Cases and authorities

HIGH RISK OFFENDERS — preliminary hearing — child sex offender – whether defendant poses unacceptable risk of committing serious offences if not kept in custody or under supervision – no opposition to the making of interim supervision order – long custodial history – where defendant asserts wrongful conviction – no therapeutic treatment received in custody – COSP accommodation available to defendant – interim supervision order imposed

ADMINISTRATIVE LAW – procedural fairness – s 36(3)(c)(i) of the Gaming Machines Act 2001 (NSW) – whether denial of procedural fairness arose out of Authority’s finding that gaming machine threshold increase application not associated with “positive contribution to the local community” - whether Authority obliged to inform Applicant of the quantum of a community benefit payment which would satisfy the community benefit requirement – whether Authority obliged to approve local impact assessment, subject to the payment of a specific community benefit payment – where formula for calculating community benefit payment provided in guidelines - where Authority had informed Applicant that its proposed community benefit payment was insufficient ADMINISTRATIVE LAW – ground of review other than procedural fairness – statutory construction – irrelevant and relevant considerations – s 36(3)(e) of the Gaming Machines Act 2001 (NSW) – whether Authority impermissibly treated Applicant’s Class 1 local impact assessment as though it were a Class 2 local impact assessment – where Authority considered potential “funnelling effect” arising out of having 50 gaming machines distributed between adjacent venues – where one venue had extended opening hours

ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Constructive failure to exercise jurisdiction – Non-satisfaction of subjective jurisdictional fact – Where order made to terminate applicant’s Drug Court program pursuant to Drug Court Act 1998 (NSW) s 10(1)(b) – Where applicant unable to comply with program due to detention on remand for offences charged after commencement of program – Where primary judge terminated applicant’s program after oral application focusing on probability of sentence of fulltime imprisonment in respect of new charges – Where primary judge did not expressly deal with jurisdictional preconditions to exercise of order – Whether primary judge constructively failed to exercise jurisdiction – Whether primary judge failed to take into account relevant considerations or had regard to irrelevant considerations – held that primary judge’s failure to address either remaining jurisdictional precondition evinced constructive failure to exercise jurisdiction – Impugned decision quashed and remitted for determination according to law ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Whether transcript containing parties’ submissions constitutes part of “record” of oral application to terminate applicant’s Drug Court program

CIVIL PROCEDURE – settlement approval request – allegation of medical negligence –plaintiff suffered a catastrophic injury and under legal incapacity – fair compromise – settlement approved – appointment of trustee to plaintiff’s estate

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia of Australia — Where no proceedings on foot at the time of application — Where applicant has not referred to relevant factors under the Family Law Act 1975 (Cth) — Where a purely equitable claim

CRIMINAL LAW – proceeds of crime – examination orders relating to restraining orders

CORPORATIONS – Application for directions as to whether s 561 of the Corporations Act requires preferred creditors to be paid in priority to liquidator’s remuneration and expenses in a winding up – Where secured debt paid out from non-circulating assets.

BUILDING AND CONSTRUCTION – defective sunshades on façade of residential tower – referral of issues to referee – referee to determine whether builder liable and, if so, what is the proper rectification method – referee finds builder liable in respect of structurally inadequate sunshades – referee faced with competing rectification methods – referee concludes that C Bracket Solution is proper rectification method – whether referee misconstrued contract in finding that C Bracket Solution would achieve conformity with the contract – whether referee’s findings concerning visibility of brackets perverse or based upon a failure to understand evidence – held that referee made no error of principle, and his findings of fact were clearly open to him – not appropriate to exercise discretion to reject or vary the referee’s report – motion dismissed

Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for recognition and enforcement of arbitral award – Where respondents obtained arbitral award under Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) ("ICSID Convention") – Where respondents sought to enforce award in Australia under s 35(4) of International Arbitration Act 1974 (Cth) – Where s 9 of Foreign States Immunities Act 1985 (Cth) ("Act") provides that a foreign State is immune from jurisdiction of Australian courts – Where appellant asserted foreign State immunity from jurisdiction – Whether appellant waived foreign State immunity from jurisdiction under s 10 of Act by submitting to jurisdiction by agreement – Whether entry into ICSID Convention and agreement to Arts 53, 54 and 55 constituted waiver of immunity from jurisdiction – Whether "recognition", "enforcement" and "execution" in Arts 53, 54 and 55 of ICSID Convention have separate and different meanings – Whether inconsistency arises between English, French and Spanish texts of ICSID Convention. Words and phrases – "arbitral award", "enforcement", "execution", "exequatur", "explicature", "express", "foreign State immunity", "immunity from jurisdiction", "implicature", "implied", "inference", "international law principles", "recognition", "treaty interpretation", "waiver of immunity". Foreign States Immunities Act 1985 (Cth), ss 9, 10. International Arbitration Act 1974 (Cth), ss 2D, 31, 32, 33, 34, 35, Sch 3. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965), Arts 53, 54, 55.

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs DCM20 v Secretary of Department of Home Affairs Constitutional law (Cth) – Executive power of the Commonwealth – Where s 351 of Migration Act 1958 (Cth) permitted Minister to personally exercise power to substitute more favourable decision for decision of tribunal – Where requests made for Minister to exercise power under s 351 – Where Minister issued instructions to departmental officers in purported exercise of executive power for general conduct of requests to substitute more favourable decision under s 351 ("Ministerial Instructions") – Where Ministerial Instructions required departmental officers to refer requests to Minister only where satisfied that "unique or exceptional circumstances" exist in respect of request – Whether Ministerial Instructions purported to instruct departmental officers to make decisions required to be exercised personally by Minister – Whether Ministerial Instructions exceeded limits of executive power as constrained by s 351 of Act. Administrative law – Judicial review – Whether decisions in purported compliance with Ministerial Instructions exceeded limits of Commonwealth executive power. High Court – Appellate jurisdiction – Whether Federal Court lacked jurisdiction to hear appeals by reason of s 476A(1) of Act – Consideration of character of purported decisions of departmental officers – Whether High Court accordingly deprived of jurisdiction to hear appeal. Judgments and orders – Where appellants sought declarations as to departmental officers' legal error – Whether appellants had sufficient material interest to seek declaratory relief – Whether declaratory relief appropriate. Words and phrases – "decision made personally", "declaratory relief", "evaluation of the public interest", "executive power of the Commonwealth", "guidelines", "Ministerial Instructions", "more favourable decision", "non-compellable power", "non-delegable power", "non-statutory action", "personal power", "procedural decision", "public interest", "repeat request", "statutory decision", "statutory limitation", "substantive decision", "unique or exceptional circumstances", "2009 Ministerial Instructions", "2016 Ministerial Instructions". Constitution, ss 61, 64, 67, 73. Federal Court of Australia Act 1976 (Cth), s 21. Judiciary Act 1903 (Cth), ss 37, 39B. Migration Act 1958 (Cth), ss 351, 474, 476

TRUSTS – Termination of trusts – Termination of trust by beneficiary – Rule in Saunders v Vautier – Beneficiary entitled to terminate trust

CHILD WELFARE – Adoption – Aboriginal child placement principles – whether Aboriginal child has been placed for adoption – relationship between ss 33 to 35 of the Adoption Act 2000 – where Aboriginal child has one Aboriginal parent and one non-Aboriginal parent – where child placed with non-Aboriginal prospective adoptive parents – where child now 18 years of age CHILD WELFARE – Adoption – Aboriginal child placement principles – whether placement of child has satisfied consultation requirements under s 33 of the Adoption Act 2000

CIVIL PROCEDURE — Separate determination of questions — Consequences of — Disposal of proceedings — Where second defendant successfully appealed against orders made in separate determination of liability but no order made dismissing claim against second defendant

CRIMINAL LAW – jury directions – where Edwards direction sought by the Crown objected to – where direction sought during summing up – where direction opposed by accused for fear of revisiting potentially inculpatory evidence CRIMINAL LAW – jury directions – s165(b) “lies” direction – reasoning in Proud v R (No 2) [2016] NSWCCA 44

CRIME – Appeal and review – Judicial review of decision of District Court dismissing appeal from conviction in the Local Court – where applicant convicted in the Local Court of the offence of assault occasioning actual bodily harm – whether the summons for judicial review was out of time by four and a half years – where the applicant was unrepresented and assisted by a Mackenzie friend – where applicant raised a complaint as to falsification of evidence – where applicant raised complaints in relation to an initial charge of grievous bodily harm, alleged malicious prosecution and asserted the applicant was refused leave to issue a subpoena – where jurisdictional error not established

CRIME — Appeals — Appeal against sentence — Where sentencing judge had regard to a non-existent standard non-parole period for two offences — Where error is such that this Court must exercise the sentencing discretion afresh — Whether a lesser sentence is warranted at law — Finding of special circumstances

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – four sexual offences against stepson over a period of four years – Form 1 offences – where complainant aged between 7 or 8 and 12 years – indicative sentences for counts 1−3 far below the proper range of sentences for such offending – aggregate sentence did not reflect total criminality involved – inadequacy of aggregate sentence and seriousness of offending so marked that the Court must intervene and resentence – appeal allowed – sentence imposed set aside – resentence

CRIME – SENTENCE – application for leave to appeal out of time against sentence – asserted “incompetence carelessness or oversight” of counsel – asserted failure to raise evidence of assistance to law enforcement – question of discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – asserted failure of counsel to make a submission to the sentencing court referring to s 23

CRIME – appeal against conviction – aggravated sexual assault – whether the verdict of the jury is unreasonable or unsupported by the evidence – lack of opportunity – whether the jurors were alive to the inconsistencies, discrepancies and other inadequacies in the evidence – complainant’s evidence not implausible or incredible – jury entitled to prefer evidence of the complainant – appeal dismissed

CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury – where report of Crown expert forensic pathologist omits certain evidence – where that evidence not considered by the accused’s expert forensic pathologist – whether evidence causes the accused’s expert opinion to appear inconsistent – whether there is a risk the jury will prefer evidence of one expert over the other –whether risk of substantial miscarriage of justice

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact — Where no basis for Application — Where application restates matters addressed in impugned judgment CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings CIVIL PROCEDURE — Parties — Leave to institute proceedings — Frivolous or vexatious proceedings

CRIME – sentence – terrorism offence – directing a terrorist organisation – serious terrorism targets contemplated – sentence imposed

CRIMINAL PROCEDURE – extended unanimity direction – whether different factual pathways to guilt – modified Shepherd direction to be given

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where first and second plaintiffs convicted of offences following ICAC investigation – Where plaintiffs seek declarations former Premier and various judicial officers engaged in torture contrary to the Criminal Code (Cth) – Whether pleadings disclose no reasonable cause of action – Whether proceedings would be an abuse of process

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Application to vary costs order made by Court – Calderbank offer

CRIMINAL LAW – fitness to be tried – delusional and paranoid beliefs - accused not fit to be tried – whether may become fit in the next 12 months

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where business partners conducted a business out of a commercial property — Where relationship between the business partners broke down — Where business partners on title as joint tenants rather than the company — Whether sale should not be ordered — Where otherwise no dispute as to formal requirements concerning trustee appointment CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction — Abuse of process — Whether proceedings seeking trustee sale of property were abuse of process — Where current proceedings in the Corporations List concerning breaches of directors’ duties — Where one co-owner’s proceeds of sale of the property would be paid into court pursuant to an undertaking CONTRACT — Formation — Whether contract should be inferred between the parties and the company — Where the terms of such a contract to be inferred were that the parties would continue to lease the property to the company and company would pay rent — Where no contract could be inferred ESTOPPEL — Estoppel by convention — Mutual assumption — Where limited evidence of the parties adopting a mutual assumption — Where limited evidence as to detriment — Where promissory estoppel relied on in the alternative and rejected for similar reasons EQUITY — Unconscionable conduct — Special disability or disadvantage — Where the weaker party was said to be a corporation — Where the corporation was not otherwise party to the proceedings — Where no special disadvantage was demonstrated

ADMINISTRATIVE LAW – judicial review – COVID-19 penalty notices – Whether the brief description on the notices complied with the requirements of s 20 of the Fines Act 1996 (NSW) – Whether the notices are invalid – Whether it is necessary to identify the offence-creating provision in order to satisfy the specification requirement in s 20 of the Fines Act – Should the Court give reasons where the substantive declaration is by consent – Where the plaintiffs are entitled to be vindicated in their claim that the notices are invalid – Where there is a public interest in the reasons for invalidity – The purported penalty notices are invalid

BUILDING AND CONSTRUCTION — adjudication — whether adjudication determination was affected by jurisdictional error — whether the adjudicator failed to afford the parties procedural fairness — jurisdictional error in respect of part of the adjudication determination in relation to retention monies — where the Court has the power to set aside the whole or part of the adjudication determination pursuant to s 32A of the Act

BUILDING AND CONSTRUCTION – contract – damages – defects – whether builder entitled to payment of invoices sued upon – whether building work incomplete – whether building work defective – whether cost of rectifying defects proved – whether owners entitled to claim for Hungerfords interest – whether director in breach of the duty prescribed by the Design and Building Practitioners Act 2020 (NSW)

SUCCESSION – Probate and administration – Where missing person, who is a beneficiary of an intestate estate was last seen in 1979 – Searches and enquiries then conducted in an attempt to locate missing beneficiary – Coronial Inquest which found that person likely to be deceased – No contact with persons with whom the missing person would have been likely to communicate, including family members – No evidence that missing beneficiary is alive or dead, although Death Certificate issued by Coroner – Whether administrator should distribute the share of the intestate estate upon the basis that the missing beneficiary is dead – Court satisfied that the Administrator should be released from that undertaking and that she would be justified in distributing the share of the intestate estate to which the missing beneficiary is entitled to the surviving issue of the deceased – Order also made that the costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

GUARANTEE AND INDEMNITY – factors affecting validity of guarantee – non est factum – whether second defendant erroneously believed he signed guarantee only as director of the corporate borrower – when the signatory knew the essential character of the guarantee – defence of non est factum not established GUARANTEE AND INDEMNITY – factors affecting validity of guarantee – unjust contracts – considerations under s 9 of the Contracts Review Act 1980 (NSW) – contract not unjust in the circumstances relating to the contract at the time it was made GUARANTEE AND INDEMNITY – discharge of guarantor – variation of guarantee – where side agreement between creditor and borrower made prior to execution of guarantee – no alteration of the guarantor’s rights – principle in Ankar Pty Ltd v National Westminster Finance not engaged GUARANTEE AND INDEMNITY – purported execution by corporate guarantor (eleventh defendant) – director’s signature forged – comparison by the Court of signature in guarantee and authentic examples – where satisfied on the balance of probabilities of forgery

CIVIL PROCEDURE – parties – possession proceedings – where the defendant who was the mortgagor had died before proceedings commenced – where no administration of the deceased’s estate applied for – NSW Trustee and Guardian substituted for deceased defendant

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether offer compliant with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) – Whether any reason to depart from ordinary costs consequences under the UCPR following the making of a valid offer of compromise

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

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – adjudication determination – whether adjudication determination is affected by jurisdictional error – whether the adjudicator failed to consider all submissions duly made – held that the adjudicator failed to consider a submission duly made in support of the payment schedule as required by s 22(2)(d) of the Act – held further that the failure was material – jurisdictional error established – declaration made that adjudication determination is void and of no effect

REPRESENTATIVE PROCEEDINGS – plaintiffs sue company and directors – ‘walk away’ offers made by directors – approval of settlement – s 173, Civil Procedure Act 2005 (NSW) – principles and case law review at [25]-[34].

ADMINISTRATIVE LAW – judicial review - appeal from NCAT Appeal Panel – whether there was a denial of procedural fairness – whether there was an opportunity to be heard

CIVIL PROCEDURE – whether leave to rely on late evidence should be granted to the first plaintiff – where disadvantage or real possibility of disadvantage is said to arise EVIDENCE – whether the CEO of a talent manager agency is an ‘expert’ – whether pre-trial ruling should be made

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — notice of motion seeking leave to file further amended statement of claim — where proceedings have been on foot since 2019 — where plaintiffs comprise a group which operates waste management facilities — where dispute regards use of property in Goulburn as waste disposal depot — whether to join proposed fourth plaintiff to proceedings — Civil Procedure Act 2005 (NSW), s 56 — leave denied CIVIL PROCEDURE — Pleadings — Amendment — where current pleading does not identify parties to bridging finance — leave to amend granted CIVIL PROCEDURE — where evidence filed is deficient and requires updating and extension — where plaintiffs propose timetable for service of evidence — plaintiff to meet timetable and matter to be listed for directions COSTS — Party/Party — plaintiffs to pay defendant’s costs occasioned by amendments

ADMINISTRATIVE LAW – Review of medical assessment by Appeal Panel – Judicial review of Appeal Panel Decision – Assessment of whole person impairment – Deduction for previous injury or pre-existing condition or abnormality – Jurisdictional error and error of law on face of the record

HIGH RISK OFFENDER – Preliminary hearing –Serious violent offender – Application for interim supervision order – No controversy about the making of order – Line of sight condition imposed given significant risk posed by defendant and need for gradual reintroduction into community

JUDICIAL ADVICE — Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) — Executors of the estate of deceased legal practitioner seek advice as to whether they are justified in distributing the entirety of the deceased’s estate without retaining any further security notwithstanding the potential contingent liability arising from the deceased’s legal practice or a claim for which his estate may become liable — No known claims but facts including a limited 5 year period pre November 2007 during which deceased’s firm did not apply for exemption from or participate in Professional Standards Schemes and potential issues arising from the deceased’s discrete area of practice relating to family law financial agreements are said to give rise to a risk of claims on the estate — Counsel’s Opinion expresses concern that advertising of claims pursuant to s 92 Probate and Administration Act 1898 (NSW) (PA Act) provides insufficient protection to allow a distribution — Opportunity given to plaintiffs to adduce further evidence bearing upon risks — On facts ultimately disclosed or assumed the risk of a claim is remote SUCCESSION — Executors and administrators (LPRs) — discussion of LPRs’ obligations regarding payment of debts and contingent debts and compromising claims — Discussion of judicial advice and partial administration cases dealing with contingent liabilities SUCCESSION — Executors and administrators — Distribution of estate — Discussion of protective options available to LPRs to distribute the estate in light of potential contingent liabilities — Protective options include indemnity, retention of a fund, insurance, partial administration orders, advertising and judicial advice SUCCESSION — Executors and administrators — Protection afforded by advertising claims — Discussion of the purpose of advertising and procedures for advertising — Discussion of what constitutes notice of claim — Whether constructive notice is notice — The law in New South Wales is not clear as to what if any form or degree of constructive notice might preclude reliance upon s 92(2) PA Act JUDICIAL ADVICE — Distinction between statutory jurisdiction and inherent equitable jurisdiction — Practice and procedure in judicial advice proceedings — Discussion of purposes served by the jurisdiction — Discussion of status of facts stated and consideration by LPRs of adducing additional evidence in face of limited or unknown facts bearing upon issue for determination ORDERS — Discussion regarding disclosure obligations on ex parte applications JUDICIAL ADVICE — Protection afforded pursuant to s 63(2) Trustee Act — Discussion regarding differences between statutory jurisdiction and inherent equitable jurisdiction — Protection afforded to trustees/LPRs under s 63(2) is qualified by a proviso that focuses attention on the state of mind of a trustee/LPR — Protection is seemingly afforded by s 63(2) to a LPR who seeks judicial advice pursuant to s 63, notwithstanding some form of innocent misrepresentation or innocent omission of the facts STATUTORY CONSTRUCTION — Consideration of principles regarding statutory construction — What is material to disclose to a Court depends upon the precise nature and content of any applicable statutory regime — Maxim noscitur a sociis explained LEGAL PRACTITIONERS — Professional Indemnity Insurance — Operation of Professional Standards Schemes — Limitation of liability — Consequences of nonparticipation

CRIME – appeals – appeal against conviction – trial by judge alone – error of fact conceded by the Crown – error central to the trial judge’s reasoning – appeal allowed – new trial

CRIME – appeals – appeal against sentence – use of stupefying drugs to commit sexual offences – female complainant aged thirteen – no sufficient evidence of a deprived upbringing to engage Bugmy principles – no evidence that offender’s cognitive deficiency reduced his moral culpability – no evidence that Covid-19 exacerbated the conditions of the offender’s incarceration – appeal dismissed

CRIME – appeals – appeal against conviction – claimed discrepancies in complainant’s evidence – verdicts of guilty not unreasonable – appeal dismissed CRIME – appeals – appeal against conviction – where one juror discharged during deliberations due to personal commitments – whether trial judge erred in failing to exercise discretion to discharge entire jury – appeal dismissed CRIME – appeals – appeal against sentence – sexual assault of girl aged 9 years – whether sentence manifestly excessive – appeal dismissed

CRIME — APPEALS — Appeal against sentence —Procuring child to engage in sexual activity outside Australia — Persistent sexual abuse of child outside Australia — Whether the sentencing Judge erred in the imposition of a manifestly excessive aggregate sentence — Whether the disproportionately high starting point for the indicative sentence for one offence inflated the aggregate sentence ultimately imposed —Leave to appeal granted — Appeal allowed — Applicant re-sentenced

CRIME — Appeals — Appeal against sentence — drug importation and supply offences — effect of mental illness on moral culpability and general deterrence — assessment of objective seriousness — appeal allowed — applicant resentenced

ADMINISTRATIVE LAW – orders in the nature of certiorari – failure to engage with clearly articulated argument – consent orders – independent assessment that was appropriate.

CORPORATIONS – Winding up – Summons to attend court and be examined – Failure to attend at the examination – Issue of arrest warrant