Cases and authorities

CRIMINAL CODE – terrorism high risk offender – post-sentence order – extended supervision order – community protection – Division 105A – comparable State legislation – unacceptable risk – expert evidence – management in community – fixation with religion – fluctuation in extremist beliefs – significant mental illness – significant substance abuse disorder – treatment and rehabilitation programs – risks associated with deterioration of mental state and substance abuse – various measures to mitigate risk – whether offender poses unacceptable risk of committing serious Part 5.3 offence – whether each condition and combination of conditions is reasonably necessary and reasonably appropriate and adapted to protect the community from unacceptable risk

STATUTORY CONSTRUCTION – whether regulation styled “Commercial leases – COVID-19 pandemic special provisions” being Sch 5 of the Conveyancing (General) Regulation 2018 (NSW) is invalid to the extent it purported to prohibit the recovery of possession or termination of a lease by a lessor under the terms of a lease – whether the COVID-19 Regulation was authorised under ss 87(1)(c) or (d) of the Retail Leases Act 1994 (NSW)

WORKERS COMPENSATION — Claim for compensation — Claim made by former police officer — Claim made on company engaged by Self Insurance Corporation as claims manager to assess claims under Government managed fund schemes — Claim not determined within relevant period — Private prosecution of company by claimant — Whether criminal liability extends to parties engaged to manage and assess claims under Government managed fund schemes

INSURANCE — Property insurance — primary judge did not err in finding that insurer had acted unreasonably and in bad faith by not paying so much of the claim for which liability was admitted and then determining quantum of claim — observations on construction of policy and whether parties were correct to conduct trial on the assumption that cover depended on insurer’s opinion

EQUITY – Unconscionable conduct – existence of a joint endeavour to pool resources and undertake work for mutual benefit – motivation for contributions – absence of proof that it was not intended for the respondents to hold full beneficial ownership if the relationship failed – no finding that it would be unconscionable to deny the existence of the equitable interest

APPEAL – competence – relief confined to removal of trustee – whether amount in issue exceeded $100,000 – Supreme Court Act 1970 (NSW) s 101(2)(r) – appeal dismissed as incompetent TRUSTS – application to remove trustee – sole director of trustee was also principal of law firm which provided legal and non-legal services to trustee – whether unitholder had given fully informed consent – unitholder had agreed to “commercial settlement” for director to provide legal and non-legal services at reduced rate – unitholder had benefit of independent legal advice – unitholder unable subsequently to complain of conflict of interest – leave to appeal refused

SENTENCING – parity – drug supply offences - assessment of comparative culpability of co-offenders – different statement of agreed facts for each offender – each offender only to be sentenced on the basis of the statement concerning that offender – comparison exercise does not involve considering role of offender as described in statement of facts for co-offender – leave granted – appeal allowed – applicant resentenced

CRIME – appeals – appeal against sentence – supply prohibited drug – where applicant has medical condition requiring surgery – where leave sought to adduce further evidence in support of appeal – whether further evidence establishes that no longer possible for applicant to pursue that surgery whilst in custody

CRIME – sentence appeal – where the applicant pleaded guilty to one count of specially aggravated break and enter – whether error in considering the impact of the applicant’s mental health on his moral culpability – no error shown –manifest excess – consideration of comparable cases committed in a domestic setting – sentence plainly unjust – resentenced

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where discrepancies in evidence about timing — whether discrepancies could be explained by complainant’s age — appeal dismissed

CRIMINAL LAW – appeal – appeal against sentence – 17 counts of child sexual offences committed against nine victims over 28 years – 10 Form 1 offences taken into account – where applicant sentenced to 30 years’ imprisonment with a non-parole period of 20 years – whether sentencing judge erred in assessment of objective seriousness of individual counts – whether trial judge erred in failing to indicate where on the scale of seriousness each of the offences fell – whether sentence manifestly excessive

FAMILY LAW — Children — Adoption — Whether child is an Aboriginal child pursuant to Adoption Act 2000 (NSW) — Consideration of consultation requirements of s 33(1)&(2) of that Act particularly whether consultation is required prior to placement of child for adoption or whether such consultation can take place after physical placement STATUTES — In the event the proper construction of s 33(1)&(2) required consultation prior to placement of the child for adoption such performance of the statutory requirement was practically impossible — Performance of the statutory requirement if impossible may be excused FAMILY LAW — Consideration of placement of child with non-Aboriginal parents FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Change of name — Registration of adoption plans

CRIME – trial – judge alone – wilful misconduct in public office – reasons for verdict – re-trial – grant of consent to apply for exploration licence – grant of exploration licence – circumstantial case – Labor Party – impending retirement – Noble House meeting – successful pre-selection – issue of friendship – motivation – coal allocation guidelines – Prime Restaurant meeting – Strangers’ Dining Room meeting – Nippon Club meeting – signing at the Catalina Restaurant – failure to seek advice from relevant bodies – challenging financial environment – consciousness of guilt evidence – improper purpose – driving force – misconduct established – verdict of guilty CRIME – trial – judge alone – accessory before the fact to wilful misconduct in public office – mining industry – direct allocation of a commercially valuable resource sought – whether the accused intended the minister to misconduct himself in granting the exploration licence – issue of friendship – benefits of training mine – long standing commitment to health and safety – “too good to be honest” – knowledge of probity issues – strategy allegedly devised at Prime Restaurant – motives – accused’s state of mind – obligations as a director – lobbying – verdict of not guilty – acquittal

EQUITY – trusts – charitable trusts – relationship with statute – Necropolis Act establishes cemetery with denominational burial grounds on Crown land – Necropolis Act vests denominational burial ground land in trustees and provides for appointment, removal, functions and responsibilities of trustees – Necropolis Act amended to bring appointment, removal, functions and responsibilities of trustees under Crown Lands Act – Necropolis Act repealed – Crown Lands Act re-enacted to vest land in Crown and extinguish any trust over burial ground land - whether Necropolis Act established charitable trust or only “statutory trust” over burial ground land and proceeds of operation of burial ground – effect of re-enactment of Crown Lands Act on burial ground proceeds

LAND LAW — Conveyancing — Options – Put and call option – Classification of a payment as an option fee or a deposit – Payment properly characterised as an option fee for full consideration – Not recoverable as a deposit upon the contract coming to an end otherwise than by completion

MORTGAGES AND SECURITIES — whether Deed recorded a transaction that was in substance a mortgage — whether obligation to transfer interest in property was a collateral advantage — unconscionability of obligation — Kreglinger (G&C) v New Patagonia Meat and Cold Storage Company Ltd [1914] AC 25 considered — Lord Parker’s three propositions

APPEALS – from findings of fact – circumstantial proof – inferences from primary facts – where insurer denied claim on basis of insured’s knowledge of and connivance in and consent to theft and arson – whether controlling mind and will of insured company had requisite knowledge – primary judge’s reasoning circumstantial and based on inference – whether strands of primary judge’s reasoning were capable of sustaining ultimate conclusion INSURANCE – property insurance – industrial and special risks cover – liability cover – fraud – theft from and subsequent arson of bonded warehouse – where insurer denied claim on basis of insured’s knowledge of and connivance in and consent to theft and arson – whether controlling mind and will of insured company had requisite knowledge – primary judge’s reasoning circumstantial and based on inference – whether strands of primary judge’s reasoning were capable of sustaining ultimate conclusion – whether insurer’s denial of indemnity and allegation of arson were a breach of insurer’s duty of utmost good faith implied by s 13 of the Insurance Contracts Act 1984 (Cth) – whether insured was entitled to recover damages for consequential loss – whether insured had failed to take reasonable precautions to secure warehouse INSURANCE – measure of indemnity – loss – business interruption cover – where forensic accounting experts disagreed on whether insured company had positive revenue growth trend – where primary judge held that there was no such trend – where primary judge held that insured company had concrete prospects of procuring new customers – whether evidence supported finding that there was no positive growth trend in insured’s revenue – where Court must do the best it can with the evidence available to assess damages

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application at first Court hearing under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of sole member of registered foreign company to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied – Whether Court should decline to exercise discretion to convene scheme meeting – Application at second Court hearing for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved – Transfer of assets within reconstruction of associated companies.

CONTRACT – where plaintiff and defendant were parties to a deed establishing a mutual risk scheme for the pooling of local councils’ property and public liability/professional indemnity risks and the insurance of those pooled risks – where plaintiff was a local council whose risks had been pooled and insured in accordance with the deed since 2000 and defendant was the manager of the scheme – where plaintiff and each other party to the deed appointed the defendant to advise the Board of the scheme in relation to the insurance to be obtained for the pooled risks and to negotiate and place that insurance on the instructions of the Board – where that insurance was renewed annually – where annual renewal practices included the defendant seeking information from the plaintiff in relation to its property and public liability/professional indemnity risks and issuing a renewal report naming the scheme as the “recommended insurer” or “recommended provider” for the plaintiff’s property and public liability/professional indemnity cover - where renewal report and other annual renewal documentation issued by the defendant also addressed the renewal of the plaintiff’s insurance policies that were outside the scope of the scheme and in respect of which the defendant acted as the plaintiff’s insurance broker – where, at the time the defendant issued the annual renewal documentation to the plaintiff, the plaintiff was required by the deed to pay contributions to the scheme in respect of property and public liability/professional indemnity cover for the immediately forthcoming insurance year by reason of not having given the requisite period of notice of retirement from the scheme – whether the defendant acted as the plaintiff’s insurance broker in respect of property and public liability/professional indemnity cover during each annual renewal process and whether the defendant recommended to the plaintiff during each annual renewal process that the plaintiff’s property and public liability/professional indemnity cover for the immediately forthcoming insurance year should be arranged within the rubric of the scheme – whether the defendant and the plaintiff entered into a contract during each annual renewal process for the provision of such insurance broking services to the plaintiff, including an implied term requiring the defendant to exercise reasonable care and skill in providing such services – whether alleged contracts inconsistent with deed – whether alleged contracts breached – whether any such breach caused loss of opportunity for plaintiff to obtain alternative suitable property and public liability/professional indemnity insurance in the market at lower cost than its contributions to the scheme and/or loss of opportunity to negotiate or “obtain” lower contributions payable to the scheme - whether causes of action barred by application of s 14 of the Limitation Act 1969 (NSW). TORT – whether, in the circumstances referred to above, the defendant acted as the plaintiff’s insurance broker in respect of property and public liability/professional indemnity cover during each annual renewal process and whether the defendant recommended to the plaintiff during each annual renewal process that the plaintiff’s property and public liability/professional indemnity cover for the immediately forthcoming insurance year should be arranged within the rubric of the scheme – whether the defendant owed a duty to the plaintiff to exercise reasonable care and skill in providing any such broking services and in making any such recommendations to the plaintiff - whether alleged duty of care inconsistent with deed – whether known reliance by the plaintiff on any such recommendations - whether alleged duty of care breached – whether such any breach caused loss of opportunity for plaintiff to obtain alternative suitable property and public liability/professional indemnity insurance in the market at lower cost than its contributions to the scheme and/or loss of opportunity to negotiate or “obtain” lower contributions payable to the scheme - whether causes of action barred by application of s 14 of the Limitation Act 1969 (NSW). EQUITY – fiduciary duties – whether, in the circumstances referred to above, the defendant acted as the plaintiff’s insurance broker in respect of property and public liability/professional indemnity cover during each annual renewal process and whether the defendant recommended to the plaintiff during each annual renewal process that the plaintiff’s property and public liability/professional indemnity cover for the immediately forthcoming insurance year should be arranged within the rubric of the scheme – whether defendant owed fiduciary duties to plaintiff – “no conflict” and “no profit” rules - where defendant entitled under the deed referred to above to such fees and remuneration as determined by the Board for the defendant’s services in relation to the scheme – whether conflict at the time of the alleged recommendations between defendant’s interests in earning fees under the deed and plaintiff’s interests in obtaining suitable property and public liability/professional indemnity insurance at best premium rates reasonably available to it in the market – whether the alleged recommendations (if made) were made in breach of fiduciary duties owed by defendant to plaintiff – whether causes of action barred by application of ss 14-15 of the Limitation Act 1969 (NSW) applied by analogy. REPRESENTATIVE PROCEEDINGS – where plaintiff brought proceedings on own behalf and on behalf of nineteen local councils who were also parties to the deed – common questions answered. PRACTICE AND PROCEDURE – pleadings – amendment – where proposed amendments incoherent – leave to amend refused. PRACTICE AND PROCEDURE – pleadings – essential function of pleadings – disputes about scope of pleaded causes of action – whether defendant required to read plaintiff’s pleading in a manner contrary to its plain terms and including certain unstated matters as a matter of “necessary” inference in order for the pleading to make “coherent sense” and to avoid fundamental difficulties that otherwise beset the plaintiff’s pleaded causes of action – whether plaintiff entitled to run a case at final hearing that defendant had made the alleged recommendations with the intention of maintaining or maximising its fees to the detriment of the plaintiff – whether allegation amounts to an allegation of fraud – whether proper notice of the allegation given by the statement in the pleading that the defendant “pursued or advanced its own interests” by making the alleged recommendations – whether defendant taken by surprise.

COSTS — Party/party costs — Where the party seeking costs sought the winding up of a company on certain grounds but application not determined on its merits — Where the company was wound up on different grounds on the application of a provisional liquidator — Whether Court will make an order for costs in favour of the party.

REAL PROPERTY – EASEMENTS – dispute in relation to the use of various easements for the use of an inclinator, the supply of services, giving rights-of-way, and other related easements – between the plaintiff and the defendants who are neighbours – interlocutory orders made in August 2022 pending determination of final issues – the early determination of some issues to reduce the number of disputes between the parties considered – whether early determination of some of the issues is possible – of the issues isolated one is identified as capable of early determination, as to whether a CCTV camera is authorised by Easement I to be positioned on the plaintiff’s land.

SUCCESSION – Probate and administration – Where missing person last seen in 1972 – Extensive searches and enquiries conducted in an attempt to locate missing person, including of NSW Police, which attempts unsuccessful – Where missing person has not been located – No evidence that missing person is alive or dead – No contact with persons with whom the missing person would have been likely to communicate, including family members, being his mother, and his siblings – Whether presumption of death may be relied upon to make declaration that the missing person is not alive PRACTICE AND PROCEDURE – Declaratory relief sought where no contradictor – Whether declaration should be made that a person who has been missing for about 50 years, upon presumption of death, is no longer alive

EQUITY – Equitable remedies – relief against forfeiture – leases - interlocutory injunctions to restrain termination of leases and possession of eight service station sites operated by different plaintiffs – whether serious questions to be tried that lessee plaintiffs entitled to relief against forfeiture - where asserted breaches relate to termination of exclusive fuel supply agreements with first defendant – where plaintiffs’ claim that fuel supply agreements terminated due to supply failures by first defendant – whether clauses relied on by landlords as giving rise to rights to forfeit and re-enter protect landlords interests – whether landlords will suffer loss from the breaches of leases – balance of convenience – adequacy of undertaking as to damages

APPEALS — Procedural fairness — Hearing rule — where applicant alleged failure to disclose evidence which was central to findings of contempt — whether legitimate forensic purpose could be demonstrated in seeking leave to issue a subpoena

INSURANCE – liability insurance – exclusions – where endorsement excluded cover for liability arising out of specified cutting or welding activities unless carried out in compliance with relevant Australian Standard – where those activities included use of “spark producing equipment” – where use of power cutter to cut steel produced sparks which caused bushfire – whether primary judge erred in concluding power cutter was within description “spark producing equipment”

ABORIGINAL LAND RIGHTS – claim to Crown land – whether land needed for an essential public purpose – land needed if actual decision of government – government decision around 40 years before land claim – misdirection to accept that decision without other evidence as proof of need at claim date – finding of need not reasonably open on evidence – finding of likely need not reasonably open on evidence

COSTS – indemnity costs – restraint of trade dispute – offer of compromise by defendants before commencement of proceedings – plaintiff’s claim dismissed – whether failure to accept offer unreasonable – claims failed on evidence at the hearing – undertakings given prior to the hearing – order for indemnity costs refused

SECURITY FOR COSTS – extension of time to provide – no question of principle

COMMERCIAL ARBITRATION – conduct of arbitral proceedings – Commercial Arbitration Act 2010 (NSW), s 18, “reasonable opportunity of presenting the party’s case” – Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii), 34(2)(b)(ii) – principles at [4]-[28]. COMMERCIAL ARBITRATION – ARBITRAL AWARDS – dissolution of family farming partnership – father and son each retain accounting experts – issue whether farms were gifts or held on trust for partnership – directions for interim award on trusts – interim award in favour of son – father retains new lawyers – father seeks to broaden attack on partnership accounts – arbitrator declines – father retains new accounting expert – arbitrator restricts arbitral process to existing experts – arbitrator prohibits experts from communicating with new expert – whether “unable to present the party’s case – whether award in conflict of public policy – award set aside – interim award stands. COMMERCIAL ARBITRATION – SET ASIDE OR SUSPEND – Commercial Arbitration Act 2010 (NSW), ss 34(4) – principles at [147]-[155] – whether Court should set aside suspension of setting aside order and remit to arbitrator to correct defects – whether arbitrator can continue in fair manner – arbitrator made extremely critical remarks – no suspension of setting aside order.

LAND LAW – Caveats – Caveatable interest – Serious question to be tried – Balance of convenience – Summons must seek final relief – No issue of principle

PROCEDURE — costs — security for costs — application by plaintiff for security for costs of defending cross claim — exercise of discretion

CIVIL LAW — high risk offender — terrorism — violent extremism — whether offender should be subject to further extended supervision order (final) — whether unacceptable risk offender will commit serious terrorism offence — appropriate conditions

ORDERS — Discussion regarding orders to give effect to findings in respect of successful estoppel claim COSTS — Meaning of event — Discussion regarding whether claims of husband and wife plaintiffs were substantively different claims such that a discrete costs order should be made in respect of a claim dismissed that that the wife was entitled to the benefit of a particular representation – Discussion regarding whether the company the subject of the estoppel the claimed shares and claimed property was an active defendant or whether the widow of the deceased who was under the deceased’s last Will gifted the deceased’s shareholding in the company was the main active defendant COSTS — Offers of compromise — Whether offer valid — Meaning of must not include an amount for costs in r 20.26(2)(c) UCPR COSTS — Offers of compromise – Approach to assessment of whether judgment outcome is “no less favourable” than offer in r 42.14(1) UCPR — Court approaches issue substantively COSTS — Claims for indemnity costs — Reasons to order otherwise — Consideration of various contentions regarding plaintiffs’ conduct of proceedings COSTS — Set off — Whether costs in proceedings should be set off

WORKERS COMPENSATION — Interest on damages — No interest payable on damages for domestic services, nursing and attendance or for non-economic loss where plaintiff is a coal minter COSTS — Indemnity costs — Calderbank offer — Related consideration of additional evidentiary statement by the plaintiff which raised matters promptly after the defendant company made a relevant announcement

PRACTICE AND PROCEDURE – Significant history of proceedings brought by the plaintiff – Further notices of motion brought by the plaintiff – Application for summary dismissal – No point of principle

SUCCESSION — family provision — jurisdiction —deceased’s spouse makes family provision applications in New South Wales and Australian Capital Territory — whether deceased domiciled in New South Wales or Australian Capital Territory at date of death — consideration of principles governing domicile under private international law — deceased dies with moderately large actual estate but potentially substantial notional estate held by discretionary trust and corporate entities — availability of notional estate regime under Succession Act 2006 (NSW), Pt 3.3 where deceased found to have been domiciled outside New South Wales at date of death SUCCESSION — family provision — claim by spouse for provision from the deceased’s estate or notional estate under Succession Act 2006 (NSW), Ch 3 — alternative claim by partner for provision from the deceased’s estate under Family Provision Act 1969 (ACT), s 8 — plaintiff fourth wife of deceased left with no provision under deceased’s will — deceased leaves statutory declaration expressing reasons for excluding plaintiff — whether adequate and proper provision made for the plaintiff and, if not, the nature and quantum of the provision to be made — plaintiff entitled to entirety of deceased’s actual estate subject to payment of any costs orders SUCCESSION — administration of estates — devastavit — consideration of principles — whether mere applicant for family provision has standing to bring devastavit claim SUCCESSION — family provision — claims by alleged members of household and dependants of the deceased for provision from the deceased’s estate or notional estate under Succession Act 2006 (NSW), Ch 3 — applications by two children of person with whom deceased had a domestic relationship — applications fail because of finding that deceased had domicile outside New South Wales — whether plaintiffs otherwise eligible persons under Succession Act 2006 (NSW), s 57(1)(e) — whether plaintiffs otherwise establish factors warranting applications FAMILY LAW — claim by domestic partner of deceased to vary or set aside order under Domestic Relationships Act 1994 (ACT), s 28 — whether settlement agreement and consequential court orders affected by miscarriage of justice because of fraud or suppression of evidence or any other circumstance

PAYMENT OUT OF FUNDS — Funds paid into court in context of an application by a tenant of properties seeking urgent relief against forfeiture – Funds directed to be held to abide outcome of proceedings — Following default by the parties in appearing proceedings dismissed in early 2017 — First defendant/applicant claims entitlement to the funds and explains delay in seeking funds by reference to leaving management of proceedings to her son — The plaintiffs were wound up and the former liquidators of the plaintiffs given notice of the claim for release of funds PAYMENT OUT OF FUNDS — Principles attending payment out where funds deposited by Court order essentially as security of rental arrears to abide Court determination of a purported set-off claim ORDERS — Construction of Court orders PROCEDURE — Case management procedures of the Court should be moulded to permit the question of entitlement to the funds to be simply and inexpensively determined in circumstances where the only other parties conceivably interested in the funds have been notified and there is no realistic prospect that they will take any technically formalistic steps to pursue any such claim and unlikely that such steps will have any practical utility PAYMENT OUT OF FUNDS — Consideration of delay in making claim — On facts delay not an obstacle to payment out

CONTRACTS – proceedings under Statement of Claim and Cross Claim – proceeds of amounts payable under loans – whether payable under holding costs contribution and option agreement – common understanding – representations – Australian Consumer Law – directions

CHILD WELFARE — parens patriae — Secure accommodation orders and related orders made in relation to young girl — Nature of secure accommodation orders and consideration of initial orders and evidence and subsequent review of orders and the basis for that CIVIL PROCEDURE — Joinder of parties — Consideration of Court’s approach to joinder — Purposive approach informs joinder — Consideration of approaches in the Protective and parens patriae jurisdiction and identification of relevant guides regarding joinder of child and young person on the one hand and persons associated with the child and young person on the other hand CIVIL PROCEDURE — Parties — Persons under legal incapacity — Dispensation with requirement for tutor — Approach to dispensation informed by purposes of parens patriae jurisdiction and whether appointment of a tutor would have utility in achieving anything for the child or young person that is not already being achieved by separate independent representation CHILD WELFARE – parens patriae — Consideration of appointment of separate representatives in the interests of the child and young person — Distinction between roles of a direct legal representative and independent legal representative — Consideration of statutory models and other approaches regarding representation of children — Statutory models informative but not binding on the Court in the exercise of its inherent parens patriae jurisdiction

SUCCESSION — family provision — claims by adult child and adult grandchildren for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — consideration of significance of concession in related proceedings for probate of an alleged informal will of the deceased concerning the subject document expressing the testamentary intentions of the deceased — consideration of the significance of the reasoning of the Court of Appeal in determining that the subject document should not be admitted to probate in relation to the determination of the testamentary intentions of the deceased — finding that the subject document did express the testamentary intentions of the deceased — finding that by reason of the value of her assets and the gift received in the will of the deceased that was admitted to probate that the adult child had not satisfied the jurisdictional requirement in s 59(1)(c) that adequate provision has not been provided at the present time for her proper maintenance, education or advancement in life by the will of the deceased — significance to the adult child’s case of her not having provided evidence of her needs having regard to her existing assets — finding that the adult grandchildren had satisfied the jurisdictional requirement — consideration of the application of s 59(2) in circumstances where the Court did not have evidence of the additional costs incurred by the parties in relation to the appeal or the effect of costs orders on the estate and the Court did not have evidence of possible changes in the value of the assets in the estate since the Court reserved judgment at the end of the primary hearing at first instance — requirement for further submissions as to the terms of the orders for further provision under s 59(2) that should be made in favour of the grandchildren

DEFAMATION – attempt to re-agitate interlocutory issues in absence of new or different circumstances – amendment to add allegedly defamatory publications dated after commencement of proceedings – discussion on need for additional concerns notice – discretion to require whether or not necessary – material facts as to defendant posting material not pleaded – material facts on downloading – pleading of special damage being mental injury.

HIGH RISK OFFENDERS – extended supervision orders – application – relevance of conditions to risk

CRIME – confiscations – restraining order – application for exclusion orders concerning applicants’ interest in the property – whether interest is the proceeds of unlawful activity

ESTOPPEL — estoppel by representation — relief — whether plaintiff entitled to orders that he be entitled to water licence and equipment collateral to management of farming property — whether to allow plaintiff to reopen his case to prove entitlement to water licence and equipment — whether plaintiff entitled to order that defendants pay costs ancillary to transfer of real property — whether defendants entitled to orders granting them licence to occupy cottage on farming property COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — rejection of Calderbank offer not unreasonable — no basis for indemnity costs order in plaintiff’s favour

ESTOPPEL — proprietary estoppel — encouragement — plaintiff and deceased close friends for over twenty years — deceased and deceased’s mother own neighbouring properties — deceased allows plaintiff to reside rent-free in his property while deceased lives with mother — whether deceased represented to plaintiff that he could reside there ‘for good’ if he paid certain expenses and provided assistance to deceased’s elderly mother — whether deceased later represented to plaintiff that deceased would transfer property to plaintiff for fulfilling assistance asked of him — whether plaintiff has equitable interest in property because of proprietary estoppel — estoppel claim successful SUCCESSION — family provision — claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — whether eligible person — whether factors warranting — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — family provision claim successful in alternative

TORTS – Causes of action pleaded in conspiracy, fraud and collateral abuse of process – Where the plaintiff and the first defendant were previously in a relationship – Where the first defendant brought proceedings in the Local Court for an Apprehended Domestic Violence Order against the plaintiff – Where the protected persons were identified as the first defendant and the second defendant – Where the third defendant was a solicitor who acted for the first defendant in those proceedings – Where plaintiff failed to establish that the proceedings had been brought by the first defendant for an improper purpose or that they had been impermissibly used in some way – Proceedings dismissed

HIGH RISK OFFENDER – preliminary hearing – application for an extended supervision order (ESO) for period of two years – defendant with prior convictions for child sexual offences – where defendant subject to ESO imposed in 2019 – where earlier ESO suspended from November 2022 due to defendant being arrested and entering custody – where defendant has pleaded guilty to counts of breaching the ESO – Court required to consider afresh whether defendant poses unacceptable risk of committing another serious offence if not kept under supervision under ESO – no opposition to the making of Interim Supervision Order - where making of ISO justified – where unclear in present case when defendant’s present custody will expire – timing of commencement of an Interim Supervision Order (ISO) – where need to revoke earlier ESO so defendant not subject to two orders with different conditions

COSTS – Application by plaintiff to vary costs order – Whether indemnity costs justified – Whether any relevant delinquency by the first defendant – No delinquency by the first defendant – Indemnity costs not justified in the circumstances – No variation to costs order made

ENERGY AND RESOURCES — Mining — Exploration — Licence — Rights — Land access — Where appellants hold Exploration Licences covering land forming part of Thackaringa Station, upon which respondents perform sheep farming — Where title to Thackaringa Station is comprised of freehold and leasehold titles, the leasehold being Crown leases permitting use of the surface of the land for grazing only — Where Exploration Licences held over Crown leasehold land only — Where appellants applied pursuant to s 140 of the Mining Act 1992 (NSW) for access arrangement — Where respondents applied for review of arbitrator’s decision pursuant to s 155 of the Mining Act 1992 (NSW) ENERGY AND RESOURCES — Mining — Exploration — Licence — Compensation — Heads of compensable loss APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons APPEALS — From finding of fact — No evidence

APPEAL — competency of appeals — whether involving “a matter at issue amounting to or of the value of $100,000 or more” — Supreme Court Act s 101(2)(r)(i)