Cases and authorities

EQUITY – trusts and trustees – superannuation funds – successor fund transfer – transfer of assets from one superannuation fund to another – members of transferor fund to become members of transferee fund – whether s 249E of the Crimes Act 1900 (NSW) engaged – whether Court’s consent required under s 249E of the Crimes Act 1900 (NSW)

INTEREST — interest up to judgment — s100, Civil Procedure Act 2005 — plaintiff sued for debts arising under a contract for services — cause of action accrues when service performed, absent contrary agreement — no contrary agreement — whether depends on demand for payment — no agreement as to this either — making of demand not necessary for cause of action in debt to accrue — entitled to interest from date of performance.

CONTRACTS — Breach of contract — Plaintiff seeks to recover debt under loan agreement — Defendant seeks rescission — Joint Venture — Where corporate structure and shareholders agreement leave no room for existence of fiduciary duties between parties in alleged joint venture — No breach of fiduciary duties — No connection between alleged breaches of fiduciary duties and loan agreement COSTS — Party/Party — Bases of quantification — Indemnity basis — Where plaintiff made application to discontinue proceedings at start of hearing — Where claims time-barred CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Terms on which proceedings discontinued — UCPR r 12.3 — Where defendants seek a term for no new proceedings to be brought relying on the same allegations after leave already granted and exercised

CRIME — Appeals — Appeal against conviction — aggravated sexual assault without consent — unreasonable verdict — whether evidence sufficient to establish that complainant was asleep or unconscious — whether complainant had consented while awake but did not remember due to substantial intoxication — complainant’s flashbacks inconsistent with applicant’s version of events CRIME — Appeals — Appeal against conviction — directions given by trial judge — whether miscarriage of justice as a result of directions with respect to elements of the offence — direction that if jury accepted applicant’s version it could have regard to reasonable possibility that complainant had consensual sexual intercourse while substantially intoxicated — no substantial miscarriage of justice

CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – unreasonable verdict – parties met on Tinder app – where complainant said from the outset there was to be no penile/vaginal intercourse – other consensual sexual acts – where during other sexual contact the applicant engaged in penile/vaginal intercourse – where applicant denied intercourse occurring – multiple early complaints – where applicant subsequently sent text messages consistent with admission – whether the jury should have entertained a reasonable doubt – failure to give an admissions direction – where applicant’s counsel actively resisted such a direction – consciousness of guilt reasoning requires more than merely submitting the applicant lied – appeal dismissed CRIME – appeals – appeal against sentence – by Crown against inadequacy – where respondent had actual knowledge of complainant’s lack of consent – sentencing judge erred in finding of objective seriousness – mental health of an offender and absence of aggravating features do not mitigate objective seriousness – imposition of Community Correction Order– sentence manifestly inadequate upheld – residual discretion of the Court – appeal dismissed

CIVIL PROCEDURE – Representative proceedings – ”Declassing” application – Whether representative proceedings efficient and effective means of dealing with claims – Large number of claims of relatively low-value – Substantial common questions of fact or law – Individual claims in Local Court against interests of justice – Real risk of conflicting decisions – Claimants would incur higher legal costs and judicial resources substantially impacted – Application dismissed

CRIME – practice and procedure – jury trials – discharging juror for misconduct – question of proceeding with balance of jury – Jury Act, s 53C – whether risk of substantial miscarriage of justice – information illicitly obtained by juror and passed on to other jurors not prejudicial to accused – trial may continue

CIVIL PROCEDURE – costs – interlocutory application for mandatory injunction – where relief sought tantamount to final relief – application not pressed – whether applicant should pay costs of motion – whether costs should be on indemnity basis – whether costs should be assessed as a gross sum and be payable forthwith

PRELIMINARY DISCOVERY — The plaintiff completed an application to place funds through a fund manager in a managed investment scheme — The application form included a mistaken reference to the BSB of the plaintiff’s Commonwealth Bank of Australia account — Funds were placed — Later, the plaintiff sought to redeem the funds — The redemption form indicated that the funds should be paid to an account “previously advised” being the incorrect account — Subsequently, the plaintiff and the fund manager became aware the redeemed monies had been paid to an incorrect account belonging to a third party account holder with the Commonwealth Bank of Australia — The plaintiff, the fund manager and the fund manager’s bank, corresponded with each other and also with the Commonwealth Bank of Australia to attempt to ascertain the identity of the incorrect third-party payee — The plaintiff was unable to readily obtain that information — The plaintiff sought preliminary discovery pursuant to r 5.2(2)(b) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Order for preliminary discovery made CIVIL PROCEDURE — injunctive relief — Application for order pursuant to r 25.14(5) UCPR or inherent jurisdiction of the Court restraining defendant from permitting funds to be withdrawn from bank account in question unless after such withdrawal an amount equal to or greater than approximately $560,000 remains in bank account

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appeal from dismissal by NCAT of applications for the appointment of a guardian and a financial manager. APPEALS – Appeal to Court from Guardianship Division of the NSW Civil and Administrative Tribunal – Application for leave to appeal on a ground other than a question of law dismissed - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14(1)(b).

SECURITY OF PAYMENT ACT– construction contract terminated – subcontractor serves payment claim – contractor serves payment schedule disputing validity of payment claim – subcontractor serves another payment claim without withdrawing the earlier claim – s13(1C), Building and Construction Industry Security of Payment Act 1999 – contractor now says earlier payment claim was valid – whether contractor can ‘approbate and reprobate’ – s13(1C) applies to preclude later payment claim. CONTRACT – contractor purports to terminate contract – subcontractor elects to affirm – contractor reasserts that contract is terminated – subcontractor elects to terminate – whether termination effective – is later repudiation “distinguishable” from earlier breach – GEC Marconi v BHP – principles at [25]-[32] – later breach need not be breach of different obligation or breach of same obligation by different means – sufficient if later breach is temporally distinguishable, occurring on a separation occasion.

CIVIL PROCEDURE – summary disposal – application for claim to be summarily dismissed – frivolous and vexatious proceedings – no reasonable cause of action disclosed – abuse of process – attempt to re-agitate issues comprehensively and conclusively determined in the Federal Court – where those proceedings in the Federal Court were time-barred, barred as a result of res judicata and issue estoppel, disclosed no cause of action and where alleged loss and damage not caused by respondents – proceedings dismissed

CIVIL – preliminary hearing - application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offences – application for Interim supervision order – s 7(4) orders – conditions – application granted with amended conditions

CIVIL PROCEDURE – pleadings – personal injury – Motion to dismiss proceedings or strike out Statement of Claim – whether cause of action disclosed – whether material facts pleaded – except in relation to knowledge of risk Motion dismissed – leave granted to replead minor deficiency

EQUITY - Trusts And Trustees – judicial advice – Trustee Act 1925, s 63 – residuary gift by will to non-existent institution, Aboriginal Children’s Medical Research Trust – whether a gift of residue is a misdescription – whether the gift of residue fails for want of sufficient identification of an existing charitable body – whether the will exhibits a general charitable intention to be administered by scheme cy-près – intention of testator for gift be used for the purpose of medical research in respect of Aboriginal children – competing charitable organisations.

COSTS – appeal from determination of review panel setting aside costs agreement – whether review panel erred in law – where judgment referred to an ‘amended statement of claim’ rather than an ‘amended summons’ – whether review panel failed to provide adequate reasons – whether appeal panel erred in failing to take account of additional submissions in assessment – whether review panel erred in determining fair and reasonable costs

CIVIL PROCEDURE - commencement of proceedings – summons – tortious claims – order that proceedings continue on pleadings – failure by plaintiff to file statement of claim in accordance with registrar’s orders – where defendant acted for opposing party to plaintiff in earlier litigation – where summons claimed liquidate sum from defendant – proceedings summarily dismissed

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued —whether there is reason to depart from the default order as to costs in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)

APPEAL – leave to appeal – appeal from interlocutory order – primary judge granted application for medical examination of plaintiff – application made after exchange of Pre-Filing Statement and Pre-Filing Defence (“PFD”) pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where PFD did not address plaintiff’s psychological condition – where test sought on basis that solicitor considered it necessary to evaluate risk of exaggeration or feigning of condition – whether error in allowing examination without considering unchallenged medical evidence that questioned efficacy of testing and raised serious concerns that it would be detrimental to plaintiff’s health – appeal allowed CIVIL PROCEDURE – medical examinations – claim for work injury damages – defendant applied for medical examination of plaintiff – re-exercise of discretion under r 23.4 of Uniform Civil Procedure Rules 2005 (NSW) – whether defendant’s evidence supported alleged need for testing – specificity of medical evidence to plaintiff’s circumstances – application dismissed

COSTS – setting aside and variation of costs order – Uniform Civil Procedure Rules 2005 (NSW) rule 36.16 – where costs awarded to successful appellants despite lack of success on all grounds of appeal – whether to vary order awarding costs of appeal given mixed success by the appellants – whether to set aside order setting aside costs order below in respondents’ favour given mixed success by appellants

Injunctions – Interlocutory injunctions – Where plaintiff's lease of land terminated by operation of Home Affairs Act 2023 (Cth) ("Act") – Where plaintiff seeks declaration of constitutional invalidity of Act on ground Act not supported by head of legislative power and contrary to s 51(xxxi) of Constitution – Where plaintiff seeks alternative declaration that operation of Act results in acquisition of property to which s 51(xxxi) of Constitution applies from plaintiff otherwise than on just terms, such that Commonwealth liable to pay reasonable amount of compensation to plaintiff – Whether plaintiff established prima facie case or serious question to be tried – Whether, on balance of convenience, compelling circumstances existed supporting interlocutory injunction to restrain enforcement of statute. Words and phrases – "acquisition of property", "balance of convenience", "compelling grounds", "material change in circumstances", "national security interests", "on just terms", "prima facie case", "serious question to be tried". Constitution, s 51(xxxi). Home Affairs Act 2023 (Cth), ss 5, 6, 7. JAGOT J. A new Act On 15 June 2023 at 4.26 pm, a statute, the Home Affairs Act 2023 (Cth) ("the Act"), commenced. That statute has three substantive provisions. The first, s 5, provides that: "A relevant lease, and any legal or equitable right, title, interest, trust, restriction, obligation, mortgage, encumbrance, contract, licence or charge, granted or arising under or pursuant to a relevant lease, or in dependence on a relevant lease, is terminated by force of this section on the commencement of this section." A "relevant lease" is defined in s 4 of the Act to mean: "... any lease owned or held in respect of the land at the commencement of this Act." "Land" is defined to mean: "Block 26, Section 44 in the Division of Yarralumla, as delineated on Deposited Plan Number 10486 in the Office of the Registrar of Titles at Canberra in the Australian Capital Territory." Section 6(1) of the Act provides that: "If the operation of this Act would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person." Section 6(2) provides a mechanism for the determination of that amount of compensation by proceedings in either the High Court of Australia or the Federal Court of Australia. Section 7(1) provides that: "Subject to subsection (3), this Act: (a) has effect despite any other law of the Commonwealth or of a State or Territory (whether written or unwritten)". Section 7(3) provides that: "Nothing in this Act affects the status of the land as National Land under section 27 of the Australian Capital Territory (Planning and Land Management) Act 1988." By s 7(2), it is specified that "[w]ithout limiting subsection (1), this Act has effect despite" any provision of a series of other Acts and Ordinances, including, relevantly: "(c) the Consular Privileges and Immunities Act 1972; (d) the Diplomatic Privileges and Immunities Act 1967; (e) the Foreign States Immunities Act 1985". The GRF's case On 23 June 2023, the Government of the Russian Federation, which I will refer to as the "GRF", filed a summons, a notice of a constitutional matter, and an interlocutory application. In the summons, the substantive relief sought is a declaration of constitutional invalidity of the Act. It is alleged that the Act is not supported by a head of legislative power and is contrary to s 51(xxxi) of the Constitution by reason of an alleged failure to provide for the acquisition of property only on just terms. The alternative relief sought is a declaration that the operation of the Act results in an acquisition of property to which s 51(xxxi) of the Constitution applies from the GRF otherwise than on just terms, such that the Commonwealth is liable to pay a reasonable amount of compensation to the GRF. The interlocutory application seeks interim relief pending the determination of the application for declarations as to the invalidity or otherwise of the Act. The GRF, through its counsel, offers a series of undertakings, in effect being: (a) the usual undertaking as to damages; (b) to pursue the proceeding "in a timely manner for ... its expeditious resolution"; (c) to maintain and keep the Land in a good condition and "bear full responsibility for any damage to the Land or its improvements and for any injury or loss suffered by any entrants to the Land on or after 16 June 2023"; (d) to indemnify the Commonwealth "in relation to any claims against" the Commonwealth for any such damage or injury or loss; (e) to "not carry out any further work on the Land ... other than carrying out general maintenance ... without the [Commonwealth's] prior written approval"; and (f) not to "remove any items or chattels from the Land other than that required to maintain and keep the Land in good condition". On the basis of those undertakings, the GRF seeks an interim order that the Commonwealth, by its servants and agents, be restrained, until further order of the Court, from: "(a) re‑entering the Land; and (b) taking any steps to re-lease the Land." In communications between the parties before the hearing this morning, the Commonwealth stated to the GRF that in order to preserve the utility of any final orders that this Court may make, the Commonwealth will not re-lease the Land before the challenge to the validity of the Act is resolved, or remove, damage or destroy any buildings on the Land. It is apparent that this offer by the Commonwealth is not to the satisfaction of the GRF, which continues to press for the interim orders. It is apparent from this that the real dispute between the parties is that the GRF wishes to remain in possession of the Land pending the determination of its challenge to the validity of the Act. The GRF relies on two affidavits. The first affidavit is of Dr Alexey Pavlovsky, who is the Ambassador of the Russian Federation in Australia and has held this role since 20 May 2019. Dr Pavlovsky provides information about the lease of the Land which was granted to the Embassy of the Russian Federation in Australia in or about 2008. Dr Pavlovsky also deposes to the construction works which have been carried out on the Land – in short, the first stage works have been completed, which includes the construction of the consular building and security checkpoint, as well as a new transformer substation and on‑site utilities, the completion of cladding of a perimeter fence, and landscaping works. Stage two has not yet been constructed. Stage two would include the construction of the Embassy building. There is evidence in Dr Pavlovsky's affidavit that in 2022 the National Capital Authority issued a purported termination of the lease. This led to proceedings in the Federal Court of Australia, in which the GRF challenged the termination of the lease. Those proceedings were resolved by consent. Pending the resolution of those proceedings, the GRF, by agreement with the Commonwealth, remained in possession of the Land. According to Dr Pavlovsky, the GRF has expended approximately US$5.5 million on construction works and has at all times had a presence on the Land and closely supervised the construction works being undertaken on the Land to ensure the integrity of the Embassy complex once it is constructed. Dr Pavlovsky deposes to the fact that: "The GRF wishes to maintain possession of the Land pending the outcome of the High Court proceedings to ensure the integrity and security of the consular building and the embassy complex." According to Dr Pavlovsky: "In the event that: the Commonwealth were to retake possession of the Land pending the outcome of the proceedings before the High Court; and b. the GRF is successful in the proceedings" the GRF would then be "highly likely to demolish the improvements already constructed on the Land to protect its interests". The other affidavit on which the GRF relies is from a solicitor for the GRF, who has attached a newspaper article published on the Sydney Morning Herald website at about 10.22 am, which contains a quote: "Prime Minister Anthony Albanese says, 'a bloke standing on a bit of grass' on the site where the government cancelled the lease of a second Russian embassy in Canberra does not represent a national security threat." Before the Act was passed and commenced, there was an Explanatory Memorandum prepared for the Home Affairs Bill 2023 (Cth). It contains a statement as follows[1]: "The object of the Bill is to protect Australia's national security interests with regard to land within the area adjacent to Parliament House." The Second Reading Speech for the Act records that the Bill establishes "an act for the termination of the lease held by the government of the Russian Federation on a parcel of land adjacent to Parliament House", and that "[t]his action does not preclude the Russian Federation from a diplomatic presence here in Canberra, which they maintain at their existing premises, in Griffith, Australian Capital Territory. The termination of the lease has no impact on their Griffith site. This legislation is consistent with Australia's obligations under international law."[2] The submissions made on behalf of the GRF are to the effect that the Act is not supported by a Commonwealth head of power because it is, in substance, a law with respect only "to the 'relevant lease'" or, more generally, is "a law with respect to property" in circumstances where the Commonwealth does not have a constitutional head of power as to either the relevant lease or property more generally; and further, that the termination of the relevant lease by the Act "is not for a purpose in respect of which the Parliament has power to make laws". Otherwise, the GRF submits that the Act is contrary to s 51(xxxi) of the Constitution because by terminating the lease the Commonwealth acquired property and therefore just terms must be provided for the Act to be valid and, at present, the Act does not provide for just terms because s 6(1) is conditional. The section provides only that "[i]f the operation of this Act would result in an acquisition of property" then "the Commonwealth is liable to pay a reasonable amount of compensation". The GRF also submits that this Court should grant it the interim relief because the balance of convenience and interests of justice favour that grant. In this regard, the GRF relies on the affidavit of Dr Pavlovsky to the effect that if it does not remain in possession of the Land, the GRF "will necessarily incur great expense demolishing the improvements and undertaking replacement construction works" which will also absorb further time under its lease. On the other hand, according to the GRF, the Commonwealth will suffer no prejudice because on the last occasion when the lease was purported to have been terminated, the GRF was allowed to remain in possession of the Land. The GRF submits that there has been no change in circumstances between the purported termination of the lease and the present day. In its submissions, the GRF emphasises that: in truth, this is a dispute between two parties; there would be no public detriment occasioned by it remaining in possession of the Land pending the outcome of the dispute; the undertakings it proffers ensure that the status quo would be maintained; the Prime Minister has already stated that there was no security risk from a person remaining on the Land; and, as I have already mentioned, the GRF considers it would have to demolish the buildings on the Land if the Commonwealth were to take possession and the GRF was ultimately successful in its challenge to the validity of the Act. The GRF further submits that it is important that the Land remained National Land, that is, land available to be leased for embassy purposes. According to the GRF, this, amongst other things, demonstrates that the Act does not relate to any public purpose of the Commonwealth, thereby supporting the GRF's case that there is no support for the Act in any relevant head of Commonwealth power. It also submits that no explanation had been proffered for the apparent change in the Commonwealth's position from that in 2022 where, despite a purported termination of the lease, the Commonwealth was willing to enable the GRF to remain in possession of the Land pending the determination of the proceedings, thereby preserving the status quo. Consideration The difficulty for the GRF in relation to the current application is that there has been a material change in circumstances between 2022 and the present date. The material change in circumstances is the commencement of the Act itself, which provides, by legislation, for termination of the lease. The Commonwealth has provided detailed written submissions in support of its position that the interlocutory application should be refused both because the GRF has failed to establish a prima facie case or a serious question to be tried, and because there are no compelling circumstances that would support an interlocutory injunction to restrain the enforcement of a statute. As the Commonwealth has pointed out, in order to establish a prima facie case, the GRF must show that it has a sufficient likelihood of success to justify the preservation of the status quo pending the trial, and the required strength of that likelihood of success depends, at least in part, upon the nature of the rights that the GRF seeks to assert and the practical consequences likely to flow from the orders sought[3]. Australian Broadcasting Corporation v O'Neill[4] refers to the decision of Mason A‑CJ in Castlemaine Tooheys Ltd v South Australia[5] in respect of interlocutory injunctions pending the determination of the validity of legislation. In Castlemaine Tooheys Ltd, Mason A‑CJ said[6]: "The decisions in this Court to which I have already referred demonstrate that there are a variety of situations in which the Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff's constitutional right. In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. And in some cases the balance of convenience may be affected by the Court's perception or evaluation of the strength of the plaintiff's case for invalidity. But, subject to these qualifications there can be no reason to doubt the correctness of the general thrust of the comments in the passage which I have quoted. In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires." In this case, the enactment of the legislature, the Act, provides for immediate termination of the lease. The balance of convenience is affected by the perceived strength of the prima facie case. I do not perceive the GRF's case for invalidity of the Act to be a strong one. Indeed, it is difficult to identify a serious question to be tried in circumstances where there are several constitutional heads of power which, prima facie at least, would appear to provide ample support for the terms of the Act. These include s 122 of the Constitution, s 51(xxix) of the Constitution with respect to "external affairs", and, of course, s 51(xxxi) itself. As the Commonwealth has also submitted, insofar as the GRF relies on a proposed absence of just terms, it is difficult to understand that proposition merely from the conditional character of s 6(1) of the Act. Section 6(1), in terms, provides that if there has been such an acquisition of property, then reasonable compensation will be paid. In these circumstances, my preliminary evaluation is that the case for relief is, as I have said, difficult to understand on the basis of the submissions that have been put to date. Be that as it may, there is also the problem that the GRF does not confront the reality of the fundamental change in circumstances between the position in 2022 when the Commonwealth permitted the GRF to remain in possession of the Land, and the position as at today's date. The change in circumstances is the legislative action that the Commonwealth has taken through the provisions of the Act to terminate the lease in the clearest possible terms. In those circumstances, I accept the submission for the Commonwealth that, based on the reasoning of Mason A‑CJ in Castlemaine Tooheys Ltd, there would need to be compelling grounds in order to grant the GRF the relief it seeks in its application. In respect of the other issues which the GRF has raised, I also accept the submission for the Commonwealth that the evidence provided in relation to what is described as the "integrity and security" of the buildings is too vague and nebulous to provide any particular evidence of irreparable damage to the GRF. I accept also that insofar as this might be recourse to some kind of submission about the GRF's own national security interests, the Court cannot purport to balance the weight between what might be the national security interests of the GRF and what might be the national security interests of the Commonwealth[7]. In any event, it seems to me that this is, as it were, "by the by" in that the GRF has not referred to anything other than its desire to maintain the "integrity and security" of its buildings. There is no meaningful evidence to explain why the GRF takes the view that it would need to destroy the buildings and, as the Commonwealth has submitted, if that ultimately turns out to be the case then that is a decision wholly within the control of the GRF. Further, the evidence is clear that this (the possible destruction of the buildings) assumes that the GRF would be successful in the overall proceedings and therefore involves a contingency. Overall, however, effect must be given to the clear provisions of the Act in which the Parliament has made the decision to terminate the lease and all interests without any temporal delay or other reservation of rights. In these circumstances, it is the terms of the Act itself which both constitute the radical change in circumstances from the previous position and indicate that there is no proper foundation for the granting of the interlocutory injunction as sought by the GRF. For these reasons, I accept the submissions of the Commonwealth that the interests which the GRF has identified in its affidavits and otherwise through the submissions put on its behalf are plainly outweighed by the interest in not preventing the operation of the Act, the sole function of which is to terminate the GRF's interests in the Land, according to the Explanatory Memorandum and Second Reading Speech, for national security reasons. It is immaterial that those reasons are not referred to in terms on the face of the Act. As the Commonwealth has further submitted, it is not to the point that the Commonwealth may not have identified an immediate purpose for which it requires the Land, given that the Commonwealth has a clear sovereign interest in being able to determine that the Land will not be occupied by the GRF, and has done so in the provisions of the Act. In these circumstances, the appropriate orders which should be made are that: The application filed 23 June 2023 be dismissed. The costs of the application filed 23 June 2023 be costs in the cause. [1] Australia, House of Representatives, Home Affairs Bill 2023, Explanatory Memorandum. [2] Australia, House of Representatives, Parliamentary Debates (Hansard), 15 June 2023 at 1. [3] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at 81‑82 [65]. [4] [2006] HCA 46; (2006) 227 CLR 57 at 82 [66]. [5] [1986] HCA 58; (1986) 161 CLR 148. [6] [1986] HCA 58; (1986) 161 CLR 148 at 155‑156. [7] Attorney‑General (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25; (1988) 165 CLR 30 at 46‑47.

EVIDENCE — Documentary evidence — Tender of documents – relevance of documents in relation to the oral evidence of witnesses – evidence admitted

COSTS — mortgagee's entitlement to costs — general law — r 42.25, UCPR — principles at [4]-[10] — borrower seeks to set aside finance documents for duress, unconscionable conduct and Contracts Review Act — mortgagee files cross claim seeking repayment and possession — mortgagee fails due to invalid Dobbs certificate — borrower partially successful on Contracts Review Act claim but success academic given mortgagee’s failure — mortgagee nonetheless seeks indemnity costs — contractual provisions do not unambiguously confer right to indemnity costs — mortgagee's failure to tender valid Dobb's certificate amounted to unreasonable conduct in the relevant sense — parties enjoyed equal measure of success and failure — no order as to costs.

CIVIL PROCEDURE – notice of motion – defendant’s application to dismiss plaintiffs’ Summons – rule 13.4 of the UCPR – whether plaintiffs have a reasonable cause of action – no reasonable cause of action made out – application granted - Summons dismissed

CRIME – bail – release application pending determination of applicant’s appeal against his convictions – whether there are “special or exceptional circumstances” under Bail Act 2013 (NSW) s 22

CRIME – appeal – sentence appeal – whether sentencing judge failed to take into account the utilitarian value of the applicants’ pleas of guilty for a Commonwealth offence – consideration of possible “Xiao error” – sentencing discretion exercised afresh – purposes of sentencing for terrorism offences – role of renunciation and rehabilitation – post-sentence evidence over many years favourable to applicants – lesser sentence warranted – appeal allowed – original sentences quashed – applicants resentenced

LAND LAW — caveats — extension of operation of caveat — balance of convenience

COSTS – proceedings for preliminary discovery – where documents sought were not discovered – where defendant provided a consolidated spreadsheet providing the plaintiff information but not discovery and the plaintiff determined not to proceed with the proceedings and the proceedings were dismissed by consent – HELD – plaintiff to pay the defendant’s costs

CRIME – sentence – manslaughter – excessive self-defence – 59 year old female deceased verbally threatened to stab 34 year old male offender – offender may have believed deceased held a knife behind her back – deceased shorter and evidently physically impaired – threat as perceived by accused could have been resolved by at most a single blow – where offender knocked deceased to floor and engaged in ferocious beating and stomping of deceased’s head to cause death – response grossly disproportionate to threat as perceived

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – application to transfer from Local Court to Supreme Court – jurisdictional limit – proceedings ready for hearing – serious issues with calculation of damage relevant to asserted liability – not in the interest of justice to transfer

PLEADINGS — summary dismissal — striking out — whether claims are so obviously untenable that they cannot succeed — whether no reasonable cause of action disclosed — whether embarrassing — no question of principle.

NEGLIGENCE – Professional negligence – alleged breach of Retainer – alleged lack of due care – no issue of principle – factual dispute – no breach of Retainer and no lack of due care – proceedings dismissed

SENTENCE — Murder — Tragic loss of life — Second offence of grievous bodily harm with intent to cause grievous bodily harm — Where the offender was a child when offences were committed — Reduced capacity for consequential thinking — immaturity — History of depression — Excessive use of cannabis to self-medicate — Whether attributes personal to the young person operate to reduce the objective seriousness of the offences — Reduction in moral capability — Principles applicable to sentencing children

SUCCESSION — contested probate — costs — whether costs incurred by unsuccessful defendants/cross-claimants should be borne by estate — whether defendants/cross-claimants should bear their own costs — whether defendants/cross-claimants should pay any costs of plaintiff — where undue influence raised — where finding that it was reasonable to investigate that and other matters — where finding that deceased and plaintiff did not cause litigation

CONTRACTS – construction of contract – where parties entered into forbearance agreement – whether the forbearance agreement discharged the borrowers’ obligations under the original loan agreement CONTRACTS – termination – repudiation – where the borrowers did not make repayments on terms with the forbearance agreement - where the lots of land that formed part of the project were progressively sold such that the borrowers were factually unable to perform the project – whether repudiation of the forbearance agreement was accepted by the sending of letters of demand to the borrowers

OCCUPATIONS – legal practitioners – professional negligence – advocate’s immunity – whether advocate’s immunity extends to the drafting of pleadings – whether advocate’s immunity applies to omissions by a legal practitioner

CIVIL PROCEDURE – Court of Appeal – stay of proceedings – stay pending application for special leave to appeal to High Court – application for stay dismissed

APPEALS – leave to appeal – whether decision is interlocutory – where final injunctions refused after a three day hearing but pecuniary claims remained undetermined – where because of passage of time, no injunction would be ordered even if grounds were made out – appellants belatedly asked for determination of questions of construction which were not determined by primary judge – absence of full submissions on construction at first instance and on appeal – desirability of questions of construction being answered in light of findings of fact – ability to appeal after determination of unresolved issues – leave refused

CRIME – appeal – appeal against sentence – multiple kidnapping charges – specially aggravated – where first victim suffered grievous bodily harm – shattered skull, laceration of the scalp and brain hernia after being struck in the head with a pistol – where not proven beyond reasonable doubt that applicant was aware that his co-offender would be armed or use the weapon during the kidnapping – complaint that sentencing judge took the degree of injury inflicted on the victim into account when assessing objective seriousness of the offending – grounds of appeal in direct contrast to concessions made at first instance discouraged – actual harm done to a victim able to be reflected as part of objective seriousness even if not found to be an aggravating feature against a particular offender – leave to appeal granted – appeal dismissed

CRIME — Appeals — appeal against sentence — manifest excess — mental health — purposes of sentencing — general deterrence — appeal dismissed

CRIME — Appeals — Appeal against conviction — Whether the “depraved” nature of some of the counts was so prejudicial as to warrant separate trials — Whether the failure to discharge the jury after the bestiality count was no billed occasioned a miscarriage of justice — Whether the cumulative effect of the way in which the evidence supporting the bestiality count was elicited prevented the jury from impartially considering the evidence on each count separately — Where jury verdicts demonstrated a considered approach to the evidence — No miscarriage of justice

CRIMINAL LAW – sentencing – multiple offences committed on partner – sexual and violent offending – late plea of guilty to seven offences – multiple other offences admitted and taken into account – other uncharged acts – course of conduct grave and depraved – where sentencing Judge disregarded offender’s subjective case due to perceived inconsistencies in histories provided to experts – error established but no lesser sentences warranted – appeal dismissed CRIMINAL LAW – judgment or remarks on sentence – addressing the offender directly – practice not encouraged – advantages of couching remarks in third person – maintenance of judicial objectivity and disinterest

CRIME — Appeals — Appeal against conviction — unreasonable verdict — inconsistent verdict — where applicant had been convicted on two counts but acquitted on four others — where all six counts involved the same complainant — where alleged conduct and circumstances the subject of the counts were similar in many respects — where the prosecution’s evidence was largely and principally that of the complainant — where the applicant gave evidence and denied that the offending conduct occurred — whether verdicts on counts for which applicant had been convicted were unreasonable or could not be supported having regard to the evidence — whether verdicts of guilty on those counts were inconsistent with verdicts of not guilty on other counts — leave to appeal granted — appeal dismissed

CRIME — Appeals — Appeal against sentence — wound with intent to cause grievous bodily harm — manifest excess — parity — Bugmy principles — mental illness — appeal allowed — Applicant resentenced

CRIME — Murder — Where the young person is a 16 year-old child — Where the young person has pleaded guilty to murder — Where there is an issue as to the basis of murder — Whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — Where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — Where the ERISP contains an admission of an intention to kill — Whether the custody manager “assisted” the young person to obtain legal advice — Whether the support person fulfilled that role appropriately — Something more required than a “cardboard cut-out” — Whether the young person was essentially “left to his own devices”— Whether there was an obligation on the police to obtain consent from the young person as to the nominated support person — Whether the evidence was obtained improperly or in contravention of an Australian law — Having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — Strict protections afforded by LEPRA provisions — ERISP not admissible

PRACTICE AND PROCEDURE — order for examination and production of documents pursuant to Civil Procedure Act 2005 (NSW) s 108 — application of s 108 to order requiring delivery up to plaintiffs of specified property in possession or under control of defendants

HIGH RISK OFFENDER – application for interim supervision order – Indigenous defendant – record of repeated violent offending – history of substance abuse – moderate intellectual disability – whether unacceptable risk of committing serious offence if not kept under supervision – defendant back in custody – bail refused – conditions of interim supervision order opposed – electronic monitoring not imposed – psychiatric and/or psychological examinations ordered – interim supervision order imposed

CIVIL PROCEDURE — leave sought to issue writ of execution based on change of person entitled to execute judgment — UCPR rule 39.1 — assignor purported to have assigned interest to co-judgment creditor by deed of assignment — assignor now a bankrupt — Court’s power ought not be used to frustrate the administration of the estate of a bankrupt — whether assignor assigned interest prior to bankruptcy — assignment not proved — sham just as likely an inference — leave refused

SUCCESSION – Intestacy and distribution on intestacy – Indigenous person dies intestate - Intestate never married, died without spouse and without issue - Parents of intestate entitled under operation of rules of intestacy – Despite searches father of the intestate unable to be located – He had played no part in the life of the deceased - No other interested persons – Mother seeks an order for distribution of the intestate estate as a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged – Reliance upon Succession Act 2006 NSW, Part 4.4 – Scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged is to her as the mother of the Indigenous intestate - Distribution order made under Succession Act, s 134

ADMINISTRATIVE LAW – domestic tribunals – expulsion of a member – procedural fairness