Cases and authorities

COSTS – multiple claims against multiple defendants – plaintiffs partially successful against some defendants only – costs apportioned between claims – percentage costs order refused CORPORATIONS – oppression – remedies – winding up order made – additional declarations and orders for accounting to company refused – additional orders granting leave to bring derivative action refused

HEALTH – Public Health – COVID-19 – Public health orders made under Public Health Act 2010 (NSW), s 7, requiring state-employed healthcare workers to be vaccinated by particular dates – Whether it was open to the Minister to make the orders having regard to the risk to public health – Whether order could have effect beyond 90-day limit imposed by statute – Whether orders inconsistent with International Covenant on Civil and Political Rights

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Possession of firearms – Circumstantial case – Firearms and ammunition containing applicant’s DNA found in wall cavity of premises leased by applicant’s business – Whether reasonable possibility of secondary transfer of DNA during police search excluded – Presumption of possession under Firearms Act 1996 (NSW), s 4A on some counts – Open to jury to be satisfied beyond reasonable doubt of applicant’s guilt of all counts – Appeal dismissed

EQUITY — Equitable fraud — Sham transactions LAND LAW — Torrens title — The register — Correction of the register — Real Property Act 1900 (NSW), s 138

EVIDENCE – privileges – public interest immunity – objections to documents sought under Notice to Produce – objections upheld

EQUITY — Equitable remedies — Orders for judicial sale out of court — Where first defendant accepted that plaintiff had an equitable charge over the property — Where second defendant was first registered mortgagee and excused from appearing — Where first defendant in default of previous court orders regarding agreed sale or refinance — Where sale primarily resisted on the basis of an abuse of process — Where orders for sale made

CRIMINAL PROCEDURE – five co-accused – order of defence closing addresses – where indictment lists co-accused alphabetically – whether addresses should occur in reverse indictment order

EVIDENCE – Privilege – Self-incrimination – application for a certificate – cross-examination of accused giving evidence

CIVIL PROCEDURE – Hearings – notice of motion seeking an order to vacate hearing date – unrepresented litigant – no realistic prospect of obtaining pro bono legal assistance or the consent of a person to act as a tutor – notice of motion dismissed

CRIME – appeals – appeal against sentence – firearms and drug offences – whether judge erred in finding special circumstances and increasing balance of term of sentence – whether judge erred in taking into account offences on Forms 1 – error not established

COSTS – Security for Costs – power to order – Statutory power – UCPR r 42.21(1)(e) – whether plaintiff suing “not for his or her own benefit – where plaintiff bringing derivative action on behalf of trust COSTS – Security for Costs – power to order – whether “reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so” – insufficient proof

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and mandatory psychiatric and/or psychological examinations – serious sexual offending – dispute confined to conditions – application granted

CRIME – appeals – appeal against conviction – circumstances in which Court of Criminal Appeal may quash a conviction entered after a plea of guilty – where accused entered unexpected guilty plea at arraignment – where accused made application to primary judge for leave to withdraw guilty plea very shortly after it was entered – where application was refused and accused was convicted and sentenced – correct legal test to be applied by judge on an application for leave to withdraw a guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – whether leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied by judge on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed

CRIME – Appeal against conviction – leave to appeal – judge alone trial – application to rely on new and fresh evidence – whether excessive intervention by trial judge – whether judge’s questioning caused miscarriage of justice – whether prosecution complied with disclosure obligations – data downloaded from applicant’s mobile phones – whether data provided in advance of trial – whether guilty verdicts unreasonable or unsupported by the evidence CRIME – Appeal against sentence – leave to appeal – appeal against sentence – two offences of perverting the course of justice and one offence of perjury – whether error in assessment of need for specific deterrence – whether aggregate sentence double punishment or crushing – whether failure to give adequate weight to conditions in custody – whether sentence was manifestly excessive CRIME – Bail – bail pending appeal – where two previous appeal bail applications dismissed by Court of appeal – whether change in circumstances since previous application – Bail Act 2013 (NSW) ss 74(1), (3)

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender’s family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) CRIME — appeals — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender’s family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW)

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Manifest excess – Where applicant sentenced to a term of imprisonment for one count of supplying a prohibited drug – Whether sentence manifestly excessive – Where applicant submitted that the nominal starting point of the sentence was outside the appropriate range – Consideration of comparable cases and sentencing statistics relied on by the applicant

CONSPIRACY TO INJURE BY UNLAWFUL MEANS – electronics engineers and funder establish company to develop new products – designer is employee and shareholder – shareholder agreement imposes obligations for trade secrets and confidential information – Taiwanese manufacturer engaged – products launched and gain international interest – directors fall out over money – funder jettisoned from board and bank accounts – funder open to buy out – fellow directors prefer to ‘phoenix’ – raise false invoice by designer – register false security interest – appoint administrator without notice – set up new company without funder – continue to exploit company’s products and customer base – funder proposes deed of company arrangement (DOCA) – directors frustrate DOCA – delete data – ‘warehouse’ trademark and domain name – revoke shareholders agreement – release designer from obligations – assert products designed by Taiwanese manufacturer all along. COPYRIGHT – mining telecommunications – employee designs electronic devices – related company claims R&D grant – employee claims Taiwanese manufacturer undertook design work – use of ODMs and OEMs – employer seeks delivery up of PCB assemblies, schematics and documentation – employee denies works exist – expert evidence and contemporaneous documents suggest otherwise – principles at [554]-[566] – copyright vests in employer – copyright not assigned to related company – orders made for delivery up. COPYRIGHT – software – software developer writes software for no fee and becomes employee and shareholder – implied licence – exclusive licence –whether changes after became employee were “original” at [616]-[618] – licence included right to alter software at [227]-[230], [621]-[623] – licensee entitled to delivery up of source code. TORT – conspiracy to injure by unlawful means – damages the gist of the action at [650]-[659] – plaintiffs do not plead or adduce evidence of damage – fusion fallacy – conspiracy claim fails on this basis. CORPORATIONS – oppression – Corporations Act 2001 (Cth), ss 232, 233 – minority shareholder entitled to buy-out majority shareholders. CONFIDENTIAL INFORMATION – TRADE SECRETS – shareholders agreement imposes duties of confidentiality – directors and employee also bound by equitable obligations of confidence – company entitled to delivery up, damages and/or account.

COSTS — SUCCESSION – Costs of notice of motion sought against executor who has not distributed the estate of the deceased – Failure by executor to comply fully with orders of the Court – Failure to appear at hearing of the notice of motion – No general issue of principle

COSTS – application to appoint provisional liquidator – where application successful – where serious allegations in support of application not made out – where conduct of applicant for appointment relevant to such appointment

Crime — Appeal and review — Application to Supreme Court for inquiry into conviction under Part 7 of the Crimes (Appeal and Review) Act 2001 — Knowingly contravening a restriction in an Apprehended Violence Order (AVO) — Three convictions — Sentenced to a Conditional Release Order for six months — Whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case as to any part of the evidence in the case

CORPORATIONS – Scheme of arrangement – Construction of Scheme Implementation Deed.

Application to vary the amount of the verdict made in favour of the cross claimant Tenants on the basis that the figure for damages did not account fully for the Tenants’ admitted liability to pay rent, did not fully include the Landlord’s claim for mesne profits and outgoings, and that the Court slipped by not taking full account of expenses for the non-trading period from 15 July to 18 November 2015 – HELD – full account of the rental was taken – the claim for outgoings, if allowed, would result in an equivalent increase in the verdict in favour of the Tenants, and that no inadvertent slip was made in relation to expenses – application dismissed

PRACTICE AND PROCEDURE – Plaintiffs are currently litigants in person who seek to propound a Will dated 8 July 2020 of the deceased – Defendant disputes validity of the 2020 Will – Allegation of lack of testamentary capacity, lack of knowledge and approval, and undue influence – Application by Plaintiffs for leave to issue subpoenas to produce documents – Where leave opposed – Whether legitimate forensic purpose established – Documents sought irrelevant to issues in proceedings as no dispute that if 2020 Will invalid, the deceased died intestate – Subpoena may lack a legitimate forensic purpose if sought for a spurious reason – Improper purpose where no “conceivable relation” with the proceedings – Leave refused

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiffs only succeeded in respect of a few issues and recovered a small proportion of the total amount claimed by them — Where plaintiffs initially relied on a substantial amount of inadmissible evidence which was abandoned at the commencement of the hearing — Where the defendants abandoned a defence at the commencement of the hearing.

PROCEEDS OF CRIME — Order seeking the application for restraining orders to be heard without notice — Orders restraining disposal of property — No question of principle

CIVIL PROCEDURE – application for itemised bill of costs from previous solicitors – application for declaration that costs assessment application is just and fair – where application is made more than 12 months after issue of invoice – where applicant not a sophisticated client – where potential duplication of legal costs and disbursements – limited prejudice to respondent if orders made – troubling aspects

ENVIRONMENT AND PLANNING – waste disposal – licensing of premises – scheduled activity – waste disposal (thermal processing) – exemption from obligation to pay contribution – whether appellant is occupier of scheduled waste disposal facility – licence requirement arises because facility used for treatment and processing – distinction between treatment and processing and disposal – disposal does not include treatment leading to destruction – Protection of the Environment Operations Act 1997 (NSW), s 88 – Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cl 20(3) STATUTORY INTERPRETATION – definitions – “waste disposal” – term not defined in statute – where term found in heading to clause – heading as extrinsic material – meaning to be determined by reference to statutory context – Dictionary meanings unable to determine statutory meaning

ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with –– whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”

APPEALS – procedural fairness – property – proceedings commenced by summons for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where self-represented defendant consented to directions in Online Court, and made no applications prior to hearing – where large parts of defendant’s affidavit struck out – whether lack of pleadings or mediation constituted denial of procedural fairness – whether “further hearing” should have been granted – call for “substantive guidance” from Court – no denial of procedural fairness EVIDENCE – affidavit evidence – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where large parts of defendant’s affidavit struck out, including based on speculation as to deceased’s state of mind about change to will – whether statement made by deceased’s former solicitor, that he did not change will, relied upon to prove that fact – no applicable exception to hearsay rule – evidence properly rejected or treated as submissions APPEALS – bias rule – actual or apprehended – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where primary judge described case as “unremarkable” but for defences raised – where defendant alleged actual and apprehended bias based, principally, on findings against him “on nearly every single issue” – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 – no actual or apprehended bias demonstrated LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on promissory estoppel and contract – where primary judge made finding of fact, based on credibility, that there was no agreement between parties not to sell before 2023 – where defendant relied on absence of evidence in text messages with plaintiff concerning pre-2023 sale – no sound foundation for challenge to finding on appeal LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on proprietary estoppel – where defendant alleged plaintiff owed duty to disclose change to will, removing clause allowing plaintiff continued residency for four years after deceased’s death – where defendant already knew about change, but had subsequent “realisation” that change occurred due to improper pressure applied by plaintiff – “realisation” amounted to no more than speculation APPEALS – from finding of fact – admission of further evidence – where foreshadowed evidence would not assist appellant given assumption made by primary judge that the fact the subject of the further evidence was proved

CIVIL PROCEDURE – Dismissal – Uniform Civil Procedure Rules r 42.41(3) – where plaintiffs have not proceeded appropriately in the prosecution of the proceedings they have brought – Amended Statement of Claim dismissed

TERRORISM – High Risk Offenders – application for Interim Supervision Order – no question of principle

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CRIME – murder – offender found guilty at trial – joint criminal enterprise with another – victim offender’s mother – offence committed in home of victim – death by ligature strangulation and stabbing – question of the offender’s moral culpability – other offender unlikely to face justice – hardship to children

CIVIL PROCEDURE – Application to vacate hearing dates – Counsel for one appellant unwell and unable to attend hearing in person or by AVL – Application to vacate hearing granted

PRACTICE AND PROCEDURE – pleading – necessity to file evidence of causation between breach and damage – medical negligence case – no question of principle

CONSUMER LAW — Misleading or deceptive conduct — Quantification of loss. COSTS — Party/Party — General rule that costs follow the event

ESTOPPEL – promissory estoppel – detrimental reliance – estoppel asserted to preclude lessors from enforcing rights under a lease of premises – where estoppel said to run with the land – no detrimental reliance shown ­– appeal conceded

CONTRACTS – Remedies – Damages – Time of assessment – Contract for supply and installation of software system – Where system delivered was defective – Whether primary judge erred in assessing damages as at date of hearing rather than date of breach – No contention that plaintiff unreasonably failed to mitigate its losses by delaying rectification or replacement – No error in assessing damages as at date of hearing CONTRACTS – Remedies – Damages – Measure of damages – Whether primary judge erred in assessing damages as costs of replacing defective system with new upgraded system, instead of costs of rectifying individual defects – Common ground that most efficient and cost-effective approach was replacement with newer system – Betterment – Onus on defendant to prove any amount saved by plaintiff due to upgrade – No error in primary judge’s approach

INSURANCE – Liability insurance – Motor vehicle – Compulsory third-party insurance – Appeal from judicial review of medical assessment review panel decision – Whether accident caused psychiatric injury – Whether degree of whole person impairment greater than 10% ADMINISTRATIVE LAW – Whether medical assessment review panel failed to respond to substantial argument regarding temporal connection between accident and PTSD symptoms – No jurisdictional error found

PRACTICE AND PROCEDURE – representative proceedings – hearing date imminent – late application to amend Commercial List Statement to include claim for misleading or deceptive conduct – late application for further discovery

CIVIL PROCEDURE – money held in bank account of defendant – plaintiff claims proprietary interest in money – application for interlocutory injunction to freeze bank account pending final hearing – prima facie claim to proprietary interest – balance of convenience – injunction granted

JUDGMENTS AND ORDERS – orders to give effect to reasons

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – review of decision of Review Panel – submitting appearances – jurisdictional error – failure to accord procedural fairness – failure to wait for relevant medical information – no reasons given - Review Panel decision set aside – matter remitted for redetermination by different Panel

EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — ex parte application for cancellation — application granted

CIVIL PROCEDURE — notice to produce — application to set aside — legitimate forensic purpose — novel claim — legal professional privilege — whether privilege waived by conduct — inconsistency between waiver and maintenance of privilege