Cases and authorities

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 – Crown application to adduce call charge records and evidence of phone calls made by the accused at hospital to rebut evidence of Crown witness – unfavourable witness – real risk of the jury misusing evidence – interests of justice that ruling be revisited in light of new evidence that accused also called a Correctional Services officer while at hospital – full call records not permitted but limited evidence of some calls allowed

EQUITY – fiduciary duties – whether fiduciary relationship overlay contractual relationship between the principal and attorneys – duty of attorneys not to act in conflict with interests of their principal not inconsistent with contractual terms EQUITY – fiduciary duties – breach by attorneys – which breaches were part of a dishonest and fraudulent design – where fiduciaries used relationship to assign interests in land without proper consideration – where fiduciaries used relationship to claim fees at their absolute discretion EQUITY – fiduciary duties – Barnes v Addy – knowing assistance – director and sole shareholder of company had actual knowledge of dishonest and fraudulent design – that knowledge imputed to company – where company dictated terms on which consideration might be provided EQUITY – fiduciary duties – Barnes v Addy – knowing assistance – whether director of company is personally liable where knowledge and participation in dishonest and fraudulent design confined to actions taken in capacity as director of company – where no assistance given other than in capacity as director

CRIMINAL LAW – evidence – leave to cross-examine the prosecutor’s own witness – witness who cannot remember – prior inconsistent statement – witness statement recorded in statements of police officers – no official statement of witness due to technical glitches – factors relevant to exercise of discretion and grant of leave

EQUITY — Equitable remedies — Interlocutory injunction — Where plaintiff seeks to restrain the defendants from dealing with, disposing of or further encumbering a property — Where defendants accept serious question to be tried — Whether balance of convenience and discretionary factors favour the grant of an injunction

CHILD WELFARE – adoption – best interests – consent – notice – change of name – adoption plan – where child has established a stable relationship with the proposed adoptive parents – where identity of child’s birth father remains unconfirmed – whether adoption order should be made in favour of proposed adoptive parents – whether consent of birth mother and father should be dispensed with – whether requirement to give notice on the birth father should be dispensed with – whether proposed name change should be approved – whether proposed adoption plan should be approved and registered

CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether exceptional circumstances warranting disclosure before evidence exchanged

CIVIL PROCEDURE – pleadings – application to strike out or stay proceedings – whether list statement fails to establish actions for damages pursuant to s 236 of ACL

CIVIL PROCEDURE — judgment enforcement — directions as to enforcement of judgment by sheriff — extension of time for writs of possession

CIVIL PROCEDURE — application for adjournment — whether material establishes defendant under legal incapacity

EQUITY – monies had and received – statement of principles – where monies paid into accounts fraudulently – order to have monies returned

CIVIL PROCEDURE – Freezing Orders – Ex parte application

BIAS – apprehended bias – chair of a panel conducting inquiry had previously investigated the matters the subject of the inquiry – consideration of role of stewards in investigating and determining contraventions of rules – contention of apprehended bias not established PRACTICE AND PROCEDURE – whether application to disqualify chair of panel for bias should be determined in the first instance by challenged member alone or by all members of Panel as constituted

CIVIL PROCEDURE – Cross-vesting – Where debt recovery proceedings commenced in District Court of NSW – Application to transfer proceedings from District Court of NSW to Supreme Court – Further application to transfer proceedings from Supreme Court to Federal Circuit and Family Court of Australia (FCFCOA) – Whether it is in interests of justice for proceedings to be determined by the FCFCOA

ADMINISTRATIVE LAW – certiorari – medical assessment – gatekeeper – reasonably suspect material error – agreement between parties as to compression of disc – according with only evidence – methodology error not, without more, reasonable basis for error in assessment – delegate to President answered wrong question.

CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – no concerns notice before commencement of defamation proceedings – personal injury – psychiatric harm arising from termination of employment – settlement and release prohibits – claim on breach of privacy – embarrassing and not adequately or appropriately pleaded – proceedings dismissed except in relation to privacy issue on which leave to re-plead granted after proceedings dismissed

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Plaintiffs are owners of rural land and defendants are neighbours — Where plaintiffs have the benefit of an existing right of carriageway to access paddock that is otherwise practically inaccessible — Where obstruction caused by construction of a dam — Whether plaintiffs have a right to deviate around obstruction — Whether proposed easement reasonably necessary for effective use and development of plaintiffs’ land

LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving aggravated sexual abuse – whether the practitioner not “a fit and proper person” to remain on the roll – whether the practitioner “likely to be unfit for the indefinite future” – orders not opposed

LEASES AND TENANCIES – retail lease –executed agreement for lease and lease for period of 10 years – whether lessor entitled to terminate lease – whether termination prohibited by COVID-19 pandemic regulation – whether lessor elected to waive certain grounds for terminating lease – where lease not registered – whether parties bound by contractual force of agreement for lease – proper construction of guarantee – whether guarantors liable for obligations of lessee – where tenant’s entitlement to damage not sufficiently litigated – whether appropriate for appeal court to determine entitlement to damages STATUTORY INTERPRETATION – subordinate legislation – schedule to regulation – application of principles of statutory interpretation – schedule replaced by second version – schedule containing blanket prohibition on terminating lease during “prescribed period” – separate provisions permitting termination subject to conditions – whether specific exceptions prevailed over general prohibition – coherent reading in light of extrinsic materials EVIDENCE ­– privileges – settlement negotiations – privilege under Small Business Commissioner Act 2013 (NSW) s 19 over discussions during mediation – whether privilege waived by party’s conduct and communications

APPEALS — CRIME — appeal against conviction — maintain unlawful relationship with child — directions given by trial judge in accordance with authority — whether leave to appeal is required — whether leave to appeal is warranted if directions are in accordance with law but pending special leave application

CRIME – appeals – appeal against aggregate sentence for offences against Customs Act 1901 (Cth) – where applicant was principal of criminal syndicate that coordinated importation of cigarettes with intent to defraud revenue – where persons engaged to bypass Australian Border Force and secure release of goods without payment of duty and GST were undercover police operatives – where applicant used operatives’ offer of assistance willingly – whether sentencing judge erred in finding that assistance of undercover operatives did not reduce the applicant’s moral culpability CRIME – appeals – appeal against aggregate sentence – importation and possession of tobacco products on which applicant knew duty and GST unpaid – whether sentencing judge erred in concluding that actual loss to revenue was a factor in gravity of offending – where offences related to intent to defraud revenue – relevance to objective gravity of amount intended to be evaded – where no lesser sentence warranted at law despite error

COSTS – party/party – costs of notice of motion to amend cross claim – whether the cross-respondent’s costs of the notice of motion should be paid by the cross-claimant on the ordinary or the indemnity basis

CIVIL PROCEDURE — Originating process — Amendment — No issue of principle

CRIMINAL LAW – sentence – guilty plea – firearms offence involving gel blaster – trivial offence – s 10 of the Crimes (Sentencing Procedure) Act applied – charge dismissed

CIVIL PROCEDURE — referral for pro bono assistance — applicant previously referred for pro bono assistance — principles at [4]-[10] — no evidence as to why earlier referral came to an end — application brought six months later and shortly before trial — no ‘special reasons’ justifying further referral.

STAY APPLICATION – Judgment – Bankruptcy notice – Explanation for delay – Reasons for stay – Incorrect quantum – GST error – Demonstration of prejudice – Stay granted – Pro bono certificate issued to Second Plaintiff.

PRACTICE AND PROCEDURE – application to join defendant to proceedings – where allegation of misappropriation of funds – requirements for particulars under r 15.3 Uniform Civil Procedure Rules 2005 (NSW)

HIGH RISK OFFENDERS — application for extended supervision order — index offending was grooming of a teenage girl aged 13 or 14 — whether defendant is an unacceptable risk — defendant has Borderline Personality Disorder, obsessed with sex, uses sex as a coping mechanism and has an attraction to female teenagers — criminal history of offences with a sexual motive — defendant found to be an unacceptable risk — ESO made and consideration of necessary conditions

COSTS – party/party – notice of motion – where defendant unilaterally refused to comply with settlement orders that a refundable accommodation deposit be paid to an aged care facility – where parties subsequently entered into deed of settlement – where plaintiff’s daughters gave personal guarantee that refundable accommodation deposit be repaid to defendant upon plaintiff’s death out of filial duty rather than legal obligation – defendant to pay plaintiff’s costs despite achieving defendant’s desired outcome CIVIL PROCEDURE – whether a lacuna existed in orders made for disposal of the proceedings – no lacuna found CIVIL PROCEDURE – where settlement orders clear that interest payable if orders not complied with within 90 days – orders not complied with – interest payable by defendant to plaintiff

EQUITY — trusts and trustees — powers, duties, rights and liabilities – where bare trustee sought indemnity for costs out of assets of discretionary trust – where no interested party joined to proceedings – whether trustee’s personal liability for costs order should be limited to assets of discretionary trust – held that the Court has no discretion to limit the personal liability of a trustee for a costs order to the assets of a trust

PROCEEDS OF CRIME – application for exclusion of property from restraining orders – s 29 of the Proceeds of Crime Act 2002 – whether s 29(4) threshold question satisfied – applicant’s onus not discharged – application dismissed

CONTRACTS — Construction — Interpretation — Whether share sale agreement required payment of deferred amount — Where deferred amount held in escrow pending a binary outcome — Interpretation of contract where clauses inconsistent or interpretation leads to commercial absurdity CIVIL PROCEDURE — Originating process — Amendment — Where plaintiffs sought leave to amend pleadings on second day of hearing, following questions posed by the Court in the first day — Whether defendant prejudiced by inability to investigate evidentiary matters and positive defences to a new claim — Whether defences purely speculative CONTRACTS — Construction — Interpretation — Where a joint venture party may provide written consent to a change in control of another party to the joint venture — Where instead of expressly consenting, the party transferred its shares to the party which experienced a change in control — Whether the signed transfer agreement constituted written consent

PRACTICE AND PROCEDURE — security for costs — application for review of Registrar’s decision ordering security for costs of appeal — stultification of proceedings — whether review application should be adjourned — whether prospects of success arguable — undertaking offered by alter ego of appellant company currently in custody for drug-related offences — whether assets available for enforcement in these circumstances

NEGLIGENCE — Breach — Where first appellant injured hand in electric anchoring mechanism of boat — Whether owners of boat failed to take reasonable precautions such as installation of chain stripper and extension of spurling pipe — Whether warning needed to be given about use of anchor mechanism NEGLIGENCE — Causation — Failure to warn — Whether first appellant would have chartered boat if warning had been given APPEALS — Where claim abandoned by counsel at conclusion of trial — Whether claim can be reagitated on appeal CONSUMER LAW — Consumer guarantees — Where first appellant’s purpose in chartering boat was to partake in leisure cruise — Whether services reasonably fit for purpose

PROCEDURE – parties directed to supply submissions as to appropriate orders after interlocutory appeal determined – one party seeks special leave – whether orders should be made at all – other party seeks interlocutory relief – such relief should be sought in the Equity Division – whether all of numerous questions asked by judge need to be answered – answers to some but not all questions given

CIVIL PROCEDURE – representative proceedings – claims based on breast augmentation surgery performed by defendant/appellant medical practitioners – whether litigation should continue to proceed as representative proceedings – whether claims in statement of claim gave rise to substantial common questions of law and fact – whether representative plaintiffs’ and group members’ claims “common” or “individualistic” – where representative plaintiffs alleged that all surgery was performed according to same system, which gave rise to increased risk of harm – primary judge correct to find that statement of claim gave rise to substantial common questions of law and fact

CRIMINAL LAW – evidence – leave to cross-examine – DPP conference notes disclosed – cross-examination on conference notes – forensic minefield skilfully negotiated – unfavourable witness – where conference notes suggest witness partisan in favour of the accused – whether leave required – relevant unfairness – order of cross-examination by accused and prosecutor – where previous grants of leave to cross-examine – possible misunderstanding as to the extent of earlier grant of leave to cross-examine – orders and directions capable of alleviating unfairness

PRACTICE AND PROCEDURE — pleadings — amendment — application by defendant for leave to amend defence and cross-claim — leave refused

CRIME – applicant tried for a terrorism offence despite evidence in the possession of the Commonwealth Director of Public Prosecutions that militated strongly against such a prosecution – manner of the conduct of a criminal trial by the Commonwealth Crown – misunderstanding of Crown’s obligation to call witnesses - failures of Crown Prosecutor in discharging obligations of fairness to an accused person – mentally ill accused substantially disadvantaged by conduct of Crown – question of abuse of process – question of the power of the court to find abuse of process without corresponding application for relief – question of inherent power of the court to make an award of costs where there has been an abuse of process – utility of recommendation to Federal Attorney General for ex gratia payment to be made

CORPORATIONS — Dissolution — Reinstatement — Application for reinstatement of registration of company deregistered pursuant to s 459 of Companies (New South Wales) Code 1981 (NSW) — Application for reinstatement of registration of company deregistered pursuant to s 601AB of Corporations Law of New South Wales

EQUITY – summary judgment sought – where defendants failed to pay monies owing under a Purchase Agreement – where duress, want of consideration and unconscionability are pleaded in a proposed amended defence

CIVIL PROCEDURE – whether plaintiff should have leave to continue proceedings against Hong Kong company – whether Labuan company and United Kingdom company should be removed as defendants

CIVIL PROCEDURE – Subpoenas – Notices to produce – Where applicant seeks leave to issue subpoenas and notices to produce to respondents requiring production of certain emails and related metadata – Where applicant seeks such leave to identify third parties alleged to have hacked into applicant’s email accounts – Where previous applications for leave to issue subpoenas and notices to produce requiring production of similar documents dismissed – Whether subpoenas and notices to produce for purpose of identification of non-parties to pending appeal would have legitimate forensic purpose – Leave to issue subpoenas and notices to produce refused

CRIME — Appeals — Appeal against sentence — Whether sentencing judge failed to separately assess the objective seriousness of each offence — Whether sentencing judge failed to adequately differentiate the role of the applicant with co-offenders — Consideration of objective seriousness need not be expressed in a particular way — Sentencing exercise is to be judged in light of the sentencing judge’s reasons read as a whole

CIVIL PROCEDURE – Possession of land – Application to access property – Where defendant previously granted adjournment to obtain legal representation – Where default judgment for possession subsequently granted to plaintiff – Whether leave ought be granted to file notice of motion in court

CRIMINAL LAW — evidence — leave to cross-examine — unfavourable witness — evidence inconsistent with police statement – where it appeared to the court the witness was not making a genuine attempt to give evidence about which it is reasonably supposed she has knowledge – no question of principle

CRIME – murder – joint criminal enterprise – extended joint criminal enterprise – application in relation to the content of directions relating to the element of intention for joint criminal enterprise and extended joint criminal enterprise – Mitchell v The King [2023] HCA 5 not authoritatively stating anything new in relation to joint criminal enterprise or extended joint criminal enterprise outside the context of constructive murder – application rejected

CRIME – murder – whether visual aspect of the Electronically Recorded Interview with Suspected Person (“ERISP”) is unfairly prejudicial – visible injuries to the face of the accused person – visual aspect of the ERISP significantly assists in assessing demeanour and credibility – visual aspect of the ERISP admissible – robust direction to be given to jury

CRIME – murder – joint criminal enterprise – where accused is seeking a ruling to exclude evidence of a previous plea of guilty – where previous plea of guilty entered when the indictment was in a different form – risk of unfairness if evidence of the plea of guilty adduced at this trial – danger of unfair prejudice outweighs the probative value – evidence not admissible

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.