Cases and authorities

PRACTICE AND PROCEDURE — application for leave to cross-examine deponent on interlocutory application — leave granted on limited basis

SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Person lacking capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff, with a clause leaving the residue of the estate to the Plaintiff, is, or is reasonably likely to be, a will that would have been made by the person who lacks testamentary capacity if he had that capacity – Whether it is appropriate for an order authorising such a will to be made

ADMINSTRATIVE LAW – Grounds of Review – Jurisdiction – Failure to provide proper reasons – Onus of Proof – Appeal refused

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member or former member of company — Where earlier judgment did not permit applicant to act

LEGAL PRACTITIONERS – Claim against Fidelity Fund – Appeal to Supreme Court – Where Fidelity Fund Management Committee wholly disallowed claim – Summons dismissed

EDUCATION – universities – discrimination on the basis of political affiliations, views or beliefs – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were “political” within meaning of s 35 – whether the adverse action taken by the university was taken “because of” student’s views HUMAN RIGHTS – discrimination – grounds – political discrimination – challenge to internal university disciplinary decisions – s 35 of Western Sydney University Act 1977 (NSW) prohibits denial of progression within the university on the basis of political affiliations, views or beliefs – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where university subsequently imposed disciplinary sanctions – whether views or beliefs expressed by student were “political” within meaning of s 35 – whether the adverse action taken by the university was taken “because of” student’s views CIVIL PROCEDURE – hearings – procedural fairness – where university cancelled clinical placements of nursing student who expressed scepticism about the safety and efficacy of COVID-19 vaccination while attending placements – where student sought declaratory and interlocutory relief – where university imposed further disciplinary sanctions on student after commencement of proceedings – primary judge made declaration that the disciplinary sanctions were unlawful notwithstanding that student had not advanced an argument to that effect – whether university was fairly put on notice that the lawfulness of the later disciplinary sanctions would be in issue – whether there was a denial of procedural fairness

CRIMINAL LAW – appeal against conviction of murder – jury finding that the applicant was the offender who shot the deceased – co-offender found guilty of manslaughter – co-offender confesses to being the offender who shot the deceased, not the applicant – whether miscarriage of justice – whether conviction should be quashed and new trial ordered – whether fresh evidence – whether apparently credible or capable of belief – whether significant possibility the jury acting reasonably would have acquitted the applicant if the co-offenders evidence was available at trial

CRIME – conviction appeal – where Crown prosecutor who signed the indictment was not authorised to do so – whether trial and conviction are a nullity because of invalid indictment – Crown conceded – conviction quashed and retrial ordered

CRIMINAL PROCEDURE — suppression and non-publication orders — appeal against decision not to make non-publication order — where applicant is alleged to have committed a series of offences — where applicant applied for suppression and non-publication orders in relation to his name and his wife’s name — where applicant claimed that the orders were necessary to protect his safety, his wife’s safety and the safety of family members — where applicant relied on evidence in relation to his and his wife’s cultural background and circumstances — where applicant and his wife belonged to the Jat community originating from the Indian subcontinent — where persons whose safety was said to be at risk were located in Australia and India — whether orders “necessary to protect the safety of any person” — “calculus of risk” approach — appeal dismissed

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – multiple counts of sexual offences – where Applicant found guilty on two counts and acquitted on four counts – whether verdicts of guilty are unreasonable due to inconsistency with verdicts of not guilty – single complainant – acquittals able to be explained without recourse to complainant’s credibility – ground rejected – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – ground rejected – appeal dismissed

CIVIL PROCEDURE — Parties — Addition of defendants — where plaintiff seeks leave to file an amended statement of claim — where plaintiff seeks leave to proceed and continue proceedings against proposed second defendant pursuant to Civil Liability (Third Party Claims Against Insurers) Act 2017 — where first defendant is a part of a complex group of companies — where plaintiff alleged that one or more of the companies in the group was liable in negligence with respect to accident at construction site — where proposed second defendant was insurer with respect to the construction site for entities in that group of companies — whether leave should be granted to amend the statement of claim — whether leave should be granted proceed and continue proceedings against proposed second defendant — leave granted in both respects

CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – partial defence of substantial impairment to be raised – application of community standards – whether in the interests of justice to make trial by judge order – importance of community participation in the criminal justice system

CONTRACTS – LOAN – DECEASED ESTATE – where a deceased person is alleged to have lent monies to an adult child – requirements to establish the existence of a contract for loan – existence of loan not established

Succession – Intestacy – Burial Rights – Nature and purpose of Court’s jurisdiction – Determination of competing claims to have carriage of disposal of deceased person’s body – Burial versus cremation – Cultural division between estranged parents of deceased adult son.

HIGH RISK OFFENDER – threshold jurisdictional issue raised – whether the defendant is a supervised offender while subject to a recognizance release order under s 20 of the Crimes Act 1914 (Cth) for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW) – meaning of “serving a sentence of imprisonment” and “under supervision” in ss 5I and 6 of the Crimes (High Risk Offenders) Act – summons filed too early – summons dismissed HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – defendant sentenced for multiple offences of sexually assaulting women at knifepoint – risk of committing a serious violence offence – previous breaches – long history of sexual paraphilia – various statistical measures of risk – no opposition to order being made

PROCEDURE – application for leave to lodge caveat – interest in land created under Home Building Act 1989 (NSW), s 7D – leave required where earlier caveat allowed to lapse – attempt to prevent earlier caveat lapsing – no significant delay – interest in land based on assessed costs – judicial review of judgment dismissing appeal from costs assessment – limited prospects of success

CROWN LAND - “Crown lease restricted” - Crown land - whether lease granted in 1994 over Crown land resulted in land being “Crown lease restricted” for purposes of Valuation of Land Act 1916 (NSW), s 14I - whether lease a “holding” for purposes of Valuation of Land Act - whether lease granted under Crown Lands Act 1989 (NSW) or Fish Marketing Act 1994 (NSW) - significance of transfer of land in 2006 from Crown to State Property Authority - whether vesting of land in a statutory authority caused land to cease to be Crown land STATUTORY CONSTRUCTION - whether lease granted in 1994 over Crown land was exercise of power under Crown Lands Act 1989 or Fish Marketing Act 1994 or both - significance of identity of Minister executing lease - significance of preconditions to exercise of power under Crown Lands Act - whether implied repeal - whether Fish Marketing Act displaced Crown Lands Act - importance of identifying whether in fact Fish Marketing Act conferred power at all

CIVIL PROCEDURE – extension of time to commence court proceedings pursuant to s 151D Workers Compensation Act 1987 (NSW)

CIVIL – s 49 of the Proceeds of Crime Act 2002 (Cth) – duty judge – ex parte judgment – non-appearance of third defendant – orders sought in the short minutes of order provided to the Court – application granted

ADMIINISTRATIVE LAW – judicial review – grounds – provision of financial assistance to non-government schools – discretionary power to recover funds from schools operating for profit – conditions of engagement of power – whether dependent on declaration that school non-compliant – power to recover part only of amount – whether Minister misapprehended scope of power ADMIINISTRATIVE LAW – judicial review – grounds – review of fact-finding – unreasonableness – outcome not unreasonable – challenge to material fact, not jurisdictional nor essential to outcome EDUCATION – non-government schools – government financial assistance – school operating for profit – funding continued – recovery of past payments made while school operating for profit STATUTORY INTERPRETATION – criteria of engagement of power – whether criterion dependent on satisfaction of decision-maker where not stated but other criteria were – whether declaration as to present circumstances extends to past periods – use of present tense “is” – Education Act 1990 (NSW), Pt 7, Div 3

CONSTITUTIONAL LAW – implied freedom of political communication – challenge to validity of public health orders – orders made pursuant to the Public Health Act – whether open to challenge the constitutional validity of the order, as opposed to the statute under which it was made CONSTITUTIONAL LAW – implied freedom of political communication – statutory power to make public health orders conferred on Minister under Public Health Act 2010 (NSW) – whether powers restricted freedom of political communication – whether powers suitable to achieve their purpose – whether burden on the freedom necessary – whether law adequate in its balance LAW ENFORCEMENT ACT – challenge to power conferred on police officer to give move-on direction in a public place – limitation based on implied freedom of political communication – statutory limitation on exercise of power in relation to a demonstration or protest – no burden on political communication

LIMITATION OF ACTIONS – statute limiting recovery of rates paid to Council – Recovery of Imposts Act 1963 (NSW), s 2(1) – limitation period 12 months from date of payment – whether s 2(1) disapplied – challenge to validity of impost, but no recovery claimed under Local Government Act – whether Local Government Act allowed a claim for recovery of overpayment – whether different limitation period specified LOCAL GOVERNMENT – rates and charges – challenge to Council’s categorisation of land as “mining land” – consent orders filed in Land and Environment Court – land recategorised as “farm land” – claim for recovery of rates paid to council calculated as for mining land RESTITUTION – statutory claim for repayment of rates – action at common law based on restitution – proceedings seeking relief in separate courts – reasonable doubt as to correct court – no abuse of process – defence of Anshun estoppel

LAND LAW — Co-ownership — Statutory trust for sale — Whether primary judge erred in ordering statutory trust for sale — Baseless contentions that court has no jurisdiction over the appellant or that the law does not apply to him — Baseless allegations of forgery and fraud — No issue of principle

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Juror confusion — Alternative counts put to jury but absent from indictment — Suggestion that jury had confused two counts — Any confusion subsequently clarified — Approach of listing only some alternate charges on indictment deprecated CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Inconsistent verdicts — Applicant charged with three contemporaneous sexual offences — Convicted of more serious offence, acquitted of another and jury hung on third — Possible rational basis for explaining the verdicts — Whether proper to reconcile verdicts by reference to possible rational explanation in light of misdirections CRIME — Appeals — Appeal against conviction — Wrong decision on a question of law — Inadequate Liberato direction — Failure to direct jury as to second limb of Liberato — Real chance misdirection affected jury’s verdict CRIME — Appeals — Appeal against conviction — Wrong decision on a question of law — Misdirection as to use of evidence of delay in complaint — Application of Criminal Procedure Act, s 294 — Provision does not require the giving of a direction that delay in complaining is not relevant — Delay central to defence case CRIME — Appeals — Appeal against conviction — New trial — Unreasonable verdict — Discretion to order retrial where inconsistent verdicts

SENTENCING — Appeal against sentence — Whether procedural irregularity at sentencing hearing denied applicant benefit of greater sentencing discount for guilty plea — Where applicant found unfit to be tried after committal for trial but subsequently found fit to be tried — Whether applicant pleaded guilty “as soon as practicable” after being found fit to be tried —Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(5)(a) — Whether additional evidence of circumstances leading to guilty plea admissible

CRIME – sentence appeal – three counts of sexual intercourse with a child – aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years and 3 months – finding of special circumstances – whether sentencing judge erred in the assessment of objective seriousness – whether sentence manifestly excessive – leave to appeal granted - appeal dismissed

CRIME – appeals – appeal against sentence – intimidation offence – specially aggravated detain for advantage offence – whether findings of the objective seriousness of both principal offences were not open on the facts of this case – whether the aggregate sentence imposed was manifestly excessive – appeal dismissed

CRIME – APPEAL – appeal against sentence – Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1) – attempt to possess unlawfully imported border controlled drug – commercial quantity – ratio of non-parole period to the overall sentence – existence of convention in Commonwealth matters – manifest excess

CIVIL PROCEDURE – notice to produce issued pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 34.1 – application to set aside – where the first and second defendants have been found guilty of contempt – where the first and second defendants are exposed to penalties for contempt – whether the privilege against exposure to a penalty can be invoked to set aside the notice to produce – whether the first and second defendants waived the privilege against exposure to a penalty by serving affidavits in relation to the penalty hearing – notice to produce set aside – held that the privilege against exposure to a penalty remains available notwithstanding findings of guilt for contempt – held that the mere service of affidavits does not constitute a waiver of the privilege against exposure to a penalty beyond perhaps the contents of the affidavits themselves

CIVIL PROCEDURE – summary disposal – striking out of pleadings – plaintiff involved in residential tenancy proceedings in NCAT – first plaintiff’s wife and daughter signed residential tenancy agreement – first plaintiff contended he was a party to agreement – NCAT removed first plaintiff as party to the proceedings but allowed him to appear – first plaintiff commenced multitudinous proceedings in his name and wife and daughter’s name against owners, agents, NCAT members and judges – dismissal of proceedings – strike out of pleadings – where plaintiff is a bankrupt and proceedings brought on behalf of others – pleadings bad in form – judicial immunity and derivative judicial immunity upheld – proceedings dismissed – first plaintiff not given liberty to replead – Vexatious Proceedings Act – power to make order of Court’s own motion – interlocutory order made pending outcome of recommendation to Attorney-General – interlocutory order made

CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of person under a disability

TORT – trespass to land – where several defendants and many other unidentified persons drove onto the plaintiff’s land and dumped waste on the land – whether defendants did so with the consent of the plaintiff or the person in possession of the land at the time – whether person in possession at the time had actual or ostensible authority of the plaintiff to authorise defendants to dump waste on the land – where person in possession was a trespasser – whether the defendants had a licence supplied by law to dump waste on the plaintiff’s land – whether defendants contravened Protection of the Environment Operations Act 1997 (NSW) by transporting the waste to and dumping it on the plaintiff’s land – causation and loss – identification of the harm caused to the plaintiff by each defendant’s trespass – whether each defendant severally liable for the whole of the costs incurred by Rove in cleaning up the total waste dumped by defendants and many unidentified persons – whether plaintiff’s claim an “apportionable claim” and “single apportionable claim” within the meaning of s 34 of the Civil Liability Act 2002 (NSW) –where imprecision, but rational basis for assessment of compensatory damages for harm caused by each defendant’s trespass – exemplary damages

COSTS – indemnity costs – whether plaintiff should have known that its case was hopeless prior to the commencement of the final hearing - no question of principle

CRIMINAL LAW – sentence - wilful misconduct in public office – Labor Party minister – mining – exploration licence – public official – loss of public confidence in the system of government – community groups and industry wasting their time – absence of maximum penalty – advanced age and ill health – onerous conditions of custody – totality of sentence between counts – totality of sentence with prior offence – the ceiling principle applied

CIVIL PROCEDURE — interim preservation — freezing orders — against third parties — good arguable case — danger that actual or prospective judgment debt will be wholly or partly unsatisfied —interests of justice — balance of convenience —jurisdiction is to be exercised with a high degree of caution

LEASES AND TENANCIES – Retail leases – Valuation – market rent – whether expert rental valuation report complied with the terms of the Retail Leases Act 1994 (NSW) LEASES AND TENANCIES – Retail leases – license – whether the licensed area, being a disused lift shaft, loading dock and roof area, constituted a ‘retail shop lease’ APPEALS – from Civil and Administrative Appeals Tribunal only “on a question of law”

CONTEMPT – Criminal contempt – Contumacious breach of orders by executor – Significance of contemnor being an executor – Non-production – Penalties – Imprisonment

CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of person under a disability

COSTS – party/party – general rule that costs follow the event – where costs could be seen as jointly attributable to claim and cross-claim – where Court not asked to apportion costs

GUARANTEE AND INDEMNITY ­– Actions to enforce guarantee – Guarantor’s liability – Claim by landlord to recover unpaid rent, loss of bargain damages and other losses under guarantee and indemnity in Sub-Lease

APPEALS – interlocutory appeal – decision of Dust Diseases Tribunal in point of law – continuation of hearing – failure to return matter to claims resolution process – prejudice to parties – no error in point of law COURTS AND JUDGES – review of decision of specialist tribunal – procedure for urgent hearings followed – order in nature of prohibition not warranted

APPEAL — negligence — whether reasons sufficient — nature of breach found — contested factual findings of primary judge — assessment of witnesses’ evidence — nature of review on appeal TORTS — alleged incongruity between criminal act of respondent and imposition of duty of care on appellant — defence of illegality under the common law and s 54 of the Civil Liability Act 2002 (NSW) — whether appellant acting in self-defence — application of ss 52 and 53 of Civil Liability Act 2002 (NSW) TORTS — consideration of “agony of the moment” defence — where onus lies — evidentiary onus TORTS — contributory negligence — whether sufficient reasons given for discount of 25% when appellant sought 80-90%

APPEALS - Leave to appeal - Leave to appeal against summary dismissal of applicant's appeal from decision of Appeal Panel of New South Wales Civil and Administrative Tribunal - Where amount in dispute between parties negligible - Where summary dismissal followed applicant's non-appearance at two hearings set for respondents' motion to summarily dismiss proceedings - Where applicant's non-appearance explained on basis of serious medical condition requiring hospitalisation and later surgical intervention - Where applicant claims primary judge was biased in summarily dismissing his proceedings - Where applicant's claims before Tribunal and primary judge not shown to be reasonably arguable - Leave to appeal refused - No issue of principle

CRIME – appeal and review – application for inquiry into conviction – referral to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether absence of evidence from trial and appeal to District Court resulted in miscarriage of justice – where miscarriage of justice has occurred – whether appropriate to direct entry of a verdict of acquittal or order retrial

CRIME — Appeals — Appeal against conviction — whether jury verdict unreasonable— where appellant convicted of one count of making an indecent communication to a person under 16 — Crown case that indecent words were spoken in a phone call on one particular date — Crown required to prove beyond reasonable doubt that offending occurred on that date — whether jury must have had doubt that the words were spoken in a call on that date — where evidence of date of call was inconsistent — where complainant’s evidence of date of call was unreliable

CRIMINAL LAW – sentence appeal – concession by Crown that there was a factual error by the sentencing judge in finding that some of the offending continued after initial arrest – Court required to resentence – multiple instances of sexual offending committed over a 15-year period involving 22 children – no lesser sentence warranted in law – leave to appeal granted – appeal dismissed

CRIME — appeals — appeal against sentence —affray at King’s Cross nightclub – assault of police officers in execution of duty – actual and grievous bodily harm inflicted – applicant convicted of multiple counts – standard non-parole periods taken into account with regard to certificate offences dealt with notionally in Local Court – material error established – appeal allowed – resentenced

COSTS — Statutory derivative action — Whether costs should be ordered against plaintiff in unsuccessful application for leave to bring derivative action

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — unsuccessful party ordered to pay costs of proceedings and motion — Civil Procedure Act 2005 (NSW), s 98 — Uniform Civil Procedure Rules 2005 (NSW), r 42.1

ADMINISTRATIVE LAW – Bias rule –– alleged apprehended bias – whether member who sat on Workers Compensation Commission could also be member of Appeal Panel to assess degree of permanent impairment WORKERS COMPENSATION – Medical assessment – Application of Workers Compensation Guidelines – whether error shown in application of Guidelines