Cases and authorities

Courts and judges – Bias – Reasonable apprehension of bias – Where appellant appealed to Full Court of Federal Court of Australia from decision dismissing application for judicial review of non-revocation of decision to cancel his visa on character grounds – Where appellant sought recusal of judge sitting as member of Full Court constituted to hear appeal – Where reasonable apprehension of bias on the part of challenged judge said to arise from judge's appearance, in former capacity as Commonwealth Director of Public Prosecutions, as counsel for Crown in opposition to appellant's appeal against conviction – Where appellant's conviction causally related to cancellation of visa and non-revocation decision subject to challenge in Full Court – Whether fair-minded lay observer might reasonably apprehend that judge might not be impartial – Whether reasonable apprehension of bias on the part of challenged judge vitiated Full Court's jurisdiction. Courts and judges – Practice and procedure – Whether application to disqualify judge for bias should be determined in the first instance by challenged judge alone or by all members of court as constituted. Words and phrases – "absence of bias", "actual bias", "apprehended bias", "character test", "disqualification", "fair-minded lay observer", "impartiality", "impartial mind", "independence", "judicial power", "judicial practice", "jurisdiction", "logical connection", "multi-member bench", "multi-member court", "objection to jurisdiction", "reasonable apprehension of bias", "recusal", "substantial criminal record". Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43. Federal Court of Australia Act 1976 (Cth), ss 11, 14, 15, 16, 25. Migration Act 1958 (Cth), ss 476A, 500, 501, 501

CIVIL PROCEDURE – settlement approval request – plaintiff alleges negligence in the management of his mother during labour whilst he was in utero causing him injury – plaintiff is a minor – settlement is in the best interest of the minor – settlement approved

CIVIL PROCEDURE – notice of motion – adjournment application – where third plaintiff is litigant-in-person representing all plaintiffs – medical certificate provided – adjournment sought relying on third plaintiff’s poor health and to seek legal representation for plaintiffs

EMPLOYMENT AND INDUSTRIAL LAW – contract – implied terms – whether contract contained implied term of good faith – whether employer’s independent discretion to terminate employment on notice without cause subject to implied term of reasonableness CONTRACTS – remedies – damages – causation – whether employee’s loss of earnings following termination attributable to employer’s failure to act in good faith during subsistence of the employment – whether employer’s earlier breach of good faith term could be causative of employer’s own decision to terminate – employer’s exercise of independent discretion broke the chain of causation to loss of earnings damages CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed

SUCCESSION – family provision – claim by adult nieces – where plaintiffs lived in deceased’s father’s house during their childhood – whether plaintiffs each an eligible person – whether there were factors warranting plaintiffs’ application – factors warranting application – whether inadequate provision for the proper maintenance, education or advancement in life for each of the plaintiffs – should court exercise its discretion to make an order for provision in favour of either plaintiff – application for provision refused

COSTS – Party/Party – Bases of quantification – Indemnity basis – Where offers of compromise and Calderbank offers made prior to hearing –– Where issues at trial not straightforward – Rejection of offers and persistence in litigation did not warrant costs order on indemnity basis COSTS – Party/Party – Appeals – Factors relevant to the court’s discretion when quantifying costs – Whether pre-trial offers relevant in exercise of Court’s discretion when quantifying costs – Court will not usually make special costs order where none of the offers renewed prior to the appeal – Where none of the offers such to warrant an indemnity costs order at first instance – No basis for an indemnity costs order on appeal COSTS – Party/Party – Interest on costs – The default position is that interest run from the date of the costs order – It is not necessary that the Court makes an order for interest – No evidence or argument addressed why there should be a departure from the default position – No order for interests on costs should be made

CRIME — appeals — appeal against conviction — where Crown conceded that the trial judge had failed to follow the statutory requirements set out in s 13(5) Evidence Act 1995 — where Crown accordingly accepted that ground 1 in the appeal had been made out — appeal allowed — convictions quashed — retrial ordered — no need to consider any of the other grounds of appeal

CRIME – Appeals – Appeal against decision to refuse discharge of whole jury – Where individual juror discharged for misconduct at the commencement of the trial and applicants ultimately convicted by a jury of eleven CRIME – Appeals – From jury verdict – Misdirection or nondirection regarding CCTV evidence relating to identification

CRIMINAL LAW – sentencing – manslaughter – horrendous killing of mother – decapitation – substantially impaired offender – complex neurological and mental impairments – relationship between moral culpability and objective seriousness – spontaneous offence – loss of self-control – protection of the community – purposes of punishment – whether error in assessment of objective gravity CRIMINAL LAW – sentencing – facilitation of the course of justice – distinction from statutory discount for utilitarian value of guilty plea – where statutory system prescriptive and unfair – facilitation discount not to fill gaps – whether error in approach taken by sentencing judge

CRIMINAL LAW – child sexual assault – pre-recorded evidence – failure to put matters raised by accused in interview with police – leave sought to re-call witness – lengthy delay – change of defence counsel – “interests of justice” – purpose of reducing trauma to child witnesses CRIMINAL APPEALS – interlocutory judgment or order – competence of application – whether ruling of trial judge amenable to appeal under Criminal Appeal Act 1912 (NSW), s 5F

CRIME – sentencing –– application for leave to appeal against sentence - single ground of manifest excess - multiple offences – consideration of patent errors where only ground of appeal manifest excess - whether specific patent errors constitute misapplications of sentencing principles – whether inconsistency in determining indicative sentences – range of objective seriousness – leniency for good character – totality – failure to demonstrate manifest excess - leave to appeal granted – appeal dismissed

BANKING AND FINANCE — lender advances $3.25m secured by mortgage and guarantees – default – lender appoints receiver – property sold – borrower and guarantors sued for balance – lender entitled to amount sought. COURTS AND JUDGES — apprehended bias — application made after judgment reserved — guarantor referred to in judgment given by judge four years’ earlier in unrelated proceedings – waiver of right to seek recusal — principles at [41]-[43] —guarantor’s solicitor aware of earlier judgment – issue of recusal already raised in proceedings – solicitor aware that judge allocated to hear the matter two weeks before hearing – solicitor’s knowledge imputed to client — solicitor also a cross-defendant – whether knowledge imputed to solicitor as a party can be imputed to his client – actual knowledge required – principles at [49] – right waived by arguing the merits. APPREHENDED BIAS — principles at [55]-[60] — guarantor not a party to earlier proceedings — no findings against guarantor in previous judgment — guarantor not giving evidence in these proceedings — no related issues — recusal application rejected. CIVIL PROCEDURE — service — pleadings served on borrower by providing to receiver and manager — receiver's power to 'defend proceedings in relation to secured property' does not extend to accepting service — service on receiver is not effective service on corporation — principles at [75]-[77] — whether waiver of irregularity of service – principles at [80]-[81] — guarantors’ solicitor twice appears for borrower at directions hearing — no appearance for borrower at trial — borrower files recusal motion after trial — no waiver.

PROCEDURE – application under Vexatious Proceedings Act 2008 (NSW) – request for adjournment of final hearing – mental health of defendant – legal representation of defendant – whether Court Book appropriate for proceedings – adjournment granted

CORPORATIONS – directors and officers – person recorded in ASIC register as director and company secretary did not consent to be appointed to those roles and did not act in those roles – declarations that purported appointments invalid.

COMMERCIAL ARBITRATION — plaintiff is customer of digital asset trading company — arbitration agreement between customer and company — customer entrusts US$20.4m to company — company goes into administration — customer sues company director for accessorial liability for misleading and deceptive conduct of company — director will defend claim on basis that company did not engage in such conduct — director initially seeks transfer and security for costs – director becomes aware of ability to seek stay — s2 Commercial Arbitration Act 2010 (NSW) — whether a person claiming “through or under” party to the arbitration agreement — director taking stand on same ground as that available to company — essential element of defence vested in or exercisable by company – whether claim is subject of arbitration agreement — whether agreement inoperative by abandonment.

SUCCESSION — contested probate — validity of two wills made in 2017 under which large bequests made to doctor — lack of knowledge and approval alleged — consideration of suspicious circumstances — probate undue influence alleged — no challenge to testamentary capacity of the deceased — no issue of valid execution — distinction between undue influence in probate and in equity — whether presumption of undue influence in probate applies where testator is enfeebled, relationship of doctor and patient exists and where testator was never married, had no close family and few friends — where sizable estate — where fraud alleged — where beneficiary introduces own solicitor to the testator but is otherwise not involved in the instructions for or preparation of wills — where no direct evidence of pressure or coercion — consideration of circumstantial evidence — knowledge and approval established, no finding of probate undue influence or fraud EQUITY — undue influence — whether equity can apply or extend its principles respecting undue influence and dispositions inter vivos to subject gifts under a will to a trust in favour of residuary or past beneficiaries — where presumptive relationship of undue influence exists — where factual findings establish knowledge and approval — presumption arising from relationship of parties rebutted EQUITY — unconscionable conduct — whether unconscionable conduct applicable to dispositions inter vivos can be extended to invalidate wills or parts thereof — whether acceptance or retention of benefits under a will amounts to unconscionable conduct in the absence of any dealing, transaction or inter vivos arrangement between testator and beneficiary

CONTRACTS — Construction — Interpretation — Where contract for placement within the Plastic and Reconstructive Surgical Education and Training Program — Where declaration provided with training application — Whether trainee knowingly provided false and/or misleading information — Whether termination valid — Where errors and/or omissions in application — Where trainee must have known information required and provided misleading and false statements

CONTRACTS – construction and interpretation – whether breach of non-competition covenant in Securities Purchase Agreement - meaning of a “Competing Business” – whether Respondents’ business “based on Microsoft Dynamics 365 technologies” or a “future, successor, or derivative” product – whether Respondents’ business “in competition with” the business purchased by the Appellant pursuant to the Securities Purchase Agreement – where Respondents’ business based on the supply of a product not supplied by the business acquired by the Appellant at the time the Securities Purchase Agreement was entered into CONTRACTS – construction and interpretation – parol evidence rule – exceptions – whether “mutual concurrence” established by evidence of prior contractual negotiations COMMERCE – restraint of trade – validity and reasonableness – length and scope of restraints – ladder clauses - whether restraint extending to the Respondents’ business based on the supply of a product not supplied by the business acquired by the Appellant was reasonably necessary to protect the Appellant’s legitimate interest in the goodwill it purchased when it acquired the business – where minimal level of competition between the product supplied by the Respondents’ business and the product supplied by the business purchased by the Appellant - where maximum temporal restraint period of seven years sought – where broad, international geographical restraint area sought COMMERCE – restraint of trade – enforcement and relief – injunction – whether injunctive relief ought to have been awarded

COSTS – Party/Party – Proceedings discontinued or dismissed – Court’s discretion – Proceedings discontinued by one appellant – Where discontinuing appellant by her conduct ratified conduct of solicitors in filing an appeal in her name – Whether fair and reasonable to otherwise order discontinuing appellant not jointly and severally liable for costs up to date of discontinuance – No basis to displace usual order as to costs

NEGLIGENCE – Damages – Assessment of damages – Damages for non-economic loss – Where primary judge awarded sum for persistent pain and suffering in the period spanning infliction of injury and remedial surgeries, assessed at 25% of a most extreme case – Where applicant contends that primary judge failed to have regard to physical and emotional trauma of the injury itself and of potential corrective surgeries – Where primary judge’s reasons address trauma of injury and future potential surgeries – Whether primary judge’s award of damages for non-economic loss evinces error of the kind enumerated in House v The King (1936) 55 CLR 499 – no error established NEGLIGENCE – Damages – Assessment of damages – Assessment of loss of earning capacity for injury negligently occasioned to young child – Where applicant suffered laceration of right eyelid at respondent’s store – Where laceration resulted in mild facial scarring and ptosis of applicant’s right eyelid – Where primary judge awarded sum for loss of earning capacity by way of buffer – Whether evidence adduced by applicant established that scarring or ptosis will, or may, be productive of financial loss – Whether buffer sum inadequately compensated applicant for loss of earning capacity – Whether respondent ought to be given leave to cross-appeal on the ground that applicant had not proven financial loss will, or may, occur on the balance of probabilities – Held that sum awarded by primary judge for loss of earning capacity was within reasonable range of potential awards

PROCEDURE – orders – reconveyance of land held on constructive trust for plaintiff/respondent – dispute as to calculation of allowances for expenses – disputed fresh evidence – one party requested oral hearing – stay of orders requiring reconveyance of land lifted and proceedings remitted to single judge

CIVIL PROCEDURE – notices to produce – before hearing – production of documents – orders as to confidentiality of such documents

CIVIL PROCEDURE – vexatious proceedings orders

CRIMINAL LAW – sentencing – manslaughter – where jury acquitted of murder – findings of fact after verdict – whether intention to inflict grievous bodily harm or to kill – basis of manslaughter verdict – relevance of plan to rob the victim – who produced the knife? – deprived and dysfunctional childhood – impact on moral culpability – breach of parole – appropriate commencement date – instinctive synthesising

APPEAL – appeal from orders of Judicial Registrar in District Court – appeal to Division – leave required – extension of time required – summons filed more than two years after material date CIVIL PROCEDURE – summary dismissal of proceedings – orders made in absence of plaintiff – plaintiff had provided in advance of hearing an adequate medical explanation for his non-attendance – application for adjournment refused as futile – proceedings dismissed on grounds of prejudice to defendants and need for just, quick and cheap resolution of proceedings

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – Leave sought subsequent to commencement of proceedings

COSTS – party/party costs – rule that costs follow the event – where defendant failed in denial of genuineness of signature on contract but succeeded overall – apportionment

SENTENCING – Murder – Sentence after judge-alone trial – Where offender entered elderly deceased's house with a co-offender to steal money – Deceased fatally stabbed by both offender and co-offender – Offender returned to search for money in months before deceased's body discovered – Application of Bugmy v The Queen principle – Offender exposed to childhood physical violence and drug abuse – Complex PTSD contributed to offending to limited extent – No mitigatory remorse – Good prospects of rehabilitation

ADMINISTRATIVE LAW — Remedies — Certiorari — Exercise of statutory power without consequences CONTRACTS — Remedies — Declaration — Court slow to make declaration about contract involving persons not before court JUDGMENTS AND ORDERS — Directions for provision of further submissions — Issue not raised by parties — Broad power under s 63 of Supreme Court Act 1970 (NSW) to resolve all issues in a controversy — Difference between resolving controversy before Court and fomenting further disputes

CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Approval of settlement with limitation on deduction out of settlement sum for litigation funder’s commission and “after the event” (ATE) insurance premium to 25% of gross settlement sum — Whether primary judge impermissibly imposed onus on the litigation funder to adduce expert evidence – Whether primary judge took into account irrelevant factors in consideration of kinds of evidence adduced in cases in which common fund orders had been sought in the context of a s 173 application – Whether primary judge erred in finding that there was insufficient disclosure made to the group members at the relevant time and in according insufficient weight to lack of objection by group members to the proposed deductions and the competitive process by which litigation funding was arranged

CONTRACT — deed of settlement — agreement to pay amount due under loan agreements — personal guarantee by appellant liable for debts owing by business to respondent — whether deed legally enforceable — allegation of unconscionable conduct by respondent PROCEDURE — procedural fairness — failure to comply with directions as to service of affidavits — leave to adduce evidence from further witness refused — possible prejudice to respondent — evidence irrelevant to enforceability of deed

EVIDENCE – admissions – criminal proceedings – where fresh indictment presented – application to revisit earlier rulings – relevance to expert’s opinion – application refused

EVIDENCE – criminal proceedings – where defence propose to make a number of admissions – whether Crown can lead further evidence as to a fact that has been admitted by the accused – blanket ruling sought – blanket ruling overruled – example fact – Crown seeking to rely on photograph in addition to bare fact admitted – photograph gives additional layer of meaning to bare fact – Crown entitled to tender photograph

CIVIL PROCEDURE — suppression and non-publication — contemplation of a recrudescence of adverse media coverage — plaintiff contends proceedings would insight the very kind of damage for which redress is sought — whether suppression orders required to prevent prejudice to the proper administration of justice or to protect the safety of the putative plaintiff’s children

CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW) — company obtains refinance — company director and wife provide guarantee and mortgage over family home – couple of financial substance and business experience but limited English – lender fixes completion date before Christmas – existing loan yet to expire, with no discount for early repayment – borrower’s solicitor says clients need interpreter – lender regards as delaying tactic – lender declines to provide loan if borrower’s solicitor continues to act – new solicitor engaged to meet deadline – borrowers advised without interpreter – whether contract for purpose of a trade, business or profession, s 6(2), at [25] – principles at [27]-[36] – material inequality in bargaining power – no negotiation – not reasonably practical to negotiate given change of solicitors required by the lender – unfair tactics – default interest provisions declared void to extent payable after default remedied – Intensive Loan Management Fee declared void.

DAMAGES – appellant claimed damages for destruction of aircraft logbooks by respondent – evidence suggesting some logbooks had been destroyed in earlier fire – whether primary judge erred in finding logbooks for one aircraft survived the fire and were not destroyed by respondent and in not being satisfied that logbooks for another aircraft survived the fire and had been destroyed by the respondent – no question of principle

APPEALS – Procedural fairness – Hearing rule – Whether primary judge entitled to determine application for extension of time of summons on hearing of motion to have that summons dismissed – Where issue of extension of time addressed in written submissions and oral argument at hearing – Not reasonably arguable that any denial of procedural fairness CIVIL PROCEDURE – Procedure at hearing – Addresses – Applicants sought Court’s leave to file additional short submissions on matters raised at hearing – No new development since hearing – Leave refused APPEALS – Procedure – Leave to appeal – Whether primary judge erred by referring to need for a “strongly arguable case” for leave – Where delay lengthy and prejudice considerable a strongly arguable case may be required to justify an extension of time – No error CIVIL PROCEDURE – Court of Appeal – Costs orders – Appeal from costs orders in interlocutory proceedings – Where successful motion to have summons dismissed – Primary judge correct to order applicants pay respondent’s costs of motion and proceedings that were dismissed CIVIL PROCEDURE – Court of Appeal – Costs orders – Appeal from costs orders in interlocutory proceedings – Whether primary judge erred by ordering gross sum costs order including GST when costs claimed exclusive of GST – Court would not grant leave to appeal on question of costs alone in the context of a gross sum order of $80,000 over a component of $8,000 in it – Leave refused APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Order summarily dismissing proceedings – Order summarily dismissing proceedings is an interlocutory order for the purposes of whether leave to appeal is required

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – State laws applicable to offenders convicted of Commonwealth offences – Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence – Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place – Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal – Where convicted person applying under s 78(1) was convicted of Commonwealth offence – Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence – Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence – Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval. Words and phrases – "altered meaning", "Chief Justice or authorised judge", "Commonwealth offence", "different legal operation", "federal jurisdiction", "federal offence", "inquiry into conviction or sentence", "judicial power", "jurisdiction invested", "jurisdiction of State and Territory courts", "jurisdiction of the Supreme Court", "like jurisdiction", "non-judicial power", "persona designata", "pick up and apply", "prerogative of mercy", "referral to Court of Criminal Appeal", "severance". Constitution, ss 51(xxxix), 76(ii), 77(iii). Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 77, 78, 79, 81, 82, 85, 86, 88, 114. Criminal Appeal Act 1912 (NSW), s 5. Interpretation Act 1987 (NSW), ss 12, 15. Judiciary Act 1903 (Cth), ss 68, 79.

CRIME – Appeal – Appeal against sentence – manifest excess – whether notional accumulation in the aggregate sentence is erroneously high – eight child sexual assault and child abuse offences against three separate victims over 11 years – applicant had approximately 50,000 child abuse images – no error – appeal dismissed

COSTS — Where proceedings are dismissed by reason of supervening event — Where no determination on the merits — Presumption as to costs under UCPR r 42.20.

SUCCESSION — Executors and administrators — order for possession of property — order sought by executor against co-executor — prior agreement requiring co-executor to vacate property — whether agreement rescinded, varied or replaced by later agreement for co-executor to purchase property — form of sale contract — implied term requiring completion in a timely manner — whether co-executor ready, willing and able to complete purchase — sale agreement in place but purchase not complete and contract terminated — order must be made CIVIL PROCEDURE — Cross-claims — order seeking specific performance of prior agreement — no evidence of part performance — no evidence of co-executor’s ability to pay purchase price — contract no longer on foot — order cannot be made CIVIL PROCEDURE — Hearings — adjournment — where defendant made repeated adjournment applications at hearing — where no notice of motion and supporting affidavit seeking adjournment filed — whether defendant given a fair opportunity to advance case — dictates of justice — Civil Procedure Act 2005 (NSW), s 56, 58, 59, 60 — applications refused

JURISDICTION — Equity proceedings brought by applicant (the former wife of the second respondent) involving claims of a trust over a property held by a third party (the first respondent), and allegations of a sham transfer of the property involving the second respondent in arranging with the third defendant for transfer of the property to the first respondent — Applicant’s claims are disputed by the respondents raising various statutory defences including indefeasibility of title, lack of writing and limitation period provisions — Responses by the applicant seeking to circumvent the statutory defences by equitable principles — Applicant seeks transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) — Transfer opposed JURISDICTION — Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1) sought pursuant to s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Act) and/or s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth Act) — Transfer determined by reference to s 5(1)(b)(ii) of the NSW Act and whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1) — Discussion regarding considerations relevant to the “interests of justice” in determining whether it is more appropriate that the equity proceedings be determined by the Federal Circuit and Family Court of Australia (Division 1) STATUTORY CONSTRUCTION — Analysis of s 5(1)(b)(ii) of the NSW Act — The reference to the “Family Court” is a reference to the “Federal Circuit and Family Court of Australia (Division 1)” — Analysis of the construction of the provisions which the Court has regard to in s 5(1)(b)(ii)(A),(B),(C) — The “interests of justice” provision in s 5(1)(b)(ii) of the NSW Act is not a “residual provision” in the same terms as the expression “otherwise in the interests of justice” in s 5(1)(b)(iii) of the Cth Act. LAW REFORM — Law reform agencies should give consideration to amendment of s 5(1)(b)(ii) of the NSW Act to update the reference to the “Family Court” to be a reference to the “Federal Circuit and Family Court of Australia (Division 1)” COSTS — Orders made addressing costs of the transfer motion and the costs of the equity proceedings

Criminal Law – Appeal – Break and enter and commit serious indictable offence – Where appellant and complainant co‑tenants of apartment under Residential Tenancies Act 2010 (NSW) ("RT Act") – Where appellant had moved out and ceased paying rent – Where appellant, while still a co-tenant, entered apartment by breaking down locked door and assaulted complainant – Where appellant pleaded not guilty to "breaks and enters any dwelling-house ... and commits any serious indictable offence therein" in circumstances of aggravation under Crimes Act 1900 (NSW), s 112(2) – Where trial judge directed verdict of not guilty under s 112(2) because appellant had right to enter apartment under residential tenancy agreement – Whether person who "breaks and enters any dwelling-house" under s 112 must be trespasser without lawful authority to enter – Whether appellant had lawful authority to enter premises. Landlord and Tenant – Whether right of occupation granted under residential tenancy agreement conditional upon tenant's purpose of entry being use of premises as residence – Whether no lawful authority to enter premises where entry made without consent of occupant – Whether right of exclusive possession under lease lost when co-tenant vacates premises but remains a lessee – Whether provisions of RT Act condition tenant's lawful authority to enter premises. Words and phrases – "break and enter", "breaks", "burglary", "co-tenants", "consent", "damage to premises", "dwelling-house", "entry", "exclusive possession", "habitation", "lawful authority", "liberty to enter", "occupation", "purpose of entry", "residential tenancy agreement", "right of entry", "right of possession", "trespass", "trespasser". Crimes Act 1900 (NSW), ss 4, 105A, 112, Pt 4 Div 4. Residential Tenancies Act 2010 (NSW), ss 13(1), 51(1)(d), 79.

APPEALS – leave to appeal – principles governing – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) after a hearing on the merits – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no change in circumstances other than appointment of new lawyers – whether prior refusal of leave to appeal created a jurisdictional bar precluding the Court of Criminal Appeal from entertaining a second application for leave to appeal – whether extension of time should be granted to bring the second application for leave to appeal APPEALS – procedure – time limits – extension of time – relevant considerations – finality – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no material change in circumstances – whether extension of time should be granted to bring the second application for leave to appeal – prior refusal of leave to appeal a powerful factor weighing against the grant of leave CRIME – appeals – appeal against conviction – extension of time in which to appeal – relevant considerations – finality – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no change in circumstances – whether extension of time should be granted to bring the second application for leave to appeal – prior refusal of leave to appeal a powerful factor weighing against the grant of leave CRIME – appeals – appeal against conviction – incompetence of counsel – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal after a hearing on the merits – where applicant sought to bring a second application for leave to appeal – applicant alleged (among other things) that counsel were incompetent both at the trial and the first application for leave to appeal – allegations of incompetence of counsel were not raised in grounds of appeal or written submissions – no incompetence of counsel demonstrated – extension of time to bring the second application for leave to appeal refused

CRIMINAL LAW — Evidence — Murder trial — Evidence by audio-visual link — Application by prosecutor for AVL direction — Where application opposed — Where the witness lives interstate — Where the witness is 74-years-old and has medical issues — Where evidence is relied upon as an admission by the accused — Where medical evidence confirms that the witness is fit to travel interstate — Interests of the administration of justice — Assessment of credibility and reliability — Application for direction refused

EQUITY – constructive trusts – failed joint endeavour – form of relief – whether joint endeavour contributions should be indexed

CRIME — Sentence – withdrawal of Commonwealth legal aid – offender without legal representation for sentence – delay

CIVIL PROCEDURE — interim preservation — freezing orders — against third parties — where shareholder seeks freezing order against third party company — where defendants consent subject to a carveout to pay company’s liabilities — where secured undertaking offered

EVIDENCE – criminal proceedings - telephone intercept recordings – admissions made on the telephone – conversations in Tagalog and translated into English – conversations about deceased - objections to portions of translated conversations – relevance

EMPLOYMENT AND INDUSTRIAL LAW — Office of the National Rail Safety Regulator — judicial review — delegated decision by Chief Operating Officer to vary first defendant’s accreditation status permitting utilisation of crew cars in national freight operations —no consultation with Union — whether decision-maker committed jurisdictional error ADMINISTRATIVE LAW — ground of review other than procedural fairness — delegation of power by Regulator — scope of instrument of delegation — whether delegation of power included making determinations of “significant change” to the scope and nature of an applicant’s operations even if no relevant ONRSR procedure existed — delegation of power only limited where a relevant ONRSR procedure determined such a “significant change” STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(iii) — whether decision-maker misapprehended nature of opinion required to be formed by misconstruing consultation requirement — whether “representing” in s 99(3)(a)(iii) means any person entitled to be represented by a union or requires actual membership of union — where a proper reading of the statutory text in light of context and purpose does not support a reading of “representing” to mean “entitlement to represent” – decision-maker applied s 99(3)(a)(iii) on its proper construction STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(i) –– whether consultation with “persons likely to be affected” in s 99(3)(a)(i) may be limited to persons carrying out railway operations, rather than including persons working at the railway premises or with rolling stock — where s 99(3)(a)(i) deems persons working at the railway premises or with rolling stock as “persons likely to be affected” — decision-maker misconstrued scope of consultation requirement in s 99(3)(a)(i) ADMINISTRATIVE LAW – jurisdictional error – whether misconstruction of s 99(3)(a)(i) of Rail Safety National Law 2012 (NSW) amounted to jurisdictional error – where decision-maker acted as a “statutory tribunal” — where mandatory language of provision indicates Parliament did not intend to vest Regulator with jurisdiction to determine the scope of consultation requirements — where misconstruction of s 99(3)(a)(i) caused decision-maker to form opinion otherwise than in accordance with law – decision-maker’s misconstruction fell into jurisdictional error ADMINISTRATIVE LAW — ground of review other than procedural fairness — findings of fact — whether decision-maker unreasonably or irrationally concluded plaintiff had no members amongst the affected rail safety workers — where decision-maker was aware of emails stating the plaintiff did have members that would be doing the work the subject of the variation application — decision-maker’s conclusion was based on findings or inferences of fact not unreasonable or irrational at law