Cases and authorities

CRIMINAL APPEAL – procedural directions – lengthy submissions – no question of principle

Criminal law – Sexual offences against child – Presumption against retrospective operation – Where appellant pleaded not guilty on 29 November 2018 to sexual offences against complainant – Where Crown was uncertain whether alleged conduct occurred when s 81 of Crimes Act 1900 (NSW) in force, or when s 81 repealed but s 78K in force – Where s 80AF of Crimes Act came into force on 1 December 2018, allowing prosecution to rely, in relation to entirety of period, on whichever offence carried lesser maximum penalty – Where Crown was granted leave after appellant's trial had commenced to amend indictment to take benefit of s 80AF – Whether s 80AF could apply after an accused's trial had commenced. Words and phrases – "arraignment", "change in the law", "commencement of a trial", "historic sexual offences", "indictment", "presumption against retrospective operation", "reasonable expectations", "retroactive", "retrospective", "sexual offence", "textual indications". Crimes Act 1900 (NSW), ss 78K, 80AF, 81. Criminal Procedure Act 1986 (NSW), ss 20, 130. Interpretation Act 1987 (NSW), ss 5, 30.

CRIME — Appeals — Appeal against sentence — whether trial judge erred in finding of mid-range objective seriousness — where factors argued to show error did not assist given circumstances of offending — appeal dismissed CRIME — Appeals — Appeal against sentence — Manifest excess — where sentence not unreasonable or plainly unjust in light of maximum penalty and standard non-parole period — appeal dismissed

EVIDENCE – affidavit evidence – statement of indirect speech – statement allowed

CRIMINAL PROCEDURE – trial – suppression and non-publication orders – microphone on in dock – private conversations – legal professional privilege – suppression orders made

SUCCESSION – Probate and family provision claims – Proceedings commenced by three Plaintiffs, each seeking a family provision order under the Succession Act 2006 (NSW), Ch 3, as adult grandchildren of the deceased – Defendants file Cross-Claim for grant of Probate in solemn form of Will made by deceased in 2012 – Plaintiffs put Cross-Claimants to proof of the validity of the 2012 Will including whether it was duly executed – Whether the deceased had testamentary capacity at the time he gave instructions for, and executed, the last Will made in 2012 – Whether the deceased knew and approved of the terms of the 2012 Will – Whether suspicious circumstances – No dispute that if 2012 Will not the last valid Will of the deceased that probate in solemn form should be granted to the Defendants/Cross-Claimants of duly executed Will made by the deceased in 2005 In family provision claims, the Defendants dispute eligibility of Plaintiffs – Whether each of the Plaintiffs wholly or partly dependent on the deceased – No dispute, if each Plaintiff is an eligible person that there are factors warranting the making of application – No dispute that if eligibility and factors warranting proved, then adequate and proper provision not made in the Will of the deceased for each applicant – Then, whether order for provision ought to be made and, if so, the nature and quantum of the provision to be made POWERS OF ATTORNEY ACT 1998 (Qld) – Late application by Plaintiffs for amendment to proceedings or otherwise – Application opposed – Plaintiffs commence separate proceedings in Court by Statement of Claim seeking compensation pursuant to s 107 of the Powers of Attorney Act 1998 (Qld) out of estate of the deceased – Where the Supreme Court of Queensland may compensate the Plaintiffs out of the principal’s estate in an amount “the court considers appropriate” – Question whether the proceedings should be determined in New South Wales as part of these proceedings – Late agreement that if 2012 Will found to be the last valid Will these proceedings should be dismissed

NEGLIGENCE – medical negligence – Compensation to Relatives Act proceedings on behalf of infant children of the deceased – whether settlement in best interests of children

CONTRACTS — formation of contract — whether transfer of monies were pursuant to oral agreement — no direct evidence on whether oral agreement existed — whether oral agreement can be inferred from surrounding circumstances — inconsistent post-contractual conduct CORPORATIONS — directors and officers — directors’ duties — duty of care and diligence — duty to act in good faith in the best interest of company and for proper purpose CORPORATIONS — directors and officers — knowledge — rules of attribution — whether knowledge of officers or employees can be attributed to corporation — accessorial liability — accessorial liability of a corporation EQUITY — fiduciary duties — fiduciary relationships — directors EQUITY — fiduciary duties — breach — rule in Barnes v Addy DEBT — simple debt — debt repayable on demand — cause of action commences instanter upon making of loan LIMITATION OF ACTIONS — general — statute of limitation — Limitation Act 1969 (NSW) — debt — confirmation — acknowledgment in writing — authenticated signature fiction rule LIMITATION OF ACTIONS — s 1317K of the Corporations Act 2001 (Cth) REMEDIES — equitable compensation

BAIL – further release application – show cause offences – s 74 Bail Act 2013– where circumstances relevant to the grant of bail have changed since the previous application was made – disadvantage in preparing case for trial from custody – weak Crown case – bail granted

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Institutional integrity of State courts – Where High Risk Serious Offenders Act 2020 (WA) ("Act") required State court to make restriction order in relation to serious offender if satisfied that order necessary to ensure adequate protection of community against unacceptable risk that offender will commit serious offence – Where robbery specified as "serious offence" under item 34 of Subdiv 3 of Div 1 of Sch 1 to Act – Where appellant imprisoned for offences including robbery – Where State sought restriction order in relation to appellant – Whether State court acting under dictation of executive government – Whether function conferred by Act on State court incompatible with State court being repository of judicial power of Commonwealth – Whether function conferred by Act on State court compromises institutional integrity of State court. Words and phrases – "adequate protection of the community", "dictation from the executive", "high risk serious offender", "indefinite detention", "institutional integrity", "involuntary detention", "Kable principle", "preventive detention", "protective purpose", "public confidence in the judicial process", "repository of federal jurisdiction", "repository of the judicial power of the Commonwealth", "restriction order", "serious offence", "unacceptable risk of harm to the community". Constitution, Ch III. High Risk Serious Offenders Act 2020 (WA), ss 7, 48, Sch 1, Div 1, Subdiv 3, item 34.

PROCEDURE – applications for leave to appeal – where plaintiffs claimed damages from defendant doctor for medical negligence – where plaintiffs sought leave to proceed against defendant’s insurer under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) s 5(1) – where primary judge found plaintiffs’ claims “first made” before commencement of relevant policy period – whether primary judge erred in refusing leave on basis that no arguable case that policy responded to plaintiffs’ claims

CRIMINAL PROCEDURE – trial – adjournment – application granted

PLEADINGS – no question of principle

CIVIL PROCEDURE – pro bono referral – whether referral in interests of justice – where costs sought against former solicitor – issue whether privilege ought be waived – referral made

TRUSTEES – judicial advice under the Trustee Act 1925 (NSW), s 63 – where advice is sought in relation to two trusts with different trustees, one being a superannuation fund and the other being a deceased’s estate – advice sought in relation to whether the trustee and executors are justified in defending proceedings and prosecuting a cross-claim in other proceedings and whether they are entitled to pay their legal costs incurred in those proceedings from the trust fund and the deceased’s estate – whether Court has jurisdiction under s 63 to give all of the judicial advice sought by both trustee and executors

JUDGMENTS AND ORDERS – enforcement – writs of restitution – when available - where writ of possession issued to plaintiff – plaintiff agreed to postpone execution of writ for six-week period to allow third defendant to refinance debt – no contact made with sheriff and writ executed – third defendant subsequently permitted to re-occupy the property – where third defendant did not repay debt by agreed date and did not deliver up possession of the property – whether plaintiff should be granted leave for issue of a writ of restitution – where third defendant did not trespass to regain possession – whether sufficient nexus between original recovery of possession and need to effect further recovery of same land – clear nexus – writ of restitution granted to plaintiff to recover the same possession

RESTRAINT OF TRADE – executive employee – restraint against being “involved” with any business competing with or similar to the defendant – restraint against solicitation of customers or potential customers and suppliers and potential suppliers of the defendant – reasonableness – restraint sought against Victorian defendant working in Victoria – application of Restraints of Trade Act 1976 (NSW) EMPLOYMENT LAW – contract – employment transferred to different entity – whether employment restraints also transferred

CIVIL PROCEDURE – infant settlement approval – compromise – whether settlement in best interests of infant

CIVIL PROCEDURE — commencement of proceedings — leave required to commence action by person serving a sentence for a serious indictable offence — where proceedings commenced before leave sought — leave granted nunc pro tunc

CIVIL PROCEDURE — commencement of proceedings — leave required to commence action by person in custody for a serious indictable offence — where proceedings commenced before leave sought — leave granted nunc pro tunc

CRIMINAL PROCEDURE – trial – adjournment – accused in custody – additional time required with client – application granted

EVIDENCE – recordings of accused speaking on telephone captured by police listening device – discussion of disappearance of Goran Nikolovski and police investigation – objection under Evidence Act s 137 – relevance to accused’s motive – where accused speaks about police in derogatory terms – whether jury would suspect accused’s involvement in criminal activity – danger of unfair prejudice

CIVIL PROCEDURE — interim preservation — consequential orders — second plaintiff ordered to pay 50 percent of defendants’ costs of and incidental to interlocutory hearings, balance to be the parties’ costs in the cause

COSTS – no question of principle.

APPEALS – jurisdiction of appellate court – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7 COURTS AND JUDGES – jurisdiction – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7

CRIME – Appeals – Appeal against sentence – Federal child abuse offence – statutory mandatory minimum sentence prescribed – reduction of mandatory minimum pursuant to s 16AAC of the Crimes Act 1914 (Cth) – concession by the Crown of error by the sentencing judge by not reducing the sentence below the specified minimum – re-sentence – consideration of non-parole period

CRIME – Appeals – Appeal against sentence – Agreed Facts – where applicant pleaded guilty to two fraud offences and one attempted fraud offence – where applicant engaged in joint criminal enterprise to defraud bank with co-offender – where each offender had a separate set of agreed facts on sentence – where co-offender’s agreed facts suggested that applicant played a larger role than the applicant’s agreed facts – where sentencing judge extracted section of co-offender’s agreed facts which outlined their respective roles in judgment relating to the applicant – where sentencing judge found that applicant was less culpable – where same finding on objective seriousness made for both offenders – whether sentencing judge erred in sentencing applicant on the basis of material in co-offender’s agreed facts – Court of Criminal Appeal noted that agreed facts for sentence should not be “unnecessarily complex” CRIME – Appeals – Appeal against sentence – Committing offence in area of professional qualifications as aggravating factor – where applicant has university level accounting qualifications and worked as a financial controller – where applicant’s role included transferring monies and retaining records concerning applications for credit by false identities – where detailed spreadsheets used to facilitate scheme found on applicant’s computer – whether sentencing judge erred in finding applicant used his “skills as an accountant” to commit the offences CRIME – Appeals – Appeal against sentence – Third party hardship as subjective circumstance – where applicant has wife and two children, including a son with autism spectrum disorder – where applicant relied on evidence suggesting his imprisonment would cause adverse financial impacts to his family – where sentencing judge referred to financial hardship to family and “other hardship” – where sentencing judge found that Edwards hardship was not established – where applicant did not rely upon impact of family hardship on himself at sentencing hearing – whether sentencing judge erred in failing to properly consider hardship to family – whether sentencing judge erred in failing to consider impact of family hardship on the applicant

CRIMINAL LAW – fitness to be tried – allegation of murder – where accused suffers chronic mental illness – schizophrenia – possible cognitive impairment – accused unfit to be tried – whether accused “will not become fit” within 12 months” – no reason to not act on opinion of experts

EQUITY – trusts and trustees – discretionary family trust – corporate trustee – beneficiary makes derivative claims affecting the trust – beneficiary makes derivative claim in equity – administrative jurisdiction of the Court over trusts EQUITY – pleaded prayers for relief – orders to “account and make good the Trust fund” – equitable debt – Barnes v Addy – equitable compensation – removal of trustee CORPORATIONS – statutory derivative actions – procedure under Part 2F.1A of the Corporations Act 2001 – exceptions to the rule in Foss v Harbottle – whether 236(3) of the Corporations Act abolishes derivative action by beneficiaries on behalf of the trust in equity – derivative action not abolished

CONTRACTS – construction of clause in loan agreement requiring borrower to give to lender certain documents or information “received or accessible by” the borrower – where the sole shareholder and director of the borrower companies was also the chief executive officer (but not the directing mind and will) of another company – held that confidential information of that other company received by its chief executive officer in his capacity as such was not attributed to and was not “received or accessible by” the borrower companies within the meaning of the clause MISLEADING OR DECEPTIVE CONDUCT – alleged misleading or deceptive express and implied representations – held that alleged representations not proved – alleged misleading or deceptive conduct by silence or partial disclosure – allegations not proved because (inter alia) no reasonable expectation that undisclosed matters would be disclosed

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 corporate restructuring – Whether requirements to order scheme meeting are satisfied.

COSTS — Application for gross sum costs order — Where the respondent has died and his estate has no appointed representative — Inappropriate to deal with the application — Proceedings stood over and liberty to apply granted

MENTAL HEALTH – Mental Health Review Tribunal – Appeal – Community Treatment Order – Forced medication by depot injection – Availability of other care of a less restrictive kind – Oral medication in lieu of depot injection – Consideration of whether oral medication consistent with safe and effective care, appropriate and reasonably available to affected person

TORTS — Trespass to the person — Battery — Negligence — Intentional act that is sexual assault — Default judgment for the plaintiff — Assessment of damages — Claim for exemplary damages refused — Allowances for other claimed heads of damages made

CIVIL PROCEDURE — Stay of proceedings — Claim for damages for alleged sexual abuse in 1974 or 1975 — Cross-claim by defendant institution against perpetrator — Where cross-defendant perpetrator suffers from dementia and cannot give instructions or evidence — Stay of cross-claim ordered — Where no available independent witnesses or contemporaneous documents which record the fact of the abuse — Where no available witnesses or contemporaneous documents which would enable a response to allegations of direct negligence or vicarious liability — Whether stay of cross-claim is prejudice to be taken into account on primary claim stay application — Stay of primary claim ordered

CIVIL PROCEDURE — Parties — Joinder — Of defendants — Where novel claim in negligence which may be an incremental development of the common law — Claim ought be permitted to proceed CIVIL PROCEDURE — Pleadings — Amendment — Whether proposed amended statement of claim met the requirements of form and content including those of the Civil Liability Act 2002 — Claim not adequately formulated or pleaded LIMITATION OF ACTIONS — Personal injury — Child abuse — Legislative removals of previous limitation periods — Whether act or omission constitutes child abuse depends on properly formulated statement of claim yet to be prepared — Unclear whether the limitation defence would be pleaded — Unclear whether any extension of time would be sought — Further facts relating to the limitation period to be received — Determination of issue premature

CRIMINAL LAW – application under part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for inquiry into conviction – where applicant convicted of eleven counts of child sexual assault against his stepdaughter – where previous appeal to the Court of Criminal Appeal against conviction was dismissed – where previous application pursuant to s 78 of the Act was dismissed – application considered on the merits – where grounds of appeal do not raise “doubt or question” – where powerfully probative evidence of guilt tendered for applicant in proceedings on sentence – application dismissed

CRIMINAL APPEAL – review of procedural decisions of Registrar – no question of principle

CRIME — appeals — appeal against sentence – whether error in manner of taking into account prescribed standard non-parole period – whether error in findings concerning applicant’s mental health – consideration of borderline intellectual functioning as defined in DSM-5 – reliance upon DSM-labelled conditions – whether sentence miscarried due to the Crown submitting a sentence below two years may give rise to appellable error – consideration of Barbaro v The Queen – prosecutorial duty to the court in sentence proceedings

CIVIL PROCEDURE – Proceedings commenced in Equity Division invoking parens patriae jurisdiction – NSW Civil and Administrative Tribunal (NCAT) makes guardianship orders regarding Plaintiff’s child – Plaintiff claims she has exercised a right to appeal against NCAT’s decision to the Common Law Division – Plaintiff applies to transfer proceedings to Common Law Division – Proceedings under the Guardianship Act 1987 (NSW) are assigned to the Equity Division – Application refused CIVIL PROCEDURE – Court administration – Assignment of business – Divisions and Lists – Power to transfer from Equity Division to Common Law Division ABUSE OF PROCESS – No party should seek to use the Court’s processes to obtain certain relief that is the subject of an order requiring leave under the guise of seeking other relief PRACTICE AND PROCEDURE – Conduct of parties at hearing – Serious allegations made against a legal practitioner without notice and unrelated to procedural relief sought – Court does not tolerate serious allegations being raised in such a collateral way against legal practitioners

PRIVILEGE – CLIENT PRIVILEGE – Evidence Act 1995, s 122 – plaintiffs are trustees of the estate of a bankrupt – the plaintiffs contend that in 2016 the executor of an estate, the first defendant, held certain real property on trust for the bankrupt – the second and third defendants are creditors of the estate of the bankrupt – the fourth defendants are the solicitors for the second and third defendants – the second and third defendants secure the appointment of the plaintiffs as trustees of the estate of the bankrupt in place of the official receiver – the second and third defendants seek freezing orders against the real property said to be held by the first defendant on trust for the bankrupt – the plaintiffs’ claim that the second and third defendants pursued the freezing orders acting as fiduciaries on behalf of the plaintiffs – the second and third defendants reach a settlement agreement with the first defendant in which the real property held by the first defendant is sold, and the proceeds of sale are distributed partly to the second and third defendants and partly to the first defendant – the plaintiffs allege the settlement agreement was made dishonestly in breach of the second and third defendants’ claimed fiduciary duty to the plaintiffs and in part by concealment from the plaintiffs and had the effect of fraudulently disadvantaging the other creditors of the bankrupt estate – fourth defendants issue notice to produce to the plaintiffs for documents passing between the plaintiffs and their solicitors – plaintiffs claim client privilege in respect of the documents – fourth defendants contend the plaintiffs have waived client privilege in the documents and the documents should be produced without redaction, because the plaintiffs have put in issue that the settlement agreement was concealed from them and the legal advice given to the plaintiffs is the source of the plaintiffs’ knowledge of the settlement agreement – whether client privilege has been waived – whether the plaintiffs have acted inconsistently with their objecting to the adducing of the evidence on grounds of client privilege within Evidence Act, s 122 (2).

ADMINISTRATIVE LAW – orders in the nature of certiorari – operation of s 69 of the Supreme Court Act on determination of a Minister – construction of the Education Act and discretion of a Minister as to whether to recover financial assistance and the amount of financial assistance – engagement with clearly articulated argument – unreasonable or disproportionate response – mandatory considerations – operation of Limitation Act – when cause of action accrues – no legal error – no jurisdictional error

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Recognition or enforcement at common law – People’s Republic of China – People’s Court of Jimo District– 民事调解书 – Civil mediation judgment – Judgments enforced

APPEALS — Procedural fairness — Denial of procedural fairness — Where primary judge alleged to have worn a brown suit and no tie — Whether failure of primary judge to wear a robe and wig a denial of procedural fairness or a breach of the Court Attire Policy — No denial of procedural fairness APPEALS — Right of appeal — Relationship with judicial review — Where applicant sought leave to appeal from two decisions of the primary judge and judicial review of the same two decisions — Whether primary judge was exercising an administrative function in light of his Honour’s omission to wear robes and a wig CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Whether judicial review proceedings an abuse of process APPEALS — Leave to appeal — Principles governing — Public importance APPEALS — From exercise of discretion — Whether House v The King (1936) 55 CLR 499; [1936] HCA 40 type error disclosed by the primary judge

COURTS AND JUDGES — Apprehended bias — Disqualification

LIMITATION OF ACTIONS – debt – limitation period – suspension of limitation period – lender under relevant disability – mental impairment – whether impairment rendered lender incapable of, or substantially impeded in, managing her affairs in relation to initiating proceedings to recover loan – whether enduring powers of attorney and enduring guardianship prevent finding of disability – Limitation Act 1969 (NSW), ss 11, 52 EVIDENCE – documentary evidence – business records – medical reports – records of treating health professionals – admissibility – whether other party can require party tendering record to call expert for cross-examination – Uniform Civil Procedure Rules 2005 (NSW), r 31.29 EVIDENCE – evidence of disability – solicitor for deceased lender who took instructions at material time not called – whether Jones v Dunkel inference available – whether solicitor-client privilege justified absence

PRIVILEGE – documents produced on subpoena – whether the documents are subject to client legal privilege

PRACTICE AND PROCEDURE – disclosure of documents – disputed categories – whether disclosure oppressive – whether documents relevant – whether there is duplication of categories – whether disclosure should be confined to documents created within a closed period