Cases and authorities

CIVIL PROCEDURE — Parties — Vexatious litigants — Leave proceedings — vexatious proceedings order made against applicant, the plaintiff in the proceedings – the applicant seeks by motion leave to file an Amended Statement of Claim – whether the Court can decline to consider the application because it is not satisfied that the application for leave is materially different from an earlier application dismissed under s 14(2) of the Vexatious Proceedings Act 2008 - whether leave to file the mended Statement of Claim should be granted pursuant to s 14(2) of the Vexatious Proceedings Act.

JUDGMENTS AND ORDERS – interest – pre-judgment interest – delay in articulating legal basis of ultimately successful claim – interest allowed in full from accrual of cause of action

SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which the Court, 10 weeks prior to the commencement of these proceedings, made, by consent, final orders in another family provision claim on the deceased’s estate, which orders expressly disregarded the interests of the current claimant on the basis of information then provided to the Court SUCCESSION — Family provision — Obligations of practitioners — Obligations are underpinned by the purposes of nature of the jurisdiction and procedural requirements SUCCESSION — Family provision — Practice and Procedure — Discussion of nature and purpose of substantive law and procedural rules which underlie the exercise of the Court’s jurisdiction SUCCESSION — Family provision — Parties and affected persons — Forms — Identification of the proper form of Notices of Claim and requirements in relation to service of Notices of Claim — Distinction between a Notice of Eligible Persons and a Notice of Claim — Particular discussion of practical considerations including evidentiary material bearing upon identification and notification of persons to be served SUCCESSION — Family provision — Consent orders — Identification of the different types of consent orders in family provision proceedings and discussion of requirements for approval which bear upon those different types of consent orders and identification of considerations for practitioners in presenting applications for approval

JUDICAL REVIEW – whole person impairment – Type 2 diabetes – pre-existing abnormality or condition – genetic predisposition or susceptibility – deduction – ground of review constituting an error of law – referral to the President, Personal Injury Commission.

CRIMINAL LAW – sentencing – murder of wife – domestic violence – plea of guilty – effect of mental health impairment on moral culpability

CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors — Where short adjournment granted on last occasion — Where plaintiff did not comply with the Court’s directions — Where plaintiff seeks time to receive a response from subpoenas, letters of demand and a notice to produce issued by him to complete evidence and submissions

CRIME – SENTENCE – manslaughter on the basis of self-defence with excessive force – where offender applied choke hold – plea of guilty – difficult and traumatic upbringing – substance use disorder – strong prospects of rehabilitation – remorse demonstrated

NEGLIGENCE — Workplace injury – where plaintiff fell in a stormwater drain on construction site – where plaintiff’s employer uninsured – whether accident occurred as alleged — consideration of contemporaneous records – breach — failure to take care – causation – liability of employer and third-party tortfeasor NEGLIGENCE — Damages — differing statutory schemes – where plaintiff suffered from pre-existing medical conditions – causation – past payments of workers compensation

TORTS — trespass to land — interference with possession – declaration sought that defendant has no right to enter, occupy or remain on land as well as orders for possession and injunction to restrain interference with that possession – where defendant occupied the property for many years with claimed approval of a relative of one of the plaintiff’s directors – motor vehicles and farming equipment stored on the property – where both parties accept there is no legal basis for the defendant’s continued occupation of the property following appointment of liquidator – orders stayed for an agreed period to allow defendant to vacate goods from the premises

JUDGMENTS AND ORDERS — Court of Criminal Appeal — Apprehended Bias — Application for disqualification — Where trial judge made an order rejecting application to disqualify herself — Whether order made was an “interlocutory order or judgment” under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) — Where certain line of Court of Criminal Appeal authority overtaken by subsequent High Court and Court of Appeal authority APPEALS — Leave to appeal — Aversion to granting leave where doing so may cause delay in or fragmentation of a trial COURTS AND JUDGES — Bias — Apprehended bias — Application for disqualification — Legal repugnance to judges receiving communications about a case outside court processes — Where invitation was an innocent case of mistaken identity — Necessity for apprehension of bias to be reasonable — Trial judge’s decision not to disclose the meeting was erroneous but understandable — Fair-minded lay observer would not reasonably conclude that the trial judge might not bring an impartial mind to the resolution of the questions the judge is required to decide — Trial judge did not err in declining to disqualify herself

CRIME – appeals – appeal against conviction – female genital mutilation – whether excision of part of the labia minora of complainant was contrary to s 45 of the Crimes Act 1900 (NSW) – whether purpose of s 45 was to prevent female genital mutilation being performed on female children – whether statements as to purpose of s 45 by High Court in The Queen v A2 (2019) 269 CLR 507 required s 45 to be read down so as only to apply to female children – where actual text of s 45 does not support such a reading – principles of statutory interpretation – purposive construction – departure from literal meaning of statute CRIME – appeals – appeal against conviction – whether consent available as a defence to a charge of infliction of grievous bodily harm – where body modification artist performed “tummy tuck” surgery on complainant who consented to such surgery – consideration of the role of consent in cases of actual and grievous bodily injury – whether considerations of autonomy should render consent a defence CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – where the Appellant inserted a silicon implant into the hand of the deceased – whether evidence capable of establishing beyond reasonable doubt that the Appellant’s treatment of the deceased was criminally negligent CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – causation – where multiple possible causes of death – whether evidence capable of proving beyond reasonable doubt that septicaemia was a significant or substantial cause of death – whether multi-drug toxicity was the sole or a contributory cause of death CRIME – appeals – appeal against conviction – miscarriage of justice – failure to give a “Shepherd direction” that the Crown had the burden of proving beyond reasonable doubt that septicaemia was present in the deceased at the time of her death and that it was a significant or substantial cause of her death – standard of proof in finding that septicaemia was a significant or substantial cause of the deceased’s death SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – objective seriousness – whether indicative sentences adequately took into account the consent of the victims to body modification procedures

CRIME – appeals – appeal against conviction – inconsistent verdicts – 9 offences against same complainant – where applicant convicted of two counts – where applicant acquitted of all other counts – whether jury verdicts of guilty inconsistent with acquittals – verdicts not inconsistent CRIME – appeals – appeal against sentence – where sentencing judge made finding complainant under authority of offender – described by sentencing judge as aggravating feature – whether sentencing judge fell into De Simoni error – error made out – applicant resentenced

CRIME – appeals – appeal against sentence – solicit person to kidnap, detain and threaten to pervert the course of justice – where applicant and her ex-husband were involved in acrimonious Family Court proceedings – applicant wanted ex-husband detained and threatened until he agreed to apportionment of property – undercover operative acted as go-between between applicant and “enforcer” – whether sentencing judge failed to take account of involvement of undercover operative when assessing objective seriousness of the offending – extent to which such involvement impacted the finding of objective seriousness entirely a matter for sentencing judge – applicant was not encouraged or entrapped by undercover operative – ground not upheld CRIME – appeals – appeal against sentence – whether applicant was denied procedural fairness given sentencing judge’s qualified finding of remorse – where sentencing judge asked counsel if she intended to call the applicant and counsel did not – applicant does not need to be put on notice that a qualified finding would be made – no denial of procedural fairness – ground not upheld CRIME – appeals – appeal against sentence – whether sentencing judge failed to consider applicant’s mental health issues and their impact on moral culpability – where psychiatric and psychological reports disclosed an alcohol use disorder, anxiety disorder and depressive illness – sentencing judge referred to mental health issues but did not say whether or how it reduced moral culpability – diagnosed conditions somewhat related to offending – ground upheld – no lesser sentence warranted given serious threats of violence and gravity of offences of this kind – appeal dismissed

CORPORATIONS — Receivers and managers — Appointment by court — Whether to appoint receiver to unit trust — Where director not acting in best interests of unit holders — Receiver appointed

EQUITY — Equitable remedies — Interlocutory injunctions — Where plaintiff seeks to restrain defendants’ conversion of debt to equity under a loan agreement and convertible notes — Whether balance of convenience favours an interlocutory injunction being granted to restrain conversion of debt to equity.

SUCCESSION – administration of estate – judicial advice – resolution of proceedings by executors including claim and cross claim – suppression of advice

CHILD WELFARE – adoption – application by adoptive parents to discharge adoption order – whether an exceptional reason shown – where breakdown of relationship between adoptive parents and child – where adoptive parents no longer exercising parental responsibility

PLANNING AND ENVIRONMENT – development application for mixed use development – repeal and replacement of environmental planning instrument – savings provision for development application “made, but not yet determined” by commencement date – when development application “made” – requirements to comply with prescribed form and manner – whether compliance with requirements – interpretation and application of requirements

ADMINISTRATIVE LAW – jurisdictional error – application to re-open proceedings pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – where District Court dismissed application – whether jurisdictional error – whether penalty contrary to law SENTENCING – relevant factors on sentence – form 1 offences – jurisdictional error – Crimes (Sentencing Procedure) Act 1999 (NSW), s 35A(2) – whether failure to comply with s 35A(2) invalidates sentence – no jurisdictional error ADMINISTRATIVE LAW – ground of review other than procedural fairness – procedural error – right to reasons – inadequacy of reasons – whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error – nature of judicial duty to give reasons – reasons adequately conveyed essential ground for decision ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – no practical injustice – no materiality

ADMINISTRATIVE LAW — Procedural fairness — Whether the adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where necessary provision of procedural fairness attenuated in the context of the statute — Need for a substantial departure from the general requirements of procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Where conversion factor from weight to volume that was applied was not explained in terms by claimant — Where conversion factor was readily calculable — Where party is aware that some conversion factor was applied — Whether reliance made on contractual document which had not been foreshadowed was a denial of procedural fairness — Whether reliance on industry standards not provided by either party was a denial of procedural fairness — No substantial denial of procedural fairness constituting jurisdictional error

Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Cessation of Australian citizenship – Where s 34(2)(b)(ii) of Australian Citizenship Act 2007 (Cth) ("Act"), in context, provided Minister may revoke person's Australian citizenship acquired by conferral if, among other matters, person "convicted of a serious offence" within meaning of s 34(5) after making application to become Australian citizen – Where s 34(5) provided person "convicted of a serious offence" for purposes of s 34 if person convicted of offence against Australian law or foreign law for which person sentenced to death or to "serious prison sentence" and person committed offence before becoming Australian citizen – Where s 3 defined "serious prison sentence" as sentence of imprisonment for period of at least 12 months – Where plaintiff British and Australian citizen – Where plaintiff Australian citizen by virtue of certificate of Australian citizenship – Where plaintiff convicted of criminal offences relating to conduct before becoming Australian citizen and sentenced to more than 12 months' imprisonment – Where Minister revoked plaintiff's Australian citizenship under s 34(2) of Act – Whether s 34(2)(b)(ii) of Act supported by s 51(xix) of Constitution – Whether s 34(2)(b)(ii) law with respect to naturalisation. Constitutional law (Cth) – Judicial power of Commonwealth – Cessation of Australian citizenship – Where precondition to Minister's power to revoke person's Australian citizenship under s 34(2)(b)(ii) of Act was, among other things, that person convicted of and sentenced to imprisonment for period of at least 12 months for offence committed before becoming Australian citizen – Whether s 34(2)(b)(ii) contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of punishing criminal guilt – Whether s 34(2)(b)(ii) limited to what is reasonably capable of being seen as necessary for purpose of protecting integrity of naturalisation process. Words and phrases – "alien", "cessation of citizenship", "citizen", "citizenship", "denationalisation", "denaturalisation", "deprivation of citizenship", "good character", "integrity of naturalisation process", "legitimate non-punitive purpose", "naturalisation", "naturalization", "people of the Commonwealth", "proportionality", "public interest", "punishing criminal guilt", "punishment", "punitive", "reasonable necessity", "revocation of citizenship", "statutory precondition". Constitution, s 51(xix), Ch III. Australian Citizenship Act 2007 (Cth), s 34.

Constitutional law (Cth) – Judicial power of Commonwealth – Cessation of Australian citizenship – Where s 36D of Australian Citizenship Act 2007 (Cth) ("Act") provided Minister for Home Affairs may make determination that person ceases to be Australian citizen if, among other matters, person has been convicted of offence against provision of Pt 5.3 of Criminal Code (Cth) (terrorism) and sentenced to period of imprisonment of at least 3 years in respect of conviction, and Minister satisfied conduct demonstrates repudiation of allegiance to Australia – Where s 36B of Act held in Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 96 ALJR 560; 401 ALR 438 to be contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of adjudging and punishing criminal guilt – Where applicant citizen of Algeria and Australia – Where applicant convicted of and sentenced to term of imprisonment exceeding 3 years for offences against provisions of Pt 5.3 of Criminal Code – Where Minister determined pursuant to s 36D of Act that applicant cease to be Australian citizen – Where accepted, on authority of Alexander, that s 36D of Act properly characterised as punitive – Whether s 36D, like s 36B, contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of punishing criminal guilt – Whether Ch III prohibits reposing in Commonwealth Executive power to punish criminal guilt where court has adjudged criminal guilt – Whether prohibition subject to exception for involuntary deprivation of citizenship as punishment following conviction. Words and phrases – "adjudging and punishing criminal guilt", "alien", "allegiance to Australia", "citizen", "citizenship", "citizenship cessation", "denationalisation", "deprivation of citizenship", "deprivation of liberty", "exercise of judicial power", "judicial function", "people of the Commonwealth", "punishment", "punitive", "separation of powers", "terrorism", "terrorism-related conduct". Constitution, Ch III. Australian Citizenship Act 2007 (Cth), ss 36A, 36

Courts – Abuse of process – Permanent stay of proceedings – Where appellant commenced claim for damages for personal injury against respondent 52 years after alleged sexual assault by priest employed by respondent occurred – Where no limitation period for claims resulting from child sexual abuse under s 6A of Limitation Act 1969 (NSW) – Whether death of alleged perpetrator and other critical witnesses is exceptional circumstance so trial of proceedings would be necessarily unfair – Whether proceeding in such circumstances an abuse of process justifying permanent stay of proceedings. Courts – Appeals – Applicable standard of appellate review – Where party seeking permanent stay of proceedings – Where grant of permanent stay of proceedings requires determination of whether trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process – Whether question of abuse of process involves exercise of discretion and error of principle to be identified in accordance with House v King (1936) 55 CLR 499 – Whether question of trial constituting abuse of process has one correct answer and "correctness standard" in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 applies. Words and phrases – "abuse of process", "adversarial system", "applicable standard of appellate review", "child sexual abuse", "correctness standard", "discretion", "exceptional circumstances", "fair trial", "inherent, implied, or statutory jurisdiction of courts", "irreducible minimum standards of fairness", "limitation period", "necessary unfairness", "permanent stay of proceedings", "unfairly and unjustifiably oppressive", "unfairness or oppression". Civil Procedure Act 2005 (NSW), s 67. Limitation Act 1969 (NSW), s 6A. Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c).

APPEALS – Procedure – Leave to appeal – Application out of time – Application for leave to appeal from summary dismissal of proceedings – Serious allegations of fraud – Deficiencies in pleading allegations of fraud – Proceedings seeking to re-agitate issues determined over 30 years ago

CORPORATIONS – Application for inspection of company's books – Where shareholder seeking documents for the purpose of valuation – Whether orders for inspection should be made. CONTRACTS — Construction — Where option agreement contains a term as to the "agreed market value” of company shares — Whether agreement as to market value is required before orders can be made to oblige the sale of the shares under the option.

CRIMINAL LAW – murder – evidence – investigator’s note of a Crime Stoppers report concerning a male of similar description to the deceased arguing with transgender male to female sex worker over money near deceased’s residence – where Crown must exclude all reasonable hypotheses consistent with innocence of the accused – where deceased a homosexual man with no evident interest in transgender women or sex work services – note relied on by accused for non-hearsay purpose of establishing police had other available lines of inquiry they ultimately did not pursue – accused likely to give evidence of a counterfactual to Crown case, not likely to inculpate an unknown transgender sex worker

CIVIL PROCEDURE – interim preservation – extension of freezing orders

CORPORATIONS — Voluntary administration — Deed of company arrangement — Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — Whether residual equity in company – Whether shareholders unfairly prejudiced

COSTS — Party/Party — Where costs order made in relation to a final hearing — Whether UCPR, r 36.16 operates to prevent the Court from varying costs order — Whether an application for gross sum costs against a party who has already been ordered to pay costs varies the costs order — Whether an application for costs against a third party varies the costs order — Costs order must be construed in the context in which it was made COSTS — Party/Party — Orders against non-parties — Where plaintiff enters external administration after costs order made against it — Whether plaintiff’s sole director is liable for costs personally COSTS — Party/Party — Bases of quantification — Gross sum costs order

CRIME – sentence – manslaughter – unlawful and dangerous act – guilty verdict by jury – where offence took place in victim’s own home during sale of a military-style semi-automatic rifle – where offender shot victim in the leg with prohibited weapon at close range and fled the scene – offending above the mid-range of objective seriousness – where offender began alcohol and drug use at age 14 – mental health problems the result of illicit drug use – no finding of reduced moral culpability – offender not entitled to leniency given five serious violence convictions and numerous prison infractions – guarded prospects of rehabilitation although no prison offences for over 12 months considered a positive sign – general and personal deterrence significant considerations given importance of firearm and weapon laws and offender’s criminal history – finding of special circumstances made – extra time under supervision needed given offender’s untreated drug addiction and danger of institutionalisation SENTENCING – sentencing procedure – rejection of evidence – where offender did not give evidence -where psychological report details dysfunctional and abusive childhood – where offender previously reported good relationship with family and denied history of abuse – where offender provided untruthful and implausible account of the offence to psychologist – uncorroborated evidence of childhood abuse not accepted as a result of offender’s untruthfulness and countervailing evidence – further implications for finding of remorse given continuing denial of responsibility

Residential tenancies – Where s 122(1) of Residential Tenancies Act 1999 (NT) ("Act") relevantly provided Civil and Administrative Tribunal of the Northern Territory ("Tribunal") may order compensation for loss or damage suffered by landlord or tenant under tenancy agreement be paid by other party because other party failed to comply with agreement – Where tenancy agreement between parties prescribed by Act – Where term of tenancy agreement imposed by s 49(1) of Act required landlord to take reasonable steps to provide and maintain locks and other security devices necessary to ensure premises and ancillary property were reasonably secure – Where premises had no back door for 68 months – Whether Tribunal empowered by s 122(1) to order landlord compensate tenant for loss or damage by way of distress and disappointment due to insecurity tenant felt because of landlord's breach of tenancy agreement – Whether s 122 incorporated common law principles of remoteness – Whether common law principles of remoteness precluded tenant from recovering compensation for distress and disappointment unless consequent upon physical inconvenience. Words and phrases – "breach of contract", "causation", "compensation for loss or damage", "damages", "disappointment", "distress", "insecurity", "landlord", "peace of mind", "reasonable steps", "reasonably secure", "remoteness", "residential premises", "residential tenancy", "scope of duty", "security device", "statutory compensation", "tenancy agreement". Residential Tenancies Act 1999 (NT), ss 49, 122.

CRIMINAL LAW – trial proceedings – murder –application for trial by judge alone – doli incapax – where accused and deceased are children – violent death of a child – potential prejudice to the accused – question of complexity of expert evidence – psychiatric diagnoses – application of community standards – importance of community participation – appearance of “judge shopping” – leave granted – application refused

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

APPEALS – procedure – leave to appeal and extension of time required – Local Court committal proceedings – error of law in failing to ascertain whether accused person pleaded guilty before committal – s 95 of the Criminal Procedure Act 1986 – error conceded – matter remitted to Local Court for committal according to law

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

FAMILY LAW AND CHILD WELFARE — Surrogacy — Application for parentage order under Surrogacy Act 2010 (NSW) — Failure by parties to sign pre-conception surrogacy arrangement — Consideration of nature of pre-conditions and purposes of legislation — Pre-conception agreement mandatory and signed written agreement non-mandatory —Consideration of whether exceptional circumstances exist justifying the making of an order — No clear explanation for failure to sign the arrangement — Consideration of evidence in light of guiding principle that the best interests of the child of the surrogacy arrangement are paramount — Overall, Court satisfied that exceptional circumstances exist FAMILY LAW AND CHILD WELFARE — Surrogacy — Purposive approach to construing legislative provisions — Observations regarding aspects of legislative framework designed to ensure participants to surrogacy arrangements (which the law declines to enforce) are conscious of the gravity of the subject matter and adequately advised and counselled so as to minimise the risk that the arrangements falter in light of such unenforceability STATUTORY CONSTRUCTION — Guiding principles — Purpose of guiding principles WORDS AND PHRASES — “Conception” — “Pregnant”

EQUITY – specific performance – contract for sale of land – corporate purchaser’s obligations guaranteed by sole shareholder and director – purchaser defaulted under contract – specific performance ordered against purchaser – whether decree available as against guarantor – whether decree against guarantor premature – order made against purchaser and guarantor jointly and severally requiring payment of purchase price on settlement GUARANTEE AND INDEMNITY – actions to enforce guarantee – construction of guarantee – where guarantee of the performance of all obligations of the purchaser under the contract, including payment of all money payable – where guarantee given as principal

Appeal – Appeal from Local Court to Supreme Court – appeal out of time – agreement to loan $50,000 – Rolex watch used as collateral – authenticity of Rolex watch – question as to whether the loan sum was advanced – use of affidavit where deponent died prior to final hearing – deponent estranged from respondent –availability of error of law on the basis that there was no evidence to support a finding or the finding was irrational or illogical – whether error of law by admitting evidence of a deed of settlement made between the parties on a without admissions basis – s 131 of the Evidence Act 1995 (NSW) – whether there was waiver of consent – significance of s 132 of the Evidence Act to waiver – appeal allowed

CIVIL PROCEDURE – Approval of discontinuance of proceedings – Personal injury claims against certain defendants – Where plaintiffs under legal incapacity – Whether discontinuance beneficial to plaintiffs’ interests

EQUITY – equitable estoppel – Court upholds claim for a constructive trust – the defendant/cross claimant (the son) farms two properties (and at times other associated properties) held in the name of (his father) the plaintiff/cross-defendant – in the principal hearing the Court found that the father made representations to the son, or caused the son to assume, that the son would (a) have the benefit of the properties upon the father’s retirement from farming (the retirement representations), or (b) would inherit the properties after the death of the father (the inheritance representations) – the Court found that the son acted upon the representations to his detriment and that the father holds the properties on constructive trust for him to make good the representations relied upon or the assumptions made – the Court found it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – at a relief hearing the Court gave effect to the retirement representations that the father would retire and transfer the property to the son at the time of his retirement and thereafter conduct a small business – the son elected to return to the properties as the basis for moulding final relief - at a subsequent relief hearing the Court fixed the sum to be paid by the son at the time of the transfer the property by the father to the son to give effect to the retirement representations – to facilitate the conduct of an appeal the son now requests that the Court identify the relief that might have been granted if the son’s alternative inheritance representations case had moulded final relief – what relief would have been given in relation to the inheritance representations. COSTS – costs follow the event – costs orders made for the father to pay the son’s costs of the proceedings on the ordinary basis – whether costs should follow the event – whether a specified gross sum should be fixed instead of assessed costs pursuant to Civil Procedure Act 2005, s 98(4)(c) in respect of the costs order – desirability where future conveyancing transaction and where capital management being planned for the quantum of costs to be ascertained at an early time, rather than delayed for a cost assessment – specified gross sum costs order made – quantum of specified gross sum fixed.

ASSOCIATIONS AND CLUBS — General law derivative action — Where two members of incorporated association seek declaration as to entitlement to commence derivative proceedings at general law — Whether derivative proceedings at general law are available in respect of an incorporated association — Whether acts complained of are fraudulent or ultra vires — Whether it is in the interests of justice that derivative proceedings be brought. ASSOCIATIONS AND CLUBS — Voluntary administration — Duty to act in good faith in the best interests of an incorporated association and for a proper purpose — Whether administrators appointed for an improper purpose. EQUITY — Fiduciary duties — Conflict of interest and duty — Where incorporated association appoints voluntary administrators and some committee members subsequently make a deed of company arrangement proposal that is accepted by creditors — Whether committee members acted in a conflict of interest.

CIVIL PROCEDURE — Inherent power — Abuse of process — Where plaintiffs are largely similar to parties or witnesses in previous proceedings that determined largely the same issues — Where the plaintiffs seeks to reagitate declarations of the NSW Court of Appeal as properly construed — Whether discretion to dismiss the claims for relief for abuse of process should be exercised. CIVIL PROCEDURE — Parties — Misjoinder or non-joinder — Where members of an incorporated association or an appropriate representative not joined to proceedings — Whether orders sought would have a direct effect on members’ rights or liabilities. JUDGMENTS AND ORDERS — Declarations of right — Where no operative relief is sought — Whether declarations would leave other issues undetermined or are an anterior step to future disputes.

HIGH RISK OFFENDERS – application for extended supervision order – preliminary hearing for interim relief – terrorism related offences – orders by consent – interim supervision order made

CIVIL PROCEDURE – Appeals – Applications to discharge or vary orders and directions given by Judge of Appeal – No issue of principle – Applications dismissed

CRIMINAL LAW – murder – evidence – witness statement – observations about the deceased potentially in the form of opinion or based on speculation – nature of how lay witnesses recount matters and way in which they are transcribed

EQUITY — Real Property Act 1900 (NSW) – exceptions to indefeasibility of title — fraud and unconscionable conduct — transfer of 27.38% interest in real property from family trust to self-managed superannuation fund (Transfer) by a father at the direction of his adult son with the overwhelming benefit of the Transfer flowing away from the father to adult son and his family — in circumstances where the father is unable to read or understand the English language and was reliant on adult son as to the prudence of the Transfer — application of principles outlined in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 — lack of specificity as to precise act of adult son which would satisfy finding of fraud — HELD — fraud not established — special disability of the father established — no appearance on behalf of the defendant to rebut equitable presumption of invalidity — HELD — plaintiff has established unconscionable conduct — Transfer set aside CIVIL PROCEDURE — pleadings — fraud – requirement for specific pleadings and particulars — HELD — plaintiff’s fraud claim rejected as not pleaded or particularised or otherwise included too late to afford defendant procedural fairness

EVIDENCE – murder trial – accused correctional officer charged with murder following shooting of escaping inmate at hospital – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent escape – section 38 application to cross-examine witness on the basis of a prior inconsistent statement and being unfavourable to the Crown case – witness subsequently said his first statement was a mistake – not unfair to the accused for leave to be granted – leave granted

CIVIL PROCEDURE — Application for leave under r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) to proceed against foreign defendant served outside Australia — Application granted - No question of principle CIVIL PROCEDURE — Pleadings — Amendment — Where plaintiffs seek leave to make extensive amendments to pleadings a matter of weeks prior to the commencement of the hearing — Risk to hearing dates and prejudice to defendants if hearing dates vacated — Plaintiffs responsible for delay in seeking leave to amend, save in respect of one category of the proposed amendments which would not put the hearing dates at risk if leave were granted — Application for leave to amend refused to the extent that the amendments were opposed and would require the hearing dates to be vacated — No question of principle. CIVIL PROCEDURE — Costs — Security for costs — Application by certain defendants for security for future costs of the proceedings — Whether reason to believe that plaintiff companies will be unable to pay the defendants’ costs if ordered to do so — Application dismissed — No question of principle CIVIL PROCEDURE — Evidence by audio visual link — Where plaintiffs applied for direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for a citizen of the People’s Republic of China to give evidence by audio visual link (AVL) from the Hong Kong Special Administrative Region of the People’s Republic of China — Where the place in the Hong Kong Special Administrative Region from which the plaintiffs propose that AVL facilities will used for the purpose of the witness giving evidence in these proceedings is taken to be part of this Court in New South Wales pursuant to s 5C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), including for the purposes of laws relating to evidence, procedure, contempt of court and perjury — Whether this Court would intrude on the sovereignty of the People’s Republic of China in respect of the Hong Kong Special Administrative Region by taking evidence by AVL from the witness in the Hong Kong Special Administrative Region — Where plaintiffs adduced no expert evidence of foreign law — Where no evidence of any law or rule permitting citizens of the People’s Republic of China to give evidence in foreign proceedings by AVL from the Hong Kong Special Administrative Region — Where plaintiffs have taken no steps to obtain permission from relevant authorities in the People’s Republic of China or the Hong Kong Special Administrative Region for the witness to give evidence in these proceedings by AVL from the Hong Kong Special Administrative Region — Where the evidence establishes that it is inconvenient for the witness to travel to Australia for the purpose of giving evidence due to his business commitments in the People’s Republic of China — Where the evidence does not establish that the witness is unable to travel to Australia for that purpose — Application dismissed

CRIME – Sentence – murder – guilty verdict by jury – stabbed once to the chest with a knife – deceased having an affair with offender – deceased having an affair with another woman – whether intention to kill or intention to do grievous bodily harm – borderline personality disorder – where jury rejected partial defence of substantial impairment – whether offender suffered a mental health impairment – expert evidence – mental condition significantly contributed to offender’s inability to control herself – relevance of mental health impairment to sentence – sentence imposed