Cases and authorities

PRACTICE AND PROCEDURE – pleadings – whether plaintiff should have leave to amend its Commercial List Statement – whether List Statement should be struck out

COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time refused – nature of a review under r 49.19 of the UCPR – where the plaintiff’s application for review has substantial merits – where a judge of the Federal Circuit and Family Court in related Bankruptcy proceedings found a lesser amount of costs were owed – whether such a finding creates an issue estoppel – interests of justice warrant intervention – extension of time granted

CONSUMER LAW – Misleading and deceptive conduct – Cross-claim – Whether particular clauses of share sale agreement invalid on the basis of misleading and deceptive conduct – No invalidity CONSUMER LAW – Unconscionable conduct – Cross-claim – Whether particular clauses of share sale agreement invalid on the basis of unconscionable conduct – No invalidity CONSUMER LAW – Enforcement – Whether debt owed under share sale agreement – Payment of a liquidated sum – No appearance by defendant – Defendant submitted to orders of the Court – Judgment for the plaintiff

APPEALS — Leave to appeal — Interlocutory decision of the Land and Environment Court to refuse joinder of the Willoughby Local Planning Panel to proceedings — Whether joinder of the Panel to the judicial review proceeding was mandatory pursuant to r 59.3(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Whether primary judge erred in not exercising the discretion under r 6.24 of the UCPR to join the Panel as a necessary or proper party to the proceeding — Leave to appeal refused

CONSTITUTIONAL LAW – criminal procedure – challenge to validity of State law governing committal proceedings – Kable doctrine – impairment of institutional integrity – independence, impartiality and fairness – what courts have traditionally done – whether administrative function is compatible with judicial functions – whether magistrate required to rubber-stamp executive decision CRIMINAL PROCEDURE – committal proceedings – Criminal Procedure Act 1986 (NSW), Ch 3, Pt 2 – case management – administrative process ancillary to judicial function – similar to procedures and powers of trial court – purpose to explore possibilities of guilty pleas and challenges to evidence of prosecution witnesses

CRIMINAL LAW – release application – sophisticated fraud and money laundering offences – extensive criminal network – applicant’s role limited – modest community ties – consideration of bail concerns – whether unacceptable risk – length of remand – onerous conditions capable of mitigating risk – conditional bail granted – no question of principle

EVIDENCE – application to adduce evidence to restore credibility of previous witness

ADMINISTRATIVE LAW – judicial review – procedural fairness – where Commissioner requested written submissions from parties about provision of legislation – duty to warn – no denial of procedural fairness – error of law on the face of the record ADMINISTRATIVE LAW – judicial review – jurisdictional error or error of law on the face of the record – privative clause – Industrial Relations Act 1996 (NSW), s 179 – whether certiorari can lie against a recommendation of Commission in arbitration – recommendations in arbitration are not legally binding and have no legal consequences – an order in the nature of certiorari does not lie against a recommendation made in arbitration – prerogative and declaratory relief is discretionary – discretion not to grant relief EMPLOYMENT AND INDUSTRIAL RELATIONS – employment of Aeromedical Control Centre Officers – employer is Crown in right of the State of New South Wales – Health Secretary exercises employer functions – Health Secretary may enter into contracts of employment that bind the Crown – Health Secretary has power to fix the salary, wages and conditions of employment of staff – NSW Health Service – Health Services Act 1997 (NSW), ss 116 and 116A EMPLOYMENT AND INDUSTRIAL RELATIONS – Industrial Relations Commission – industrial dispute – conciliation and arbitration – powers, jurisdiction and functions – power to make a recommendation in arbitration – recommendations are not legally binding and have no legal consequences – recommendation to pay an allowance – recommendation need not be connected or pursuant to a legal right, entitlement or requirement – Industrial Relations Act 1996 (NSW), s 136 EMPLOYMENT AND INDUSTRIAL RELATIONS – Industrial Relations Commission – appellate jurisdiction – proper principles for leave to appeal – whether a recommendation can be appealed to the Full Bench

LAND LAW – possession of land – where one registered proprietor made bankrupt – where no defence to claim

LAND LAW – possession of land – default under mortgage – where default admitted – where defence discloses no defence to the claim for possession

LAND LAW – possession of land – pursuant to a mortgage – where no dispute that specified secured sum is owing – where dispute concerns plaintiff’s right to include other amounts in the secured moneys – judgment for possession given – disputed amounts to be the subject of evidence

COSTS – offer of compromise and Calderbank offer – whether to order indemnity costs – where offer was invitation to capitulate

FAMILY LAW – Children – Adoption – Intercountry adoption – Hague Convention countries – Child from a Hague Convention country – Consent of birth parents – Whether Court can dispense with consent of, and notice to, birth parents – Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 reg 15 CHILD WELFARE – Adoption – Consent – Dispense order – Dispense order not authorised under Family Law (Hague Convention on Intercountry Adoption) Regulations 1998, reg 15

CRIMINAL PROCEDURE – trial – judge alone – directions – elements CRIME – wilful misconduct in public office – elements – misconduct – but for test – whether causation alone is sufficient to establish misconduct – whether the improper purpose has to be the “driving force”, “moving cause” or “real reason” for the decision – circumstantial evidence – whether need to exclude any reasonable hypothesis that the decision was made for a permissible purpose – need for precision – improper purpose must be the driving force

OCCUPATIONS — Legal practitioners — Solicitors — Costs agreement — enforcement of costs agreement through forced sale of property CONTRACTS — Construction — Interpretation — whether documents created caveatable interest EQUITY — Fiduciary duties — Fiduciary relationships — Solicitor and client — whether solicitor acted in breach of fiduciary duty — conflict of interest CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — consideration of factors relevant to determination that contract is unjust

CRIMINAL LAW – conviction appeal – applicant found guilty of one count of sexual assault – trial by judge alone – context evidence as to systemic sexual assault of victim, siblings and cousins by other members of the family – whether verdict was unreasonable and cannot be supported by the evidence – approach to trial by judge alone – asserted inconsistencies and delay by victim in coming forward – ground rejected – appeal dismissed.

LEASES AND TENANCIES – renewals and options – characterisation of option – whether conditional contract or irrevocable offer – whether condition waived LEASES AND TENANCIES – rent and outgoings – construction and interpretation – whether context required that the definition of base rent would not apply

CIVIL PROCEDURE – Interlocutory application by defendant – where order sought to restrain the second plaintiff from making any payment to contractor – where order sought for commencement of payment of Director’s allowance of $10,000 in amount by second plaintiff to defendant – where order sought for recommencement of payment of 50% trail income from third party to defendant – whether serious question to be tried established – orders refused in terms sought but limited orders made in relation to notice and types of payment to be made to contractor – costs of first plaintiffs successful injunctions applications ordered to be paid by defendant

COSTS – indemnity costs – Calderbank letter – plaintiff successful in proceedings brought as an adult son claimant for further provision from the estate of his deceased father under Succession Act 2006, Chapter 3 – the Court’s orders provide for $625,000 to be paid by the estate to the plaintiff over a period of 2.5 years – the defendant’s pre-trial offers of settlement offered to the plaintiff to settle the proceedings upon terms involving the transfer of property which the defendant claims was worth $1,150,000, but subject to liabilities of $300,000 and $25,000 and accordingly claimed to be more valuable than the sum of money which the plaintiff had received under the Court’s orders – whether the offer qualified as a Calderbank offer – whether the offer was no less favourable to the plaintiff than the orders made by the Court - whether it was reasonable for the plaintiff to decline or accept the offer.

REAL PROPERTY – transfer of land pursuant to intergenerational transfer – whether transfer was conditional on defendant transferee permitting plaintiff transferor to live on the land and farm it for the rest of the plaintiff’s life – whether an estoppel arises from conversations between plaintiff and defendant before transfer – whether transfer effected for the purposes of a joint farming endeavour – factual bases of plaintiff’s claims held not to be established

PRACTICE AND PROCEDURE – where applicant and defendant are parties to de facto financial cause proceedings in Federal Circuit and Family Court of Australia (Division 1) – whether applicant should be joined to these proceedings – whether proceedings should be transferred to the Federal Circuit and Family Court of Australia (Division 1) pursuant to Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(1) – where matrimonial home is a subject of claims in these proceedings by the plaintiff, who is not a party to the de facto relationship – where determination of claims in these proceedings an essential aspect of determination of the de facto financial cause proceedings – joinder made – cross-vesting order made

CRIME — Murder — Sentence after guilty plea —Objectively serious crime — Offence committed by brother of deceased in her home — History of mental illness and drug abuse and addiction — Diagnosis of schizophrenia — Offence occurred in the context of acute intoxication — Offender’s prior good character taken into account subject to continued drug use and objectively serious offence — Some evidence of remorse — Discount for utilitarian value of guilty plea — No special circumstances

Evidence – Criminal trial – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where tendency evidence adduced to prove identity of offender – Where narrow class of possible perpetrators – Where other evidence identifying appellant as offender and tending to exclude other possible perpetrators – Whether Court of Criminal Appeal misapplied principles in Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 – Whether tendency evidence required to bear close similarity to offence – Whether tendency evidence had "significant probative value". Words and phrases – "close similarity", "identity of the offender", "probative value", "serious physical harm", "significant probative value", "tendency evidence". Evidence Act 1995 (NSW), s 97(1)(b).

TAXES AND DUTIES – Where statutory demand issued by the Deputy Commissioner largely comprising estimates due under Div 268 in Sch 1 to the Taxation Administration Act 1953 – Application to set aside statutory demand – Whether supporting affidavit verified facts sufficient to prove that the underlying taxation liability never existed

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Procedural error — Right to reasons — Inadequacy of reasons — Whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error — Nature of judicial duty to give reasons — Where inadequacy of reasons does not constitute failure to deal with substantial and clearly articulated argument or other similar failure to exercise jurisdiction ADMINISTRATIVE LAW — failure to deal with substantial and clearly articulated argument — overlap with procedural fairness CRIME — Appeal and review — Appeal from Local Court to District Court — Whether constructive failure on part of District Court judge in performing appeal functions

CONTRACTS – Remedies – Specific performance – Requirement that plaintiff be ready, willing and able to perform its obligations under contract – Presumption in UCPR r 14.11 that a statement to that effect is implied in pleading – Plaintiff’s readiness, willingness and ability not traversed in defence and therefore taken to be admitted – Issue not resurrected in cross-examination such as to require evidence to be adduced – No error in primary judge’s conclusion that plaintiff was ready, willing and able to perform its obligations APPEALS – Procedure – Grounds of appeal not formally abandoned but not canvassed in written reply submissions and expressly not supported in oral submissions – Grounds taken to raise no issue of principle – Disposal “in short form” under Supreme Court Act 1970 (NSW), s 45(4) and UCPR r 51.55

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 to implement demerger – Whether requirements to order scheme meeting are satisfied

CONTRACTS – options – Deed of Call Option – calculation of period within which call option could be exercised – where Deed provides for three sequential periods in calculating time within which option can be exercised – where each period expressed to commence either on date specified in Deed or on date immediately following expiry of preceding period – whether commencement of first period should be postponed by one day either as a result of parties’ intentions or pursuant to an interpretation provision of the Deed – whether commencement dates of second and third periods should be excluded from calculation of periods – whether corresponding date rule should be applied – definition of “month” supplied by statute – “calendar month” – whether Grantee’s purported exercise of option occurred during currency of option – held that Grantee did not exercise call option during currency of option ESTOPPEL – estoppel by representation – conduct of agent – whether Grantor’s solicitor represented to Grantee’s solicitor that payment of deposit otherwise than in accordance with Deed was acceptable to Grantor – where Grantee purports to pay deposit in unauthorised manner in reliance on alleged representation – held that conduct of solicitor could not reasonably be understood as conveying a representation that Grantor had agreed to exercise of option in a manner contrary to the terms of the Deed – held that estoppel was not made out – Grantor entitled to rely upon the terms of the Deed to assert that option not validly exercised

CIVIL PROCEDURE – parties – Vexatious Litigants Declaration of — Orders under the Vexatious Proceedings Act 2008 (NSW)

CIVIL PROCEDURE — Subpoenas — Application to set aside

COSTS — Security for costs — Relevant factors – r 42.21(1A) of the Uniform Civil Procedure Rules 2005 (NSW) – consideration of prospects of success or merits of the proceedings (r 42.21(1A)(a)) and whether the cross-claim is defensive in nature (r 42.21(1A)(e)) – security for costs ordered by way of an unconditional bank guarantee or payment into court.

EVIDENCE – accused correctional officer charged with murder following shooting of escaping prisoner – whether accused believed on reasonable grounds it was necessary to discharge firearm to prevent the escape of the deceased – CCTV footage of deceased in police cells hours prior to attempted escape – accused mostly present – footage shows the deceased having a fit and waiting for Justice Health nurse – whether footage taken when accused not present is admissible – jury could infer accused was watching on a monitor – s 137 of Evidence Act 1995 (NSW) – whether jury might conclude that accused showed “callous disregard” to deceased – whether footage will cause distress and lead to “illegitimate” reasoning – no real danger of prejudicial reasoning – probative value of evidence not outweighed – liberty granted to accused to apply for direction when evidence adduced

ADMINISTRATIVE LAW — Particular administrative bodies — State Parole Authority — Revocation of statutory parole order — Offender alleged that the order was revoked on the basis of false, misleading or irrelevant information — Application for direction to Authority that the information was false, misleading or irrelevant — Application dismissed

NEGLIGENCE — Damages — Workplace injury of mining engineer — Where breach admitted —Assessment of damages — Assessment of future economic loss, non-economic loss and past and future expenses

COSTS – security for costs – power to order – where application made by first defendant in District Court for security for future costs of proceedings – where security not provided and proceedings against first and second defendants dismissed – whether power of dismissal under rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) conditional on defendant seeking dismissal having security for costs order in its favour – whether discretion to dismiss proceedings miscarried – grant of leave to appeal COSTS – security for costs – power to order – whether rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) is invalid pursuant to s 109 of the Constitution (Cth) due to direct inconsistency with s 1335 of the Corporations Act 2001 (Cth) – no substantive inconsistency demonstrated APPEALS – leave to appeal – where application filed out of time – where delay attributable to inadvertence of solicitors rather than applicants – consideration of discretionary factors for extension of time under rule 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) APPEALS – leave to appeal – adequacy of reasons for costs of cross-claim – no issue of principle

CIVIL PROCEDURE – Court approval of settlement made in mediation – no issue of principle

CRIME – Crime Commission Act 2012 (NSW) s 35A – application for leave to examine an accused person

CRIMINAL LAW – Crown application for a view – accused charged with murder of escaping inmate – inmate shot while attempting to escape after being discharged from hospital – benefit of observing scene to assessment of circumstances facing accused – trial in Sydney – events took place in Lismore – difficulties organising view – very late application – granting application carried appreciable risk of vacating trial date – accused opposed application – unfairness to accused – application rejected

JUDICIAL REVIEW – gaming machine shutdown period – application under s 40 of the Gaming Machines Act 2001 (NSW) refused – proper construction of s 40 given requirements imposed on Authority by s 3 – whether Authority was bound to grant application which satisfies the applicable Ministerial Guidelines – proper construction of cl 1.2 of the Guidelines – requirement that there be more than one other relevant hospitality and entertainment venue in the area – requirement that the other venues be open – application refused

PROCEDURE – ex parte application for freezing order of second defendant’s assets – whether application should proceed ex parte – principles relevant to the granting of a freezing order – no evidence of risk the defendant will dispose of property

COSTS — Party/Party — where there is dispute over proposed costs orders — whether a declaration that a contract was void ab initio should be made — where proposed declaration would not result in further compensation or damages — declaration not made COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer — where genuine offer of compromise was made — whether unreasonable not to accept — indemnity costs ordered against both defendants CONTRACTS— whether money orders should be made against both first and second defendants — alleged misleading and deceptive conduct established against both defendants — orders made against both defendants

CIVIL PROCEDURE — Pleadings — Amendment — where leave to file aspects of third further amended statement of claim has already been granted — whether grant of leave to file balance of third amended statement of claim is statute barred — Limitation Act 1969 (NSW), s 50D — where present case does not fall in category of “clearest of cases” — where state of evidence, facts in issue and legal issues are to be resolved — limitation issue not to be determined on an interlocutory basis in advance of trial — leave granted to file balance of third further amended statement of claim

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule —where proceeds of sales mistakenly not taken into account in original orders made — where error occurred as a result of inadvertence by legal representative — original orders corrected COSTS — no costs order pursued against legal representative — no order as to costs made

ADMINISTRATIVE LAW – criminal prosecution in Local Court – application to review decision of Registrar refusing to accept a notice of motion in criminal proceedings as not in the approved form – whether error on the face of the record – where entitlement to relief established but declined as a matter of discretion as futile

EVIDENCE – murder – accused correctional officer charged with murder following shooting of escaping prisoner – whether accused believed on reasonable grounds it was necessary to discharge a firearm to prevent the escape of the deceased – previous training participated in by accused – training scenario involving threat from unarmed inmate – accused advised that his response of shooting inmate was unsatisfactory – relevance of different scenario to the events charged – potential prejudice – whether jury might engage in tendency reasoning by concluding that the accused was “trigger happy” – evidence admitted – accused given liberty to apply for direction addressing potential prejudice.

EVIDENCE – murder – accused correctional officer charged with murder following shooting of escaping prisoner – whether accused believed on reasonable grounds it was necessary to discharge firearm to prevent the escape of the deceased – evidence of antecedents and conduct of deceased only admissible if evidence that that was known to the accused – fact of escape and refusal of deceased to heed warning and shots not in issue – evidence of conduct and antecedents of deceased not known to the accused not relevant to fact in issue

LEASES AND TENANCIES – termination – grounds for – two parcels of land demised by the plaintiff to the first defendant – obligations of the first defendant under the lease guaranteed by the second defendant – plaintiff sues for possession of the property, for arrears of rental to the date of termination, and for damages either under the terms of the lease or at common law – first defendant gives possession of the property to the plaintiff during the proceedings – first defendant claims that rent is not payable under the lease because the property did not comply with certain notices to demolish structures on the property that had been issued by the local council under the Environmental Planning and Assessment Act 1979 (EPA Act) – whether the terms of the lease allow for non-payment of rent by the tenant upon breach of the lease – whether non-payment of rent was the breach of an essential term of the lease – calculation of damages under the lease for the period after the tenants vacated the property – whether the Retail Leases Act 1994 applies to the lease – to the lease come within the operation of the Retail and Other Commercial Leases (COVID-19) Regulation 2020. MISLEADING AND DECEPTIVE CONDUCT – misrepresentation – negligent – pre-contractual misrepresentation – defendants/cross-claimants allege that either by the plaintiff/cross-defendant making positive statements as to local council approvals, or by the non-disclosure of a non-approved structure on the property, that the plaintiff/cross-defendant engaged in misleading and deceptive conduct, inducing the first defendant/cross-claimant to lease the property – whether the cross-defendant engaged in misleading or deceptive conduct – whether the cross-claimants were induced by the cross-defendant’s misleading or deceptive conduct to lease the property – if misleading and deceptive conduct were established, whether the cross-claimants have suffered loss or damage. CONTRACTS – termination – frustration – self-induced frustration – whether the latent non-compliance of leasehold property with notices issued under the EPA Act constitutes frustration of the contract represented by the lease – whether the doctrine of frustration applies to leases – whether the cross-defendant ought to have known the property was non-compliant – whether intervention by the local council causing building works to cease but not otherwise prevent the use of the property, amounts to frustration of the contract represented by the lease. RESTITUTION — expenditure by tenant on the fit out of the premises – tenant claims landlord unjustly enriched at the expense of the tenant by the tenant’s expenditure on the fit out – whether a claim in restitution available to the tenant or whether it is covered by the contract represented by the lease – whether a clause in the lease allowing the landlord to take ownership of anything not removed from the premises by the tenant, displaces any right of the tenant to restitution for expenditure on fit out of the premises.

CIVIL PROCEDURE — notice of motion seeking withdrawal of funds deposited into Court to provide security for the deceased’s costs of an appeal over two decades ago — order for withdrawal made pursuant to UCPR r 41.3(1) and inherent powers of the Court CIVIL PROCEDURE — requirement of service dispensed with — where concerted but unsuccessful efforts made by applicant to contact respondent over several years

CRIME – sentence – obtain benefit from the Commonwealth by deception – multiple counts – multiple s 16A schedules – GST fraud – application for leave to appeal filed well out of time – no compelling reason advanced for delay – question of new evidence – question of manifest excess

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule