Cases and authorities

Application by Crown to give the jury an “intoxication” direction – Direction resisted on the part of the accused – No issue in the trial as to the accused’s intoxication

Application to give the jury a “Shepherd” direction —What constitutes a “link in the chain” as opposed to “a strand in a cable” — Where the Crown relies solely on an intention to kill as the requisite intention for murder — Where the accused wife disappeared in 1982 and her body has not been found — Where the majority of facts relied upon go to establishing death and deliberate act or acts inflicted by the accused as opposed to an intention to kill-where a Shepherd direction may be redundant given that the jury will be directed that the Crown must prove each element of the offence beyond reasonable doubt

EVIDENCE – Whether the witness lacks the capacity to give evidence – Absence of evidence that the witness is mentally, intellectually or physically disabled – Relevance of “in-court” recognition of an inanimate object in circumstances where the witness has already recognised the object in a single photograph shown to her by police – Risk of displacement effect

EVIDENCE – Tendency evidence – Tendency to be intentionally violent towards women with whom the accused was in a domestic relationship – Domestic violence against subsequent partners – Evidence relevant to whether the accused caused death of his wife – Relevant to rebut possibility wife abandoned children – Where alleged victim of domestic violence has never complained of violence at the hands of the accused and is now deceased – Probative value outweighed by risk of unfair prejudice – Evidence of Donna Kuhnell admissible in part – Evidence relating to alleged violence against Judith Said inadmissible

EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — Rules — whether organisation’s rules were properly complied with — whether Court should exercise its discretion and order performance of organisation’s rules — Industrial Relations Act 1996 (NSW), s 248 — plaintiff granted leave to withdraw proceedings CIVIL PROCEDURE — Pleadings — Striking out — where plaintiff seeks to have defendant’s defence struck out — whether aspects of defence are irrelevant and have a tendency to cause prejudice or embarrassment — where defence is relevant to issues lying between parties — meaning of “embarrassment” and “prejudice” — Uniform Civil Procedure Rules 2005 (NSW), r 14.28 — motion unsuccessful

GUARANTEE AND INDEMNITY – Contract of guarantee – Enforcement – Factors affecting validity of guarantee – Unconscionability – Unjust contracts – Statute CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Unjust CONSUMER LAW – Unconscionable conduct – In connection with goods or services – In connection with financial services – Unconscionable conduct within the meaning of the unwritten law – Distinction between unconscionable conduct within the unwritten law and statutory unconscionability – Meaning of “unconscionable conduct” – Australian Securities and Investment Commission Act 2001 (Cth) EVIDENCE – Death of a witness – Weight to be given to evidence where witness died before cross-examination completed

SENTENCE – murder – killing of estranged husband with axe in home – grave case of murder – relationship marred by domestic violence – motivation of jealousy and revenge – planning – guilty plea – remorse

TERRORISM HIGH RISK OFFENDER – preliminary hearing – application for an interim detention order and the appointment of experts – Terrorism (High Risk Offenders) Act 2017 ss 34, 41 – weapons offences – whether offender poses unacceptable risk of committing serious terrorism offence – propagation of extreme right views and material online – grievances with government and the judiciary – offender has no connection with NSW – speculative “risk scenarios” vis-à-vis “serious terrorism offence” under the Cth Code – offender’s extreme views have long history and are persistent – requisite degree of satisfaction of unacceptable risk not reached – summons dismissed

BUILDING AND CONSTRUCTION – adjudication determination – subcontractor entitled to $470,000 – adjudicator stated parties “in complete agreement” on state of completion and value of works – whether adjudicator failed to consider contractor’s submissions – Building and Construction Industry Security of Payment Act 1999 (NSW) s 22(2)(d) – contractor relies on 2 pages of a 55 page determination – best to read the entire document – “complete agreement” followed from earlier findings – adjudicator considered but did not accept contractor’s submissions – no jurisdictional error.

PRACTICE AND PROCEDURE – Application for summary dismissal of proceedings on the basis that such proceedings are an abuse of process or alternatively are frivolous or vexatious – Where the respondent brought judicial review proceedings against the Commissioner of Corrective Services in respect of decisions made by the Commissioner when the respondent was in custody – Where those decisions impacted upon the respondent’s conditions of custody – Where respondent had since been released – Where the Commissioner sought that the proceedings be dismissed – Where the grant of the relief sought would be futile in the circumstances – Proceedings an abuse of process – Proceedings dismissed – Order for costs made against the respondent PRACTICE AND PROCEDURE – Application for dismissal of proceedings for want of prosecution – Where the respondent is the subject of an extended supervision order – Where respondent filed a Notice of Motion seeking that the order be revoked – Where respondent was ordered on two occasions to regularise the proceedings by filing a Summons – Where respondent failed to comply with either order – Where the respondent had remained inert for more than 12 months and had taken no substantive step to prosecute the proceedings – Where the respondent had failed to comply with other orders of the Court – Where the respondent had been given the opportunity to explain those failures and had not done so – Proceedings dismissed – No order made as to costs

CRIME – Appeals – Appeal against sentence – Dishonestly obtain financial advantage – Manifest excess – Where “exceptional hardship” specifically conceded not to exist before sentencing judge – Manifest excess ground not sustained – Leave to appeal refused

CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Open justice – Presumption in favour of open justice – Inutility in making orders under Act where there are other mechanisms having similar effect – Where limited order “necessary” to prevent prejudice to administration of justice CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Undue distress and embarrassment – Where undue distress and embarrassment is asserted by well known relative of applicant – Insufficient reason to order non-publication or suppression MEDIA AND COMMUNICATIONS – Open justice – Access to court files – Application for access – Where court proceedings occurred in open court – Access to file granted

CRIME – Appeals – Appeal against sentence – - Section 33(1)(a) of the Crimes Act 1900 (NSW) – Wounding with intent to cause grievous bodily harm – Determination of the objective seriousness of the offence – Sentencing judge made finding that injuries amounted to grievous bodily harm – Whether the principles in The Queen v De Simoni breached – Whether finding resulted in a miscarriage of justice – Sentencing judge entitled to take into account the injuries he did in the way he did

COSTS – costs assessment – appeal against two assessments – procedural motion within appeals – leave to file and serve new Statement of Claim – leave to file further evidence – substantive appeal adjourned

CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – court approval – Compensation to Relatives Act 1897

CRIME – confiscations – restraining orders – property proceeds of an indictable offence – application for provision of sworn statements – application for examination orders

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings — plaintiffs bring proceedings in District Court against four defendants for injurious falsehood and proceedings listed for hearing — plaintiffs subsequently bring proceedings in Supreme Court seeking declarations against same defendants and State of New South Wales — certain of declarations sought are as to the falsity of allegations concerning plaintiffs allegedly made by first to third defendants — whether Court has power to make declarations merely as to the falsity in fact of allegations — Court has no such power — pleadings — striking out — tendency to cause prejudice, embarrassment or delay — pleadings comprise bare allegations of ultimate facts without pleading underlying facts necessary to permit findings of ultimate facts

CIVIL PROCEDURE – Cross-vesting – Protracted family law proceedings transferred from Family Court of Australia to Supreme Court where there are Probate proceedings and family provision proceedings – Way in which to deal with the different proceedings in the Supreme Court – Separate proceedings, each seeking different relief and involving the same estate – Order that proceedings be heard consecutively FAMILY LAW – PROPERTY – Application for interim property orders by notice of motion filed by Applicant, the wife of the deceased – Respondent, who is the interim administrator of deceased’s estate opposes application – Family law matter cross-vested to Supreme Court – Associated Probate and family provision order also sought – Limits on evidence as untested – Estate has the capacity to meet interim property order – Whether it is in the interests of justice to make an interim property order – Whether any interim property order by way of partial property settlement – Security for repayment agreed to be provided by applicant

HIGH RISK OFFENDERS — Extended supervision orders — Term of — determination of appropriate term to achieve protective and rehabilitative purpose HIGH RISK OFFENDERS — Extended supervision orders — Conditions — consideration of appropriateness of conditions

APPEAL – appellant sought interim relief pending appeal – appeal arguable and balance of convenience not strongly favouring either side – respondents’ success in proceedings at first instance decisive factor

APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – fraud finding against appellants at first instance not challenged on appeal – adverse findings at first instance in relation to appellant’s conduct during hearing

TAXATION – Payroll Tax Act 2007 (NSW) – Appeal from decision of Supreme Court regarding exercise discretion to “de-group” entities under s 79 of the Payroll Tax Act 2007 (NSW) – Appeal dismissed

CONTRACTS — construction of handwritten document promising refund of deposit paid by respondent to applicant’s company for migration agency services — whether applicant signed document in personal capacity or as company director — presumption of personal liability arising from unqualified signature not rebutted by evidence of contrary intention — consideration provided by respondent in the form of forbearance to sue — conclusion supported by surrounding circumstances including repeated demands on applicant for details of visa application

CRIMINAL LAW – evidence – admissibility – accused charged with murder – delay in identifying substantial issue – unsatisfactory – turgid recitation of delay – late service of material – failure of parties to communicate – waste of court time – evidence of association with criminal group – Rebels – relevance – probative value – relationship with group leader – such evidence relevant and admissible – evidence of leader’s control over group – fish burgers at McDonalds – where prosecution case accused obeyed directions of leader – evidence relevant and admissible to murder charge – evidence of criminal activities of other members of the group – where no evidence accused aware of crimes alleged – whether relevant – assessment of probative value – assessment of prejudice – capacity to impact on fact in issue – evidence not admissible

CORPORATIONS — Voluntary winding up — Practice and procedure — Leave to continue proceedings in circumstances where final hearing is one week away

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.

CIVIL PROCEDURE – application to re-open case – where defendant seeks leave to adduce further affidavit evidence after judgment reserved – where plaintiff filed affidavits in response – where evidence relates to viability of alternative access route to plaintiff’s land – where evidence is relevant and potentially important to defence of plaintiff’s claim – application granted on terms that grant leave to plaintiff to rely on his affidavits

BUILDING AND CONSTRUCTION – adjudication determination – subcontractor entitled to some $190,000 – adjudicator makes finding for which neither contended – contractor seeks to quash determination and Grosvenor or Brodyn stay –suggested serious question has only modest prospects where no suggestion that finding was wrong and finding likely irrelevant – evidence to support stay slight – reluctant to continue interim injunction to permit contractor to obtain evidence to support stay in absence of serious question to be tried as to jurisdictional challenge – balance of convenience did not favour extension of injunction as, although the monies were in Court, the subcontractor was deprived of cashflow.

COMMERCIAL ARBITRATION — Costs — Where defendant successfully obtained stay of proceedings pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) — Whether to depart from the general rule that costs follow the event

CIVIL PROCEDURE – parties – joinder – of defendant

CIVIL PROCEEDINGS – Interlocutory applications – Real property LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 (NSW)

ADOPTION – whether the child is an Aboriginal child – whether reasonable inquiries have been made as to whether the child to be placed for adoption is an Aboriginal child – whether consultation requirements under s 33 of the Adoption Act 2000 (NSW) satisfied – as child proposed to be placed with non-Aboriginal family whether requirements of s 35(3) of the Adoption Act satisfied – as child has one parent who identifies as Aboriginal and one who does not whether requirements of s 35(4) of the Adoption Act satisfied

COSTS – where proceedings transferred to the Federal Circuit and Family Court of Australia (Division 1) – where applicant intervened – where plaintiff and defendant opposed transfer – no issue of principle

INSURANCE – liability insurance – proper construction of policies – whether insured entitled to declaration that insurers obliged to pay insured’s defence costs of pending proceedings – where agreed that policy only responds to defence costs referable to defending claims within cover – whether policies respond to all claims made against insured in those pending proceedings – whether exclusion clause enlivened

COSTS – deceased estate – contest as to the probate of a will – the plaintiff propounds a 2005 will and a 2009 codicil thereto – defendant propounds a testamentary instrument executed in January 2020 – issues as to the testator’s capacity at the time of making the January 2020 testamentary instrument – issues of knowledge and approval of the January 2020 testamentary instrument – proceedings heard in February 2022 – plaintiff offers on 31 March 2021 to compromise the proceedings on the basis that probate of the 2005 will and the 2009 codicil be granted in solemn form to the plaintiff – the defendant cross-claims for probate of a January 2020 testamentary instrument – court’s final judgment grants probate of the 2005 will and the 2009 codicil to the plaintiff – proper order as to costs in probate proceedings – whether the outcome of the proceedings was no less favourable to the defendant/cross-claimant in the offer of compromise – whether it was reasonable for the defendant not to accept the offer of compromise.

ADMINISTRATIVE LAW — judicial review — whether reasons of primary judge form part of the record — meaning of “ultimate determination” —primary judge’s decision a step towards an ultimate determination — reasons of primary judge do not form part of the record CHILD WELFARE — Care proceedings — whether primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement that there be a ‘realistic possibility of restoration within a reasonable period’ — submissions invite merits review of primary judgment and are therefore rejected CHILD WELFARE — Care proceedings — paramountcy of the best interests of the child —whether primary judge erred in focusing on the possibility that a parent would be capable of providing a safe environment for the child — primary judge did not err ADMINISTRATIVE LAW — Irrelevant and relevant considerations — judge below erred in the way in which he took into account whether a parent was denied procedural fairness

LEASES AND TENANCIES – commercial lease – construction – right of tenant to quiet enjoyment over leased part of property – reservations – right of landlord to use or grant rights of occupation to the property for “any purpose” – property used for music concerts and events – right of landlord to hold “concerts or other events” – access to the premises restricted – meaning of “year” – calendar year – reasonable notice for cancelling events – reasonable notice for notifying events

EQUITY – Interlocutory relief – where plaintiff seeks to restrain defendant from terminating child’s enrolment at the private College run by the defendant – whether serious question to be tried – whether balance of convenience favours the grant of an injunction – interlocutory relief refused

CAVEAT — Application for extension of caveat — Where loan agreement provided lender with an entitlement to register a caveat over the borrower’s property upon default — Where plaintiff is assignee of lender’s rights — Where borrower’s property is a unit holding in a unit trust — In those circumstances whether interest in land claimed by caveat is adequately described — Whether agreement granting authority to lodge caveat by implication confers such an interest in land as will sustain caveat — Form of caveat defective — Order that caveat be removed

CIVIL PROCEDURE – subpoenas – application to set aside – legitimate forensic purpose in establishing tendency in historical sexual abuse proceedings – paragraph narrowed with consent of plaintiff

APPEAL – applicant stood trial with a co-accused on indictment that contained eleven counts – Counts 1 to 8 charged the applicant – Counts 1 to 3 charged the applicant with supplying drugs to the complainant – applicant pleaded guilty to Counts 1 and 2 – Count 3 charged the supply of the stupefying drug “GBH” or “G” – Count 4 charged the applicant with having sexual intercourse with a child above the age of 14 and below the age of 16 years in circumstances of aggravation – aggravating circumstance was that applicant took advantage of complainant being under the influence of a drug – Crown alleged that drug was the three drugs the subject of Counts 1 to 3 including “G” – Counts 5 to 8 charged the applicant with other sexual offences concerning the complainant – complainant was 14 years old – With Counts 1 to 4, Crown alleged applicant met her at train station, supplied her with drugs and had sex with her at home – With Counts 5 to 8, Crown alleged that he then took complainant to nightclub or brothel and had sex – applicant admitted sex the subject of Count 4 but denied supplying her with G, having sex at the “adult shop” and said he believed she was over 16 – jury convicted on Counts 3 and 4 and acquitted on Counts 5 to 8 – whether verdicts inconsistent – HELD: not inconsistent as verdicts explicable on basis that jury believed complainant but required additional proof on Counts 5 to 8 that sexual contact occurred – whether verdicts on Counts 3 and 4 unreasonable and could not be supported by the evidence – HELD: by all of the Court that it was reasonably open to the jury to find the complainant’s evidence as honest and that she told the applicant she was 14 years of age – by a majority that it was reasonably open to the jury to find that the applicant supplied her with “G” – appeal dismissed.

CIVIL PROCEDURE – Subpoenas – Applications to set aside – privacy CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose

COSTS — Security for costs — Quantum and form — Broad-brush approach — Whether estimated costs of security for costs application and mediation can be included in security for costs order — Security to be provided in tranches

CRIMINAL LAW – subpoena issued by Prosecutor – attempt to obtain extraction of telephone records of accused – application to set aside subpoena – whether accused has standing – he obviously does – legitimate forensic purpose – “fishing” – caution in application of language employed in earlier cases – where issue between parties as to associations between accused and criminal group – not speculative that telephone may contain relevant evidence – legitimate forensic purpose established

COSTS – indemnity costs – defendant makes unsuccessful application for advanced ruling on evidence pursuant to section 192A, Evidence Act 1995 (NSW) – plaintiff makes “walk away” offer – application more strange than novel – defendant asks the Court to depart from good law – rejection of offer unreasonable.

COSTS – costs follow the event – plaintiff successful in action to remove caveats from properties involved in a joint venture development – other consequential relief and case management dealt with in hearing and judgment – whether there was a mixed result – whether the plaintiff should have an order for the whole of its costs against the defendants – whether the defendants should have an order for costs against the plaintiff.

COSTS – gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – specified gross sum costs orders already made in long running and strongly contested proceedings among family members in relation to the estate of a deceased parent – specified gross sum costs order already made in respect of period up to 4 April 2022 not quantified – additional claim for a specified gross sum instead of assessed costs in respect of the period 4 April 2022 to 10 June 2022 and quantification – whether additional specified gross sum costs orders should be made. EQUITABLE COMPENSATION – constructive trusts – calculation of quantum of equitable compensation – finding that property held on constructive trust for the benefit of an elderly person and after his death his estate – property transferred into the name of the second defendant during the deceased’s lifetime and Court determines that the second defendant holds the property on constructive trust for the elderly plaintiff and later his estate – second defendant grants life estate of the property to the first defendant – first defendant occupies the property – what measure of equitable compensation should be paid for depriving the deceased and his estate of the use of the property – calculation of the quantum of appropriate equitable compensation. CIVIL PROCEDURE – stay of proceedings – judgment entered in favour of the plaintiff in respect of costs and equitable compensation – plaintiff is a special administrator of the estate of the deceased – plaintiff is named executor in the last will of the deceased in 2018 – second defendant is beneficiary under prior will in 2012 – second defendant seeks stay of judgment for costs and equitable compensation – whether a stay should be granted pending determination of related probate proceedings challenging the 2018 will and seeking to propound for admission to probate the 2012 will.

PRACTICE AND PROCEDURE – adjournment – application by plaintiff on morning of hearing – no basis – evidence provided inadequate – no utility in granting adjournment – application for adjournment refused

ADMINISTRATIVE LAW – Remedies – Discretionary factors ANIMALS – Companion animals – Dogs – Dangerous dogs CIVIL PROCEDURE – Commencement of proceedings – Summons – Form and content LOCAL GOVERNMENT – Legal proceedings – Judicial review – Judicial review of council decisions – interlocutory injunction sought by plaintiff

LAND LAW – caveats – application for withdrawal of caveats lodged by second defendant over second plaintiff’s properties – where caveats preventing refinance of loan secured by first registered mortgages over properties – whether serious issue to be tried – whether balance of convenience favours withdrawal of caveat – caveats ordered to be withdrawn to facilitate refinance on terms that provide for leave to second defendant to lodge further caveats in identical terms after registration of new mortgages