Cases and authorities

CIVIL PROCEDURE – originating process – applications to amend cross-claims – where hearing is in less than six weeks – whether grant of leave in accordance with the dictates of justice – whether prejudice occasioned upon the cross-defendants

SUCCESSION – FAMILY PROVISION – Claim for family provision order by adult child of the deceased – Proceeding commenced outside the time prescribed by the Succession Act 2006 (NSW) for making the application – The Defendant a de facto spouse of the deceased – No actual estate out of which any order for provision could be made – The Defendant and the deceased owned property as joint tenants, which was subsequently sold with the proceeds being used by the Defendant to pay refundable accommodation deposit for care home - Application for order that refundable accommodation deposit be designated as notional estate, and for provision from balance of deposit – As Defendant does not consent, whether “sufficient cause” shown for making order extending time for making the application – No sufficient explanation given by the Plaintiff for not commencing proceedings within time – Order not made – In case that conclusion wrong, consideration also given to whether any order should be made designating the refundable accommodation deposit as notional estate of the deceased – Whether “special circumstances” existed to justify the making of a notional estate order – Whether discretion would have been exercised to make notional estate order, or family provision order – Proceeding is dismissed

PRACTICE AND PROCEDURE – default judgment – where second plaintiff company and its liquidator seek orders under s 588FF(1)(a) of the Corporations Act 2001 (Cth) to recover from multiple defendants amounts equivalent to payments allegedly made by the second plaintiff to each defendant within the relation back period on the basis that the payments are voidable transactions because of s 588FE – where seventh defendant fails to file a defence – where second plaintiff seeks an order against seventh defendant under s 588FF(1)(a) by way of default judgment in respect of the payments allegedly made to that defendant – where s 588FF(1)(a) requires the Court to be satisfied that the payments are voidable transactions because of s 588FE – where that would require the Court in this case to be satisfied that the second plaintiff was insolvent at the time of the payments to the seventh defendant, or that the second plaintiff became insolvent as a result of those payments – where second plaintiff’s claims against other defendants will require the Court to determine at final hearing whether the second plaintiff was insolvent during the period in which it allegedly made payments to those other defendants, which coincides with the time period in which the payments to the seventh defendant were allegedly made – risk of inconsistent findings – HELD: Application for default judgment dismissed.

CORPORATIONS — Winding up — Court ordered winding up — Application to set aside winding up order — Where liquidator does not consent to winding up order being set aside — Where applicant contends company is solvent within Financial Support of its sole director and shareholder — Where limited evidence adduced by applicant did not provide an appropriate bases on which to reach a reasonable decision about company’s solvency — Application dismissed.

MENTAL HEALTH – forensic patient – extension of status as forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – extension order would be justified – orders for examination made – interim extension order made

CONTRACTS — execution of Agreement — whether a director had authority to bind company to Guarantee and Indemnity Agreement — where Agreement was signed by one of two company director’s contrary to s 127(1) Corporations Act 2001 (Cth) — company not bound by the Agreement CONTRACTS — construction of Agreement — whether the Agreement operates as both an indemnity and guarantee or as just an indemnity — Agreement operates as an indemnity agreement. CONTRACTS — recovery of legal fees under Retainer Agreement — whether recovery is time-barred — time limitation would invalidate Agreement CONTRACTS — public policy — where allowing the recovery of monies under the Retainer would undercut protection provided by the Legal Profession Act 2004 (NSW)

LICENSING — Gaming Machines Act 2001 (NSW) — gaming machine entitlements (“GMEs”) — gaming machine threshold — application to Independent Liquor & Gaming Authority (“Authority”) to increase gaming machine threshold from 20 to 24 — application accompanied by “Local Impact Assessment” (LIA) — application and LIA approved — subsequent applications to transfer seven GMEs — applications approved and gaming machine threshold increased from 24 to 27 — application to Authority seeking revocation of earlier approval — power to revoke earlier approval of LIA — whether power to revoke earlier approval of increase in threshold — whether power to revoke earlier approval of transfer of GMEs — power of Authority to reduce threshold — whether power to “set” threshold under s 32(1) of Gaming Machines Act could be re-exercised from time to time to permit increase or decrease in threshold ADMINISTRATIVE LAW — Interpretation Act 1987 (NSW), s 48(1) — exercise of function from time to time as occasion requires — whether s 48(1) confers power to revoke previous decision made under a statutory power — whether s 48(1) requires every function to which the provision is directed to be interpreted as including power or authority to revoke earlier exercise of that function — effect of re-exercise of function or power may be to reverse or revoke earlier exercise of power — power conferred by s 19(2)(a) of Gaming Machines Act to approve transfer of GMEs does not include power to revoke earlier approval of transfer of GMEs — power conferred by s 34(4) of Gaming Machines Act to approve increase in threshold does not include power to revoke earlier approval of increase in threshold — in the alternative Gaming Machines Act manifests contrary intention to implication of any such powers of revocation

NEGLIGENCE — breach of duty of care — non-delegable duty of care — employer and employee — labour-hire company — where services of employee contracted out — contractor failed to provide a safe system of work — relevance of steps by employer to ensure that the contractor instituted a safe system of work — relevance of opportunity for employer to intervene to prevent injury WORKERS COMPENSATION — common law remedies — Workers Compensation Act 1987 (NSW) s 151Z — adjustment of damages under s 151Z(2)(c) — whether employer able to claim recovery of compensation payments from third party tortfeasor under s 151Z(1)(d) in circumstances where employer was joint tortfeasor — construction of s 151Z(2)(e) — whether worker “does not accept satisfaction of the judgment against that employer” — whether s 151A applies — liability of worker to repay compensation out of damages under s 151Z(1)(b) TORTS — joint and several liability — contribution —Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 — “just and equitable” — onus of proof — claim by tortfeasor against injured worker’s employer — where employer also a tortfeasor — where no evidence of responsibility of employer for injury suffered by employee — no contribution ordered LIMITATION OF ACTIONS — torts — personal injury — Limitation Act 1969 (NSW) s 50C, s 50D — 3 year post discoverability limitation period — whether cause of action discoverable — where plaintiff unaware of true employer — where legal advisers advised a claim for workers compensation, but not common law damages — whether plaintiff knew the fact that the injury was caused by the fault of the defendant — whether plaintiff knew the fact that the injury was sufficiently serious to justifying the bringing of an action on the cause of action WORDS AND PHRASES — Limitation Act 1969 (NSW) s 50D — “know” — “fact”

Constitutional Law (Cth) – Judicial power of the Commonwealth – Jurisdiction – Appeals – Meaning of "matter" – Where appellant commenced proceedings in Federal Court of Australia seeking mandamus to require Secretary of Department of Home Affairs to remove him from Australia to a regional processing country under s 198AD(2) of Migration Act 1958 (Cth) – Where Federal Court made orders declaring s 198AD(2) of Act applied to appellant, requiring Secretary to perform duty under s 198AD(2) as soon as reasonably practicable, and requiring appellant be detained in immigration detention at a residential address pending removal to a regional processing country – Where Minister for Home Affairs subsequently exercised power under s 198AE(1) of Act to determine duty under s 198AD(2) did not apply to appellant – Where respondents sought to appeal primary judge's orders to Full Court of the Federal Court of Australia – Where at time of appeals primary judge's orders did not have any operative legal effect – Whether there was a "matter" within meaning of Ch III of Constitution at time Full Court made orders determining appeals – Whether there was a justiciable controversy before Full Court – Whether Full Court had jurisdiction to determine appeals. Words and phrases – "advisory opinion", "appellate jurisdiction", "federal jurisdiction", "immediate right, duty or liability", "judicial power of the Commonwealth", "jurisdiction", "justiciable controversy", "matter", "standing". Constitution, Ch III. Federal Court of Australia Act 1976 (Cth), s 24. Migration Act 1958 (Cth), ss 198, 198AD, 198

CIVIL PROCEDURE — plaintiff represented by tutor — settlement reached — application for court approval of settlement — s 76 Civil Procedure Act 2005 (NSW) — consideration of whether settlement is in the best interests of the plaintiff TORTS — medial negligence — plaintiff alleges that he was he was advised by medical practice to cease anticoagulant medication in advance of procedure — dispute as to, inter alia, advice given

CIVIL PROCEDURE — application for approval of settlement — allegations of child sexual abuse — church congregation — plaintiff is a minor — consideration of the bests interest of the child — settlement approved

SUCCESSION – FAMILY PROVISION – Succession Act 2006 (NSW) ss 59, 60, 80, 83 – application for family provision order by daughter of the deceased – where the deceased left the residue of her estate in equal shares to her son and her daughter – where shortly before her death her home was sold for $620,000 of which $300,000 was paid to her son and where on the date of and after her death her son illicitly withdrew $44,325.46 from her bank accounts – where the daughter has no assets of any value apart from a motor vehicle and has disabilities – HELD – monies paid to the son should be designated notional estate – provision for the daughter is inadequate – provision for the daughter’s maintenance and advancement in life should be made to the extent that her half share of what is left in the estate falls short of what she would have received had the described transactions not occurred

ADMINISTRATIVE LAW — Judicial review of administrative decisions — State Parole Authority — Jurisdictional error — Error of law — Failure to exercise jurisdiction — No error established

CHILD WELFARE – adoption – Aboriginal child placement principles – whether placement for adoption has occurred – whether prospective adoptive parent has capacity under s 35(3) of the Adoption Act 2000 (NSW) – where children with one Aboriginal parent and one non-Aboriginal parent – where prospective adoptive parent is not Aboriginal – where preliminary hearing held under s 80(2) of the Adoption Act 2000 (NSW) CHILD WELFARE – adoption – consultation by the Secretary with a relevant Aboriginal organisation – whether placement of Aboriginal child for adoption has been made in consultation with such an organisation for the purposes of s 33(2) of the Adoption Act 2000 (NSW) – whether the engagement by the Secretary in such consultation is a condition of the authority of the Court to make an adoption order – whether failure or inability of the Secretary to ensure that the requisite consultation has occurred deprives the Court of the power to make an order for adoption

CONTRACT — chief executive officer owns 5% of employer’s shares — employer operates 200 retail fashion stores – COVID-19 lockdowns close stores –foreign exchange hedge book sold – employer receives ‘windfall’ JobKeeper payments – CEO resigns — employer entitled to buyback shares for “Fair Market Value” calculated by contractual formula “after accounting for abnormal or extraordinary items” – employer to “act reasonably” and in “good faith” — construction of contract — no pleaded allegation that calculation did not meet required standard of performance under contract — matter of judgment. WORDS AND PHRASES — “after accounting for” — abnormal items — extraordinary items.

CIVIL PROCEDURE — Whether defendant may rely on additional evidence after failing to comply with guillotine orders — Where proceedings have not been set down for hearing — Plaintiff will not suffer any prejudice if the evidence is allowed — Leave granted CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — Where defendant builder seeks to file cross-claim against subcontractors — Where defendant wanted evidence from its own experts before joining cross-defendants — Where defendant has already delayed in serving evidence and joining cross-defendants would cause substantially more delay — Leave refused

ADMINISTRATIVE LAW – judicial review – crime – application to set aside decision of judge to refuse to consider or otherwise deal with an application for an inquiry into a conviction – whether error of law on the face of the record or jurisdictional error ADMINISTRATIVE LAW – judicial review – boundary of legal unreasonableness – whether little weight accorded to a factor of great importance – need for caution to avoid review of merits CRIMINAL PROCEDURE – functions of judge considering an application for an inquiry into a conviction under Pt 7 of Crimes (Appeal and Review) Act 2001 (NSW) – functions non-judicial – where previous unsuccessful applications – refusal to consider or further deal with fresh application – no function to review correctness of earlier decisions

CRIME – manslaughter – involvement in administering illicit drugs which caused death – assault – whether consent is a defence to an assault causing death by dangerous act – not necessary to decide finally – administration of drug unlawful and consent irrelevant – whether dangerous is a matter for jury

PRACTICE AND PROCEDURE — application for adjournment — whether the Court Book was provided to the first defendant with sufficient time for him to adequately prepare for the hearing — in circumstances where the delay in preparing the Court Book was due in part to the voluminous affidavit material requested to be included in it by the first defendant and where the material to be included in the Court Book was at all times in the possession of the first defendant — HELD — no injustice occasioned to the first defendant — application refused

CIVIL PROCEDURE — application for expedited hearing — plaintiff seeks mandamus requiring the regulator to make a decision on its application relating to licences for gaming machines — regulator deferring decision until receipt of judgment from Court of Appeal proceedings dealing with an issue relevant to the application

CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody convicted of a serious indictable offence — leave sought nunc pro tunc — allegation that the plaintiff was sexually abused whilst in juvenile detention — leave granted

EVIDENCE — Privileges — Client legal privilege — Loss of — “intentions…of a client or party who has died” — Evidence Act 1995 (NSW), s 121(1)

CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody convicted of a serious indictable offence — leave sought nunc pro tunc — allegation that the plaintiff was sexually abused whilst in secondary school — alleged sexual abuse by priests — leave granted

CIVIL PROCEDURE — notice of motion seeking separate determination of questions under r 28.2 of the Uniform Civil Procedure Rules (NSW) — whether to exercise discretion — issues distinct — evidence establishes concrete facts — separate determination ordered

HIGH RISK OFFENDER – final hearing – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – consideration of factors in s 9 – disputed conditions resolved - extended supervision order made

WILLS AND ESTATES — trusts — charitable gifts — trustee refuses to accept bequest due to direction of testator — misdescription of charity — construction of will — no application of “lapse rule” — testator’s intention for trustee to act to give charitable gift to similar organisation with similar charitable purpose

CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee of acceptable quality — Australian Consumer Law (ACL), s 54 — Whether vehicles of acceptable quality to reasonable consumer — Whether vehicles not safe or free from defects given installation of airbags — Where asserted risk of rupture of airbags — Whether appellant established a physical feature of the airbags carried the inherent risk alleged — Where no materialisation of asserted risk within 15-year timeframes tested — Where merely speculative theoretical risk of rupture of airbags not within any meaningful timeframe — Whether unquantifiable risk unacceptable to reasonable consumer CONSUMER LAW — Enforcement and remedies — Defences — Whether assumed failure to comply with guarantee of acceptable quality “only because of” act or default of another person other than manufacturer or its employees or agents — Where third party supplier of airbags not an agent of the manufacturer — Meaning of “manufacturer” — Whether acts of “manufacturer” in choosing third party supplier, installing airbags or releasing vehicles in that state for supply disentitled the manufacturer to defence — ACL, s 271(2) CONSUMER LAW — Enforcement and remedies — Action by consumer for damages under ACL, s 271(1) — Assessment of damages under ACL, s 272(1) — Where common ground that time for assessing damages for any reduction in value of goods is time of supply — Whether subsequent events which illuminate true value of goods at time of supply should be taken into account in damages assessment — Where airbag replaced at no cost — Whether replacement of airbag should be taken into account in damages assessment assuming breach of consumer guarantee CIVIL PROCEDURE — Representative proceedings — New points on appeal — Representative party failed to plead new damages claims on behalf of group members — Whether common questions should be amended on appeal — Where no challenge to orders specifying common questions for determination at trial — Where no application to amend common questions at trial or on appeal — Effect of statutory estoppel on issues raised by common questions — Civil Procedure Act 2005 (NSW), s 179

APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused

CRIME — Appeals — Appeal against sentence — Backdating commencement of sentence — Taking into account immigration detention — Obligation to give reasons

CRIMINAL LAW – sentence appeal – error in commencement date – commencement date in breach of s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIME — confiscations — application for examination — extant restraining order — evidence demonstrates a sufficient interest in the property — order made for examination

COSTS – security for costs – cross-claim by builder against its subcontractors – where common ground builder could not meet costs order – whether cross-claim defensive in nature – whether builder has strong prospects of success against cross-defendants – whether ordering security would stultify proceedings – where those behind builder have not revealed their ability to pay security

LAND LAW – claim by purchaser for specific performance of contract for sale of land – purchaser failed to complete by completion date – vendors issued notice to complete – vendors thereby affirmed contract – purchaser ready and willing to complete at completion date specified in notice to complete – vendors failed to perform – purchaser has continued to seek performance since – purchaser remains ready and willing to complete – vendors have not performed – specific performance ordered

EMPLOYMENT AND INDUSTRIAL LAW – industrial organisation – cancellation of registration under s 227(1) of the Industrial Relations Act 1996 (NSW) – whether grounds are established under s 226(f) of the Industrial Relations Act 1996 (NSW) for the cancellation of registration of an industrial organisation – whether there is a discretion under s 227 of the Industrial Relations Act 1996 (NSW) – cancellation granted

COSTS – party/party – offers of compromise – application under r 36.16(3A) to vary costs order – party seeking to vary costs order gives notice of application to Court and the other parties within 14 days – order made dispensing with filing of notice of motion – costs order varied

CIVIL PROCEDURE – application for separate question – where likely disputed facts

SUCCESSION — forfeiture under public policy rule — where defendant and deceased are joint tenants of three properties — whether the defendant convicted of murdering deceased — forfeiture rule applied — trustees for sale of properties pursuant to s 66G Conveyancing Act 1919 (NSW) appointed

COSTS — Party/Party — whether to depart from usual order under Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event — whether to order that each party to bear their own costs — where statutory construction issue advanced for the first time in these proceedings failed — order that each party to bear their own costs but apportionment appropriate given the mixed outcome of the proceedings — defendant to bear half of the plaintiff’s costs COSTS — whether defendant to retain benefit of previous consent costs order made by the Personal Injury Commission — claimant’s entitlement to costs in those proceedings not dependent on outcome — Motor Accident Injuries Act 2017 (NSW), s 8.10 — where insurer did not challenge retention of the benefit of the consent order — order made in favour of defendant COSTS — Party/Party — Suitors’ Fund Act 1951 –– whether certificate under s 6 available to defendant –– where proceedings do not involve an appeal or a decision of a court –– proceedings “in the nature of an appeal” –– Personal Injury Commission a “court” for purposes of the Act –– s 6 requirements satisfied and certificate granted

EVIDENCE – expert evidence – expert report on alleged defects in construction of houses – where defects have been rectified – where expert no longer available for cross-examination – whether Court should make advance ruling under s 192A of the Evidence Act 1995 (NSW) – whether Court should grant leave to plaintiff under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW) to tender report

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Where plaintiffs declared vexatious in other proceedings seeking substantially similar relief

APPEALS — Right of appeal — Source of right – Whether right to appeal under ss 39-40 or 70(1)(c) of the Local Court Act 2007 (NSW) and the jurisdiction under Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW) APPEALS — Leave to appeal — Principles governing – No issue of principle or question of public importance – Lack of proportionality between the monetary amount at issue and costs of the proceeding – Leave refused APPEALS — Right of appeal — Scope of right —Where subject matter did not raise question of law alone – Where failure to precisely identify questions of law – Whether factual findings unsupported by any evidence – Whether alleged failure to take into account mandatory relevant consideration constitutes a question of law – Whether finding of no breach of Pt 2 Div 1 Subdiv 17 cll 2.33 and 2.34 SEPP 2008 constitutes a jurisdictional fact – Whether reasons of Magistrate inadequate STATUTORY INTERPRETATION – Meaning of the phrase “to consider” in the context of s 4 of the Dividing Fences Act 1991 (NSW), where the decision-maker is required “to consider” all the circumstances of the case, including the seven specified criteria set out therein regarding what is the standard for a “sufficient dividing fence”

EVIDENCE – Admissibility – Hearsay –Representations made by alleged deceased – Where maker of representations “not available” – Whether representation made in circumstances that make it highly probable they were reliable EVIDENCE – Admissibility – Tendency evidence – Late notice – Asserted tendency of alleged deceased to disavow long-term relationships, engage in short-term sexual encounters and falsely promise long-term relationships – Whether proposed evidence will have significant probative value

CIVIL PROCEDURE — Cross-vesting — application for transfer under Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), subs 5(1) — application opposed — where plaintiff seeks damages for defendants’ alleged breaches of their duties as trustees in bankruptcy — Court’s jurisdiction — whether claims concern a “special federal matter” under Bankruptcy Act 1966 (Cth) which must be transferred — if not, whether discretion to transfer should be exercised — where Federal Court has already heard and determined proceedings in relation to the bankrupt estates and the trustees’ exercise of their duties — where resolution of disputed claims will require exercise of Federal Court’s jurisdiction “in bankruptcy” under s 27 of the Bankruptcy Act — matter transferred

CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Young offender – Significant mental health issues – Lack of remorse – Prospects of rehabilitation – Parity – Totality – Additional offences committed in custody – Finding of special circumstances

HIGH RISK OFFENDER – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 – whether defendant a “convicted NSW terrorism activity offender” pursuant to ss 20(c)(iii) and 10(1) by reason of his advocating for terrorist acts or violent extremism – whether statements made disclosed risk of violence with twin intents of advancing ideology and intimidating government or public – where incarcerated defendant is a diagnosed schizophrenic who expressed intentions to commit racial violence upon release – where statements made to treating psychologists during interviews – disordered and deluded commentary on race and socio-political affairs not amounting to an ideology – statements not constituting advocacy where they did not seek to persuade others and were made in clinical context HIGH RISK OFFENDER – whether the defendant poses an unacceptable risk of committing a serious terrorism offence pursuant to s 20(d) – where defendant has no history of committing serious physical violence – where no unacceptable risk that any future acts of property damage or violence would be in furtherance of a political ideology or for the purpose of intimidating the government or public

CRIME – Application for trial by judge alone – Court informed of application 27 days before trial – Leave required – Accused a transgender woman not fluent in English – Trial likely to involve evidence of her engagement in sex work – Logistical complexities associated with expert evidence of disputed admissions allegedly made by accused via interpreter – Crown consents to application

DAMAGES — misleading or deceptive conduct — contractual warranties and other representations — ownership or control of intellectual property — “no transaction” case — whether respondents would have entered into transaction if true position known — adequacy of reasons on no transaction case DAMAGES — assessment of damages — misleading or deceptive conduct — expert evidence on damages — correctness of assumption that company was not a going concern — whether error as to assumption affected applicability of expert’s preferred damages scenario CONTRACTS — contractual warranties – misleading or deceptive conduct — representation as to future matter — whether contractual warranty a representation as to future matter CORPORATIONS — damages — apportionment of damages — whether corporation was concurrent wrongdoer — where contractual warranties “jointly and severally” provided by corporation and directors

APPEALS — competency of appeal — where claimed damages at first instance below statutory threshold — where appellant seeks to justify assessment of damages above threshold — whether further evidence sufficient to establish that amount in issue exceeds threshold — appeal dismissed as incompetent APPEALS — application for leave to appeal — where applicant seeks damages for false imprisonments, battery, assault and malicious prosecution — where damages in issue do not exceed threshold — leave refused

CRIME – Appeals – Appeals against conviction – Incompetence of counsel – Whether defence counsel failed to put defence to jury properly – Whether the applicant was not properly advised of giving evidence – Whether there was a miscarriage of justice

CRIMINAL LAW – appeals – Crown appeal against sentence – findings of objective seriousness – whether findings of the sentencing judge were open – appeal dismissed CRIMINAL LAW – appeals – Crown appeal against sentence - manifest inadequacy – aggregate sentence – totality – significance of applicant’s subjective case – appeal dismissed