Cases and authorities

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror’s employer refused to continue to provide make-up payments — where juror would suffer financial burden without make-up payments — juror discharged CRIMINAL PROCEDURE — Trial — Jury — order that the trial continue with remaining jurors

COSTS – where respondent joined as contradictor to first defendant’s application to set aside judgment – where respondent’s evidence revealed reason why judgment should be set aside – whether respondent should pay first defendant’s costs of the application

CONTRACTS – proper construction – whether agreement that a party has the commercial and economic ownership of identified assets entitles that party to require that the assets be transferred to him

INSURANCE — Claims — Where plaintiff originally made a claim for workers compensation in relation to a back injury and received adjustments to her employment duties — Where plaintiff was subsequently diagnosed with post-traumatic stress disorder and claimed it amounted to total and permanent disablement (“TPD”) — Where defendant insurer denied the plaintiff’s claim for payment of a benefit under two policies on the basis of TPD — Whether the plaintiff’s psychical or psychological injuries engaged either policy at the relevant times —Whether the defendant breached any of its duties or obligations in considering and denying the plaintiff’s claim — Whether the defendant breached any duty or obligation in failing to reconsider the plaintiff’s claims

FAMILY LAW – De facto relationship requirements – Whether “breakdown” of relationship – Test to be applied – “De facto financial cause” – Threshold jurisdictional requirements REMEDIES – Declaratory relief “equitable” antecedents does not define statutory relief – The character of a statutory power, such as a power to make declarations, does not become “legal” or “equitable” according to the character of its subject matter FAMILY LAW – JURISDICTION – Whether the Supreme Court has jurisdiction in “de facto financial causes” consequent upon the passing of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – serious doubt that Supreme Court has such jurisdiction JURISDICTION – Transfer of proceedings – ss 45(2) & 40(6) Family Law Act 1975 (Cth) – Criteria for transfer – Meaning of “interests of justice” – Relevance of cross-vesting legislation criteria – Whether transfer power is only engaged upon the hypothesis that the jurisdiction of the court to which the application is made is regularly invoked – Differences between transfer applications where no jurisdiction is conceded or is seriously doubtful on one hand or where there is a bona fide claim to jurisdiction on other hand JURISDICTION – Jurisdiction of Supreme Court to consider whether an application before it is of a nature that constitutes a cause the jurisdiction of which is allocated to another court – Generally parties cannot by consent confer jurisdiction on a court to make orders which the court lacks power to make CIVIL PROCEDURE – Stay of proceedings – De facto financial cause – Changes to legislation commencing 1 September 2021 – Proceedings heard over 2 days and judgment reserved – Uncertainty as to whether Supreme Court has jurisdiction to hear and determine or transfer to Federal Circuit and Family Court of Australia (Division 2) (‘Division 2 Court’) – Proceedings stayed to allow opportunity for commencement of proceedings in the Division 2 Court LEGAL PROFESSION – Duties of practitioners to consider jurisdiction of Court and legislative changes which might impact on jurisdiction

CIVIL PROCEDURE – no issue of principle

INTERLOCUTORY APPEAL – application for leave to appeal from ruling excluding evidence and refusing to grant a permanent stay – sexual offences – complainant young child – note records that complainant disclosed offending by applicant and her grandfather – complainant later disavowed offending by her grandfather – evidence ruled inadmissible under s 294CB(3) of the Criminal Procedure Act – trial judge refused to grant permanent stay – no jurisdiction to review evidentiary ruling – not a step in the appeal against the refusal of a stay – leave refused – no House v The King error shown in relation to refusal to grant a stay

CRIME – appeals – appeal against conviction – unreasonable verdict – whether trial judge erred in failing to find that there was no case to answer in relation to a count – whether trial miscarried having regard to that count being left to the jury – where that count entailed the appellant causing the complainant to take three drugs simultaneously by way of a drink – whether it was open to the jury to find that the appellant provided the complainant with the drug methylamphetamine – whether jury engaged in improper speculation or conjecture rather than logical inference CRIME – appeals – appeal against conviction – verdict of acquittal substituted – where verdict of acquittal substituted for verdict in respect of one count but not others – where verdict on that count was unreasonable CRIME – appeals – appeal against conviction – new trial – whether a new trial should be ordered on the remaining counts in light of a wrongful conviction on two counts – where the remaining counts involved a different complainant – where the remaining counts were committed at a different time – where acquittal entered on one count indicates jury was able to differentiate between charges involving different complainants CRIMINAL PROCEDURE – trial – jury – conduct of Crown prosecutor – closing address of Crown prosecutor – whether trial miscarried because of the Crown prosecutor’s closing address – where experienced defence counsel made no objection at trial – where it was not suggested that the references were without foundation

CRIME – Appeals – Appeal against sentence – Double Punishment – where applicant pleaded guilty to charges of aggravated detain for advantage and contravene apprehended domestic violence order (“ADVO”) – where aggravating feature of detain offence was occasioning of actual bodily harm – where both offences occurred in course of same incident – where violent conduct formed basis for both offences – where sentencing judge imposed wholly consecutive sentences of imprisonment – whether sentencing judge erred by doubly punishing the applicant for the contravene ADVO – whether error manifest in imposing entirely consecutive sentence for the contravene ADVO offence CRIME – Appeals – Appeal against sentence – Manifest Excess – where applicant sentenced to term of imprisonment for each offence – where applicant submitted that detention was “fleeting” and injuries were “relatively minor” – where applicant relied on sentencing statistics and comparable cases – whether sentence manifestly excessive

ADOPTION – application by adoptive parent to discharge adoption order – breakdown of relationship between adoptive parent and adopted child – where adopted child now an adult – whether an exceptional reason shown – whether order should be suspended to allow adopted child to participate in decision – whether adopted child’s names should be changed

COSTS – non-party costs orders – costs against liquidators – costs against litigation funders – where plaintiff successful at trial against insolvent defendant – where the insolvent defendant was funded by a related corporate entity with an interest in defeating the plaintiff’s claim – whether liquidator’s conduct in defending the claim was unreasonable – whether litigation funder should bear insolvent defendant’s costs pursuant to the principles in Knight v FP Special Assets Ltd (1992) 174 CLR 178

EQUITY — Trusts and trustees — Beneficiaries — Standing to bring proceedings — Parent of adult children — No standing to interfere with administration of deceased estate of former wife on children’s behalf

SUPERANNUATION – Plaintiff applied for benefits including a Disablement benefit under trust deed – Whether decisions to refuse payment of Disablement benefit involved breaches of trustee’s duties – Whether trustee gave properly informed consideration to application – Whether there were conflicts in the medical evidence before the trustee that it was required to resolve – Whether trustee acted in good faith and was required to provide the plaintiff access to particular materials – Whether definition of Disablement was satisfied – Construction of superannuation trust deed – Whether trustee was required to consider the exercise of discretions – Whether the consent judgment sum could be offset against a Disablement benefit payment

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 – degree of certainty required – appropriate test – absolute certainty not required – linguistic chasm between lawyers and psychiatrists – no real certainties in psychiatry

CRIMINAL LAW – Application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the applicants’ conviction – Whether satisfied there is a doubt or question as to the convicted persons’ guilt or as to any part of the evidence in the case – Court so satisfied in light of previous information and recent declassification of ASIO documentation and other recent material CRIMINAL LAW – Application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the applicants’ conviction – Matter previously dealt with in an application in 2012 under Pt 7 of the Act – Whether Court not satisfied there are special facts or special circumstances that justify the taking of further action – Court satisfied there are special facts or special circumstances

INSURANCE – mobile plant and equipment package insurance policy – claim for damage to truck mounted hydraulic concrete pump – whether insurer entitled to reduce its liability to nil by reason of misrepresentation or non-disclosure – whether insurer entitled to refuse payment of the claim on basis of fraud

SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Family Provision Act 1982 (NSW) — proceedings not commenced within time — whether sufficient cause shown to extend time — plaintiff commences proceedings impugning rectification order of this Court rectifying last will of the deceased — Court discovers during hearing that plaintiff became bankrupt between events of relevant claims and commencing of proceedings — only claim surviving bankruptcy is family provision application — proceedings brought almost 18 years out of time — attempt to show sufficient cause for delay premised on plaintiff’s alleged ignorance as to interest in deceased’s estate — plaintiff found to have known of life interest in residential property over a decade before bringing proceedings — prejudice to other beneficiaries occasioned by deterioration in plaintiff’s position over time — costs of dismissed claims to be borne by plaintiff — costs of proceedings disproportionate to size of estate — costs incurred largely by plaintiff’s actions — plaintiff not granted leave to bring proceedings out of time — Court would not otherwise have found that adequate and proper provision not made for plaintiff — Court would not otherwise have exercised discretion to order further provision

OCCUPATIONS — legal practitioners — solicitors — former client — where there is insufficient evidence to engage court’s supervisory jurisdiction to restrain legal practitioners from acting to preserve confidential information — whether solicitors should be restrained from acting for the protection of the administration of justice

CRIMINAL LAW – murder – trial by judge alone – circumstantial case – where wife of the accused disappeared without trace in January 1982 – where the body of the deceased has never been recovered – whether circumstantial evidence established that her death caused by the accused

APPEALS – security for costs – special circumstances – length and complexity of appeal – whether grounds reasonably arguable – respondents’ estimates of likely costs of appeal – appellant’s impecuniosity – overseas residence of appellant – circumstances of those likely to benefit from success – availability of litigation funding – whether lawyers with unpaid costs reasonably expected to fund appeal – Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 APPEALS – stay of order for assessment of costs of trial – assessment referred to referee – expenses to be incurred in reference – possible futility – likely stay of enforcement of payment of costs if assessed – parties to focus on appeal – overriding principle of expeditious resolution of proceedings – undertaking not to dispose of assets CORPORATIONS – directors and officers – diversion of commercial opportunity – fiduciary duties – knowing assistance – other corporations’ participation in breaches – vicarious liability for officer’s breach of duty – damages for loss of a chance

CIVIL PROCEDURE — Hearings — Suppression and non-publication —

CIVIL PROCEDURE – dismissal of proceedings – proceedings dismissed for want of prosecution with due dispatch

MORTGAGES AND SECURITIES – mortgages – loan secured by first registered mortgage – mortgage discharged after loan purportedly repaid – purported repayment effected by third party payment to lender – whether payment attributable to loan

CORPORATIONS ACT – Corporations Act 2001 (Cth) s 553(1) – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) ss 3, 8, 19, 20 and 23 – where plaintiff lodges proof of debt based on its alleged statutory entitlement under the SOP Act and at the relevant date does not yet have an adjudication determination – where liquidator rejects the proof of debt and the plaintiff appeals – HELD – circumstances giving rise to the debt relied upon have not arisen – appeal dismissed

HIGH RISK OFFENDER – final hearing – application for extended supervision order (“ESO”) – where defendant subject to ESO of 12 months duration imposed in 2019 – where 2019 ESO suspended on multiple occasions due to defendant’s return to custody – where defendant charged or convicted of multiple breaches of an ESO – no controversy regarding imposition of ESO – dispute limited to duration of order and conditions imposed – discussion of appropriate length of ESO – discussion of conditions regulating use of accommodation

CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process — where documents sought relevant to issue of application of indemnity principle in appeal against costs certificates — where not oppressive — application dismissed COSTS — Costs assessment — Determination — Review/appeal — discussion of principles

CIVIL PROCEDURE — interim preservation — freezing orders — contested hearing to determine continuation of freezing orders — parties make open offers as to relief during interlocutory hearing — nature of relief sought shifts — no issue that plaintiffs have good arguable case — whether risk that defendants will dissipate assets to frustrate final judgment — no such risk — Court makes interlocutory orders preserving businesses operated by certain corporate defendants and orders for accounting

MORTGAGES AND SECURITIES - mortgages – rights and remedies of mortgagee – possession – plaintiff seeking summary judgment for possession of land – no dispute between parties that principal sum is owing under mortgage – substance of dispute is amount owing – plaintiff seeking possession and not any amount outstanding – judgment for plaintiff CIVIL PROCEDURE – summary disposal – judgment for plaintiff – defences claimed predatory practices, relief under Contracts Review Act (CRA) and breach of National Credit Code – no material facts pleaded to support reliance on CRA and Code - repeated deficient pleading by debtors to particularise defences – whether summary judgment appropriate where defence relies on CRA - whether defences should be struck out – where no substantive defence demonstrated - plaintiff entitled to summary judgment

BANK GUARANTEE – shipbuilder builds floating production and storage offloading facility in Timor Sea for defendant – shipbuilder obliged to arrange bank guarantee for US$328.5 million – defendant claims liquidated damages and defects exceeding guarantee – nature of bank guarantee at [5]-[10] – nature of risk allocation device. INTERLOCUTORY INJUNCTION – defendant issues request for arbitration – shipbuilder obtains ex parte injunction restraining defendant from calling on bank guarantee – whether injunction should be continued – shipbuilder experiencing financial trouble due to sanctions on Russia following invasion of Ukraine – principles when injuncting call on bank guarantee at [70]-[87] – risk allocation device – defendant entitled to hold money while dispute resolved – application refused. INTERNATIONAL COMMERCIAL ARBITRATION – interim measures – section 7, International Arbitration Act 1974 (Cth) – Article 9, Article 17J, UNCITRAL Model Law – principles at [59]-[66] – whether sufficient to raise prima case that defendant not entitled to call on bank guarantee – whether Court can construe contract – reconciling CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd (No 2) [2017] WASCA 123 and Kawasaki Heavy Industries Ltd v Laing O’Rourke Australia Construction Pty Ltd (2017) 96 NSWLR 329; [2017] NSWCA 291 – Court to exercise power ‘in accordance with own procedures’ – entitled to form view of meaning of contract to extent necessary to determine application for interim measures – Court’s view does not bind arbitral tribunal.

SUCCESSION – probate and administration – where primary judge granted letters of administration to respondents in respect of deceased’s 2000 will – where applicant challenged validity of that will and propounded 2016 will – where primary judge found applicant had no standing to challenge 2000 will and rejected substance of his challenge – where primary judge found 2016 will fabricated by applicant – whether evidence sufficient to support primary judge’s conclusions CIVIL PROCEDURE – application to adduce further evidence in the appeal – where evidence sought to be led could have been obtained with reasonable diligence for use at trial – where no realistic probability that with benefit of evidence there would be different outcome in the proceedings – no “special grounds” established under Supreme Court Act 1970 (NSW) s 75A(8) – application dismissed

EASEMENTS – application to extinguish right of way – s 89(1) Conveyancing Act – adjacent properties – obsolescence – right of way granted in 1885 in unlimited terms – purposes included, but not limited to, removal of “nightsoil”– right of way fell into disuse after sewers connected in 1908 – no error in primary judge’s finding that easement should not be deemed obsolete EASEMENTS – abandonment – title to dominant tenement became indefeasible in 2010 – owners took ‘active steps’ to include right of way on title – servient tenement not part of appellants’ property until possessory title approved in 2019 – title granted subject to right of way fence erected between properties preventing access – garden bed and fishpond built on servient tenement – after grant of indefeasible title dominant tenement owners built new fence, shed and wall impeding access to right of way – owners of servient tenement replaced garden bed and fishpond with wall – extended room over right of way – whether intention to abandon easement should be inferred – non‑user and building of non-permanent obstacles thereafter did not establish abandonment EASEMENTS – substantial injury – continued existence of easement would secure practical benefit to owners of dominant tenement – no error in primary judge’s finding that it was not shown that extinguishment would not substantially injure the owners of the dominant tenement – appeal dismissed

CRIME – TRIAL – charge of murder – application by the Crown to cross-examine its witness - question of unfavourable or inconsistent evidence – witness called by the Crown pursuant to duty to call all material witnesses – witness in “accused’s camp” – clear inconsistencies between evidence in chief and earlier statements – evidence unfavourable to the Crown

CIVIL PROCEDURE – representative proceedings –– identity of group members in dispute – which persons should receive copy of opt out notice

CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – costs – application for a special order as to costs – indemnity costs sought in circumstances where offer to compromise made – application of r 42.15A Uniform Civil Procedure Rules 2005 (NSW)

FAMILY LAW AND CHILD WELFARE – surrogacy – application for parentage order – non-mandatory precondition for affected parties to undertake counselling before entering surrogacy agreement – birth parents and intended parents received counselling after entering surrogacy agreement – exceptional circumstances justifying making parentage order despite precondition not being satisfied – applicants not advised of requirement to receive counselling before entering surrogacy agreement – birth parents support parentage application – best interests of the child – exceptional circumstances satisfied

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Payable out of a fund – Deceased estate – Where the litigation is caused by the conduct of the deceased

CIVIL PROCEDURE — interim preservation — search orders — equivalent application in nine separate proceedings — two-stage search orders to identify and remove CHEP pallets — jurisdiction of equity to order return of specific chattels to owner — alleged black market in CHEP pallets causing nationwide supply chain issues — scarcity of resources to manufacture new pallets — whether damages inadequate

CIVIL PROCEDURE – claim for debt against a company – where company filed a defence that did not disclose a defence to the claim – where company subsequently wound up – whether defence could be struck out

CRIMINAL LAW – sentencing – murder – where jury returned verdict of guilty – relevant factors on sentence

CORPORATIONS — Directors and officers — Directors’ duties — Duty of care and diligence — Whether directors breached s 180 of the Corporations Act 2001 (Cth) by voting in favour of the payment of dividends — Where an alleged contravention of s 254T was significant to the alleged contravention of s 180 CORPORATIONS — Statutory construction — Construction of s 254T(1)(c) of the Corporations Act — Whether “prejudice” to a company’s ability to pay its creditors includes prejudice to the company’s ability to pay the claims of its creditors as and when they fall due — Whether “ability to pay” encompasses the presence of trading stock which could be sold CORPORATIONS — Damages — Whether payment of a dividend can constitute “damage” under s 1317H(1) of the Corporations Act in circumstances where there has been a breach of a statutory norm WORDS AND PHRASES — “materially prejudice” — “ability to pay” — “damage” — Corporations Act, ss 254T(1)(c),1317H(1) CORPORATIONS — Capital raising — Application for loan facility — Misleading or deceptive conduct — Failure to disclose practice of over-purchasing to obtain O&A rebates — Failure to disclose actions taken to address overstocking — Significance attached to undisclosed information determined by all evidence CORPORATIONS — Proportionate liability — One act of two persons acting jointly causing loss or damage — Where officer is agent of company — Vicariously liable principal not concurrent wrongdoer — No acts or omissions independently attributable to company

OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — ophthalmologist conducted breast and abdominal examination in circumstances where examination not indicated — application by Health Care Complaints Commission to NSW Civil and Administrative Tribunal seeking finding of professional misconduct —Tribunal found only unsatisfactory professional conduct — whether Tribunal erred in equating inappropriate conduct of a sexual nature with conduct that is sexually motivated — two-stage procedure for determination of disciplinary complaints — meaning of “interlocutory decision” in Civil and Administrative Tribunal Act 2013 (NSW)

PERSONAL PROPERTY — Gifts — Conditional gifts — Where the respondent advanced moneys to the appellant to assist in the payment of legal fees and the payment of stamp duty — Whether moneys were advanced by way of loan or unconditional gift — Where primary judge held that certain moneys advanced by way of conditional gift — Where conditional gift not pleaded APPEALS — From finding of fact — Credibility of witnesses

EQUITY – Unconscionable conduct – Special disability or disadvantage – Whether constructive notice of special disadvantage sufficient – Whether equitable presumption of the unconscientious taking of advantage arises where disadvantage of a kind that renders the disadvantaged person incapable of judging their best interests, and knowledge of such disadvantage, are proved to the requisite standard

CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – From interlocutory orders – Summary dismissal of proceeding – Motion seeking leave to amend draft notice of appeal – Application for leave to appeal dismissed – Motion dismissed

CRIMINAL LAW – sentencing – serious offences of domestic violence – relevance of psychiatric condition – personality disorder – whether subject to “De La Rosa principles” – where primary Judge decided “as a matter of law” principles not applicable – error established – where Judge determined lack of previous convictions “assumed less significance” due to nature of offences and recent history of domestic violence – error established – applicant resentenced

Interlocutory Appeal – appeal by Director of Public Prosecutions against exclusion of parts of ERISP with accused and entirety of a walk through interview – respondent charged with manslaughter – Crown alleges he fought with the deceased and forced him onto a busy road and was hit by a car – respondent intoxicated at time of fight – interviewed the following day – during interview respondent stated he could not recall parts of fight including how deceased came to be on the road – trial judge accepted respondent was genuinely cooperating in interview – trial judge accepted Crown’s expert that it was likely that lack of memory was due to cognitive impairment at time of fight from alcohol consumption – trial judge found that when respondent indicated a lack of memory his answers “have no greater status than … hypothesis” – exclusion of parts of ERISP and walkthrough “substantially weakened” Crown case – forced Crown to prove dangerousness and causation by inference rather than direct proof – whether trial judge mistook of facts – part of the trial judge’s reasons for finding cognitive impairment relied on evidence of Crown expert relating to different topic – finding still open or reasonably open – whether in finding unfairness trial judge failed to consider extent to which jury could determine reliability of admissions – once trial judge held that answers no more than hypothesis then did not matter that jury could make its own assessment – whether trial judge erred in excluding entirety of walkthrough interview – exclusion of entirety of walkthrough inconsistent with findings in relation to ERISP – respondent’s memory only partly affected – appeal allowed in part – consideration of exclusion of walkthrough remitted to trial judge – appeal otherwise dismissed

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — applicant seeking to withdraw guilty pleas accepted by a magistrate at committal hearing — applicant says that he never gave instructions to enter pleas of guilty — charges never read to applicant either in Local Court or when sentenced in District Court