Cases and authorities

CIVIL PROCEDURE — Pro bono referral under r 7.36 of UCPR — Referral power likely administrative in nature — No evidence as to the financial means of the applicant — Where previous pro bono referral assistance provided — Where applicant unlikely to accept legal advice — Referral refused CIVIL PROCEDURE — Suppression and non-publication — Possible public interest in non-disclosure of identifying information of persons on Child Protection Register — Where the information sought to be suppressed was already in the public domain —Order not made under the Court Suppression Act

CRIME — work health and safety — appeal against conviction for breaching duty owed by persons conducting a business or undertaking under s 19(2) of the Work Health and Safety Act 2011 (NSW) — appeal pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW) — consideration of extent to which challenges to findings of fact permitted CRIME — work health and safety — whether conduct of labour hire worker occurred as part of host’s business or undertaking for the purposes of s 19(2) of the Work Health and Safety Act — alleged error in finding that worker an employee or agent of hirer for the purposes of s 244 not material — conviction well supported by factual findings without the need to rely on s 244

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Applicant found guilty by jury of two counts of adult sexual assault – Applicant acquitted by jury of multiple counts of same offending – Where Crown case was that two conviction counts were supported by contemporaneous complaint material in the form of text messages – Where applicant contends the jury must have misused the evidence of text messages – Where appeal court should not attempt to parse jury findings in determining unreasonable verdict ground – Where text messages sent by complainant to applicant were powerful contemporaneous complaint suggestive of adult sexual assault CRIME – Appeals – Appeal against conviction – Where applicant convicted of multiple counts of sexual and physical violence – Summing-up of trial judge – Where trial judge gave partial Liberato direction – Where direction did not speak of complete rejection of evidence of applicant – Where primary fact in contention was issue of consent – Where applicant gave sworn evidence in his defence contradicting evidence of complainant on two counts – Where applicant also gave sworn evidence admitting two offences – Where Crown relied on evidence of applicant in that regard – Where defence counsel at trial explicitly satisfied with partial Liberato direction – Where Rule 4.15 engaged – Where no miscarriage of justice CRIME – Appeals – Appeal against conviction – Final address of Crown prosecutor – Summing-up of trial judge – Where final address of Crown prosecutor referred to asserted lies and unusual behaviour of applicant – Where vast majority of final address of Crown prosecutor did not feature consciousness of guilt reasoning – Where one submission of Crown prosecutor should, on analysis, be characterised as consciousness of guilt reasoning – Where applicant contends Edwards direction should have been given to jury –Where defence counsel at trial did not request Edwards direction – Where no miscarriage of justice CRIME – Appeals – Appeal against sentence – Manifest excess – Where applicant submitted that indicative sentences for non-sexual assault offences were manifestly excessive – Where jury verdicts regarding previously committed sexual assaults meant that applicant could not rely on prior good character –Where aggregate sentence imposed for four offences was arguably lenient – Where no manifest excess established

CRIME — Appeals — Appeal against conviction — whether tendency evidence was wrongly admitted — where evidence was of applicant’s consensual sexual relationship with a female under 16 years — where offence alleged involved no consent — where evidence showed sexual interest in females under 16 years — where evidence not wrongly admitted CRIME — Appeals — Appeal against conviction — Miscarriage of justice — whether crown prosecutors questioning appropriate — fairness obligation — where held questioning appropriate CRIME — Appeals — Appeal against conviction — Unreasonable verdict — alternative count — where verdict could be explained based on different consent requirements in counts charged — where verdict not unreasonable CRIME — Appeals — Appeal against sentence — whether finding made by sentencing judge consistent with jury verdict — De Simoni principle — where finding consistent

CRIME – Appeals – Appeal against sentence – Ongoing drug dealing – Manifest excess – Where submitted that remarks of sentencing judge were not reflected in sentence imposed – Where unusual sentence structure imposed – Where special circumstances found causing dramatic departure from statutory ratio between non-parole period and head sentence – Leave to appeal granted and appeal dismissed

CIVIL PROCEDURE – adjournment – to vacate hearing date – where plaintiffs were granted leave to file notice of motion to vacate hearing date – motion listed before duty judge – no motion filed – plaintiffs failed to appear – hearing date confirmed

CIVIL PROCEDURE - commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as an inmate of a juvenile correctional centre – leave granted

CIVIL PROCEDURE – suppression and non-publication – whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress the identity of the plaintiff – whether orders are necessary to prevent prejudice to the proper administration of justice – whether orders are necessary to protect the safety of the plaintiff – order not made

SUCCESSION – Probate and administration – Costs – Where probate issues not the only matters in dispute – Interplay of costs principles where litigation may be attributed to testator, where circumstances warranted investigation and Calderbank offers – Some allocation of costs by reference to issues

BUILDING AND CONSTRUCTION – where payment schedule under Building and Construction Industry Security of Payment Act 1999 (NSW) served using Procore electronic information exchange system – whether provision in building contract concerning electronic service of documents engaged – whether payment schedule provided within 10 day limit in s 14 of the Act – whether electronic service deemed to occur at 9.30am on day following electronic receipt – where developer had actual notice of payment schedule on the evening of receipt – whether plaintiff builder entitled to recover claimed amount under s 15 of the Act

PRACTICE AND PROCEDURE – adoption of referee’s report – whether report included certain findings – whether certain opinions and recommendations expressed by the referee were extraneous to the scope of the reference

SUCCESSION – The deceased died leaving duly executed Will probate of which was granted to the Defendant, one of two adult children of the deceased – Plaintiff received 25 per cent share, whilst Defendant received 75 per cent share, of the deceased’s estate – Clause giving power of appropriation to the executor in Will – Construction and effect of the appropriation Clause – Whether Defendant entitled to acquire the Plaintiff’s interest in the estate – Whether dispute as to valuation of the property forming part of the estate – No competing valuation evidence given by the Plaintiff – Alleged difference in value of the property would have resulted in Plaintiff, on her case, being entitled to receive an additional amount less than $50,000 than the amount paid to, but not retained by, Plaintiff.

CONTRACTS — formation — agreement — whether intention to make concluded bargain — essential or important matter yet to be agreed — whether subject to statement of assets and liabilities — Masters v Cameron

COSTS — Security for costs — Relevant factors — Strength of the claim — Degree of unreality about claims in light of undisputed facts — Discretion — Mere non-payment of judgment debt does not indicate stultification of appeal — Lack of evidence of financial position of either party — Order not to be refused purely on the basis that claimant of security may have been well-resourced

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.

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

COSTS – application for indemnity costs on the basis of unsuccessful party’s failure to accept Calderbank offer – no question of principle

WORKERS COMPENSATION – Medical assessment – Judicial review of decision by medical appeal panel – Where appeal panel accepted error alleged to have been made in medical assessment, but proceeded to uphold ultimate outcome using alternative reasoning – Function of appeal panel confined to considering grounds raised in appeal – Held that appeal panel exceeded jurisdiction by embarking on alternative examination after accepting error below – Erroneous Medical Assessment Certificate quashed – Held that as a matter of law, only one particular determination should have been made – Appeal panel directed to issue certificate on terms to effect of that determination

COSTS – departure from usual rule that costs follow the event – plaintiffs’ claims unsuccessful – unreasonable conduct of first defendant significantly contributed to the litigation – plaintiffs ordered to pay costs of second defendant but not costs of first defendant

COSTS — Payable out of the deceased’s estate — Liability for costs where various claims were abandoned

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correction centres – leave granted

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correctional centres – leave granted

CONTRACTS – Formation – Uncertainty – Intention to contract – Promissory estoppel – Testamentary promise – Detrimental reliance – Remedies SUCCESSION – Family provision – Claim by stepchild as alleged member of household and dependant for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – Whether eligible person – Whether a member of household – Whether a dependant – Notional estate – Where property of the estate distributed – Joinder of third parties SUCCESSION – Family provision – Claim by adult child – Application made out of time – Whether ‘sufficient cause’ pursuant to Succession Act 2006 (NSW) s 58(2)

APPEALS – procedure - leave to appeal – principles governing – leave to amend summons refused – question of law – mixed question of law and fact – admission of evidence – common knowledge of background to commercial environment – taking account irrelevant matters CIVIL PROCEDURE – leave to appeal - leave to appeal refused

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — Industrial Relations Act 1996 (NSW) ss 136, 137 and 139 —alleged contravention of dispute orders — whether multiple separate contraventions of dispute orders — single course of conduct — assessment of penalty — sentencing principles — consideration of Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13 — principle of totality — objective factors — nature and extent of contravening conduct — seriousness of conduct — deliberateness of conduct — loss and damage caused — circumstances of contravention — general deterrence —specific deterrence — subjective factors — penalty imposed EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — industrial disputes — industrial action — conciliation and arbitration — dispute orders — public interest — objects of the Industrial Relations Act 1996 (NSW) EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — appellate jurisdiction — statutory right to seek leave to appeal to Full Bench — principles and relevant considerations for grant of leave — grant of leave where Commissioner fails to give adequate reasons COURTS AND TRIBUNALS — jurisdiction of Supreme Court — Industrial Relations Act 1996 (NSW) s 139 — collateral challenge, attack or review — discretion to entertain the collateral challenge — discretion to decline to hear and determine collateral challenge — relevant considerations and factors — application to present case COURTS AND TRIBUNALS — jurisdiction of Supreme Court — privative clause — Industrial Relations Act 1996 (NSW) s 179 — Kirk v Industrial Court (NSW) (2010) 239 CLR 531 — whether s 179 prevents collateral challenge — decision with non-jurisdictional error of law is “final” and not void ADMINISTRATIVE LAW — failure to give reasons — whether the Commission was under an obligation or duty to give reasons — implied statutory obligation to give reasons — “special circumstances” in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 — Industrial Relations Commission is a quasi-judicial body — required to act judicially — required to afford procedural fairness — statutory right of appeal — dispute orders affect rights of persons — discussion of content and adequacy of reasons ADMINISTRATIVE LAW — failure to respond to substantial, clearly articulated argument — meaning of “substantial” and “clearly articulated” — whether satisfied by dialogue or questioning between counsel or representative and Commissioner — practical injustice — materiality ADMINISTRATIVE LAW — jurisdictional error or error of law — whether failure to give reasons amounts to jurisdictional error — constructive failure to exercise jurisdiction — denial of procedural fairness — February dispute orders void — March dispute orders not void

CIVIL PROCEDURE - Declaratory proceeding – Damages proceedings – challenge to conviction in the trial by jury – challenge to sentencing at trial – challenge to determinations upon appeal – invalidity – constitutional issues – notices of motion to dismiss summary for declaratory relief and statement of claim for damages – abuse of process – unlikely to succeed – summons and statement of claim dismissed

CIVIL PROCEDURE — hearings — application that proceedings be heard together — whether common question can be identified — not necessarily fatal — overlap of issues sufficient on the present facts

RESTRAINT OF TRADE – employee – employment contract governed by law of New South Wales – activities of first defendant during and after employment occurred in Victoria – plaintiff sought injunction in terms not limited to alleged offending conduct and not limited to conduct occurring in Victoria – application of Restraints of Trade Act 1976 (NSW) – no actual or apprehended breach of contractual restraint proved CONTRACT – contractual obligation of confidence – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of contractual obligation of confidence EQUITY – equitable obligation of confidence – necessary quality of confidence – insufficient identification of all information said to be confidential – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of equitable obligation of confidence

APPEAL – Local Court – Damages – Replacement vehicle – Leave to appeal – Whether the defendant suffered any loss – Whether the defendant proved a ‘need’ for the replacement vehicle – Whether the hire was unreasonable – Objective theory of contract - Decision of Magistrate set aside

HIGH RISK OFFENDERS — Continuing detention orders — Matters to be considered HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — Relevance of conditions to risk

CIVIL PROCEDURE – summary dismissal – dismissal of proceedings – no reasonable cause of action – limitation period – whether claims statute barred – breach of fiduciary duty – not the clearest of cases – application dismissed CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action – tendency to cause prejudice, embarrassment or delay – lack of clarity – statement of claim struck out – leave to amend granted CIVIL PROCEDURE – application for stay of proceedings – abuse of process – discretion not exercised

CRIMINAL LAW – sentence – victim impact statement – findings of fact – objective seriousness – subjective factors – young offender – psychological evidence – physical and mental health – lack of criminal history – reoffending – rehabilitation – Bugmy factors – remorse – general deterrence – planning and premeditation – nature and severity of assault – mental illness in mitigation – special circumstances – orders

LAND LAW – possession of land – claim by executors against an occupier – defendant asserts that deceased promised he would leave the property to her – no defence pleaded to claim for possession – defence struck out – judgment for possession

LAND LAW – possession of land – default under loan agreement and mortgage – where agreement reached after proceedings commenced for consent judgment to be held in escrow on conditions – where defendant breached conditions – plaintiff entitled to judgment for possession

CONTRACTS – interpretation of commercial contracts – application of established principles to the interpretation of a clause in hotel management agreements entitling the hotel manager to a capital gains bonus fee CORPORATIONS – where sole business of corporations in administration and subsequently liquidation was carried out as trustee of unit trusts – where liquidators were appointed as receivers and managers of trust assets – application by administrators, liquidators and receivers for orders fixing their remuneration – inherent equitable jurisdiction to fix remuneration to be paid out of trust assets

CRIMINAL LAW – trial by judge alone – single count of murder – where Crown case was that the accused entered the deceased’s house with a co-accused to steal money and the deceased was stabbed in the course of that enterprise – where accused made multiple admissions to participation in the killing – where co-accused was a witness for the prosecution – whether elements of murder established on basis that accused stabbed the deceased – whether elements of murder established on basis of extended joint criminal enterprise – whether accused acted in defence of another – reasons for verdict

ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Constructive failure to exercise jurisdiction – Whether defendant Authority misconstrued evidence – Whether applications determined on the basis of an incorrect factual assumption ADMINISTRATIVE LAW – Procedural fairness – Hearing rule – Disclosure – Whether defendant Authority required to disclose deliberative processes ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrelevant and relevant considerations – Statutory construction ADMINISTRATIVE LAW – Hardiman principle – Role of the defendant Authority as the active contradictor – No impropriety

TORTS — false imprisonment — matters known to prosecutor after conclusion of applicant’s electronic interview with police justified his continued detention following earlier lawful arrest TORTS — malicious prosecution — whether officer-in-charge continued to act as a “prosecutor” after case transferred to DPP — absence of reasonable and probable cause not demonstrated — malice not established as no basis for concluding that prosecutor acted other than appropriately to invoke criminal justice system

EVIDENCE – admissibility of homicide weapon – where elements of murder are conceded – where partial defence of substantial impairment relied upon – where there is other evidence related to the manner of killing including a photo of axe and graphic descriptions of the killing – where danger of unfair prejudice outweighs probative value – axe not admitted

CRIMINAL LAW – Evidence – When objection was taken to evidence of conversation between two co-conspirators - Conversation recorded by listening device – Primary objection on the basis of relevance – Where counsel for the accused sought that the determination of admissibility be made without the aid of a transcript – Where the conversation was played on several occasions – Court unable to determine what was said – Evidence not relevant – Evidence excluded

CIVIL PROCEDURE — hearings — adjournment — application to vacate hearing date — relevant factors — costs — expert witnesses — conclave preparations — long lists of questions and assumptions — overriding purpose of just quick and cheap litigation not being served

LAND LAW – co-ownership – statutory trust for sale – powers of trustee – variation of orders

CIVIL PROCEDURE – settlement of proceedings – court approval

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

CIVIL PROCEDURE — Hearings — Adjournment — Where further investigation may lead to discovery of relevant evidence — Where plaintiff unrepresented — Adjournment granted

EQUITY – trusts and trustees – discretionary family trust – corporate trustee – application for representative order to bring derivative actions on behalf of trust – viable case against defendants – alternatives to derivative action impractical – “special circumstances” – whether order should be conditional on indemnity for trustee’s costs or security for defendant’s costs – form of order

CRIME – where accused unrepresented for a trial with an estimate of six months – Dietrich v The Queen (1992) 177 CLR 292 – accused previously certified under s 69(3) of the Judiciary Act 1903 (Cth) – Commonwealth legal assistance schemes – significant delay in consideration of the certificate

PRACTICE — Direction for parties to bring in proposed short minutes of order to give effect to the reasons for judgment — Various sets of proposed orders — Duty of practitioners to assist Court to present materials to the Court in a form which clearly identifies to the judge the orders that are agreed and a concise listing of the outstanding disputed issues. PRACTICE — Sets of submissions provided by each of parties in evolving circumstances leading to refinement of some issues and abandonment of other issues — Duty of practitioners to assist Court to clearly identify which submissions are ultimately relied upon without Court being left to task of attempting to identify whether there are remnants of matters still contended for in earlier submissions ORDERS — Inadvertent mistake by solicitor including reference to an individual party as being jointly liable to pay a costs order payable by a corporation — No dispute that mistake inadvertent — Order opposed by other parties who seeks nonetheless to make individual jointly liable — Inadvertent mistake falls within the concept of the order being "irregularly" for purposes of r 36.15 Uniform Civil Procedure Rules 2005 (NSW) — Order set aside PRACTICE — cases of inadvertent mistake are quintessentially an occasion for parties and legal representatives to reflect upon their duties to the Court to assist the Court to further the overriding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings COSTS — Claims for indemnity costs — Principles — No real compromise — Reasons to order otherwise COSTS — Claims for third party costs orders that third-party indemnify other parties for costs of corporate entity — Claims based on Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 — An agreement in place for security for costs is a relevant consideration to claims for sole director shareholder to indemnify other parties for costs of corporate entity EVIDENCE — Notice to Admit Facts — Request framed that plaintiff was not ready, willing and able to complete contracts — Complicated question involving consideration of many facts and pieces of evidence and informed by principles of law and construction of documents — Practitioners ought to reflect upon utility of seeking admission of ‘facts’ on what are essentially multifaceted ultimate issues SECURITY FOR COSTS — Requests by parties for directions to release funds held pursuant to agreement for security for costs — No basis for interfering with or cutting across the terms of the agreement between the parties ORDERS — Post judgment claim pursuant to r 36.1 Uniform Civil Procedure Rules 2005 (NSW) by single vendor who had not filed any cross-claim to have order made for return of deposit in reliance upon findings regarding other successful vendors who had filed cross-claim — No evidence from vendor explaining his decision not to seek any such relief — Possibility of considered forensic decision not to risk costs — Claim denied

ADMINISTRATIVE LAW – Judicial review – Workplace injury – Workers Injury Management and Workers Compensation Act 1998 (NSW) – Assessment of whole person impairment – Section 323 deduction – Whether Medical Assessor correctly applied the ‘four step’ process as described in Ryder v Sundance Bakehouse [2015] NSWSC 526 – Dismissed