadmissible – mandatory exclusion where failure to comply with “precise and rigorous requirements” of provision CRIMINAL LAW – evidence – electronically recorded interview – right to silence – practice of taking suspect to interview room against their wishes and legal advice – practice not to be encouraged – where solicitor advised police of advice and accused man’s wishes – attempts to undermine right to silence – improper conduct – desirability of admitting such evidence – evidence excluded except for questions calculated to adopt earlier out of court statements

HIGH RISK OFFENDERS – extended supervision orders – when order commences – where defendant is subject to an interim supervision order with time to run at the time the extended supervision order is made – whether interim supervision order should be revoked

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – where plaintiff has been permitted significant period of time to replead claim but has demonstrated an unwillingness or inability to do so – whether conduct of plaintiff constitutes an abuse of the process of the courts COSTS – indemnity costs – application for indemnity costs resulting from conduct of a party – where plaintiff has refused to comply with court orders and made allegations of corruption – indemnity costs ordered

CRIME – appeal against sentence – one count of sexual intercourse without consent – above mid-range of objective seriousness – offender reckless as to consent – whether recklessness can support a finding of above the mid-range – whether sentencing judge failed to make findings in relation to mitigating factors – whether sentencing judge erred in refusal to rely on untested out-of-court statements – whether sentence manifestly excessive CRIME – procedure – leave to appeal – out of time – explanation for delay required – obligation of solicitor to make inquiries

CRIMINAL LAW – appeals – appeals against sentence – whether sentencing judge erroneously took into account criminal history as an aggravating factor rendering the offending more objectively serious – remarks to be read as a whole – no error established – appeal dismissed CRIMINAL LAW – appeals – appeals against sentence – manifest excess – where non-parole period in excess of statutory ratio – sentence not unreasonable or plainly unjust – appeal dismissed

APPEALS — CRIME — appeal against conviction — unreasonable verdict — credibility of complainant —evidence of Crown witnesses contrary to Crown opening and closing addresses — whether evidence was challenged — whether prosecutor should have sought leave to cross-examine pursuant to s 38 of Evidence Act 1995 (NSW) — whether open to jury to consider that witnesses were mistaken