Cases and authorities

CIVIL PROCEDURE — hearings — adjournment — where cross claimant did not appear at hearing and leave was given to file notice of motion seeking retrospective adjournment — where evidence does not establish extenuating circumstances sufficient to justify adjournment — notice of motion dismissed

CONTRACTS — PARTNERSHIP — where the plaintiff is a partner in an accountancy firm — where the Partnership Agreement contains a provision giving the Board of Partners, by final and binding determination, power to require a Partner to retire from the partnership — where the power must not be exercised unless the Partner has acted in a manner which is materially inconsistent with the standard of conduct expected of a Partner, or has acted in a manner which may damage the reputation of the firm — where the Partnership Agreement stipulates a procedure that must be followed in respect of a determination which requires Management to make a Recommendation to the Board of Partners that the Partner be required to retire, which Recommendation must specify Management’s reasons for forming its view and making the Recommendation — where Management purported to make a Recommendation to the Board of Partners that the plaintiff should be required to retire as a Partner — whether the Recommendation satisfies the requirements of the Partnership Agreement to specify Management’s reasons for forming its view and making the Recommendation — HELD — it does not

EVIDENCE – public interest immunity – police procedures disclosed – safety of witnesses – impeding future investigations – process adopted whereby some proposed redactions disallowed – document then to be made available to legal representatives only

CHILD WELFARE – adoption – intercountry adoption – non convention country – subsequent adoption has effect that earlier adoption order ceases to have effect – where adoption by birth mother and step father as couple

CIVIL PROCEDURE – professional negligence – where third defendant a fourth-year Orthopaedic Registrar – where third defendant and second defendant jointly performed spinal fusion procedure upon plaintiff – no expert opinion that procedure performed with less than the requisite standard of care and skill of a medical practitioner in his position – non-compliance with r 31.36 of the Uniform Civil Procedure Rules

ADMINISTRATIVE LAW – judicial review – workers compensation – where plaintiff seeks extension of time to commence proceedings under UCPR 59.10 only after decisions of approved medical specialist and Second Appeal Panel are not favourable to it – unexplained delay – extension of time refused – whether error of law by the Second Appeal Panel in its approach to pre-existing condition and its approach to evaluation of impairment – no error by Second Appeal Panel – summons dismissed

COSTS – contested probate – offers of compromise – Calderbank offers – where the defendant successfully challenged will propounded by the plaintiffs – where the defendant had unsuccessfully raised the issue of undue influence – where the plaintiffs rejected a Calderbank offer, and an offer of compromise made under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 20.26 – whether there is any reason to depart from the usual order that costs follow the event – whether a costs order should be made to reflect the defendant’s failure to establish undue influence – held that there is no reason to depart from the usual order – the defendant obtained a judgment no less favourable than the terms of the offer of compromise – held that defendant is entitled to indemnity costs against the plaintiffs pursuant to UCPR r 42.15A(2) and an indemnity out of the deceased estate to the extent that her costs are not recovered from the plaintiffs

CRIME – murder – deceased stabbed multiple times - defence of mental health impairment – special verdict where prosecutor and defendant agree that defence available under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – court satisfied that evidence satisfies defence is established – court enters special verdict of act proven but defendant not criminally responsible

APPEALS — Leave to appeal — From order for winding up — From orders for possession of property and removal of caveat — From refusal of stay of writ of possession — Where presumption of insolvency based on failure to comply with statutory demand — Where extension of time to appeal required — Where no explanation for delay — Whether proposed appeal raises a fairly arguable case

COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally was absurd and irrational and irreconcilable to purpose of fixing fair and reasonable costs – power of court to correct obvious typographical mistakes in legislation considered – consideration of meaning of “scanning” and “perusing” and “examining” documents STATUTORY CONSTRUCTION – correction of obvious typographical mistakes in legislation – nature of power to construe erroneous text so as to correct obvious drafting error – whether the fact that literal meaning of legislation be capable of being applied prevented error from being corrected – whether sufficient in order to construe legislation so as to correct a mistake that mistake be obvious and intended text obvious – whether necessary also for literal operation to be absurd and irrational and irreconcilable to purpose

PRACTICE AND PROCEDURE – costs – application by party entitled to costs under judgment for gross sum costs order – whether variation of order in judgment – power to specify gross sum in place of costs to be assessed – factors to be considered – amount in issue disproportionate to costs incurred – history of disputatious conduct – nature of evidence to support application

CRIME – appeal pursuant to s 5F of the Criminal Appeal Act in respect of an interlocutory decision of the Land and Environment Court – whether commencement of proceedings were time barred – calculation of limitation periods – construction of s 13.4(2) of the Biodiversity Conservation Act 2016 (‘BC Act’) and s 190(1)(b) of the National Parks and Wildlife Act 1974 (‘NPW Act’) – whether s 36 of the Interpretation Act 1987 excluded by s 13.4(4) of the BC Act and s 190(4) of the NPW Act.

LEASES AND TENANCIES – default and termination – relief against forfeiture – where orders made allowing tenant to repossession on undertakings – where undertakings breached – lessor entitled to repossession

CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of the plaintiffs – settlement approved

BUILDING AND CONSTRUCTION – design and construct contract – practical completion – superintendent to issue certificate of practical completion or give reasons for not doing so – superintendent issued “conditional” certificate of practical completion – purported retrospective date of practical completion on satisfaction by builder of specified conditions – contractual status of conditional certificate – whether Court can in any event determine when practical completion took place CONTRACTS – “prevention principle” – whether developer took over builder’s obligations and prevented builder from performing those obligations ESTOPPEL – whether developer induced builder to understand that effect of conditional certificate was to fix time for determination of liquidated damages and delay costs UNCONSCIONABLE CONDUCT – whether developer engaged in unconscionable conduct

COSTS — Application to vary costs order — Whether special costs order should be made in relation to proceedings below — Calderbank offer — Offer of compromise under UCPR, r 20.26 — Whether offers reflected genuine compromise — Whether unreasonable for plaintiff not to accept the offers

TORTS — Malicious prosecution — Institution of proceedings — identification of prosecutors — distinction between institution and maintenance of proceedings — whether police officers can be prosecutors for the purposes of the tort after the Director of Public Prosecutions has taken over carriage of the prosecution — whether police officers maintained the prosecution after the Director of Public Prosecutions took over the proceeding TORTS — Malicious prosecution — Absence of reasonable and probable cause — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — where many basic investigative tasks not completed prior to arrest and charging — where police had exculpatory material available to them which had not been read when criminal proceedings were instituted — whether actual knowledge of exculpatory material is required to demonstrate an absence of reasonable and probable cause TORTS — Malicious prosecution — Malice — What constitutes — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — whether sufficient to demonstrate malice — whether actual knowledge of exculpatory material is required to demonstrate malice — where improper purpose of Police was not disclosed to the Office of the Director of Public Prosecutions — whether malice can be found on part of the Office of Director of Public Prosecutions TORTS — Collateral abuse of process — Who may commit — where one police officer was listed as the prosecutor on the Court Attendance Notice — whether the tort can be committed by a police officer who is not a party to the criminal proceeding — whether this is material where State is vicariously liable for all police officers involved TORTS — Collateral abuse of process — What constitutes — where it is accepted that the institution of criminal proceedings to advance an unrelated investigation is not a proper purpose — whether functions of police are confined to arrest, investigation and commencement of criminal proceedings — whether police nonetheless liable due to commencement of proceedings to advance an unrelated police investigation TORTS — Misfeasance in public office — What constitutes — whether maintenance of criminal proceeding can be an exercise in public power TORTS — Malicious prosecution — Damage — Damage to plaintiff’s reputation — where the respondent was already known as a suspect in unrelated investigation — where charges laid in order to advance that unrelated investigation — whether damage to reputation was caused by leaking of the respondent’s name as a suspect as opposed to by malicious prosecution — whether distinction can be drawn between the two causes

JUDICIAL REVIEW – class 1 decision of Land and Environment Court – application for review by non-party – procedural unfairness – failure to consider merit of objections – whether duty to consider terminating conciliation conference to allow Court to determine appeal on merits – jurisdictional constraint on power of Court to make agreed orders ENVIRONMENT AND PLANNING – refusal of development application – class 1 appeal to Land and Environment Court – mandatory conciliation conference – agreement to grant of consent on terms and conditions – Court to make orders to give effect to agreed decision if “one that the Court could have made in the proper exercise of its functions”: Land and Environment Court Act 1979 (NSW), s 34(3) – whether Court required to consider merits of decision

EQUITY – trusts and trustees – mutual wills –memorandum of wishes – agreement that surviving spouse would leave property or proceeds of sale to sons of testator – power to expend proceeds for own needs – nature of trust arising at time of testator’s death – floating obligation that crystallises on repudiation of agreement REAL PROPERTY – caveats – property acquired under will – owner subject to equitable obligation to leave property in accordance with agreement with testator – power to sell and expend proceeds of sale – whether the intended beneficiary under the agreement has a caveatable interest in the land

CRIMES — appeals — appeal against conviction — unreasonable verdict — murder — joint criminal enterprise — shooter approached café, shot deceased and escaped to a location where Nissan “Elgrand” van was parked and drove him away from scene — prior to shooting van drove past café and parked several times at same nearby location in East Terrace, Bankstown — applicant’s wife drove van and sister-in-law was a passenger — whether it was open to jury to be satisfied beyond reasonable doubt of applicant’s guilt — evidence overwhelmingly demonstrates shooter received advance notice of deceased’s location and made prior arrangements to escape — shooter’s escape route after shooting led to exact location on East Terrace where van was parked was deliberate — coincidence in timing between applicant’s call to wife and shooter’s arrival at van compelling — inference applicant was in the van unavoidable — no significant possibility innocent person has been convicted — leave to appeal granted — appeal dismissed

Practice and procedure – Jurisdiction – Service outside Australia – Where first respondent sought leave under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ("Claims Act") to bring proceedings against appellant insurers in Supreme Court of New South Wales ("NSWSC") – Where ability of first respondent to bring proceedings under Claims Act against appellant insurers in NSWSC assumed to depend on whether notional proceedings in NSWSC could be brought against insured resident of New Zealand – Whether service of process on insured in New Zealand would have been effective by reason of ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) ("TTPA") – Whether ss 9 and 10 of TTPA have valid application to initiating document issued by State court relating to civil proceeding in State jurisdiction. Constitutional law (Cth) – Powers of Commonwealth Parliament – Implications from Constitution – Power with respect to service and execution throughout the Commonwealth of civil and criminal process – Where ss 9 and 10 of TTPA accepted to be within legislative power of Commonwealth Parliament under s 51(xxix) of Constitution – Whether ss 9 and 10 of TTPA invalid in application to initiating document issued by State court in relation to civil proceeding in State jurisdiction – Whether capacity of Commonwealth Parliament to alter scope and reach of State judicial power subject to implied limitation derived from ss 51(xxiv), 77(ii) and 77(iii) of Constitution – Whether power of Commonwealth Parliament under s 51(xxiv) of Constitution to make laws for service of process of State courts throughout geographical area of Commonwealth inconsistent with purported implied limitation. Words and phrases – "authority to adjudicate", "constitutional implications", "constitutional limitation", "federal jurisdiction", "initiating document", "initiating process", "judicial power", "judicial power of the Commonwealth", "jurisdiction", "legislative power", "personal jurisdiction", "service of process", "State judicial power", "State jurisdiction", "subject-matter jurisdiction", "territorial jurisdiction", "text and structure of the Constitution". Constitution, ss 51, 71, 75, 76, 77. Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5. Trans-Tasman Proceedings Act 2010 (Cth), ss 3, 9, 10.

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction. Constitutional law (Cth) – Trial by jury – Where prior to self-government Crimes Act 1900 (NSW) picked up and applied in ACT as surrogate federal law – Where following self-government Commonwealth law provided Crimes Act 1900 (NSW) shall be taken to be enacted by ACT Legislative Assembly and may be amended and repealed – Where subsequent ACT law provided Crimes Act 1900 (NSW) to be treated as an Act passed by ACT Legislative Assembly – Where ss 54 and 60 of Crimes Act 1900 (ACT) were indictable offences – Whether ss 54 and 60 were laws of the Commonwealth within meaning of s 80 of Constitution – Whether "any law of the Commonwealth" within meaning of s 80 of Constitution includes laws of ACT Legislative Assembly as "subordinate legislature" – Whether miscarriage of justice as trial on indictment was not by jury contrary to s 80 of Constitution – Whether R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629 should be re-opened or overruled. Words and phrases – "amend or repeal", "case management", "Ch III court", "COVID‑19 emergency period", "gatekeeping function", "independent body politic", "institutional integrity", "interests of justice", "judge alone trial", "Kable principle", "law of the Commonwealth", "overruling constitutional precedent", "peace, order and good government of the Territory", "picked up and applied", "plenary power", "proposed order", "prudential approach", "self-government", "statutory fiction", "subordinate legislature", "taken to be an enactment", "trial on indictment". Constitution, Ch III, ss 80, 111, 122. ACT Self-Government (Consequential Provisions) Act 1988 (Cth), s 12. Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 22, 34. Crimes Act 1900 (ACT), ss 54, 60. Crimes Legislation (Status and Citation) Act 1992 (ACT), s 3. Supreme Court Act 1933 (ACT), ss 68A, 68B, 68BA, 116.

EQUITY — trusts and trustees — resulting trusts — whether transfer of Torrens system land was by way of gift or gave rise to resulting trust in favour of transferor

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offence – claim for damages for psychological abuse whilst a student – whether prima facie case demonstrated – leave granted nunc pro tunc

COSTS – security for costs order not complied with – a number of interlocutory appearances before proceedings ultimately dismissed- application for gross sum costs order by second defendant – where proceedings have been straightforward but protracted – specific evidence of costs incurred provided by second defendant – further discount applied for abundant caution – gross sum costs order made in favour of the applicant in the sum of $49,340.

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity

CONTRACTS — Construction — Context — where unit trust formed to undertake property development joint venture — where parties brought joint venture to an end via an option agreement — where debt was claimed for outstanding amount loaned to unit trust — whether outstanding loan was discharged by option agreement — whether loans were “pursuant to” joint venture agreement — use of context and prior negotiations to demonstrate commercial purpose as an aid to construction

EVIDENCE – public interest immunity – safety of witness providing assistance to Crown – immunity granted – production set aside

CRIME — mental health and cognitive impairment defence — defendant and prosecutor agree as to establishment of the defence — murder of husband — deceased perpetrator of domestic violence against the defendant and her children — diagnoses of Major Depression and Post Traumatic Stress Disorder — no real difference between experts’ diagnoses — Court satisfied that the evidence establishes the mental health and cognitive impairment defence

CRIME – sentencing – after trial – attempt to choke with intent to have sexual intercourse without consent – victim an 18-year old female attacked on the street outside her home in early hours of morning – offence aggravated by physical violence, injuries and threats of death – high objective gravity CRIME – sentencing – after trial – murder – victim a 17-year old girl walking home at night from a party – attacked for sexual purposes and killed by suffocation – high objective gravity conceded CRIME – sentencing – offences committed in 1998 and 1999 – necessary to have regard to sentencing patterns at the time of offending as recent legislation does not apply – offender with limited subjective case – Bugmy factors reduce moral culpability but conceded only to a limited extent – age, ill-health and reduced life expectancy but need to impose sentence proportionate to gravity of offending

TORTS — negligence — medical negligence — alleged breach of common law duties with respect to hospital advice and treatment — summary dismissal – no challenge to hospital records contradicting claim – no expert medical opinion served with statement of claim contrary to r 31.36 of the Uniform Civil Procedure Rules — claim incapable of substantiation by evidence — bald assertions in pleadings and affidavits – claim dismissed TORTS — economic torts — conspiracy — summary dismissal — deficient pleading — failure to plead essential element — elements of offence refuted by unchallenged hospital records — claim summarily dismissed CIVIL PROCEDURE — opposing applications for summary judgment and summary dismissal — no real question to be tried — plaintiff’s factual allegations incapable of being established at trial in face of unchallenged hospital records — proceedings dismissed

EVIDENCE – tendency evidence – whether evidence of significant probative value – single tendency witness other than the complainant – whether probative value substantially outweighed any prejudicial effect on the defendant – tendency evidence correctly admitted – no miscarriage of justice arising from admission of tendency evidence CRIME – appeals – appeal against conviction – unreasonable verdict – inconsistent verdict – where applicant had been convicted on one count of sexual touching of a child but acquitted on a further count of sexual intercourse with a child – where same complainant in respect of both counts – where incidents were alleged to have occurred as part of single episode – discrepancies between evidence of witnesses, including the complainant – significance accorded to the manner in which evidence of the complainant’s allegations emerged

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Proceedings informally resolved — No utility in continuation — No order as to costs

CIVIL PROCEDURE – service outside Australia – application for leave to proceed against foreign corporate defendants that failed to enter an appearance – where foreign corporate defendants subject to winding up proceedings in Hong Kong and Singapore

NEGLIGENCE – professional negligence – where solicitor failed to advise client of consequences of lodging a caveat – where solicitor accepts breach – whether the plaintiff lost anything of ‘value’ by solicitor’s negligence NEGLIGENCE – damages – assessment of counterfactual position of client if caveat was not lodged – whether client would have renewed contract with property developer but for solicitor’s negligence – assessment and quantification of damages – loss of opportunity

STATEMENT OF CLAIM – interlocutory application – motion – summary dismissal – strike out application – self represented litigant – reference to affidavit and submissions of plaintiff in determining summary dismissal application – summary dismissal refused – statement of claim struck out

CONTRACTS – Action for recovery of debts due under loan agreements – whether loans repaid in circumstances where debtor authorised to open and operate term deposits in creditor’s name and term deposits in creditor’s name opened by debtor in the amount of debt LIMITATIONS OF ACTIONS – Debt – whether loans repayable when demanded and on two months’ notice

POSSESSION – Application for possession of land – where first appellant signed a loan agreement with first respondent to fund a company’s application for appointment as area representative for psychologist franchising business – where loan was secured by guarantee of second appellant wife and mortgage over residential property – whether funds advanced in accordance with terms of loan agreement – whether guarantee discharged due to breach of loan agreement – whether respondents engaged in unconscionable conduct in procuring entry into loan – whether respondents knew or ought to have known franchising business insolvent – whether argument that first respondent had actual or constructive knowledge of first appellant’s exercising undue influence over his wife in relation to signing of guarantee and mortgage was available on appeal

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – whether failure to disclose evidence – where no objection taken at trial and evidence tendered without objection – no miscarriage of justice – conviction upheld. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – whether conduct of prosecution led to unfair trial – prosecutor’s obligations – no miscarriage of justice – conviction upheld. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – jury directions – whether trial judge gave adequate directions – where no further directions sought by counsel – no miscarriage of justice – conviction upheld. CRIME – Appeals – Appeal against conviction – whether jury verdict unreasonable – where appellant convicted of murder – strong circumstantial case – open to jury to be satisfied beyond reasonable doubt - jury’s advantage over court of appeal – conviction upheld. CRIME – Appeals – Appeal against conviction – Miscarriage of justice –whether forensic disadvantage caused by conditions on remand – matters did not impair the fairness of the trial – conviction upheld.

NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injuries – Slip and fall – Occupier’s liability – Expert medical evidence – Liability established – Damages.

EMPLOYMENT AND INDUSTRIAL LAW – Employee or contractor – Where director and shareholder remunerated for the purposes of designing and building an experimental aircraft – Whether implied term that intellectual property developed in the course of employment is held on trust for the employer CORPORATIONS – Directors and officers – Where director asserts ownership of intellectual property in aircraft design although company funded development of aircraft – Whether breach of statutory duty to act in good faith and for a proper purpose – Whether breach of fiduciary duties under the “no conflict” rule CONSUMER LAW – Misleading or deceptive conduct – Where several representations as to future matters and omissions are alleged – Whether reasonable grounds for making the alleged representations as to future matters – Whether reasonable expectation of disclosure of alleged omissions – Whether conduct was in “trade or commerce”

ADMINISTRATIVE LAW — judicial review — motor vehicle accident — where defendant received statutory benefits under ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) for 26 weeks — where insurer declined entitlement to benefits after statutory period — where defendant successfully pursued a miscellaneous claims assessment before the Personal Injury Commission — alleged error of law, jurisdictional error and constructive failure to exercise jurisdiction — on whom the burden of proof falls where entitlements under Motor Accident Injuries Act to statutory benefits after 26 weeks are pursued before Commission — burden of proof falls to insurer — operation of res ipsa loquiter doctrine — whether inferences member drew about cause of accident impermissible — whether member failed to draw inferences which evidence required — whether errors warrant certificate to be set aside — found — certificate set aside and matter remitted to Commission

COSTS — security for costs — quantum and form — consideration of terms of second ranking mortgage appropriate to provide sufficient security to defendant

COSTS — party/party— offers of compromise — application of Part 42 Div 3 of the Uniform Civil Procedure Rules 2005 (NSW) — where no evidence to establish that offer of compromise made by defendant more favourable to plaintiff than ultimate outcome — consideration of when Court should “order otherwise” when offer of compromise not accepted by plaintiff

CIVIL PROCEDURE — alternative dispute resolution — referral to mediation — where dispute is between individual citizens and state agency — where state agency does not consent to mediation — where dispute may involve questions of statutory interpretation — where mediation may still prove profitable — parties ordered to mediation

CIVIL PROCEDURE – Court of Appeal – Stay of orders – Stay pending application for special leave to appeal to High Court – No exceptional circumstances – No substantial prospects of leave being granted – No risk of losing subject matter of appeal – Balance of convenience - Stay not granted

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Court of Appeal – application to reopen and vary orders under UCPR r 36.16 after judgment published – where applicants relied on purportedly “newly discovered facts” including unredacted documents – where applicants sought to reagitate arguments – no basis for reopening – application dismissed CIVIL PROCEDURE – Subpoenas – where no error identified in decision to refuse leave to issue

Statutes – Construction – Where respondent pleaded guilty to offences of conspiracy to cause offer of provision of bribe to foreign public official contrary to ss 11.5 and 70.2(1) of Criminal Code (Cth) – Where s 70.2(5) of Criminal Code (Cth) relevantly prescribed maximum monetary penalty for offence as not more than greatest of: (a) 100,000 penalty units; or (b) if court can determine value of benefit that body corporate obtained that is reasonably attributable to conduct constituting offence, three times value of that benefit – Where parties agreed "benefit" obtained was securing contracts for carrying out construction projects – Where parties also agreed "benefit" obtained was money received for performing contracts – Whether s 70.2(5)(b) required value of benefit obtained by respondent to be determined as sum of amounts respondent in fact received under contracts secured by bribery – Whether deduction could properly be made for any costs incurred in performing contracts. Words and phrases – "any advantage", "benefit", "bribery", "effective, proportionate, and dissuasive", "fine", "foreign public official", "gross amount", "international obligations", "maximum penalty", "monetary penalty", "net benefit", "obtained directly or indirectly", "OECD Convention", "reasonably attributable", "sentence", "value of the benefit". Criminal Code (Cth), s 70.2.

Statutes – Interpretation – Efficacy of regulations – Where s 83GD(1) of Criminal Law Consolidation Act 1935 (SA) ("1935 Act") established offence for participant in criminal organisation to enter or attempt to enter "prescribed place" – Where "prescribed place" meant place declared by regulation – Where s 370 of 1935 Act empowered Governor in Council to make regulations – Where Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA) ("2015 Regulations") declared list of places to be "prescribed places" – Where Governor made two Regulations ("Cowirra Regulations") purporting to vary 2015 Regulations to include blocks of land at Cowirra, South Australia ("Cowirra land") – Where appellants owners and occupiers of Cowirra land – Where, if Cowirra Regulations valid, second and third appellants would commit criminal offence if they entered Cowirra land – Where Cowirra Regulations did not in terms "declare" Cowirra land to be "prescribed places" – Whether Cowirra Regulations valid exercise of regulation-making power in s 370 of 1935 Act. Statutes – Interpretation – Presumption of duty to afford procedural fairness – Whether power to make regulations prescribing places under 1935 Act conditioned by duty to afford procedural fairness to owners and occupiers of land – Whether presumption displaced by statute. Words and phrases – "declaration power", "displace", "duty", "Governor in Council", "owners and occupiers", "participant in a criminal organisation", "prescribed place", "presumption", "procedural fairness", "regulation-making power", "statutory interpretation". Criminal Law Consolidation Act 1935 (SA), Pt 3B, Div 2. Statutes Amendment (Serious and Organised Crime) Act 2015 (SA), Pt 5, Sch 1. Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020 (SA). Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 (SA). Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA).

Torts – Negligence – Vicarious liability – Where appellant employer of respondent – Where appellant required respondent to live in shared accommodation with another employee under terms of employment contract – Where other employee negligently urinated on respondent while he was sleeping causing cataplectic attack – Whether other employee's wrongful act in course or scope of employment – Whether appellant vicariously liable for negligent act of other employee. Words and phrases – "agency", "course or scope of employment", "employee", "employer", "frolic", "modes of doing authorised acts", "negligent act", "non-delegable duty", "occasion", "opportunity", "sufficiently or closely connected", "sufficiently strong connection", "tort", "unauthorised act", "vicarious liability", "wrongful act".