Cases and authorities

CRIME – appeal against conviction – judge-alone trial – applicant charged with three counts of sexual intercourse without consent – applicant pleaded guilty to digital penetration, and not guilty to counts of penile vaginal penetration and cunnilingus – all offending alleged to take place upon same complainant on same occasion – applicant found guilty of second and third counts – whether primary judge’s findings of guilt unreasonable and cannot be supported by evidence – significance of inconsistencies in complaint evidence – significance of primary judge’s assessment of complainant’s testimony – significance of complainant’s language difficulties – significance of malleability of memory – consideration of appellate review on basis findings of guilt unreasonable – appeal dismissed by majority

COSTS – whether court should determine gross sum costs order – whether costs should be set-off against judgment sum – whether stay of execution of judgment debt should be granted – motion dismissed

PRACTICE AND PROCEDURE – judgments and orders – proceedings dismissed for want of due dispatch – set aside in the interests of justice

HIGH RISK OFFENDER – extended supervision order – final hearing – defendant convicted of serious sex offending in 1999 – prior ESO for five year period – several breaches of prior ESO resulting in incarceration and imposition of intensive correction order – defendant developing cognitive impairment – concern whether defendant can comply with conditions given cognitive impairment – where defendant has considerable support including National Disability Insurance Scheme plan – whether to decline to impose ESO despite defendant posing unacceptable risk – dispute over electronic monitoring, scheduling and pornography conditions – ESO imposed with electronic monitoring, dry scheduling

CIVIL PROCEDURE — defendant’s application for summary judgment — plaintiff was convicted by a jury for child sexual related and perjury offences — plaintiff has engaged in various review process, including appeals and a Part 7 inquiry — plaintiff seeks to invoke a fraud jurisdiction of the Court to set aside convictions — whether the plaintiff’s application is an abuse of process — consideration of the Court’s jurisdiction in relation to fraud — plaintiff’s allegations of fraud are mere assertions — not satisfied that the common law division has the power to set aside the conviction of a jury by way of judicial review — the plaintiff has repeatedly agitated the issue to this litigation — held that the plaintiff’s application is an abuse of process

ADMINISTRATIVE LAW — application for judicial review — decision under review from the Local Court — initial decision by NSWPF issuing immediate licence suspension notice — appeal to Local Court — Local Court imposed a conditional licence suspension — supervisory jurisdiction — parties’ consent to quashing the Local Court decision — public interest in the Court being satisfied that there is error justifying the relief sought and providing reasons for judgment — whether Local Court’s error was an error of law on the face of the record — finding that the immediate licence suspension notice was invalid disposing of the judicial review application — in any case, the Local Court had no jurisdiction to partially suspend the defendant’s licence — that was an error of law on the face of the record and a jurisdictional error

COSTS — Party/Party — Bases of quantification — Indemnity basis — Where offers contemplated settlement of multiple proceedings — Reasonable to reject offers COSTS — Party/Party — Bases of quantification — Civil Procedure Act 2005, s 98(4)(c) — Gross sum costs order — Where multiple proceedings — Costs presented logical, fair and reasonable

LEASES AND TENANCIES — Use of premises — Permitted use — Whether Tenant breached permitted use — Whether breach of make good obligation — Whether damage to concrete flooring was caused by defective construction of concrete or fair wear and tear

MORTGAGES AND SECURITIES — Where defendant has not repaid money owing under credit facility and administrators are appointed to defendant — Whether defendant must execute a general security deed under a clause of credit agreement — Security deed would be void unless entered into under an order of the Court under s 437D(2)(c) of the Corporations Act 2001 (Cth) — Plaintiff has not proved that the defendant entering the security deed would benefit the company as a whole or creditors generally CONTRACTS — Formation — Uncertainty — Whether promise to provide “any adequate” security in credit agreement is sufficiently certain to be enforceable — Credit agreement does not identify the secured property, circumstances it may be exercised and the rights that attach to its exercise

JUDGMENTS AND ORDERS – whether orders made on 15 August 2023 that second cross-defendant pay costs of cross-claimant should be set aside – where parties agreed a timetable for submissions on that subject - where second cross-defendant instructed his solicitors on the record to cease all work – where second cross-defendant briefly engaged alternative solicitors - where second cross-defendant did not comply with timetable for submissions - whether orders were made in the absence of the second cross-defendant

COSTS – Party/party – Where multiple issues in proceedings – Where plaintiff largely successful in claims brought in one capacity and unsuccessful in claims brought in another capacity. COSTS – application for costs on an indemnity basis – where defendants did not act unreasonably in not accepting Calderbank offers – whether an indemnity costs order should be made.

CHILD WELFARE – Adoption – Aboriginal children – whether Secretary has engaged in the consultations required by s 33 of the Adoption Act 2000 (NSW)

CIVIL PROCEDURE — Stay of proceedings — Contractual dispute resolution process culminating in expert determination — Where proceedings commenced by plaintiffs after defendant issued notice of dispute invoking contractual process — Whether Court should exercise discretion to stay proceedings LEASES AND TENANCIES — Assignment and subletting — Consent — Where defendant granted options to plaintiff to enter into long-term leases and easements over defendant’s pastoral leasehold land — Where each option deed precluded the plaintiff from assigning its rights or novating its obligations under the deed unless (i) the plaintiff gives the defendant all information requested by the defendant that is reasonably required to determine whether the proposed assignee, of the party in control of the proposed assignee, is able to satisfy the grantee’s obligations “under this Deed”; and (ii) the defendant approves the assignee in writing (which approval must not be unreasonably withheld or delayed) — Where plaintiff sought defendant’s approval to assign option deeds to assignee – Whether plaintiff had failed to provide to the defendant information that it was obliged by that clause to provide — Whether defendant unreasonably withheld or delayed its approval of the proposed assignee — Whether defendant obliged to approve the proposed assignee and execute deeds of assignment and novation

EVIDENCE – pending retrial – application to revisit rulings made either prior to or during first trial – whether not in interests of justice for ruling to be binding – whether material change in circumstances – material change not determinative – accused is a correctional officer – shot deceased while escaping – scope of lawful authority – whether evidence of accused prodding deceased in cells with foot while deceased having a fit should be excluded – no matter raised warranting revisiting ruling – evidence of accused’s participation in training scenario involving confrontation with violent prisoner – ruling reversed – potential to confuse jury’s understanding of correctional officer’s authority to discharge firearm at escaping prisoner – evidence of accused taking a telephone call outside hospital where inmate located just prior to escape – no matter raised warranting revisiting ruling

SUCCESSION — Executors and administrators — Distribution of estate — The plaintiff executrix is granted probate and publishes s 92 Probate and Administration Act 1898 (NSW) (PAA) notice — The defendant’s solicitors serve a claim which is disputed by the plaintiff’s solicitors — The plaintiff’s solicitors serve a notice disputing claim pursuant to s 93 PAA — The plaintiff commenced proceedings seeking a barring order pursuant to s 93 PAA — The defendant consents to such order and the parties request the Court to make orders prior to the expiry of the 3-month period referred to in s 93 PAA — Judge makes requisitions regarding a privilege issue and for provision of submissions on jurisdiction — Parties belatedly respond to requisition but provide no submissions — Held Court has no power to make a barring order prior to the expiry of the 3-month period — However due to delayed response the 3-month period elapses and barring order is made SUCCESSION — Executors and administrators — Barring order pursuant to s 93 PAA — Discussion of conditions on which the Court may act to make a barring order — Consideration of whether the Court may make order prior to expiry of 3-month period or abridge the time at which the specified 3-month period may expire in any given case STATUTORY CONSTRUCTION — Consideration of principles regarding statutory construction — Consideration of text, purpose and context of the provisions of s 93 PAA

MORTGAGE BROKER — property developer engages broker to obtain $13.5M finance — vendor prepared to be paid in stages — first payment is $6.35M — developer wants 100% debt funding — broker provides Loan Term Sheet with features of loan required for purchase of land and development — broker entitled to fee on procuring discussion paper from lender ‘in the terms of’ the term sheet —application for finance misrepresents that developer has already purchased the land — seeks finance to finalise the development — bank issues discussion paper for $13.5M facility – lending covenants mean only half of funds needed for first payment will be available —contractual construction – whether contract substantially performed – principles and case law review at [66]-[69], [72]-[74] — no substantial performance — broker not entitled to fee. EXPERT EVIDENCE — expert in credit risk and lending policy — expert considers loan application and discussion paper — analysis of cashflows and application of lending conditions — whether report linked reasoning to expertise — principles at [81]-[83] — whether assumptions proved — report admitted.

PRACTICE and PROCEDURE – appeal – application for stay pending hearing of appeal – appellant owned 18 lots in strata plan subject to mortgage to bank – appeal reasonably arguable – appeal likely to be heard and determined in four months – attempts to sell lots likely to trigger default on mortgage – sales not likely to be completed before appeal determined – stay granted subject to conditions designed to protect value of appellant’s assets

CONSTITUTIONAL LAW – federal jurisdiction – whether Personal Injury Commission exercised judicial power when determining claim brought by resident of Queensland against employer State of New South Wales – common ground that Commission exercised administrative power in this case – appeal allowed by consent – short reasons given

CONTRACTS – construction – share purchase agreement to be understood objectively having regard to commercial purpose and object CONTRACTS – construction – meaning of business revenue for purpose of determining whether second performance conditions satisfied – business revenue includes revenue from internal supply – internal supply calculated by transfer price as agreed by the parties CONTRACTS – breach of share purchase agreement – where respondents prepared NPAT statements on the basis of incorrect contractual premise

CRIME — Appeals — Appeal against sentence — Application for leave to appeal – possession of child abuse material – specific deterrence – general deterrence – sentencing factors – applicant resentenced – no lesser sentenced warranted

CRIME – appeals – appeal against sentence imposed in the Drug Court – whether early pleas of guilty taken into account – whether irrelevant consideration taken into account when assessing objective seriousness – appeal allowed – appellant resentenced

CRIME — Appeals — Appeal against sentence – extension of time for leave to appeal – manifest excess – where applicant’s medical condition has deteriorated since time of sentencing – whether sentencing judge failed to appreciate the significance of the applicant’s medical condition – fresh evidence

CRIME – appeal against conviction – murder – judge-alone trial – whether partial defence of substantial impairment should have been upheld – whether impairment so substantial as to warrant liability for murder being reduced to manslaughter – whether factual error in one aspect of evaluative conclusion by judge – no error established

CIVIL PROCEDURE — notices to produce — before hearing

ADMINISTRATIVE LAW — termination of employment for failure to follow direction — whether this amounted to “misconduct” — jurisdictional error — whether employee denied procedural fairness — whether decision to terminate employment was delegated to an unauthorised delegate — Carltona principle — whether directions were lawful and reasonable — legal unreasonableness

CRIMINAL PROCEDURE – costs – application for certificate under the Costs in Criminal Cases Act 1967 (NSW) – whether the prosecution of the applicants was reasonable – prosecution was unreasonable considering the relevant evidence before the court – application for costs certificate granted – legally aided applicant granted costs.

EQUITY – Estoppel – Proprietary Estoppel – Estoppel by encouragement – Representations of future benefits – Expectations arising from representations – Conduct in reliance upon representations – Representors renounce any obligation to confer future benefits – Representees suffer detriment if departure from representations allowed – Unconscionability of departure from representations – Acceleration of expectations – Equitable remedy granted on conditions – Representees required to do equity

GUARANTEE AND INDEMNITY — Rights of guarantor against co-guarantors — Right to contribution — Whether payment made under guarantee — Whether parties had co-ordinate liabilities — Where guarantor provided mortgage in addition to guarantee — Mortgage discharged to minimise losses on project rather than under the guarantee — Liabilities not co-ordinate GUARANTEE AND INDEMNITY — Rights of guarantor against co-guarantors — Right to interest — Not affected by delay in bringing proceedings

COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — where applicant was defendant/cross-claimant in substantive proceedings resolved by consent — where motion seeking personal costs order against solicitor dismissed — where case below put on basis that defence was woefully prepared — where case on appeal put on basis that lawyer omitted to advise applicant that claim should never have been defended — whether s 99 of the Civil Procedure Act 2005 (NSW) satisfied — whether correct test applied

APPEALS – Appeal from Land and Environment Court – Requirement for appeal to be from an order or decision on a question of law – Whether all grounds meet this requirement STATUTORY INTERPRETATION – Conventional approaches to interpretation – Meaning of “the surface of the overlying soil is disturbed” – Text, context and purpose central to interpretation – Where de minimis principle apt – Extrinsic materials reveal protective purpose in favour of State COMPULSORY ACQUISITION – Compensation – three pre-conditions established by Sch 6B of Transport Administration Act 1988 (NSW) – Where pre-conditions exist in legislation dating back to 1880 – Whether 1.5mm or modestly greater subsidence of soil following tunnelling works by State entitle registered proprietor to compensation under Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

PROCEDURE – Teoh order – whether further application to set aside orders made appointing trustees for sale vexatious or an abuse of process – motion dismissed

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order – application for mandatory psychiatric and/or psychological examinations – serious sex offence – dispute confined to conditions – application granted

EQUITY PROCEDURAL RULINGS – second application to amend reply – application made too late – possible prejudice to defendant – advancing an inconsistent case

COSTS - contested probate – small estate - defendant/cross-claimant successful in obtaining a grant of probate in respect of a will and a codicil to the will – whether plaintiff/cross-defendant engaged in an abuse of process such as to warrant an order for indemnity costs – no abuse of process established – whether appropriate to depart from the usual position that costs follow the event - where circumstances existed that might reasonably call for an investigation into the validity of the codicil – where dispute was largely a contest over who would have control over the estate - appropriate in all the circumstances to order that the plaintiff/cross-defendant pay 50% of the costs of the defendant/cross-claimant – order made that defendant/cross-claimant is entitled to be indemnified out of the assets of the estate to the extent he does not recover his costs from the plaintiff/cross-defendant

ADMINISTRATIVE LAW – judicial review – decision of medical assessor referred to review panel – where plaintiff underwent surgery for reported radicular symptoms – whether surgery rendered plaintiff’s injury non-minor – where no evidence about what the surgery involved was put before the medical assessor – no error made out

CONTEMPT — civil contempt — breach of orders — payment of monies in breach of freezing orders CONTEMPT — civil contempt — breach of orders — misleading the court

CRIMINAL LAW — appeals — appeal against conviction — miscarriage of justice — appellant arraigned on 6 October 1987 to counts of maliciously wounding a police officer with intent to prevent his lawful apprehension and supplying a prohibited drug — appellant pleaded not guilty — police officer gave evidence consistent with crown case — appellant pleaded guilty on 7 October 1987 to lesser charge of using offensive weapon to prevent his lawful apprehension and supply charge — agreed facts tendered on sentence record appellant stabbed police officer during police pursuit, fled and was arrested in possession of heroin — Royal Commission into New South Wales Police Force revealed police had colluded and fabricated evidence — appellant entered pleas after concluding he would be convicted — whether circumstances established a miscarriage of justice — fresh evidence adduced at Royal Commission overwhelmingly demonstrated that evidence of appellant stabbing police officer and supplying drugs was concocted — actions of police were a form of “fraud” or sufficiently analogous to concept of “fraud” to warrant reversal of plea of guilty — whether appellant should be granted a costs certificate for costs of proceedings at first instance — Costs in Criminal Cases Act 1967 (NSW) in its current form applicable — ss 2(1)(b) and (3) satisfied — appeal allowed — convictions set aside and in lieu acquittals entered — costs certificate granted

CRIMES – appeals – appeal against conviction – sexual offences against child – asserted unreasonableness or questionable supportability of verdicts – where complainant six years old at time of alleged offending and nine years old at trial – asserted inconsistency of complainant’s evidence – where allegations themselves said to be so inherently fantastical jury must have had doubt – nature of child sexual offending – nature of allegations described within experience of courts and the community – jury advantage in observing witnesses – verdicts not unreasonable

CRIME – Appeals – Appeal against sentence – Attempt to possess unlawfully imported border controlled drug – Methamphetamine – Commercial quantity – Observed conduct of applicant limited to two occasions – Whether sentence manifestly excessive – Whether sentencing judge erred in assessment of or lack of discernible finding as to objective seriousness

CRIME – appeals – appeal against sentence of 18 years with non-parole period of 13 years – where 36-year-old male applicant committed 19 sexual offences against four female complainants – offending over five months on four separate occasions – highly premeditated use of online dating apps to lure victims to applicant’s residence –complainants were overborne throughout offending – no remorse – no compelling subjective case – sentence not manifestly excessive

CRIME – appeal – appeal against sentence – murder – trial by judge alone – whether mode of trial per se capable of facilitating the administration of justice for purposes of Crimes (Sentencing Procedure) Act 1999 s 22A – whether accused’s decision to opt for trial by judge alone attracts consideration of a lesser sentence – whether trial judge considered mode of trial neutral in the facilitation of its conduct or factored in irrelevant consideration of motive to seek trial by judge alone – whether error established – appeal dismissed

JUDGMENTS AND ORDERS — Interest — Agreements to pay interest — neither calculations nor interest rate in dispute — final order made to update calculation of what is repayable under agreement

EVIDENCE – privileges – self-incrimination privilege – whether certificate should be granted under s 128 or s 128A of the Evidence Act 1995 (NSW) – answers to interrogatories in aid of the freezing order – where respondent to interrogatories objects under s 128A of the Evidence Act 1995 (NSW) to answering on basis answers may tend to prove he has committed an offence under an Australian law – where certificate granted under s 128A of the Evidence Act 1995 (NSW) would not protect witness in proceedings in the Federal Court of Australia – where necessary for witness laboriously to give evidence to the effect of the answers given in interrogatories in order instead to gain protection of certificate under s 128 of the Evidence Act 1995 (NSW)

MENTAL HEALTH — application for extension of status as a forensic patient — preliminary application for interim relief — diagnoses of paranoid schizophrenia, cognitive or intellectual disability and profound neurosensory deafness — previous final order for extension of defendant’s status as a forensic patient due to expire — MHRT management has been effective — Court satisfied there are grounds for preliminary relief

CIVIL PROCEDURE – Technology and Construction List Statement – application to amend – proposed contentions against sixth defendant concerning breach of common law duty of care and misleading or deceptive conduct

MORTGAGES — where Bank seeks possession of three rural properties — breach of agreement entered after mediation under Farm Debt Mediation Act 1994 (NSW) — exemption certificate issued under Farm Debt Mediation Act in force under ss 13 and 14 — where summary judgment, leave to issue writs of possession, summary dismissal of cross-claim and other orders are sought by Bank — orders made CIVIL PROCEDURE — Cross-claim — against Bank and “associated parties to the contract” — where claims include that the statement of claim is a “security” and a “set off” of the face value of the security and that refusal of Bank’s claims is supported by the Income Tax Assessment Act 1936 (Cth) ­— whether cross-claim should be summarily dismissed CIVIL PROCEDURE — Notices of motion — where defendant seeks orders setting aside originating process and seeks protection of property from seizure — where defendant puts in issue Court’s jurisdiction to make orders — Court has appropriate jurisdiction — where defendant also seeks orders allowing withdrawal of defence and cross-claim

COSTS — where the plaintiff seeks to discontinue the proceedings — where the defendant does not consent — where the defendant seeks indemnity costs against the plaintiff on the basis that the proceedings were brought without just cause — whether the Court should grant leave for the plaintiff to discontinue the proceedings — whether the Court should depart from the ordinary position as to costs in r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) — HELD — leave to discontinue the proceedings granted — no order as to costs

NEGLIGENCE — claim against medicolegal expert arising out of content of report – scope of witness immunity – motion to dismiss – bound to fail

ADMINISTRATIVE LAW – Judicial Review – jurisdictional error – denial of procedural fairness – actual bias – decision made under the Children’s Guardian Act 2019 (NSW) – whether plaintiff was afforded procedural fairness – whether decision maker affected by actual bias – application dismissed.

JUDICIAL REVIEW – Decision of the Delegate – Medical Assessment Certificate – Adequate reasons – Grounds of assessment – Motor Injury – Minor injury – Threshold injury – Radiculopathy – Remitted to the Person Injury Commissioner – Decision set aside.