Cases and authorities

EVIDENCE – Practice and procedure – Whether rule in Browne v Dunn applied

CIVIL LAW – application for a stay of NCAT decision – termination of lease – question of jurisdiction – fragmentation of proceedings – where substantive issues listed before Tribunal next week – urgent application – unhappy compromise – lawyer’s picnic

COSTS – security for costs – building and construction dispute between plaintiff owners corporation and defendant builder over alleged defects in townhouses – Court’s inherent power to order security for costs – proceedings not vexatious or oppressive – Uniform Civil Procedure Rules 2005 (NSW), rule 42.21(1)(d) – whether owners corporation unlikely to be able to meet adverse costs order – where owners corporation is well-organised and has raised special levies in connection with these proceedings – Court’s inherent and statutory powers to order security for costs not enlivened – application dismissed.

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — No explanation for lateness — No prejudice — Amendment allowed

SUCCESSION – family provision – claim by adult plaintiff who was stepson of deceased – where plaintiff lived with deceased during teenage years – where deceased and plaintiff’s mother divorced 31 years ago – where no contact between plaintiff and deceased after 2004 – where deceased’s will provided for whole of estate to be left to his only biological child – not a large estate – where strong competing claim of biological son – whether plaintiff eligible as “child” of deceased – whether factors warranting order – no provision ordered

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Where the plaintiffs loaned funds on an unsecured basis to the defendant’s company in relation to the purchase and development of certain land as a residential apartment building — Where the defendant’s company on-lent the funds to another company to conduct the project, also without taking security — Where each plaintiff pleads multiple misleading representations were made by the defendant in relation to the loan, including as to the use of the funds by the borrowing company, the existence of security, guarantees as to repayment, and the risk of the loans.

LAND LAW – strata title – common property – two by-laws to obtain rights to exclusive use and enjoyment of common property – first proposal offered repairs and maintenance – second proposal offered monetary compensation – other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates for applications – whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) – Tribunal not required to weigh interests in determining whether refusal unreasonable – other lot owners entitled to have regard to own interests and rely on experience and beliefs LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW), s 149(2) – s 149(2) considerations addressed to whether to order making of by-law – proponents’ rights and expectations not to be weighed against other lot owners’ interests COSTS – party/party – appeal from NCAT Appeal Panel – finding of special circumstances – no mandatory considerations – unsuccessful appeal and fact of legal representation permissible considerations – finding of complexity – Tribunal’s power to award costs absent special circumstances – Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 – Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A

CRIMINAL LAW – murder – correctional officer shot escaping inmate – lawful cause or excuse – authority of correctional officer to discharge firearm and use force – whether lawful excuse to be put to the jury was cl 131 or cl 303 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) or both – whether Crown must disprove both or need only disprove one – conflicting statutory provisions – necessity to reconcile – Anthony Hordern principle – literal meaning of force as extending to discharge of firearms in cl 131 read down – cl 303 identifies circumstances in which firearm may be discharged

EVIDENCE – application for advance ruling – section 192A, Evidence Act 1995 (NSW) – builder seeks ruling that expert reports are inadmissible as irrelevant – case law review and principles regarding advance rulings at [40]-[50] – premature to make rulings sought where builder yet to serve evidence and trial date not allocated. CIVIL PROCEDURE – pleadings in Technology and Construction List – plaintiff’s pleadings initially defective – parties agree to provision of further particulars of defects through Scott Schedule – builder now insists on amendment to List Statement.

Sentence – murder – Korean aged 56 at time of sentence – guilty plea at first opportunity – where offender strangled younger woman with whom he was having an affair – whether planned attack or spontaneous loss of control – no prior criminal record – demonstrated remorse – general deterrence – no need for specific deterrence – unlikely to reoffend – good prospects of rehabilitation

CRIMINAL LAW – appeal – appeal against sentence – aggravated breaking and entering in company and committing a serious indictable offence in circumstances of special aggravation – whether sentencing judge erred in failing to find applicant’s lack of significant record of previous convictions as a mitigating factor

CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Whether the sentencing judge erred in finding that the offending was aggravated by the fact that victims were police officers – Whether that finding reflected double counting – Whether the legislature specifically intended to protect police in enacting the statutory provision pursuant to which the applicant was charged – Where a number of other legislative provisions conferred a power of arrest on persons other than police – No error established CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Where applicant asked the sentencing judge to take into account an additional matter on a Form 1 of taking and driving a conveyance without consent – Where further matter of driving whilst disqualified contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) – Whether sentencing judge erred by taking into account the Form 1 offence when assessing the objective seriousness of the offence of driving whilst disqualified to which the Form 1 did not attach – Error established leading to the necessity to re-sentence – Serious offending requiring a strong element of general deterrence – Guarded prospects of rehabilitation dependent upon the applicant addressing his drug addiction – No lesser sentence warranted in law – Leave to appeal granted – Appeal dismissed

PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime – order for examination of defendants – usual misgivings

PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime– serious crime-related activity – supply of prohibited drugs – refusal of order for examination of defendant

PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime – serious crime-related activity – refusal of order for examination of defendant

HIGH RISK OFFENDERS – Crimes (High Risk Offenders) – Interim Detention Order – application – where defendant breached recognisance order – application granted

COSTS – application for expedited hearing of limitation issue – where notice of motion resolved without determining issue in dispute – application adjourned for plaintiff to determine if it maintained an assertion that certain document privileged – reasonably clear privilege had been waived – hearing delayed as a result – intransigence – plaintiff to pay defendant’s costs of second day – costs otherwise reserved to trial judge

COSTS – Gross sum order – No point of principle

CIVIL – proceeds of crime – registration of interstate order excluding certain property from Victorian restraining order made – whether an exclusion order is an “amendment” to a restraining order – application determined in the absence of the public and both parties – order registered in NSW

LEGAL PRACTITIONERS – claim against fund – appeal to Supreme Court – where Fidelity Fund Management Committee wholly disallowed claim – whether Committee constructively failed to exercise jurisdiction – whether any “default” within the meaning of the Uniform Law – summons dismissed

HIGH RISK OFFENDERS – Crimes (High Risk Offenders) Act 2006 – extended supervision orders – final hearing – serious sexual offending – where defendant already subject to ESO – imposition of scheduling conditions – application granted

EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Penalty — factors to be considered when imposing penalty — application of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Penalty — calculation of maximum penalty — course of conduct

COSTS — Party/Party — Appeals — appeal from Local Court — quantification of costs — mixed results in Local Court interlocutory proceedings — broad brush approach

Trusts – Resulting trust – Presumption of resulting trust – Presumption of advancement – Where wife purchased property – Where purchase price paid from joint loans taken in names of wife and husband – Where security for joint loans from separately owned properties – Where title registered in name of wife only – Where husband never claimed interest in property – Where property matrimonial home – Where history of separate ownership of assets – Where presumption of advancement precludes presumption of resulting trust from arising – Whether presumption of resulting trust over one half of property in favour of husband – Whether objective intention of wife and husband for husband to have beneficial interest in property – Whether presumption of advancement remains part of general law of Australia. Words and phrases – "beneficial interest in property", "benefit of another", "circumstance of fact", "circumstance of evidence", "inference", "intention", "objective intention to create a trust", "presumption of advancement", "presumption of fact", "presumption of law", "presumption of resulting trust", "proof of intention", "purchase money resulting trust", "relationship of husband and wife", "spouses", "strength of the presumptions".

BHP Group Ltd v Impiombato Statutes – Interpretation – Territorial operation – Presumption against extraterritoriality – Acts Interpretation Act 1901 (Cth), s 21(1)(b) – Where Pt IVA of the Federal Court of Australia Act 1976 (Cth) permitted a person to commence a representative proceeding in the Federal Court of Australia on behalf of other persons ("group members") where certain statutory criteria were met – Where Pt IVA did not contain any express geographic or territorial restriction on the identity of persons who could be group members – Whether Pt IVA allowed claims to be brought on behalf of group members not resident in Australia. Words and phrases – "central focus", "claims", "class action", "federal jurisdiction", "hinge", "in and of the Commonwealth", "matter", "object of legislative concern", "personal jurisdiction", "presumption", "presumption against extraterritoriality", "representative proceedings", "statutory construction", "statutory interpretation", "statutory presumption", "subject matter jurisdiction", "territorial connection", "territorial jurisdiction", "territorial restriction". Constitution, s 77(i). Acts Interpretation Act 1901 (Cth), s 21(1)(b). Federal Court of Australia Act 1976 (Cth), Pt IVA; ss 19, 33A, 33C, 33D, 33

SDCV v Director‑General of Security Constitutional law (Cth) – Judicial power of Commonwealth – Where adverse security assessment of appellant, accompanied by statement of grounds, certified by Director‑General of Security on behalf of Australian Security Intelligence Organisation ("ASA decision") – Where appellant's visa cancelled on character grounds in consequence of ASA decision – Where appellant applied to Administrative Appeals Tribunal for merits review of ASA decision – Where Minister administering Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a) of Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") stating that disclosure of some of contents of documents relating to ASA decision would be contrary to public interest because disclosure would prejudice security of Australia ("certificated matter") – Where Tribunal provided with certificated matter but certificated matter not disclosed to appellant or appellant's legal representatives – Where Tribunal affirmed ASA decision – Where appellant appealed to Federal Court of Australia pursuant to s 44 of AAT Act – Where s 46(1) of AAT Act allowed Federal Court to have regard to certificated matter in determining appeal – Where s 46(2) of AAT Act provided that Federal Court shall do all things necessary to ensure that certificated matter not disclosed to any person other than member of court as constituted for purposes of proceeding – Where certificated matter not disclosed to appellant or appellant's legal representatives in Federal Court – Whether s 46(2) of AAT Act invalid on basis that Ch III of Constitution precludes making of law that denied party to proceedings in court of federal judicature fair opportunity to respond to evidence on which order of court which finally altered or determined right or legally protected interest of party might be based – Whether s 46(2) of AAT Act invalid on basis that it required or authorised Federal Court to act in manner inconsistent with essential character of court or with nature of judicial power. Words and phrases – "adverse security assessment", "all things necessary to ensure", "balancing exercise", "denial of disclosure", "essential characteristics of a court", "fair opportunity to respond", "forensic advantage", "gist", "judicial power of the Commonwealth", "national security", "officer of the court", "practical injustice", "procedural fairness", "public interest", "public interest immunity", "special advocate". Constitution, Ch III. Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39B, 43AAA, 44, 46. Australian Security Intelligence Organisation Act 1979 (Cth), s 54.

ADMINISTRATIVE LAW – police powers – search warrant – whether invalid – where police attended plaintiff’s residence in response to his triple-0 calls of threatened violence by neighbour – police shown notes on computer – APVO application made by plaintiff – search warrant executed on plaintiff’s premises to seize computer and hardware – searchable offence nominated as Crimes Act s 314 – whether applicant had reasonable grounds under LEPRA s 47 – whether Local Court Registrar had reasonable grounds under LEPRA s 48 – other particulars of invalidity under LEPRA s 62(3) – where Registrar appeared to indicate less than one minute spent considering search warrant application – applicant did not have reasonable grounds – search warrant declared invalid and its issue quashed

ADMINISTRATIVE LAW ­– Judicial review of Review Panel assessment of permanent impairment under Division 7.5 of the Motor Accident Injuries Act 2017 (NSW) – force or status of Motor Accident Guidelines – no legal obligation in cl 6.18 of the Guidelines to consider particular evidence – separate assessment of injury – no inconsistency between medical findings – failure to comply with cl 6.70 of the Guidelines – assessment of permanent impairment using incorrect AMA4 table – error on the face of the record and jurisdictional error established ADMINISTRATIVE LAW – Judicial review – where error established – whether discretion to refuse relief should be exercised – whether relief futile – affected parties entitled to have matter determined according to law – further assessment may not reach the same conclusion – relief granted

JUDGMENTS AND ORDERS — Belated application to set aside consent orders filed over 10 months after consent orders made in duty list — Delay in application being eventually listed for hearing following various case management listings — Application listed for hearing 22 months after consent orders made — on afternoon prior to listing applicant corresponds by email to chambers of Judge foreshadowing an adjournment of the application on assertion of physical and various mental health grounds including COVID 19, anxiety and stress — Respondent strenuously opposes adjournment — listing maintained but AVL link provided to applicant — Applicant provides by email further materials in late afternoon including materials not copied to respondent — Applicant fails on following morning to appear by AVL and provides no contact to the Court — Respondent requests dismissal of application for adjournment and dismissal of application to set aside consent orders — Applicant’s applications dismissed PRACTICE AND PROCEDURE — Email communications with Judge's chambers — Discussion of appropriate procedures — A party cannot properly expect a judge to consider privately materials emailed to a judge’s chambers on a contested application afortiori where the responding party has not been included in the communication allegedly because material is “highly confidential” CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — Medical grounds asserted being physical and various mental illness including COVID 19, anxiety and stress — Quality of evidence to justify adjournment CIVIL PROCEDURE — Principles regarding interlocutory applications — Consideration of source of rules and procedure governing interlocutory applications — Significance of ‘moving’/‘proceeding’ on a notice of motion — Consideration of source of power to hear and determine application in absence of applicant moving application COSTS — Appropriate order where applicant fails to appear on determination of applications

COSTS – departure from usual rule – plaintiff a purchaser under a contract for sale with second defendant vendor – sale at a price below market value – plaintiff seeks orders for removal of caveats – plaintiff successful, but only after belatedly offering to pay money into Court to serve as alternative security for caveators – held appropriate that plaintiff pay costs of caveators – held not appropriate to order second defendant to pay those costs – second defendant not responsible for sale being at an undervalue and it was doubtful that she had ability to herself have caveats removed

CONTRACTS – mortgages and securities – penalties – where mortgagee seeks to recover two fees from mortgagor and guarantors that become payable upon default of principal obligations in the mortgage – where mortgagor and guarantors contend that fees are unenforceable as being penal in nature – where fees become payable upon the happening of a variety of breaches of mortgage with no regard to whether the breaches are likely to occasion serious or trivial damage to mortgagee – where third party mortgage manager actually incurs certain losses upon default instead of mortgagee – held that the fees sought to be recovered by the mortgagee are unenforceable as penalties

BUILDING AND CONSTRUCTION – where no valid development consent or construction certificate in relation to building works – whether defence of illegality available in relation to claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether managing director and project site supervisor of builder capable of being persons for the purposes of s 37 of that Act PRACTICE AND PROCEDURE – whether cross-claimant should have leave to amend Cross-Claim List Statement – where cross-claimant seeks to introduce claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether leave should be refused because of availability of defence of illegality – whether amendment should be disallowed against proposed individual cross-defendants because they are not persons for the purposes of s 37 of that Act – whether amendment should be disallowed on the basis of prejudice to the proposed cross-defendants

CONTRACTS – breach of contract – financial services external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA’s determination was unreasonable in the Wednesbury sense CORPORATIONS – financial services – external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA’s determination was unreasonable in the Wednesbury sense

CRIME – appeal against convictions and sentence for multiple sexual offences – extension of time in which to appeal – notice of appeal lodged more than three years after trial and sentencing – 35 proposed grounds of appeal – extension of time and leave granted for limited grounds as to convictions CRIME – appeal against convictions – miscarriage of justice – apprehension of bias of judge – trial by jury – judge’s language or conduct only relevant if in presence of jury – reference to “grooming” – whether reasonable juror might have apprehended judge might have formed opinion as to guilt of accused – self-represented accused – judge not expressing fixed view that accused groomed complainant – judge’s clarification and reformulation of accused’s questions in cross-examination of complainant CRIME – appeal against convictions – miscarriage of justice – procedural unfairness – self-represented accused – duty of trial judge to ensure fair trial – refusal of adjournment – role of trial judge to inform but not advise accused – advice as to right to object to evidence not extended to legal advice as to basis of objection to particular evidence – judge not obliged to interfere with prosecution address unless risk of miscarriage CRIME – appeal against convictions – unreasonable verdicts – finding that victims were sedated – compelling video evidence of state of complainant during abusive conduct – expert evidence supporting inference of sedation – no basis to doubt truthfulness and reliability of witness – accused admitted to performing sexual acts on complainant CRIME – appeal against sentence – aggregate sentence – errors in indicating sentences for individual offences – error in considering inapplicable standard non-parole period – factual error affecting culpability of offender – re-sentencing discretion engaged CRIME – appeal against sentence – re-sentence – serious sexual abuse of stepdaughter – offending persistent and regular over four years – sedation of victim and victim’s mother – offending video recorded for sexual gratification – late guilty pleas to video-recorded sexual assaults – convictions following trial on other offences – reflecting discounts for pleas in aggregate sentence – no arithmetical calculation for utilitarian discount – applicant’s health conditions considered – lesser aggregate sentence not warranted

CRIMINAL LAW – application for leave to appeal against sentence – whether the sentencing judge erred in identifying the elements of the offence – Criminal Code Act 1995 (Cth) s 400.3 – whether sentencing judge erred in making a finding of guilt under s 400.3(2)(b)(i) – De Simoni principle - whether the sentencing judge erred in assessing the discount to be afforded for the value of guilty plea – whether the sentence for the Money Laundering Offence was manifestly excessive – whether error in overall effective non-parole period – parity – leave to appeal granted - appeal allowed – re-sentence

PROCEEDS OF CRIME – orders restraining disposal of property – orders for disclosure of assets and liabilities – orders for custody and control of restrained property – whether appropriate to deal with application in closed court and ex parte – fraud on NDIS – deception – proceeds of crime – potential disposal of tainted property – urgent application

INDUSTRIAL LAW – industrial organisations –cancellation of registration – request of union – jurisdiction – registration cancelled – discretionary matters

CRIMINAL PROCEDURE – trial – judge alone – adjournment application – professional legal advice to be sought – short adjournment granted

COSTS – orders against non-parties – personal costs orders against lawyers – where the plaintiff’s legal representative delayed filing amended statement of claim – whether the plaintiff’s legal representative acted improperly, unreasonably or negligently – whether the defendant incurred unnecessary costs as a result – whether orders for such costs should be postponed until the conclusion of proceedings

EVIDENCE – Documentary evidence – Tender of documents – Hearsay – Exceptions – Business records – Public documents – Transcript of coronial inquiry

CIVIL PROCEDURE — Hearings — Adjournment — Late amendment of pleadings by second defendant — Related administrative decision by second defendant to be challenged by plaintiff in separate judicial review proceedings — Time and costs of hearing and preparation wasted — Second defendant ordered to pay costs on an indemnity basis

COSTS — Party/Party — Appeals — Suitors’ Fund — application for certificate granted

EVIDENCE – opinion rule – exception for expert opinion – accused is a correctional officer – shot deceased while deceased was escaping from custody – accused charged with murder – whether Crown can disprove existence of lawful excuse – whether accused believed on reasonable grounds that it was necessary to discharge firearm to prevent the escape of the deceased – evidence to be adduced as to accused’s training in use of firearms – accused seeks to adduce evidence from training expert that his discharge of fatal shot was consistent with his training – whether expert has “specialised knowledge” based on training, study or experience and, if so, scope – whether opinion of expert substantially based on specialised knowledge – Held – opinion rejected – witness does not have specialised knowledge that would enable him to give opinion about consistency between accused’s conduct and the accused’s training – witness can give evidence as to the content of the training received by accused

NEGLIGENCE – Motor vehicle accident – Identity of vehicle in dispute – Whether primary judge erred in preferring evidence of a particular witness – Whether principles in Fox v Percy apply – Nominal Defendant held liable NEGLIGENCE – Motor vehicle accident – Contributory negligence – Whether primary judge erred in not accepting evidence suggestive of speeding – No contributory negligence

CONTRACTS — Contracts requiring written evidence — Statute of frauds — Contract said to record agreement for sale of land — Family arrangement — Construction — Whether contract was an agreement for sale of land — Whether a clause headed “Recitals” was an operative provision — Whether contract a note or memorandum of agreement APPEALS — Point not taken below — Whether point taken below — Whether claim, though pleaded, proceeded on a different basis at trial

CONTRACT – restraint of trade – whether exclusive employment covenants reasonable – whether potentiality for confidential information to be used to employer’s detriment – where proposed new employer supplied a competing product – where employee had received information about marketing, shortcomings and potential development of employer’s product CONTRACT – restraint of trade – whether competitor restraint reasonable – where restraint only operated if competition existed at termination – language of restraint justifies inference that parties contemplated competition at termination – not necessary to prove specific competitors existed at time of entry into restraint CONTRACT – restraint of trade – challenge to discretion to make declaration and grant injunction – whether protectable interest in employer’s confidential information at date of hearing CONTRACT – restraint of trade – inducing or encouraging another employee to leave employment – whether other employee had independently decided to leave – where finding as to materiality of encouragement and inducement was well open

CIVIL PROCEDURE – removal to Court of Appeal – removal on Court’s own motion – no appeal from District Court dismissal of appeal from Local Court – judgment of Local Court superseded by judgment of District Court – judicial review of District Court – proceedings assigned to Court of Appeal CIVIL PROCEDURE – stay of proceedings – pending proceedings pending in High Court – refusal of pro bono referral application – special leave application to High Court – interlocutory decision not determining issues of law or fact – assessment of strength of case not relevant on final hearing DISCRIMINATION – hearing disability – limited appreciation of trial process – relevance on judicial review – possibility of claim against State

CORPORATIONS — Winding up — Public examination of directors, officers and others — Examination of director or officer of company — Costs of examination — Whether director liable to costs thrown away — Where examination postponed due to director testing positive for COVID-19 — Where costs not thrown away

CORPORATIONS — Winding up — Liquidators — Costs and expenses — Where company originally considered solvent and process commenced for members’ voluntary liquidation — Where conduct of directors indicated company was no longer solvent — Whether company should be wound up — Whether Court should dispense with notice requirements