Cases and authorities

Negligence – Duty of care – Where appellant statutory corporation ("Western Power") undertook, operated, managed and maintained electricity distribution system under interconnected statutory framework – Where distribution system delivered electricity to consumers' premises – Where pursuant to statutory powers in performing statutory functions Western Power attached electrical cable and other apparatus to point of attachment pole ("PA pole") owned by and on land of fourth respondent ("Mrs Campbell") and energised her premises – Where Western Power contracted fifth respondent ("Thiess") to undertake works in vicinity of Mrs Campbell's property – Where works included removing and replacing electrical cable attached to PA pole – Where employee of Thiess did not adequately undertake inspection of PA pole to identify signs of deterioration in accordance with industry standards – Where PA pole fell to ground causing bushfire – Whether Western Power owed to persons in vicinity of distribution system duty to take reasonable care to avoid or minimise risk of injury to those persons, and loss or damage to their property, from ignition and spread of fire in connection with delivery of electricity through distribution system. Words and phrases – "assumption of responsibility", "class of persons", "control", "duty of care", "electricity distribution system", "enter into the field", "exercise of statutory powers", "existence and content of the duty", "inconsistent or incompatible", "intervene in a field of activity", "manner of exercise of the power", "negligence", "reasonable care", "reasonable precautions", "risk of harm", "statutory authority", "statutory functions", "statutory powers". Electricity Act 1945 (WA), ss 5, 25. Electricity Corporations Act 2005 (WA), ss 3, 4, 41, 42, 43, 54, 56, 58, 59, 61, 63. Electricity Industry Act 2004 (WA), ss 3, 4, 5, 6, 7, 31, 57, 58, 103. Energy Operators (Powers) Act 1979 (WA), ss 4, 28, 43, 46, 48, 49, 54, 57, 58. Electricity Industry (Obligation to Connect) Regulations 2005 (WA), regs 2, 4, 7. Electricity Regulations 1947 (WA), regs 241, 242, 265.

SUMMARY DISMISSAL – no question of principle

PRACTICE AND PROCEDURE – COSTS – Application to stay orders for costs after dismissal of proceedings pending resolution of fresh proceedings commenced by the plaintiffs on substantially the same causes of action or for substantially the same relief as the dismissed proceedings – HELD – Stay refused

CIVIL PROCEDURE — notices of motion — application to have Registrar’s orders dismissing proceedings for want of due despatch set aside — later application for adjournment of the hearing of that motion — adjournment refused ­— whether Registrar’s orders should be set aside — what dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — motions dismissed CIVIL PROCEDURE — Parties — Persons under legal incapacity — where question of party’s capacity arises — where repeated non-compliance with orders requiring production of information about capacity results in dismissal of proceedings for want of due despatch — where default not rectified, even after application to set aside Registrar’s orders made CIVIL PROCEDURE — Representation — where solicitor has entered appearance for person who has consented to act as tutor as well as for party — where evidence does not establish that party lacks capacity

CRIME – murder – question of fitness raised immediately prior to trial – question of whether accused had sustained a traumatic brain injury – question of cognitive impairment – whether such impairment as might exist renders accused unfit

CRIME – sentence after trial – verdict of guilty to the statutory alternative to murder of manslaughter – death of 6 month old baby – question of basis of liability for manslaughter – question of sufficiency of evidence for manslaughter by unlawful and dangerous act – alternative basis of liability gross criminal negligence

LAND LAW – Claims for possession of lands in New South Wales and Queensland by registered proprietor – Where lands required for divestment purposes pursuant to plaintiff’s statutory functions – Challenge to Court’s jurisdiction by first defendant LAND LAW – Adverse possession – Required period of possession – Where first and second defendants claim to have occupied and possessed the lands since 2002 – Consensual occupation until 2019 – Claim of adverse possession rejected NATIVE TITLE – Federal Court consent determination in force regarding Queensland land – Common law native title claim in respect of NSW land – Freehold and perpetual leases – No determination made in respect of existence of native title rights and interests in NSW land – Any assumed native title rights and interests in NSW land found to have been extinguished CROSS-VESTING SCHEME – Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) – One parcel of land in Queensland – Court’s cross-vested jurisdiction not contested

CRIME – appeals – Crown appeal – whether sentencing judge erred in assessment of objective seriousness, or alternatively, mistaking the facts – whether sentence manifestly inadequate – sexual offences against estranged wife with related assault offences on schedule – two-year-old child present for some offending – no criminal history – need for clear general deterrence and denunciation – appeal allowed – sentence below quashed – sentence increased

CRIME — Appeals — Appeal against sentence — Manifest excess — where no indicative sentence was excessive — where sentence required to reflect significant criminal history, maximum penalties, general deterrence and form 1 matters — where sentence demonstrated no immunity from prosecution for providing assistance to authorities — where aggregate sentence not manifestly excessive

CRIME – appeal against sentence – where the applicant pleaded guilty to possession of 19 firearms at a rural property – manifest excess – where the offender intended to hand the firearms in to police – strong subjective case – consideration of comparable cases – sentence plainly unjust

LAND LAW – application by registered proprietors for order for possession of residential unit – unit owned by uncle of first plaintiff – plaintiffs became registered proprietors of 50% share pursuant to a transfer under a deed, subject to uncle’s right of occupation – other 50% share left to plaintiffs in will – uncle later married first defendant – uncle died in April 2022 –– first defendant continued to occupy property – plaintiffs’ entitlement to possession as registered proprietors – defendant challenged transfer of registered title under deed – defendant made claims to estate in other proceedings CIVIL PROCEDURE – proceedings in possession list – first defendant sought leave to represent estate of deceased part owner – defendant proposed cross-claim in defence of possession proceedings – NSW Trustee and Guardian acting for unadministered estate had filed submitting appearance – whether appearance should be set aside – first defendant failed to seek limited grant of letters of administration in probate proceedings – proposed cross-claim duplicative of proceedings in probate list – whether that would constitute abuse of process – no seriously arguable basis to challenge validity of deed – whether possession proceedings should be transferred to probate list

CRIMINAL PROCEDURE — Trial — draft legal directions to jury

CONTRACTS – construction and interpretation – whether precondition for payment of fees to the second plaintiff under Introducer Mandate Agreement satisfied – where precondition provided for payment of fees if offer of finance within 10% of indicative interest rate (of 2% per month) – where loan did not proceed – where Loan Offer provides for standard and concessional interest rates – whether fees are payable to the first plaintiff under Loan Offer – fees payable to first and second plaintiffs EQUITY – estoppel by convention – whether plaintiffs estopped from enforcing contractual entitlement to payment of fees based on common assumption relating to security – no common assumption – claim fails EQUITY – declaratory relief – form of declarations – whether declarations should be made that defendant’s land charged for payment of fees – declarations made REAL PROPERTY – caveats – equitable charges – where Introducer Mandate Agreement and Loan Offer grant equitable charges over defendant’s land to secure payment of fees – whether caveats should be extended until payment of fees or further order of the Court – caveats extended

LAND LAW — Community title — Community scheme — Where resuming authority seeks orders restructuring a community scheme — Whether resuming authority has notified interested persons of orders sought — Whether unit entitlements should be adjusted — Where orders made for adjustment

CRIMINAL LAW – judge alone trial – reasons for judgment – legal principles, warning and directions – murder – joint criminal enterprise – whether accused participants in joint criminal enterprise – where victim bashed by group organised by gangster in reprisal for bashing over drug debt – prosecution case reliant on one witness – witness criminally involved in homicide – indirect support of witness’s evidence – association evidence – eye-witness testimony – where no established motive in witness to lie – requirement to scrutinise evidence with great care – Rule in Browne v Dunn – failure to comply – Prosecutor’s complaints regarding defence addresses – hyperbole and flourishes – client relations – excesses ignored – demeanour of witness – limited weight given to assessment of demeanour – lies – where a number of established lies told by witness over time – inconsistent versions of events – impact on credibility – parts of evidence reminiscent of a movie scene – a yarn spun about an Uzi – "crocodile tears" - positive rejection of parts of evidence – doubts about other parts – impact on assessment of credibility – calculated lies to police to implicate local Indigenous men – inconsistent accounts – whether reasonable doubt about the guilt of the accused

CRIMINAL LAW – non-publication orders – test of necessity – where accused and others have related trials listed next year – background of sensational media coverage – previous trials – previous non-publication orders – collision between fundamental principles – open justice – right to fair trial – orders made calculated to achieve minimum interference with open justice

APPEAL – leave to appeal – application for leave to appeal from judgment in Division on appeal from Local Court – appeal to Division limited to question of law – amount in issue below threshold in Supreme Court Act 1970 (NSW), s 101(2)(r) – disproportion between amount in dispute and costs – no more than arguable error of law – no issue of principle – applicant bore onus of proof at trial and failed to adduce evidence to support claim

PRIVATE INTERNATIONAL LAW – foreign judgments and orders – statutory registration of judgments – setting aside registration of foreign judgments – where Singapore High Court entered default judgment against Applicant and subsequent judgment assessing damages – where both Singaporean judgments registered in New South Wales under Foreign Judgments Act 1991 (Cth) – application to set aside registration of Singapore judgments under s 7 of Foreign Judgments Act – whether foreign default judgment should be set aside in circumstances where judgment debtor knew of the existence of foreign proceedings but did not know the quantum of compensation claimed in those proceedings – whether registration contrary to public policy or should be set aside on basis that judgment debtor did not have sufficient notice of proceedings – whether judgment should be set aside on basis that judgment creditor had first sought to sue judgment debtor in Myanmar before commencing proceedings in Singapore – whether there was any “election” so as to deprive judgment creditor of benefit of non-exclusive submission to jurisdiction clause JUDGMENTS AND ORDERS – registration and enforcement – setting aside registration of foreign judgments – where Singapore High Court entered default judgment against Applicant and subsequent judgment assessing damages – where both Singaporean judgments registered in New South Wales under Foreign Judgments Act 1991 (Cth) – application to set aside registration of Singapore judgments under s 7 of Foreign Judgments Act – whether foreign default judgment should be set aside in circumstances where judgment debtor knew of the existence of foreign proceedings but did not know the quantum of compensation claimed in those proceedings – whether registration contrary to public policy or should be set aside on basis that judgment debtor did not have sufficient notice of proceedings – whether judgment should be set aside on basis that judgment creditor had first sought to sue judgment debtor in Myanmar before commencing proceedings in Singapore – whether there was any “election” so as to deprive judgment creditor of benefit of non-exclusive submission to jurisdiction clause

COSTS – costs at first instance following different outcome on appeal – costs of appeal – whether costs should follow the event, or whether fractional costs order should be made

ADOPTIONS – adoption by relative – whether adoption order in best interests of the child – whether consent of mother should be dispensed with – whether adoption plan should be approved – whether contact with maternal grandmother adequate – whether such contact should be overseen by proposed adoptive father

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 – application for continuing detention order and extended supervision order – adjournment granted

EQUITY – LANDLORD AND TENANT – relief against forfeiture of lease – where tenants have obtained a substantial verdict for damages against the Landlord – where Landlord terminated the lease for the tenants’ failure to pay rent – whether relief should be refused on the basis that the tenants will be unable to pay future rent or may reasonably be expected to be unable to do so – whether relief has utility – whether delay by tenants in obtaining an Occupation Certificate for the premises is a factor against them obtaining relief against forfeiture – HELD – relief against forfeiture should be granted – COSTS – whether tenants should be deprived of their costs because the verdict they obtained fell significantly short of what they claimed – whether the tenants should pay their costs of the application for relief against forfeiture – HELD – the tenants succeeded and costs should follow the event – the tenants should have their costs of the relief against forfeiture application because it was one part of the wider contest and the Court should not depart from the usual rule that costs relating to particular issues not be excised or dealt with separately.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied. EXPERT EVIDENCE – Whether requirements of the Expert Witness Code of Conduct in Uniform Civil Procedure Rules 2005 (NSW) Sch 7 apply to an independent expert report in respect of a scheme of arrangement.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

APPEAL – leave to appeal – dismissal of motion to set aside registered judgment – order of dismissal interlocutory – effect of dismissal final in practical terms – amount in issue $323,000 – effect of costs disclosure agreement restricting circumstances in which counsel’s fees payable – non-compliance of costs estimate – agreement “void” – whether protections for party liable ineffective – whether costs assessor resolved issue – whether costs assessor had jurisdiction to resolve issue – whether alleged errors more than reasonably arguable – whether issues of principle raised

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Principles where statute provides mandatory minimum sentence – Whether sentence imposed failed to reflect the objective seriousness of the offence having regard to the nature and circumstances of the offender CRIME – Appeals – Appeal against sentence – Whether sentencing judge failed to take into account a relevant consideration – Where offence committed while respondent subject to conditional liberty – Whether discretion to re-sentence enlivened

CRIME – appeals – appeal against conviction – judge-alone trial – where applicant found guilty of five counts of sexual offences – where applicant gave evidence conceding he had opportunity to commit offences but denying offending – where trial judge did not believe applicant’s denials – whether trial judge’s reasons for rejecting applicant’s evidence inadequate – whether verdict unreasonable and cannot be supported by evidence CRIME – appeals – appeal against conviction – fresh evidence – whether miscarriage of justice due to unavailability of fresh evidence at trial

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by officer or former officer of company — Where the plaintiff director is not an Australian resident and does not hold significant assets in Australia — Where an entity associated with the plaintiff provides the indemnity for the company’s costs of the proceedings and any orders made against the company for costs or damages — Whether the indemnity is adequate and the application is in the company’s best interests. EQUITY — Equitable remedies — Injunctions — Whether a mandatory injunction should be ordered on an interlocutory basis in respect of disputed property.

JUDGMENTS AND ORDERS — Interest — Agreements to pay interest — Appropriate rate of interest where defendants had filed notices acknowledging claim shortly after proceedings commenced but no judgment had been entered in accordance with UCPR Pt 20 r 20.34(3) JUDGMENTS AND ORDERS — Reasons — Clarification of ambiguity

CORPORATIONS – Corporations Act 2001 (NSW) ss 236-237 – derivative action – where a minority shareholder in a company (Vitality) with a minority shareholding in another company (Liby) claims that Vitality is being oppressed in the affairs of Liby and seeks leave to bring proceedings on behalf of Vitality against Liby, primarily for a winding up order or appointment of a receiver with no claim for relief in the form of a buyout – HELD – requirements of s 237(2) not met because the applicant has not satisfied the Court that she is acting in good faith, that the proceedings are in the best interests of Vitality, or that there is a serious issue to be tried

APPEALS – from Local Court to Supreme Court on question of law – or with leave on interlocutory judgment and mixed fact and law – extension of time necessary – two years after interlocutory judgment in one case and six-and-a-half months in the other – question of fact, not fact and law – delay not adequately explained – no error – leave refused.

ADMINISTRATIVE LAW – judicial review of administrative tribunal deciding appeal against termination of a VMO Contract, being independent contract – alleged denial of procedural fairness – issues opened up – reasonable opportunity to prepare and present case – issues raising in termination letter – also raised in affidavits – no objection or adjournment sought when put in cross-examination – alleged misunderstanding of nature of appeal – no error disclosed – no irrelevant considerations and all mandatory considerations utilised – while some may consider decision unfair in light of capacity of VMO to act in accordance with own judgment, determination of breakdown in confidence not “legally unreasonable”

CONTRACTS – share purchase agreement – earnout clause based on profit – oral agreement to change earnout to revenue – contract contains ‘no oral modification’ clause – principles at [96]-[97] –contract varied – variation effective on date of agreement to vary, at [105] – plaintiff did not satisfy earnout clause as varied in any event. EXPERT DETERMINATION – jurisdiction of the Court – dispute resolution clause requires parties to perform preliminary steps before expert determination – defendant fails to perform preliminary step – expert determination clause discharged by breach – Court has jurisdiction. WORDS AND PHRASES – ‘generally accepted accounting principles’ at [138] – ‘business’ and ‘carry on business’ at [186].

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — Withdrawal of admission that the second defendant was party to contracts CONTRACTS — Breach of contract — Supply of COVID-19 rapid antigen test kits — Damages for non-delivery under s 53 of the Sale of Goods Act 1923 (NSW) CONTRACTS — Implied terms — Terms implied in fact — Requirements for implication — Whether necessary to imply term that delivery of goods was contingent on defendants obtaining supply CONTRACTS — Remedies — Damages — Reliance damages — Where plaintiff seeks recovery of deposits paid

CRIMINAL LAW – sentence – murder – murder of wife – where offender killed his wife in order to be free to continue a relationship with his teenage lover – intention to kill – delay – 36 years between commission of the offence and arrest – whether extra curial punishment caused by extraordinary publicity – objectively very serious example of murder – need for general deterrence – good prospects of rehabilitation – 74 year old offender in deteriorating physical and cognitive health – significant likelihood that offender will not survive to become eligible for parole

NEGLIGENCE – Duty of care – Where subcontractor injured lifting heavy door on construction site – Apportionment of liability between head contractor and manufacturer of door – Insufficient evidence to conclude door-manufacturer owed any relevant duty of care to injured worker

APPEAL — application for leave to appeal — no arguable basis for proposed appeal — no identification of a ground for challenging orders below

SENTENCING — Appeal against sentence — Co-offenders — Whether insufficient differentiation between the sentences to reflect differences in roles and more favourable subjective case

CRIME – appeal – sentencing – dishonestly obtain credit of $2.56 million by deception – recruiting persons to assist in criminal activity – fraud in the course of acquiring luxury motor vehicles – substantial sum lost by credit providers – wide-ranging complaints of error as well as assertion sentence manifestly excessive – evidence of events post-sentencing – no merit – no point of principle

LEGAL PRACTITIONERS — practice and procedure — extension of time — where Costs Assessor issued costs assessment determination — where s 83 Legal Profession Uniform Law Application Act 2014 provided that a party to a costs assessment may apply for a review of a determination within 30 days — where plaintiff was 12 days late — where Manager Costs Assessment refused to grant extension of time — whether extension of time should be granted — extension granted and decision of Manager Costs Assessment set aside

CIVIL PROCEDURE — Application for freezing orders arising out of joint venture arrangement between the plaintiffs or second plaintiff and the deceased husband of the first defendant relating to various properties — Claim that the deceased sold the property without knowledge or permission of plaintiffs — Following discovery of the sale an arrangement was reached for a reconciliation and payments to the plaintiffs were made in April 2019 — Plaintiffs commenced proceedings in July 2021 and subsequently seek to obtain information in relation to entitlements — Plaintiffs recently obtain information regarding the joint venture funds and claim their alleged entitlements are more substantial than previously thought and claim that the first defendant has sought to dissipate monies by transfer from one bank account to another account CIVIL PROCEDURE — Claim for freezing orders declined — Injunctive relief granted CIVIL PROCEDURE — Subpoenas — Issue of a specific subpoena permitted to facilitate determination of utility of further relief

CIVIL PROCEEDINGS – NOTICE OF MOTION – whether judgment of the Supreme Court ought to be set aside – variation of decision of another judge in same division – defendant provided notification that notice of motion was likely to fail – notice of motion not withdrawn – powers of the court to set aside or vary judgments or orders – failure to identify grounds for variation of judgment – re-agitating arguments determined by earlier judgments – principle of finality – question of whether costs to be granted on an indemnity basis

CIVIL PROCEDURE — Construction of Civil Procedure Act 2005 (NSW), s 101 — calculation of post judgment interest — meaning of “unpaid” — where orders required defendants to pay named consumers who were not parties — where conditional stay ordered on payment of judgment sum into court by specified dates — ­where money paid into court but conditions not satisfied ­— where payment of judgment sum to consumers ordered after appeal dismissed — where calculation and payment of post judgement interest disputed — judgment remained unpaid until payments made to consumers

TORTS – malicious prosecution – whether prosecutor acted without reasonable and probable cause – whether prosecutor did not honestly form the view that there were proper cases for prosecution or whether the prosecutor formed that view on an insufficient basis. TORTS – malicious prosecution – whether prosecutor acted maliciously – whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law

CONSUMER LAW — misleading or deceptive conduct — sale of a business — passing on misleading information — providing documents containing inaccurate information as to financial position of the business — no transaction case — intention to mislead or deceive not relevant

APPEAL — application for leave to proceed — adjournment application refused

CONTRACTS – contract for sale of land – termination – wrongful termination –– whether repudiation – vendor giving notice to complete had not provided land tax certificate – whether reasonable recipient of notice would understand vendor’s conduct as refusal to perform – vendor’s conduct to be understood in context – vendor communicated about settlement and extended settlement date – purchaser failed to reply or take steps to prepare for settlement – vendor purportedly relied on contractual right of rescission – mistaken failure to provide land tax certificate

EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – medical discharge application –powers of State Authorities Superannuation Board delegated to Police Superannuation Advisory Committee – review of Committee’s decision by Board – whether Board had power to redetermine claim – whether Board validly notified claimant of decision ADMINISTRATIVE LAW – obligation to notify claimant of decision – notification contained advice about right of appeal to Industrial Commission – 30 years later Court of Appeal determined the correct forum for an appeal was a workers compensation commissioner – whether notification failed to commence limitation period for appeal to correct tribunal (now the District Court)

SUCCESSION – EXECUTORS AND ADMINISTRATORS – Probate – Revocation of Probate granted to two executors sought – One of two executors seeks removal due to personal circumstances – No suggestion of any adverse conduct by that executor regarding the administration of deceased’s estate – Substitute executor named in deceased’s Will seeks to be named as co-administrator if Probate revoked and grant of Letters of Administration with the deceased’s Will annexed is made – Whether need for Defendant/contradictor to be named in application – Circumstances in which order for revocation of grant of Probate should be made – All affected persons consent – Importance of having regard to due and proper administration of estate and interests of parties beneficially entitled to estate – Order made for revocation of grant, with fresh grant of administration with the Will annexed to proposed administrators with consequential orders made