Cases and authorities

COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties otherwise assumed correctness of partnership accounts — interim award rejected claim that properties were partnership assets — respondent retained new solicitors and additional accountant — new accountant contended for completely different accounting approach — respondent sought to introduce new “case” based on new accountant’s report into accounting conclave convened between existing accountants to resolve remaining accounting issues — no application to amend statement under s 23(1) — arbitrator made order precluding existing accountants from conferring with new accountant — final award made — primary judge held award should be set aside on basis that respondent was unable to present his case and award was contrary to public policy — Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii) and (b)(ii) — reasonable opportunity to present a “case” does not extend to putting an available case not adverted to in statement filed under s 23(1) nor sought to be subject to amendment under s 23(3) — amended points of claim and submissions identified each party’s “case” and issues in dispute — entitlement to reasonable opportunity does not protect a party from their own “strategic choices” — leave to appeal granted — appeal allowed — proceedings seeking to set aside arbitral award dismissed — respondent to pay applicants’ costs

CRIME – appeals – appeal against sentence – serious conspiracy to import drug offence – parity – disparity between applicant and co-offender – where co-offender’s sentence successfully appealed – justifiable sense of grievance – appealed allowed – applicant resentenced

CRIME – appeals – appeal against sentence – whether sentencing judge erred in failing to find special circumstances – whether the applicant was a co-offender in the same criminal enterprise as an offender who had been sentenced by a judge other than the sentencing judge – whether parity principle applied

COSTS – Calderbank offer – plaintiff sues for fees – defendant files cross claim for damages – defendant offers to accept $250,000 – parties agree shortly before trial that plaintiff will refund fees if claim fails and cross claim will be dismissed with costs – plaintiff’s claim fails – judgment for fees to be refunded plus interest said to exceed the Calderbank offer – necessary to compare substance of offer with result – offer based on cross claim which was dismissed with costs – no special costs order.

COSTS — offer of compromise — plaintiff sues two defendants — second defendant cross claims against plaintiff and first defendant — first defendant makes offer of compromise which, if accepted, leaves claim against second defendant and cross claim on foot — whether Court should “order otherwise” in these circumstances — whether first defendant succeeded on a basis not pleaded at time of offer – no reason to ‘order otherwise’.

COURTS AND JUDGES — Supreme Court — Inherent jurisdiction — where solicitor acting for mortgagee has engaged in exorbitant overcharging — where mortgage provides for recovery by mortgagee of all costs expended pursuant to the mortgage on an indemnity basis — whether Court can order solicitor to pay moneys, to the extent of the exorbitant overcharging, to mortgagor pursuant to inherent jurisdiction to control charges and fees of officers of the Court — general consideration of extent of inherent jurisdiction COSTS — Inherent jurisdiction — where costs have previously been assessed as between mortgagee and mortgagor — whether Court adopted costs assessment in its inherent jurisdiction to require solicitor for mortgagee to pay money representing exorbitant charges to mortgagor OCCUPATIONS — Legal practitioners — Solicitors — Costs agreement — where costs agreement between solicitor and mortgagee — whether inherent jurisdiction extends to requiring solicitor for mortgagee to pay money exorbitantly overcharged to mortgagee to mortgagor

LEAVE TO APPEAL — TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of District Court judge to provide reasons, in ignoring essential evidence and finding no proof of damages — whether respondents prosecutors for purposes of tort — applicant failed to identify any issue of principle, question of public importance or reasonably clear injustice COSTS — applicant alleged error in costs order in circumstances where no costs personally incurred by defendants — whether CSO acting without instructions of named defendants — no evidence adduced to challenge retainer — defendants covered individuals for purposes of State of NSW self-insurance arrangement — State entitled to conduct proceedings on behalf of defendants subject to duty of good faith

PRACTICE – vexatious litigant – whether making vexatious proceedings order without separate oral hearing contravened statute – whether proceedings vexatious – where matter sought to be relitigated had previously been determined on a final basis from which an appeal was dismissed – application dismissed

APPEALS — crime — appeals against sentence — murder — wounding with intent to cause grievous bodily harm — relative youth — applicant has mental health impairment but no psychotic disorder — sentence judge gave consideration to but did not impose a life sentence due to applicant’s age and mental health CRIME — whether the sentencing judge gave adequate reasons regarding the meaning of “unwarranted double counting” — no error CRIME — whether the sentencing judge considered that the applicant’s term of imprisonment could be more onerous than the theoretical inmate — error established CRIME — whether the sentence judge erred in assessing the applicant’s demeanour — no error CRIME — whether the learned sentencing judge erred in failing to take into account the applicant’s youth other than for the purpose of consideration of a life sentence — no error CRIME — appeals against sentence — resentence — a somewhat reduced sentence is warranted having regard to the sentence judge’s error in not considering the impact of the applicant’s mental health on the onerousness of his custody — contra view that despite the error, no other sentence is called for at law having regard to the objective seriousness, consideration of proportionally and specific deterrence in this case

CIVIL PROCEDURE — Notices to produce — Before hearing — Solicitor expressly states that she informed herself from her file for purposes of swearing affidavit — Whether whole file liable to production — Whether implied waiver of client legal privilege

SUCCESSION — construction — general principles — presumption against intestacy SUCCESSION — construction — general principles — structure and scheme of will SUCCESSION — construction — use of extrinsic evidence — ambiguity on the face of the will SUCCESSION — construction and effect — validity of gift — conflicting instructions to executor

PRACTICE & PROCEDURE – professional negligence – medical negligence - directions – medical reports – application for leave to rely upon further specialist medical opinion – whether tendered in reply – leave refused

Criminal Practice – Appeal – Unreasonable verdict – Independent assessment of evidence – Where appellant charged with and convicted of murder – Where appellant appealed conviction on ground that verdict unreasonable or could not be supported having regard to whole of evidence – Where deceased's injuries were either self‑inflicted or caused by appellant – Where only hypothesis consistent with appellant's innocence was deceased's injuries were self‑inflicted – Whether reasonable possibility upon whole of evidence that deceased died by suicide. Evidence – Criminal trial – Admissibility – Expert opinion evidence – Where opinion evidence adduced from forensic pathologist that injuries occasioning death more likely inflicted by another person than self‑inflicted – Whether opinion based on expert knowledge – Whether wrong decision of question of law to admit evidence. Words and phrases – "admissibility", "body of knowledge or experience", "expert evidence", "inadmissible", "independent assessment of the evidence", "miscarriage of justice", "opinion", "specialised knowledge", "training, study or experience", "unreasonable verdict", "wholly or substantially". Criminal Code (Qld), ss 590AA, 668

CRIME — Appeals — Appeal against sentence — domestic violence offences — findings of sentencing judge — Victim Impact Statement — objective seriousness — appeal dismissed

CRIME — Appeals — Child sex offences — Sexual intercourse with children under 10 — Offender with cognitive impairment EVIDENCE — Admissions — Criminal proceedings — Whether to admit Police interview of applicant into evidence under s 138 of the Evidence Act 1995 (NSW) — Applicant vulnerable as Indigenous and intellectually impaired — Protections under Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) — Aboriginal Legal Service advice not to be interviewed or go to interview room accepted and this communicated to Police — Police asked support person if applicant would be interviewed and told no — Police nevertheless commenced interview — Substantial impropriety by Police officers — Primary judge erred in concluding difficulty of obtaining inculpatory evidence favoured admission — Admissibility of evidence reconsidered — Evidence inadmissible APPEALS — Appropriate standard of appellate review re s 138 of the Evidence Act 1995 (NSW) — Whether House v The King error required — Whether open to appeal court to decide admissibility for itself — Discretion to acquit or order retrial affected by interests of justice, which linked to admissibility

CRIME – appeals – appeal against sentence – whether failure to find or take into account unchallenged expert evidence of offending behaviour and pre-existing co-morbid mental disorders – GBL offence – whether sentence imposed is manifestly excessive

LAND LAW — Possession of land – execution or stay of writ of possession – settlement date for sale of property – limited stay granted

CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Where a cross-claim may be available against the plaintiff on a similar basis to the proposed derivative action – Whether leave to bring derivative action should be granted.

CORPORATIONS – directors and officers – directors’ duties – liability for breach of directors’ duties – where funds borrowed by the corporate plaintiff were diverted by its sole director – whether conduct of sole director amounted to breach of statutory and general law duties

CONTRACTS — penalties — where facility agreement provided for “Discounted Rate” where no event of default occurs or is subsisting and higher “Standard Rate” on event of default — whether imposition of “Standard Rate” unenforceable as a penalty CIVIL PROCEDURE — separate determination of questions

JUDGMENTS AND ORDERS – proposed orders – form of orders to give effect to principal judgment COSTS – party/party – where multiple proceedings – where proceedings involve multiple parties – apportionment of costs between parties

CIVIL PROCEDURE – pleadings – particulars – order sought dismissing or striking out parts of statement of claim pursued by a claimed whistle blower – compensation sought for alleged detrimental conduct involving disparaging false information communicated after termination of employment in claimed breach of a deed – abuse of process – orders refused EVIDENCE – admissibility of evidence – hearsay – advance ruling sought in relation to affidavit and outlines of evidence subpoenaed witnesses are expected to give – evidence not to be led to prove truth of representations –– advance ruling refused

JUDGMENTS AND ORDERS – amending, varying and setting aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – party seeking to vary orders gave notice of application to Court and other parties within 14 days – Civil Procedure Act 2005 (NSW), s 14 – order made dispensing with requirement for filing of notice of motion COSTS – party/party – appeals – application to vary costs order – Calderbank offer – no basis for variation of Court’s orders

CRIMINAL LAW – fitness to be tried – accused charged with murder – agreement of parties and experts – accused unfit to be tried

PROCEDURAL – Interlocutory orders sought for abridgment of time to make interim supervision order – where significant delay in application – where dictates of justice considered – orders granted

COSTS — Party/Party — General rule that costs follow the event — Where both parties led voluminous evidence as to unpleaded allegations of criminality — Where significant part of both parties’ cases put on the basis of false premises — Where costs incurred were grossly disproportionate to the monetary amounts in issue — Where a finding of oppression adverse to the Cross-Defendants could not be remedied due to deficiencies in both parties’ evidence — Whether no order as to costs should be made.

CIVIL PROCEDURE — where funds paid into Court by plaintiff law firm in circumstances where retainer was unclear, amount of funds was significant and unclear as to who and on whose authority disbursement could be made — funds and accrued interest to be paid out of Court to first applicant

CRIMINAL LAW – separate trial application – accused jointly charged with murder – where each accused claims to have been set up by the other and a third co-accused now deceased – where one accused provided lengthy interviews to police – not admissible in the trial of the other – statutory test – application of authorities – whether single jury can make credibility findings in one case and disregard such findings in the other – where first accused compellable to give evidence in second trial –whether general rule relating to cut throat defences applies in particular circumstances – substantially different defences – extent to which evidence common to both cases – potential for prejudice and embarrassment – capacity of judicial directions to cure prejudice – whether order may result in inconsistent verdicts

HIGH RISK OFFENDERS – final hearing – extended supervision order – interim supervision order previously made – where three-year extended supervision order agreed – dispute about single condition resolved prior to hearing – whether statutory requirements satisfied and Court can have required satisfaction that defendant continues to pose an unacceptable risk of committing another serious offence if not kept under the proposed supervision – extended supervision order imposed

EQUITY — equitable remedies — injunctions — trespass to land — where plaintiff seeks urgent relief restraining the defendants from trespassing or entering her property or interfering with or damaging the existing dividing fence on the boundary of her property — injunction granted

CIVIL PROCEDURE – motion for issues relating to liability be determined separately from issues relating to quantum pursuant to r 28.2 Uniform Civil Practice Rules 2005 (NSW) – where plaintiff is 10 years old and has suffered catastrophic injury – framing of order for a separate question – where damages issues not finalised – order for separate question refused – where alternative course available

COSTS – Claim for indemnity costs – no basis for proceedings – factual dispute – genuine belief in allegations – Calderbank offer – unreasonably refused – indemnity costs from date of offer

ADMINISTRATIVE LAW – Procedural Fairness – Review Panel under Motor Accident Injuries Act – Failure to provide reasonable opportunity to deal with crucial issue – practical injustice – decision quashed

CIVIL PROCEDURE – application to strike out summons or dismiss the proceedings – UCPR 13.4 and 14.28 – where plaintiff acts for himself and pleads a string of strongly held but vague grievances not specifically related to present defendants – whether amenable to cure by a legitimate amendment

LAND LAW — Caveats — Caveatable interest — Mortgage granted as security for the provision of ongoing legal fees — Whether mortgage void or otherwise terminated for breach — Whether mortgage only secures a speculative claim to fees in circumstances where quantum of costs not yet determined and agreement not to claim until later date — Whether caveat ought be removed from title

CIVIL PROCEDURE – application to strike out statement of claim – where plaintiff acts for himself and pleads a string of genuinely held but unparticularised grievances – where identical statement of claim already filed and summarily dismissed in Equity Division

APPEALS — ADMINISTRATIVE LAW — judicial review — denial of procedural fairness — appeal against interlocutory decision of Appeal Panel of Civil and Administrative Tribunal against decision of Tribunal refusing application to be joined to guardianship proceedings concerning applicant’s child — failure to adjourn directions hearing at which joinder application was determined because applicant was unavailable — denial of procedural fairness because applicant was therefore not a party to the guardianship application and was not served with material before the Tribunal, had no opportunity to adduce evidence and no right of appeal against substantive guardianship or financial management orders APPEALS — PRACTICE AND PROCEDURE — application for leave to appeal against summary dismissal of Supreme Court proceedings — whether applicant already had statutory right of appeal — overlap in relief claimed — whether there was a triable issue

APPEALS — Leave to appeal — no issue of principle or any question of general public importance — no error on the part of the primary judge which warrants a grant of leave — grounds of appeal raised by applicant not sufficiently arguable CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Vexatious proceedings — Abuse of process — primary judge correct in finding the proceeding constitutes an attempt to re-litigate claims made and determined in previous proceedings

CRIME – appeals – appeal against sentence – conspiracy to commit misconduct in public office – common law offence – choice of comparable sentences – whether sentence manifestly excessive SENTENCING – common law offence with no maximum penalty – use of statutory analogues for guidance – whether statutory offences in other jurisdictions provide guidance as to unexpressed intention of local State legislature – whether sentencing judge failed to give appropriate weight to proposed Commonwealth analogue – whether obligation to explain departure from proposed analogue SENTENCING – challenge as to fact finding on sentence – whether sentencing in a circumstantial case must rely only on facts established beyond reasonable doubt – observations as to standard of review of assertion of mistaken facts

SENTENCING – whether sentence should be backdated or reduced to take account of wrongful imprisonment on unrelated charges – consideration of interstate authorities – no basis for departing from existing position in New South Wales SENTENCING – federal offenders – sentence by State court for offence against Commonwealth law – consistency CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of border-controlled drug – MDMA – pure weight of 594.43 kilograms – parity – manifest excess – leave to appeal granted – applicant resentenced

CRIME – conspiracy – conspiracy to commit common law offence of wilful misconduct in public office – elements of conspiracy – element of misconduct created by conflict between self-interest and public duty – need to establish causal element – whether agreement to do undertake a particular act(s) required – whether each participant in the conspiracy must agree to carry out act(s) in furtherance of unlawful purpose – whether motive of parties to be established – need to prove parties agreed as to quality of misconduct – conduct to be serious and meriting criminal punishment CRIMINAL PROCEDURE – elements of a conspiracy – each element and fact that are necessary links in the chain to conviction to be established beyond reasonable doubt – whether Shepherd direction required CRIMINAL PROCEDURE – judge alone trial – nature of warnings – warning to be “taken into account” – whether to be recorded in reasons – application of Criminal Procedure Act 1986 (NSW), s 133(3) CRIMINAL PROCEDURE – conviction – appeal – verdict unreasonable or not supported by the evidence – appeal court to conduct independent assessment of evidence – consideration of all circumstantial evidence – relevance of reasons of trial judge – Criminal Appeal Act 1912 (NSW), s 6(1), first limb – challenge to individual findings – whether finding indispensable to conviction – standard of review EVIDENCE – admissions – hearsay rule – conduct of one conspirator admissible as admission by other conspirator – operation of Evidence Act 1995 (NSW), ss 57(2), 87(1)(c) EVIDENCE – admissions – lies – consciousness of guilt – need for direction in accordance with Edwards v The Queen EVIDENCE – unreliability – description of map – whether tantamount to identification evidence – whether warning required under Evidence Act 1995 (NSW), s 165(2)

CRIME – appeals – appeal against conviction – wounding with intent to cause grievous bodily harm – complainant received knife wound in altercation involving a number of men – only issue was whether applicant was wielding knife – whether jury’s verdict unreasonable – whether inconsistencies in evidence gave rise to reasonable doubt – open to jury to be satisfied beyond reasonable doubt of applicant’s guilt – appeal dismissed

SENTENCING – appeal against sentence – attempted possession of border-controlled drug – applicant sentenced before co-offender – expectation of equality – whether disparity in sentences before discount gave rise to justifiable sense of grievance – whether co-offender’s lesser sentence justified by lesser role in offending, youth and more favourable subjective circumstances – judge who sentenced both expressly addressed question of parity

CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict not supported by the evidence – whether the evidence adduced at trial was capable of proving guilt beyond reasonable doubt – jury’s advantage in seeing and hearing the evidence – verdict not unreasonable – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction - whether trial miscarried because of Crown’s closing address – whether it was improper for the Crown to invite the jury to “jettison” the evidence of a witness – no complaint made at trial – no miscarriage established – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though it had not been adduced – miscarriage established – appeal allowed – retrial ordered

CRIME – appeal against conviction – offences of sexual and physical assault – question of obligation on prosecution to investigate accused person’s case – extent of Crown’s obligation to call witnesses – question of admissibility of evidence that implied sexual experience – whether verdict unsupported by the evidence

CRIME – Appeals – Appeal against conviction – Conspiracy to import commercial quantity of cocaine – Whether miscarriage occasioned by asserted incompetence of legal representatives – Whether directions to jury inadequate – Whether trial judge erred by admitting evidence of prior drug importation as tendency evidence – Whether Crown elicited coincidence evidence without giving notice – Whether trial judge erred by declining to discharge jury after foreperson inadvertently provided draft submissions on exclusion of evidence – Whether trial judge erred by declining to discharge jury following closing address of co-accused CRIME – Appeals – Appeal against sentence – Whether finding that applicant was a ‘principal’ in the conspiracy open on the evidence – Whether weight of imported drug treated as the primary sentencing consideration – Whether prior criminal record used to determine objective seriousness of offence – Whether life sentence manifestly excessive

CRIME – appeals – appeal against sentence – recklessly dealing in proceeds of crime – where offence involved only the moving of money on one day – where offender had been to premises on six prior occasions – whether sentencing judge erred by relying on prior attendance – prior attendance informed overall assessment of criminality – where co-offender charged additionally with two drug trafficking offences – where roles of the two offenders differed for common offence and different subjective factors existed – where sentencing judge gave express consideration to issue of parity – no justifiable sense of grievance – appeal dismissed SENTENCING – appeals against sentence – powers of court – Crimes Act 1914 (Cth) s 19AHA – where sentencing judge erroneously amended sentencing order – whether Court of Criminal Appeal can amend clerical error of another court – held Court does not have power under Supreme Court (Criminal Appeal Rules) 2021 (NSW) – application to correct must be made to District Court

CRIME – appeals – appeal against sentence – sentencing of children – 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm – whether sentencing judge erred in failing to have regard to youth in assessing moral culpability and weight afforded to general deterrence – errors established – where same sentencing judge sentenced co-offender – where same errors were established and co-offender re-sentenced on appeal – whether re-sentence imposed upon co-offender gives rise to a justifiable sense of grievance – issue of parity warrants re-sentence – appeal upheld – re-sentence

CIVIL PROCEDURE — separate determination of questions — where appropriate — constitutional validity of imposition of payroll tax

CORPORATIONS — Voluntary administration — Administrators — Where one director of company forged signature of second director on a letter of resignation as director, before purportedly resolving as sole director to appoint a voluntary administrator pursuant to s 436A of the Corporations Act 2001 (Cth) — Where appointment documents provided to administrator included director’s forged letter of resignation — Where administrator on notice of the forgery allegation from approximately one week after his purported appointment — Where administrator maintained that he relied on the documents and considered that his appointment was valid — Where no evidence that administrator had made any inquiries about the forgery allegation before coming to that view — Where administrator proceeded to advertise company’s asset for sale and deal with shareholders and creditors of the company in his capacity as administrator — Where administrator declined to make any application to the Court to determine the validity of, or to validate, his appointment — Where administrator ultimately applied to the Court almost three months after his appointment seeking orders validating his appointment — Where validation of appointment would give the imprimatur of the Court to the forgery and the subsequent conduct of the administrator, and would deprive shareholders in dispute of the right to engage in procedure agreed between them in a Shareholder Deed to resolve deadlock between directors, which would be likely to affect future of the company — Where risk of insolvency, but no real risk of company incurring further debts except to existing related party creditors who may, depending on the outcome of the deadlock procedure, choose to fund the company with full knowledge of its financial position and circumstances.