Cases and authorities

COMMERCIAL ARBITRATION — Arbitration agreement — Stay of proceedings — Whether this proceeding is a distinct dispute from a dispute that was the subject of a prior adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Tiered dispute resolution agreement — Whether the arbitration agreement is inoperative or incapable of being performed because the defendant did not comply with a condition precedent requiring it to procure the President of ACICA to appoint an expert to determine the dispute

WORKERS COMPENSATION — Disease injury — Aggravation, acceleration, exacerbation, or deterioration in the course of employment — Where the deceased suffered an asthma attack causing cardiac arrest and anoxia, and ultimately resulting in her death, during the course of her employment — Where appellants initially pleaded the injury as an “asthma attack” — Where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia” — Whether Anshun estoppel precluded the appellants from bringing the second claim STATUTORY INTERPRETATION — Applicability of Anshun estoppel to the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk “came home” or eventuated EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour

CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Where the parties each propounded draft documents — Where neither party expressly accepted the draft provided by the other party — Where respondent commenced works — Whether respondent by its conduct accepted the contract propounded by the appellant CONTRACTS — Formation — Subsequent conduct — Where appellant sought variation of the works ostensibly in accordance with contract provisions — Extent to which subsequent conduct is relevant to questions of formation

APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

STATUTORY INTERPRETATION – commencement and duration – transitional provisions – where accused found unfit to be tried for a number of criminal offences – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing EVIDENCE – admissions – criminal proceedings – improperly obtained – admission of evidence pursuant to s 138 of the Evidence Act 1995 (NSW) – where complainant recorded telephone call with accused without the accused’s consent, in contravention of s 7 of the Surveillance Devices Act – where phone call contained admissions made by the accused – where primary judge declined to exclude the recorded phone call pursuant to s 138 of the Evidence Act – whether primary judge erred in assessing the relevant considerations enumerated in s 138(3) – whether probative value was reduced by reason of the accused’s intellectual disability – whether importance of phone call in proceedings was reduced by the existence of other evidence containing admissions – whether primary judge erred in finding that the public interest in admitting the phone call outweighed the public interest in its exclusion EVIDENCE – tendency evidence – criminal proceedings – where accused found unfit to be tried for a number of criminal offences, including one of aggravated sexual assault – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where Crown sought to adduce tendency evidence given by a former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – where special hearing conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed a number of offences, including one of aggravated sexual assault – where Crown sought to adduce tendency evidence given by former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the relevant “hearing” began on the finding of unfitness to be tried, or at the beginning of the special hearing – whether the amendments to the Evidence Act applied to the admission of tendency evidence SENTENCING – appeal against sentence – severity – sentence manifestly excessive – appeal against limiting term imposed pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether sentencing judge gave adequate weight to the appellant’s intellectual disability in assessing the need for general deterrence – whether sentencing judge gave effect to recognised principles that people with intellectual disabilities may be inappropriate vehicles through whom to send messages of deterrence – whether limiting term was plainly wrong, unreasonably or unjust

CRIME – Appeals – Appeal against sentence – possession of tobacco products imported to defraud the revenue – asserted failure to consider parity – whether justifiable sense of grievance – asserted failure to take applicant’s antecedents into account – whether some other sentence warranted

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

CIVIL PROCEDURE – admissibility of expert report – service out of time – leave – supplementary report updates an earlier version of a report that has been served in accordance with rule 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) – leave granted to rely on the report

BUILDING AND CONSTRUCTION — Contract — Damages — Quantification — Quantification of damages for the rectification of defects — Where there is disagreement between expert witnesses as to quantification

PROBATE - TESTAMENTARY CAPACITY – knowledge and approval of a will – in January 2020 the testatrix was to undergo serious surgery – when about to be given preoperative anaesthesia the testatrix seeks to make another will – the doctors attending upon her draft a testamentary document and then witness the testatrix’s execution of it – the testatrix’s prior wills divided her property equally between her two children, her daughter, the plaintiff/cross-defendant and her son the defendant/cross-claimant – the January 2020 testamentary document gives substantially the whole of her estate to the son – the daughter commences proceedings seeking a declaration of the invalidity of the January 2020 testamentary document and propounding an earlier will and codicil – the defendant/son cross-claims propounding the January 2020 testamentary document as the testatrix’s last will – the plaintiff/daughter contends that the testatrix did not have testamentary capacity at the time of executing the January 2020 testamentary instrument and did not know or approve its contents.

FAMILY LAW — property — marriage — adjustment of property interests — consequential orders to be made in respect of former matrimonial home — substantial intervening period between expert valuation of property and judgment — whether just and equitable to make orders on basis of expert valuation or to make orders putting property to auction

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – interim extension order due to expire – application for extension order – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means – where no dispute as to duration should orders be made

INSURANCE – liability insurance – application for contribution between insurers – where both plaintiff and defendant insurers wrote liability policy covering the one insured – where plaintiff insurer settled claim against the insured – whether coordinate liability between insurers – whether defendant insurer liable to contribute – whether exclusion in defendant insurer’s policy engaged – proper construction of the exclusion clause

CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates

CORPORATIONS — receivers, controllers and managers — vicarious performance of loan facility — assignment of debt and associated securities — whether receiver and manager validly appointed — application to strike out appearance and defence where receiver and manager has instructed solicitor for the first defendant

NEGLIGENCE — transport accident — passenger attempting to board train while doors closing — breach — whether defendant’s employees acted in accordance with system in place to ensure safety of passengers NEGLIGENCE — defences — contributory negligence — whether plaintiff was intoxicated at the time of the accident NEGLIGENCE — damages — personal injury damages — gratuitous attendant care services — whether commercial attendant care services will be availed

COSTS – Security for costs – special circumstances – whether grounds reasonably arguable – whether appellants impecunious – whether attempts at judgment enforcement frustrated by appellants – substantial risk respondents will not recover costs if successful – Uniform Civil Procedure Rules 2005 (NSW), r 51.50

EQUITY – trusts and trustees – discretionary trust – whether unpaid distributions payable at call – unpaid distributions credited to beneficiaries’ loan accounts – acknowledgement of debt in audited accounts of the trust – whether trustee intended to exercise power of distribution – whether approval of audited accounts of trust justifies inference as to trustee’s intention and informal resolution to make distributions CORPORATIONS – accounts – evidentiary weight of matters stated or recorded in accounts of the trust – s 1305, Corporations Act (Cth) – inference to be drawn from matters recorded in accounts of the trust – where no formal resolution of directors to distribute income to beneficiaries APPEAL – new point on appeal – where alternative case on appeal involves contrary proposition to case at trial – whether prejudice to respondent

APPEALS — Leave to appeal denied — Section 127 of the District Court Act 1973 (NSW) — Principles relating to appeals for small claims — Damages assessed to be between $7000 and $7500 TORTS — Misfeasance by public officer in discharge of public duty – Mental element

CRIMINAL APPEAL – alleged indecent assaults by primary schoolteacher on Years 5, 6 and 7 students – three complainants – 19 counts – jury delivered verdicts on 4 counts relating to one victim – three guilty verdicts – one not guilty verdict – jury then discharged because of bullying allegation by one juror – Jury Act 1977 (NSW), s 73A – Sheriff investigation into bullying allegation – unfounded – applicant sought to rely on material produced by Sheriff’s investigation to show juror bias – one juror alleged to invoke personal experiences of sexual assault in evaluating the evidence – one juror reported that another juror “had made up their mind on the first day basically” – whether evidence produced by Sheriff inadmissible by reason of exclusionary rule concerning evidence of jury deliberations – whether exclusionary rule applicable where evidence of deliberations derived from Sheriff’s report – held that evidence that juror referred to own experience of sexual assault inadmissible – by a majority held that evidence that one juror perceived another to have their mind made up inadmissible – bias ground rejected – whether verdict unreasonable or could not be supported having regard to the evidence – ground rejected – in support of Count 1 complainant gave evidence that applicant kissed her in the storeroom throughout the year – in support of Count 2 complainant gave evidence that applicant kissed her in the laundry while tutoring her over a sustained period of time – whether trial judge erred in directing the jury that the relevant acts for Counts 1 and 2 was the “first time” that the applicant kissed her in the storeroom and the laundry – ground rejected

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Where stay would render appeal proceedings abortive or nugatory — Where no arguable grounds to the appeal — Where interim stay granted to allow appellant to apply to Court of Appeal

CRIMINAL PROCEDURE – trial – judge alone – evidence – application for Crown witness to give evidence via AVL – application not opposed – orders made

CONTRACTS — Termination — where termination of one contract results in termination of another — common mistake that contract remains on foot. CONTRACTS — Implied contract — where parties to and term of resulting implied contract in issue — whether failure to make payments due under implied contract — where parties enter a further contract — parties to and terms of further contract in issue — whether failure to make payments due under further contract — whether loss or damage suffered as result of mistake — unjust enrichment. CONSUMER LAW — Misleading or deceptive conduct — Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18 — whether misleading or deceptive conduct induced error as to continuation of terminated contract — whether parties became bound by implied agreement as the result of misleading or deceptive conduct — whether further contract entered because of misleading or deceptive conduct — silence —whether loss or damage suffered as the result of misleading or deceptive conduct. EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Evidence Act 1995 (NSW), s 79 — where witness’ necessary specialised knowledge based on experience in industry in issue — whether opinions substantially based on witness’ experience in issue — where facts and assumptions upon which opinion based are undisclosed — where reasoning process is undisclosed — evidence inadmissible as expert opinion evidence. EVIDENCE — Credibility and reliability evidence —conflicting evidence — whether Jones v Dunkel inferences arise to be drawn from failure to call other available witnesses — failure results in drawing of Jones v Dunkel inferences.

CRIMINAL PROCEDURE – trial – judge alone application – whether in interests of justice – murder – substantial impairment – “application of objective community standards” – domestic violence – Muslim couple – prior conviction and publicity – interests of justice require a jury trial – application refused

CIVIL PROCEDURE — Pleadings — Striking out — application to dismiss proceedings for failure to comply with UCPR r 31.36 — where no expert report complying with UCPR requirements CIVIL PROCEDURE — Pleadings — Striking out — statement of claim embarrassing — need for defendant to know the case it has to meet — statement of claim struck out — leave refused to file proposed amended statement of claim CIVIL PROCEDURE — pro bono referral — whether referral in interests of justice — where UCPR requires representation by solicitor — where statement of claim poorly drafted — referral made

CONTRACTS – terms – joint venture to acquire and develop property – where joint venture agreement never reduced to writing – where parties dispute the agreed cost of construction of dwellings on the property

ADMINISTRATIVE LAW – Public Sector – Police Regulation (Superannuation) Act 1906 (NSW) ss 9A(4) and 21(4) – where District Court on appeal de novo backdated respondent’s pension by ten years before date of application – where appeal lies in point of law – where pension may be backdated if decision-maker is satisfied that there are exceptional circumstances that merit its doing so – whether such circumstances are only those which explain the delay in filing an application

WORKERS COMPENSATION – Boilermaker’s deafness – Workers Compensation Act 1987 (NSW) ss 60 and 17 – claim for provision of new hearing aids – where notice of injury of loss of hearing given to worker’s then employer in 1999 – where worker changed employment in 2009 – where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer – where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999 – held worker not obliged to give notice of further injury to second employer – first employer liable for consequences of 1999 injury – no question of law

SUCCESSION – family provision – claim by adult daughter for provision pursuant to Succession Act 2006 (NSW), s 59 – where deceased’s 2019 will left family home to appellant daughter and small legacy to respondent daughter – where testamentary statement purported to justify 2019 will – where primary judge found will and statement obtained by process of manipulation and sourced to appellant – where earlier will of deceased leaving one-third of estate to each child found to reflect deceased’s fair and considered testamentary judgment – whether primary judge erred in being satisfied that 2019 will did not make adequate provision for respondent’s proper advancement

APPEALS – Proceedings summarily dismissed – Question of principle – Whether claims sufficiently arguable to be determined at hearing – Whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

CORPORATIONS – TRUSTS AND TRUSTEES – unit trust – receivers and managers appointed to assets of trust after corporate trustee wound up – orders to bring receivership to an end – orders for renumeration of receivers and managers – charging orders made in favour of a creditor of a beneficiary of the trust

CIVIL PROCEDURE – hearings – adjournment – application for adjournment where anti-suit order made in another Court – application granted

CRIME – proceeds of crime – application to revoke restraining orders – whether it is in the interest of justice to revoke the orders – where the defendants’ recorded interviews said to be unlawfully obtained

LANDLORD AND TENANT – breach by landlord of lease by failing to carry out landlord’s works to render the premises fit for use as a childcare centre – DAMAGES – assessment of value of commercial opportunity to trade which opportunity the tenants lost as a consequence of the landlord’s breach

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — where contract extracted statutory warranties — where proceedings for minor defect brought after two years — where magistrate found limitation periods in s 18E did not apply — where prefatory words “to the extent required by the Home Building Act” used — held to incorporate limitation period APPEALS — Procedural fairness — where party made concession in case summary prepared in accordance with practice note — where magistrate disregarded concession — held to constitute a denial of procedural fairness APPEALS — Procedural fairness — Failure to give reasons — where preliminary ruling made subject to any authorities being brought to magistrate’s attention — unorthodox approach — failure to address principal submissions of one party in reasons APPEALS — from Local Court to Supreme Court — where grounds involved statutory interpretation and denial of procedural fairness — where held to involve questions of law — leave not required

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – application for order to appoint medical practitioners to examine and furnish reports on the defendant – application for interim extension order – unacceptable risk – less restrictive means – extension granted

APPEALS – appeal from Local Court to Supreme Court – costs assessment – review and suspension of costs assessment – first appeal upheld – second appeal dismissed – orders made

SENTENCING – murder charge – plea of guilty to manslaughter at Local Court case conference and at trial – plea not accepted by Crown – manslaughter verdict – Crimes (Sentencing Procedure) Act s 25E –– mandatory discount – error conceded SENTENCING – manslaughter – objective seriousness – where sentencing judge found “well above mid-range” and declined to find species of manslaughter – duty of sentencing judge to find facts consistent with jury verdict – extreme provocation and excessive self-defence – no error – sentence not otherwise manifestly excessive

CRIMINAL LAW – sentence appeal – multiple grounds of appeal raised – little merit – extremely serious offences on young child – use of knife for mutual cutting – discount for plea of guilty where no evidence led to explain delay in entry of plea – aggravating circumstances – whether judge erred in taking into account impact on child victim – totality principle – offending over four year period – significant evidence of grooming and uncharged offences – whether judge erred in not finding offences to be spontaneous or opportunistic – relevance of course of offending – no error CRIMINAL LAW – sentencing – standard non-parole period – where legislation amended on multiple occasions – whether Judge led into error as to applicable standard non-parole period – matter raised in course of appeal hearing – whether leave should be granted to rely on ground – error established – leave granted – no lesser sentence warranted – appeal dismissed

CRIME – appeals – appeal against conviction – recklessly causing grievous bodily harm – trial by judge alone – skull fracture – circumstantial case – unreasonable verdict – expert evidence – whether injuries caused in the essential period – whether injury amounted to grievous bodily harm – where trial judge had no relevant advantage – quintessential jury question – relevance of age of victim – relevance of future risk of harm – appeal allowed – conviction quashed – verdict of acquittal WORDS AND PHRASES – “grievous bodily harm”

LAND LAW — Caveats — Removal of caveat — Removal by order of court — Where caveator will be adequately protected by leave to file identical caveat after incoming mortgagee’s security has been registered

CRIME – Murder – Partial defences – Substantial impairment CRIMINAL PROCEDURE – Pre-trial ruling – Whether s 23A of the Crimes Act in current form or prior form is to apply to murder trial – Where killing occurred prior to commencement of amendment – Where first arraignment occurred after commencement of amendment – Where “trial proper” occurred after commencement of amendment STATUTORY INTERPRETATION – Amendment and repeal – Retrospectivity – Where no transitional provision included in amending Act with regard to adaption of partial defence of substantial impairment – Caution in applying legislation retrospectively without express intendment – Preferred construction is prior form of s 23A of the Crimes Act 1900 (NSW)

HIGH RISK OFFENDER – Application for mandatory psychiatric and psychological examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – Not opposed by unrepresented defendant – Significant sexual violence – Long period of incarceration – Where preliminary test for further supervision satisfied on risk/result analysis – Mandatory examinations and interim supervision order imposed – No dispute about conditions

CIVIL PROCEDURE – application to re-open case –where plaintiff sought to adduce further evidence after judgment is reserved – whether further evidence is important and of probative value to issues in the case – where some consequential delay and further expense would be caused – application refused

CRIME – Appeal and review – appeal from Local Court to Supreme Court under s 52 or alternatively s 53 Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff came off his motor scooter at an intersection – where plaintiff convicted and sentenced for one count of driving with a high range prescribed concentration of alcohol in his blood - where blood sample taken and certificate produced indicating blood alcohol concentration of 0.297g per 100ml of blood – where blood sample taken more than two hours following the incident – whether Magistrate erred by admitting the blood analyst certificate into evidence in breach of cl 31 of the Road Transport Act 2013 (NSW) and contrary to R v Olejarnik (1994) 22 NSWLR 567 – where prosecution case was circumstantial and no expert evidence was tendered – whether judicial notice could be taken of the fact that blood alcohol concentration decreases with time where no further alcohol is consumed

LAND LAW – strata title – leasehold development scheme under Strata Schemes Development Act 2015 – building subdivision includes part strata parcels – building management committee appoints managing agent – building’s strata management statement and constituent strata scheme by-laws require constituent owners’ corporations to “appoint and retain” building managing agent as strata managing agent for constituent strata schemes – validity – uncertainty – ultra vires – inconsistency with Strata Schemes Management Act 2015

CRIME – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – whether a certificate should be issued in circumstances where the applicant’s legal costs were entirely funded by a grant of legal aid – whether the prosecution of the applicant was reasonable – application dismissed

CRIME — Murder — Constructive murder — Accessory before the fact to attempted robbery whilst armed with a dangerous weapon — Accessory before the fact to murder — Found guilty by jury SENTENCING — Application of standard non-parole period to offence of accessory before murder — Standard non-parole period not applied — Need for appellate clarification SENTENCING — Relevant factors on sentence — Objective seriousness — Version of events given by offender on sentence not accepted SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency, and totality — Criminality for offence of accessory before the fact to attempted armed robbery entirely subsumed by criminality for offence of accessory before the fact to murder — Concurrent sentences imposed

EQUITY — Trusts and trustees — Vesting orders — Whether order pursuant to s 71 of the Trustee Act 1925 (NSW) vesting in the plaintiff restricted shares in the first defendant should be made in circumstances where a mistaken share transfer is alleged CORPORATIONS — Shares — Rectification of share register — Whether alleged mistaken transfer of shares gives plaintiff an equity that the Court will protect by order pursuant to s 175(1) of the Corporations Act 2001 (Cth) CIVIL PROCEDURE — Parties — Misjoinder or non-joinder — Whether party seeking to be joined as fourth defendant is a necessary party to the proceedings — Whether the rights and liabilities of the proposed fourth defendant might be directly affected by the orders sought in the proceedings