Cases and authorities

PRACTICE AND PROCEDURE – costs – whether costs should follow the event – identifying “event” – party obtaining relief unsuccessful on certain issues – whether to be deprived of proportion of costs – reassessing costs of trial

CIVIL PROCEDURE – Originating Process – leave to file amended statement of claim – discovery of documents at late stage

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Child requiring two proposed surgical procedures — Where surgeries could require blood and/or blood product transfusions — Where parents consent to surgery but refuse consent to use of blood and blood products due to religious belief

TRUSTS – constructive trust – plaintiff and defendant jointly acquire real property as tenants-in-common – the certificate of title records the parties, as registered proprietors in the name of the plaintiff as to 80% and the defendant as to 20% – the plaintiff claims that pursuant to an agreement to acquire the property the defendant held her 20% interest in the property as registered proprietor on constructive trust for him, in exchange for him providing her $20,000 to undertake some dental work she was planning – the defendant contends that the plaintiff agreed to give her a beneficial interest in the property commensurate with the legal interest – what were the terms of the agreement made between the parties – whether the defendant holds her 20% legal interest in the property on constructive trust for the plaintiff – property sold – defendant cross claims for 20% of the net proceeds of sale of the property.

LEAVE TO APPEAL — appeal against order for security for costs — discretionary matter of practice and procedure at interlocutory level — whether discretion miscarried — whether substantial risk of injustice to applicant if the Court were not to intervene — hearing of appeal directed by Chief Justice pursuant to s 46A(2) of Supreme Court Act 1970 (NSW) APPEAL — PRACTICE AND PROCEDURE — applicant brought claim in negligence in District Court for injury sustained while working for respondent on temporary work visa — applicant ordinarily resident in Fiji — order for security for costs made pursuant to s 42.21(1)(a) of Uniform Civil Procedure Rules 2005 (NSW) — impecuniosity of plaintiff — whether primary judge considered ease with which judgments of District Court could be enforced in Fiji — whether primary judge factored finding into assessment of whether security for costs ought be ordered — order should reflect differential cost of enforcement in Fiji

CIVIL PROCEDURE — plaintiff has significant neurocognitive impairment and under legal incapacity — plaintiff represented by tutor — settlement reached — application for court approval of settlement — consideration of whether settlement is in the best interests of the plaintiff — medical negligence — plaintiff alleges that stroke was misdiagnosed as carpal tunnel syndrome

CRIME – accused indicted for multiple counts of murder – intentionally damage property by means of fire – defence under the Cognitive Impairment Forensic Provisions Act 2020 – special verdict where defendant and prosecutor agree on impairment – chronic schizophrenia or schizoaffective disorder – chronic psychotic illnesses – auditory hallucinations and serious mood disturbance – evidence of serious planning – no motive for the offending conduct – accused did not know his acts were wrong due to impairment – special verdict returned

CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — Prejudice to defendant — Where factual issues in civil and criminal proceedings overlap — Where parties accept some form of stay should be granted — Whether conditions should apply in relation to the stay — Whether discovery and subpoena orders should be made

CORPORATIONS — Winding up sought on just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth) — Where first plaintiff an unsecured contingent of the company — Where second plaintiff failed to establish standing to apply for winding up — Where first plaintiff failed to establish that winding up is just and equitable in all the circumstances — No question of principle.

CRIME — Sentence — Murder – Intention to cause really serious bodily harm — Historical offending in 1987 — Where the offender was a party to a joint criminal enterprise to assault the deceased with an intention to cause really serious bodily harm — Where the offence is motivated by hatred for and prejudice against homosexual men — Victim’s family experienced decades of grief and suffering — Regard to sentencing patterns at the time of the offending

CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant’s claim – Whether motion ought to be summarily dismissed as abuse of process – Motion dismissed

ADMINISTRATIVE LAW – Statutory construction – Relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – Whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application STATUTORY INTERPRETATION — Interpretation Act 1987 (NSW) s 8(c) — Whether the Interpretation Act applies to Ministerial Guideline — Interplay between common law rules on statutory interpretation and drafters of legislative instruments — Courts drawing inferences as to likely intentions of drafters — Whether the plural encompasses the singular

CRIME – appeal against conviction – murder – single fatal knife wound to the abdomen – refusal of application to discharge jury – application based on prejudicial statements during cross examination that accused had propensity for violence – whether failure to discharge jury gave rise to miscarriage of justice – whether conviction unreasonable and unsupported by evidence

CRIME – appeals – appeal against conviction – applicant convicted of eight counts of indecent assault – all offending decades old – whether evidence of complaint, many years after the event, was admissible as fresh in the complainants’ memories under Evidence Act 1995 (NSW), s 66 – whether evidence of complaint admissible as evidence re-establishing credibility under Evidence Act, s 108(3) – whether trial judge ruled evidence admissible at pre-trial hearing and counsel thereafter acquiesced in evidence being led – whether trial judge obliged to intervene when no objection was made to complaint evidence – held that trial judge had made no ruling, trial judge was not obliged to intervene, and evidence would have been admissible pursuant to s 108(3) even if objection had been taken CRIME – appeals – appeal against conviction – indecent assault – elements of offence – whether mental element of indecent intention in addition to intention of committing the assault – where no such direction sought at trial – where authorities bearing on issue not addressed – whether sentence for these offences subsumed by sentence imposed for other offending – leave refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts unreasonable having regard to inconsistencies, age of complainants and absence of complaint for many years – appeal dismissed

MORTGAGES AND SECURITIES – Whether registered and authenticated birth certificate a security – “full faith and credit” - Summary dismissal of claim

CIVIL PROCEDURE — Representative proceedings – equitable liens – where plaintiffs seek stay of prior orders to allow for funds paid into Court on account of security for costs to be released to the plaintiffs’ solicitors – where plaintiffs’ previous solicitors maintain that they hold a lien over documents and moneys

CIVIL PROCEDURE – discovery – further and better discovery – notebooks of director of cross-claimants – whether whole notebooks should be disclosed – where notebooks have been reviewed by solicitor for cross-claimant and extracts responding to discovery categories identified and disclosed

EQUITY – Fiduciary duties – Fiduciary relationships – Solicitor and client – Retainers – Retainers may be express or implied from contemporaneous documentation – Solicitor disputed that he acted for each of the defendants in legal proceedings – Retainer established EQUITY – Fiduciary duties – Whether privately appointed receiver and manager owes fiduciary duties to appointor – Privately appointed receiver is in a fiduciary relationship with the appointor – No prescriptive duty is owed to keep appointor informed about progress of receivership EQUITY – Fiduciary duties – Breach – Whether solicitor or receiver acted in a position of conflict – Whether solicitor or receiver pursued an unauthorised benefit – Whether there was informed consent – Whether breach was dishonest – No dishonest breach of fiduciary duties established EQUITY – Rule in Barnes v Addy – Whether there was knowing assistance in dishonest breach of fiduciary duties – No liability established DEEDS – Whether receivers and managers were appointed under a deed – Objective intention of the parties – Appointment instruments entered at same time as deeds of indemnity – Appointment instruments were not deeds – Whether receivers and managers breached any duties arising under appointment instruments – No breach established EQUITY – Equitable Remedies – Equitable compensation – Causation – Loss of opportunity – No loss of a valuable opportunity established LIMITATION OF ACTIONS – Equity – Whether relevant limitation period had expired – Laches – Unnecessary to decide whether claims statute barred or relief ought to be barred by laches where no claims of wrongdoing have been established CIVIL PROCEDURE – Amendment of pleadings – Power to amend pleadings under ss 64 and 65 of Civil Procedure Act

APPEALS – appeal against conviction – nature of appeal - failure to establish any of the three grounds of appeal - appeal is dismissed – conviction sustained. EMPLOYMENT AND INDUSTRIAL – prosecution – work health and safety – relevant principles – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker – s 19(1) of the Workplace Health and Safety Act 2011 (NSW) – elements of offences – reasonable practicability – Baiada – written instructions – training – supervision - relevance of post-incident conduct – essential facts – safe work procedures and methods – written instructions and directions – whether safe work methods and procedures were reasonably practicable - omissions CRIMINAL LAW – appeal - work health and safety – exposing employee to risk of death or serious injury – conviction sustained EVIDENCE – communication with deceased persons – rejection of evidence when it is illogical, unreliable or contradictory to a large body of alternative evidence - Landmark Roofing – accepting parts but not all evidence

NEGLIGENCE – Medical negligence – separate question – limited damages issues after main hearing – additional costs in raising child – application of principles

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Misconduct of a party — Where prosecution for criminal contempt fails but Court finds civil contempts committed — No issue of principle

EVIDENCE – Mode of appearance at hearing – audio visual link appearance – Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 – first defendant wishes to defend claim – first defendant resides in Lebanon – unstable internet connection – proceedings would be too difficult to conduct by AVL – first defendant unable to come to Australia in the short term due to immigration restrictions relating to her youngest child – order for the adjournment of proceedings.

HIGH RISK OFFENDER – application for extended supervision order – sexual offending occurred over 10 years ago – four offences in four years of increasing seriousness - defendant released on parole two years ago – whether defendant poses unacceptable risk of committing another serious offence – satisfied to a high degree of probability based on psychiatric and psychological reports about defendant’s character, attitudes, lack of insight, and high risk classification on protocols for future offending – held 18 months appropriate duration for ESO – relevance of certain conditions to level of risk – some conditions too widely drawn or unnecessary given risk defendant presents - extended supervision order granted

CIVIL PROCEDURE – failure to prosecute – where cross-claimant failed to appear at direction hearings – where warnings given that cross-claim might be struck out

Constitutional law (Cth) – Duties of excise – Exclusive power of Commonwealth Parliament – Scope and operation of s 90 of Constitution – Where s 7(1) of Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) ("ZLEV Charge Act") purported to oblige registered operator of zero or low emissions vehicle ("ZLEV") to pay charge for use of ZLEV on "specified roads" ("ZLEV charge") – Where "specified roads" defined to include all roads in Victoria and elsewhere in Australia over which public has right of way – Where ZLEV charge a debt due by registered operator to Victoria – Where question of law stated for opinion of Full Court as to whether s 7(1) of ZLEV Charge Act invalid for imposing duty of excise within meaning of s 90 of Constitution – Whether ZLEV charge properly characterised as tax on goods – Whether definition of duty of excise stated in Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] [1993] HCA 67; (1993) 178 CLR 561 and Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 as tax on production, manufacture, sale or distribution of goods exhaustive or descriptive – Where application for leave to reopen Capital Duplicators [No 2] and Ha refused – Whether inland tax on goods imposed at stage of consumption answers description of duty of excise – Whether Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 should be reopened and overruled. Words and phrases – "affect goods as articles of commerce", "articles of commerce", "close relation to goods", "commodities", "constitutional fact", "consumer", "consumption", "consumption tax", "criterion of liability", "dealing in goods", "direct tax", "distance-based charge", "distribution", "duty of customs", "duty of excise", "electric vehicle", "excise", "exclusive power", "imposts on goods", "incidence of tax", "indirect tax", "inland tax on goods", "manufacture", "markets in goods", "natural tendency", "point of consumption", "point of receipt by the consumer", "price of goods", "production", "sales tax", "stage of consumption", "stream of production and distribution", "tax on commodities", "tax on consumption", "tax on distribution", "tax on goods", "tax on manufacture", "tax on production", "tax on sale of goods", "tendency to depress demand for goods", "trading tax", "zero or low emissions vehicle". Constitution, ss 51(ii), 51(iii), 53, 55, 86, 87, 88, 90, 92, 93, 109. Road Safety Act 1986 (Vic), s 3. Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic), ss 3, 6, 7, 8, 9, 10, 11, 15, 18, 19.

COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal — Where lack of commonality between parties interested in successful and unsuccessful parts of appeal — Whether separate orders or one set of costs appropriate

CRIME — appeals — manslaughter by neglect — judge alone trial — applicant voluntarily assumed care of former partner who suffered serious health conditions from cancer diagnoses — deceased suffered two strokes and experienced protracted neglect — deceased hospitalised and suffered third stroke days before death — two experts emphasised multi-factorial nature of death and opined deceased’s cachexia and ulcers had contributed to and hastened death — third expert identified direct cause of death as third stroke caused by deceased’s cancer — third expert considered cachexia and ulcers as “separate ongoing parallel problems” to strokes — applicant convicted and sentenced to 5 years imprisonment with non-parole period of 3 years — appeal against conviction — unreasonable verdict — whether it remained a “reasonable possibility” that deceased’s death occurred independently of his cachexia and ulcers — proposition that the deceased died from third stroke with no relevant contribution from his cachexia (or ulcers) no more than a bare possibility — third expert’s opinion that recovery from the third stroke was “highly unlikely” because of deceased’s cachexia and ulcers appeared to implicitly accept it was also highly likely those conditions hastened his death — overall effect of evidence leads to overwhelming conclusion deceased’s cachexia and ulcers made a significant contribution to the hastening of death — causation proven beyond reasonable doubt — appeal against sentence — manifest excess — comparative cases and present sentence do not establish a sentencing range for manslaughter by neglect — sentence not manifestly excessive having regard to sentencing judge’s finding of “high seriousness” — leave to appeal against conviction and sentence granted — appeals dismissed

LAND LAW – possession of land – repeated application to stay execution of writ of possession – non-appearance on delivery of earlier decision – defendant claims Court has no jurisdiction over him – sovereign man of God

CORPORATIONS – receivers and managers – company entered into contracts with numerous purchasers for sale off the plan of lots in a mixed residential and commercial development being undertaken by the company – purchasers paid deposits to stakeholder – secured creditor appointed receiver and manager to company’s assets, including the land – appointor later sold the partly-developed land as mortgagee in possession – company thereby became unable to complete contracts with purchasers – direction that receiver is justified in causing the company to direct the stakeholder to release the deposits to the purchasers.

MENTAL HEALTH — Management of estate — Person incapable of managing her affairs – Undertakings by a family member of incapable person designed to regulate conduct of family member vis à vis incapable person – Protective purpose of undertakings spent – Release from undertakings

CRIMINAL LAW – evidence - pretrial rulings –– Crown application to tender CCTV from local club allegedly depicting the accused – whether probative or relevant – Crown application to tender a document discovered at the home of the accused – whether capable of supporting an inference that the accused took the document from the home of the deceased - – whether significant probative value in circumstantial case – Crown application to cross-examine Crown witness – unfavourable evidence – s 38 of the Evidence Act – whether representation admissible pursuant to s 65(2)(b) or (c) – good character – Crown application for ruling on question of whether it could lead evidence of rebuttal in anticipation of accused raising that issue – whether accused’s telephone conversation suggesting involvement in a confrontation with a co-worker unduly or disproportionately prejudicial

COSTS – party/party costs – freezing orders made on interim basis – plaintiff obtains judgment on the pleadings – residual dispute about whether freezing orders should be made on a final basis – costs of and occasioned by application for freezing orders reserved COSTS – party/party costs – plaintiff obtains judgment on the pleadings – judgment could have been obtained in District Court – alternative claims not determined – plaintiff entitled to costs of proceedings to date of judgment

ADMINISTRATIVE LAW — Reviewability — Jurisdiction — Inherent jurisdiction to review – Whether court has jurisdiction to review – Whether duty of procedural fairness owed CIVIL PROCEDURE — Summary disposal — UCPR r 13.4 – Dismissal of proceedings — No reasonable cause of action disclosed – Proceedings dismissed

SUCCESSION – FAMILY PROVISION – Claim for family provision order by adult child of the deceased – Adequate provision not made for the Plaintiff by operation of intestacy rules – Defendant conceded the Court should exercise discretion to make family provision order in lieu of Plaintiff’s entitlement on intestacy – Dispute concerning the quantum of the provision to be made – Provision ordered to be paid out of the deceased’s estate in the sum of $100,000

CRIMINAL PROCEDURE – directions to the jury – preparatory acts – whether necessary to require the jury to be unanimous as to the “category of target” for the planned or prepared for terrorist act – Crown case particularised as based on course of conduct – Crown concedes unanimity required regarding at least two acts – whether “furtherance of” in that context requires the Crown to prove a relationship between the preparatory acts and the desired result – no such requirement

CORPORATIONS — Voluntary administration —Moratorium on proceedings against company under administration — Leave to proceed sought for motion to adopt referee’s report — Leave opposed — Where respondents’ claims not easily dealt with under proof of debt procedure — Whether administrators likely to be distracted from statutory duties by motion to adopt referee’s report — Corporations Act 2001 (Cth), s 440D

CRIME – appeals – appeal against sentence – multiple counts of historical child sexual abuse against two complainants – whether complainant was under authority of the offender as a consequence of extended family and family interactions – described by sentencing judge as an aggravating feature – whether sentencing judge fell into De Simoni error by considering aggravating circumstance that applicant abused position of authority – sentencing judge did not consider the position of authority as establishing a feature of statutory aggravation – issue of authority part of the instinctive synthesis – error not made out – appeal dismissed

COSTS – party/party costs – first defendant previously represented to the Court in separate proceedings that contracts had been exchanged for the sale of property belonging to him and subject to interlocutory orders of the Court – plaintiff sought declaration that contract arising from exchange was void – plaintiff’s claim dismissed on ground that no exchange had taken place – costs follow the event – utility of plaintiff’s claim - plaintiff’s application for costs refused

SUBPOENA – litigant in person – leave to issue subpoenas – r7.3, UCPR.

COSTS – costs follow the event – Civil Procedure Act 2005, s 60 application for preliminary discovery – application successful after strong contest by the respondents – preliminary discovery relief granted in terms that amend the orders originally sought – whether the applicant should have an order for costs in its favour – whether an order should be made compensating the respondents in relation to the costs of complying with the orders made for preliminary discovery – discussion of the requirement for proportionality in incurring legal costs in Civil Procedure Act 2005, s 60 – discussion of the obligation of cooperation in fulfilling the objectives of Civil Procedure Act 2005, ss 56, 57 and 58.

COSTS – costs follow the event – complex proceedings in which a property transaction ordered as part of final relief – property transaction cannot be implemented without the defendants causing the removal of a caveat – defendants oppose removal of the caveat – plaintiff successful on motion to remove the caveat in order to implement the property transaction – prior agreement between the parties resolving costs issues between them with respect to trial and appeal proceedings – whether the Court should make any costs order in the circumstances – whether the defendants should pay the plaintiff’s costs of the motion – whether any order for costs should be on the indemnity basis – whether the Court should make a specified gross sum order instead of assessed costs.

SUCCESSION – FAMILY PROVISION – Claim for family provision order by spouse of the deceased – No provision made for Plaintiff by the deceased’s Will – Plaintiff and deceased had separated, and Plaintiff had commenced de facto relationship with another person – deceased made a statutory declaration explaining her decision not to make provision for the Plaintiff – Defendant conceded that the Plaintiff was an eligible person and jurisdictional requirements for power to make a family provision order were met – Whether discretion should be exercised to make family provision order, and if so, the nature and quantum of the provision to be made – provision ordered to be paid out of the deceased’s estate in the sum of $200,000

APPEALS – Leave to appeal – Exercise of discretion – where expert report served by defendant in Local Court – where non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 39.19 and Local Court Practice Note Civ 1 – where Magistrate dismissed application in Local Court to adduce expert report made some 22 after service of report and during hearing of case – whether leave to appeal should be granted – whether reasonably clear injustice

COSTS – Party/Party – Appeals – where practical result of appeal was that party maintained outcome it obtained before Magistrate – where parties had mixed success on issues raised – whether to depart from general rule that costs follow the event

COSTS — offer of compromise — extensive pre-litigation communications involving lawyers, accounting experts and partial resolution of dispute in Settlement Deed – offer made six weeks after proceedings commenced and pleadings closed — whether plaintiff in a position to assess parameters of dispute — whether defendants later changed their case – not appropriate to “order otherwise”.

HIGH RISK OFFENDER – application for extended supervision order pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) – defendant 58 year old woman with a moderate intellectual disability and schizo-affective disorder – history of drug use and violent offending including murder – behaviour whilst incarcerated and on conditional liberty hostile and unpredictable – unacceptable risk of committing further serious violence offences

APPEALS — Leave to appeal — Proceedings dismissed for failure to comply with order to provide security for costs — Where plaintiff failed to provide security for costs after two extensions of time — Whether reasonably clear injustice — UCPR, r 42.21(3)

CORPORATIONS – Members’ rights and remedies – Oppression – Where one shareholder has control over family company through management shares and position as Governing Director – Whether no oppression if self-dealing transaction was necessary to bring about acquisition of property accepted to be in the best interests of the company – Whether primary judge erred in finding oppressive conduct in relation to omission of demolition clause in lease by company to entity associated with director – Whether relief granted went beyond that necessary to bring end to continuing effect of oppressive conduct. EQUITY – Proprietary estoppel – Encouragement – Detrimental reliance – Where a property had been purchased by parents for the benefit of their son – Where the son had been promised ownership of the property and had expended time and money renovating the property – Whether sufficient detriment had been suffered to establish an estoppel – Whether the relief granted by the primary judge was proportionate to the detriment suffered. SUCCESSION – Family provision – claims made for provision under the Succession Act 2006 (NSW) by three of the deceased’s four adult children – Where the deceased had engendered an expectation in her children that they would share equally in the assets of the family company – Whether provision made for the respective children was proper and appropriate for their advancement or maintenance in life – Where large portion of estate assets held through shares in family company and deceased’s last will left all management (voting) shares to one child – Whether primary judge erred in failing properly to take into account financial needs of children or in making good expectations engendered in the deceased’s children as to future material wealth.