Cases and authorities

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether verdict supported by evidence – Miscarriage of justice – Whether miscarriage of justice occasioned as a result of the appellant being tried jointly with the co-accused

CRIME – sentence – appeal against sentence – failure to take pre-sentence custody into account in imposing sentence – intensive correction order imposed – error conceded by Crown – court required to re-sentence – question of utility of application – “Parker warning” – requirement to commence any intensive correction order from the date of imposition – impossibility of backdating sentence – question of burden of any further, shorter, intensive correction order on the applicant’s liberty – whether such sentence would constitute a harsher penalty in the circumstances

CRIME — appeals — appeal against sentence — break, enter and commit a serious indictable offence — assault occasioning actual bodily harm — aggravated by being in company — whether sentencing judge erred in finding of fact as to provocation — whether sentencing judge erred in qualifying finding about remorse due to applicant’s refusal to identify co-offenders — whether sentencing judge erred by double counting factors of aggravation — whether sentencing judge’s interventions during sentence hearing denied applicant procedural fairness

CRIME – TRIAL – accused standing trial for murder – further application for adjournment of trial – accused raised claim of ill health – limited and inadequate evidence to support claim – trial at advanced stage

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Reasonableness of the conduct of the parties — Complete capitulation by respondent one day before hearing — Motion not proceeded on — Costs ordered against respondent

SUCCESSION – WILLS – INTERPRETATION – testatrix gifts “my principal place of residence” to her local church – financial management order made with respect to the testatrix under the NSW Trustee and Guardian Act 2009 (“TAG Act”) – testatrix becomes a “managed person” under the TAG Act – testatrix placed into permanent care away from her residence before her death due to her infirmity – the NSW Trustee and Guardian (“TAG”) sells the testatrix’s residence and proceeds of sale partially used to fund her permanent care – whether the gift is a specific or general gift – whether the gift would be adeemed by the TAG’s sale of the residence – whether TAG Act, s 83 saves the gift from ademption – in the alternative what directions should be made for the administration of the residue of the estate in circumstances where the residuary beneficiaries cannot be found.

CIVIL PROCEDURE – post-judgment stay of orders – interlocutory injunction pending decision as to appeal – application for orders restraining defendant from acting on penalty imposed by Tribunal not set aside on appeal – if order takes effect plaintiff liable to serve penalty of disqualification with no opportunity for interim reinstatement

COSTS — Costs assessment — Application for assessment – Legal Profession Uniform Law 2014 (NSW) – Whether the plaintiff is a non-associated third-party payer – whether Shillington v Harries [2013] NSWSC 2013 is authoritative – application dismissed

ADMINISTRATIVE LAW – procedural fairness – disciplinary proceeding – appeal by way of fresh hearing – penalty increased on appeal –– whether Parker warning required – sufficient notice that prosecutor sought penalty increase ANIMALS – racing – Australian Rules of Racing – administration of stomach tubing – procedure not permitted within 24 hours of beginning of race day OCCUPATIONS – thoroughbred horse racing – Australian Rules of Racing – AR 255, AR 283 – penalty for breach – mandatory minimum period of disqualification – special circumstances – early guilty plea – impaired mental function – whether special circumstances caused breach – common sense test of causation OCCUPATIONS – thoroughbred horse racing – construing Rules of Racing – special circumstances permitting lesser period of disqualification – reduction determined by reference only to special circumstance – authority as to earlier version of rules – McDonald v Racing New South Wales [2017] NSWSC 1511 applied – statutory interpretation principles – Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 applied

EQUITY – fiduciary duties – breach – accessorial liability – second limb in Barnes v Addy – involvement in contravention of director’s statutory duties – where fiduciary and some accessories released from liability – whether Civil Procedure Act 2005 (NSW) s 95 abrogates joint liability release rule – whether the common law rule applies in equity EQUITY – fiduciary duties – breach – accessorial liability claim – whether assistant had requisite knowledge of dishonest breaches of fiduciary duty – whether facts would have indicated to honest and reasonable person that invoices were contrived and payments lacked genuine commercial purpose

EQUITY – fiduciary duties – breach – accessorial liability – whether assistant had knowledge of breaches of fiduciary duties – where limitations to appellate review of credibility-based findings EQUITY – fiduciary duties – breach – accessorial liability – whether knowledge of breaches of fiduciary duties – whether reliance on professional advice glaringly improbable – where lack of understanding of full effect of transactions – whether assistant had knowledge of dishonest and fraudulent scheme EVIDENCE – general principles – Jones v Dunkel –where alleged assistant in dishonest and fraudulent design did not give evidence – where inference sought to fill gap in plaintiffs’ case EQUITY – fiduciary duties – breach – accessorial liability – where alleged assistant was a company – transactions constituting carousel frauds – corporate attribution rule – whether knowledge of director attributed to company – whether fraud exception applied – whether transactions partly for the benefit of the company

CIVIL PROCEDURE – hearings – adjournment – where delay in receiving subpoenaed documents – application for leave pursuant to s 151D Workers Compensation Act 1987 (NSW)

CRIME – TRIAL – accused on trial for murder – application for an adjournment of the trial – Crown case close to closing – significant amount of evidence taken – accused complaining of ill health – inadequate evidence tendered to support claim

CIVIL PROCEDURE – Motions to dismiss – alternatively to strike out Statement of Claim – unrepresented plaintiff – Statement of Claim embarrassing – pleading of cause of action, elements and material facts missing – proceedings not dismissed – pleading struck out – leave granted to file Amended pleading – comments on likelihood of re-pleading and overcoming issues raised

PRACTICE AND PROCEDURE – proposed amendment to Technology and Construction List Statement – whether amendment will introduce new causes of action under the Home Building Act 1989 (NSW) BUILDING AND CONSTRUCTION – residential building work – whether separate causes of action for each breach of the statutory warranties under the Home Building Act 1989 (NSW) – whether single cause of action for all breaches of those statutory warranties or for each individual statutory warranty – application of Onerati principle STATUTORY CONSTRUCTION – construction of statutory warranties under the Home Building Act 1989 (NSW) – whether separate cause of action for each breach of the statutory warranties under the Home Building Act 1989 (NSW) – whether single cause of action for all breaches of those statutory warranties or for each individual statutory warranty – application of Onerati principle

CONTRACTS – interpretation – lease – deed of variation of lease – where deed provided that the lessor and lessee are to “meet to discuss and agree” upon reductions to rent in circumstances where COVID-19 lockdowns affected the lessee’s business – where lessor and lessee negotiated pursuant to the deed but were unable to agree upon a rent reduction – whether the obligation to “discuss and agree” is unenforceable as an agreement to agree – whether the uncertainty and incompleteness inherent in the obligation may nevertheless be overcome by the “machinery” provisions contained in the dispute resolution provisions of the lease – held that the mere failure of the parties to reach an agreement is not a dispute that falls within the scope of the dispute resolution provisions – held that obligation to “discuss and agree” rent reductions pursuant to the deed is unenforceable as an agreement to agree

CIVIL PROCEDURE – transfer of proceedings from Local Court and District Court to Supreme Court – Civil Procedure Act 2005 (NSW) s 140 – Legal Profession Uniform Law Application Act 2014 (NSW) s 89(3A) – whether matters are serious or complex, or which require the protective function of this Court, or have a public interest component – transfer order refused COSTS – proper construction of Legal Profession Uniform Law (NSW) ss 178 and 185 – whether “void” in Uniform Law is void in futuro or void ab initio

CIVIL PROCEDURE — Default judgment — application for default judgment — requirements in UCPR r 16.6 met — default judgment entered

CRIMINAL LAW – Bail – Detention application brought by the Crown following conviction of the respondent for multiple counts of child sexual assault – Where respondent conceded that a sentence of full time custody will be imposed – Whether special or exceptional circumstances made out – Necessity for the respondent to continue his employment – Health issues – Necessity for psychological assessment to be carried out prior to sentence – Circumstances relied upon not special or exceptional – Crown detention application granted

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — where plaintiff in custody — Felons (Civil Proceedings) Act 1981 (NSW) — where leave granted

CIVIL PROCEDURE — Exemption from service of evidence prior to trial — surveillance evidence of plaintiff sought to be relied on by defendant at trial — where evidence is material to plaintiff’s credit CIVIL PROCEDURE — Hearings — Suppression and non-publication — order made

CIVIL PROCEDURE — Cross-claim — plaintiff is registered proprietor of property forfeited to Crown as the result of orders made under Criminal Assets Recovery Act 1990 (NSW) — property sold — defendant claims interest in property and pursues order disgorging proceeds of sale EQUITY — Trusts and trustees — Resulting trust — defendant’s claimed payment for property unsupported by evidence — necessary intention for defendant to acquire equitable interest unsupported by evidence — Jones v Dunkel inferences — beneficial interest in property not established EQUITY — Trusts and trustees — Constructive trusts — registered proprietor a volunteer — no prior notice of claimed interest — indefeasibility of title — Real Property Act 1900 (NSW), s 42 — after-acquired notice of claimed equitable interest does not defeat registered title of volunteer — whether claimant can pursue in personam remedy against registered proprietor — whether statutory remedy available under Criminal Assets Recovery Act 1990 (NSW), ss 22, 23, 25

COSTS – general rule that costs follow the event –discretion to order otherwise – material considerations – proceedings brought by public authorities – issue of public importance – public interest in transparency of regulation – neither party wholly successful – no order as to costs

COSTS – offer of compromise – compliance with UCPR r 20.26 – the operation of UCPR r 42.15A – whether period offer open for acceptance was “reasonable in the circumstances” – the making of a Bullock order or a Sanderson order where the unsuccessful defendant pay the costs of the successful defendant -

DUST DISEASES – appeal from Dust Diseases Tribunal – deceased worker exposed to asbestos dust and fibres at appellant’s factory between 1962 and 1964 – heavy smoker – died in 2019 – prior to death acquired lung cancer – only issue was causation – two limbs to causation case – exposure to asbestos caused worker to acquire asbestosis – exposure to asbestos caused worker to acquire lung cancer – success on either limb sufficient for worker to succeed – primary judge upheld both limbs – finding of asbestosis based on preference for respondent’s expert – appellant called five experts refuting asbestosis – none cross‑examined – whether primary judge required as a matter of law to accept evidence not cross‑examined on – Browne v Dunn – appeal restricted to points of law – question of fact – no obligation as a matter of law to accept unchallenged evidence – whether primary judge obliged to draw Jones v Dunkel inference from failure of respondent to call specialist who viewed lung scan – no obligation as a matter of law to draw such inference – finding that asbestos exposure caused lung cancer – epidemiological evidence – appellant’s expert concluded relative risk of smoking causing lung cancer was around 96% – primary judge wrongly treated evidence as supporting a finding that asbestos made a material contribution to worker acquiring lung cancer – erred in law in approach to causation – s 25B of the Dust Diseases Tribunal Act – whether primary judge acted inconsistently with s 25B(1) and previous decision of tribunal in Judd v Amaca – not established – whether primary judge failed to address appellant’s case that causal potency of historical exposure to asbestos reduces over time – not established

CONTRACTS — implied term — where the primary judge implied a term into a deed containing an option to purchase land so as to validate the purported exercise of that option — whether the conditions stated in BP Refinery were satisfied — held on appeal that the term was not necessary to give business efficacy to the contract, not “so obvious that it goes without saying” and not consistent with the express terms — further held that it was sufficient that the option, without the implication, was capable of being exercised in many foreseeable circumstances as distinct from all conceivable circumstances EQUITY — remedies — whether the respondent entitled to relief against forfeiture if option to purchase land was not validly exercised — held on appeal that the respondent did not establish any of the “special heads” of fraud, accident, mistake or surprise, or any other circumstances establishing unconscientious conduct on the part of the appellant — circumstances do not amount to an “accident” where they are reasonably within the contemplation of the parties

CRIME – TRIAL – murder – question of whether a jury of 11 should be discharged

CRIME – trial – murder – juror infected by COVID-19 – whether juror should be discharged – whether trial should be adjourned pending recovery of juror

PRACTICE AND PROCEDURE – application to have evidence of witness for defendant given by audio visual link from London – where witness’s presence in London during trial dates known to solicitors for defendant since matter fixed for hearing in March 2022 – where no steps taken to arrange alternate hearing date or to seek plaintiff’s consent to evidence being given remotely until week before hearing – where witness’s evidence contentious and directed to a critical issue

CRIME — Confiscations — Forfeiture order — where summons filed after relevant period — whether in interests of justice to extend time for filing — whether delay sufficiently explained — leave granted to file out of time

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – by consent

CIVIL PROCEDURE — Notice to produce — relevance — legitimate forensic purpose — Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 — expert opinion — documents relevant to testing validity of conclusion expert arrived at — consequences of required production — documents must be produced CIVIL PROCEDURE — Notice of motion — leave to rely on expert report sought — case management principles — explanation for delay in application to lead further expert evidence unsatisfactory — Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20 — litigation not to be conducted by ambush or surprise — consequences of grant of leave unjust — leave refused

CRIME — Bail — Appeal bail — Jurisdiction of the appeal court — Applications filed out of time — No substantive proceedings on foot in the appeal court — No jurisdiction to hear and determine release application

CRIME – appeals – appeal against conviction – historical child sexual offences – application for permanent stay refused – where indictment spanned five years – lack of particularity, delay, forensic disadvantage – standard of appellate review where stay refused and trial proceeds to conviction – House error and miscarriage under s 6(1) of Criminal Appeal Act – neither shown by applicant in this case CRIME – appeals – appeal against conviction – unreasonable verdict – complainant’s testimony said to lack adequate particularity – complaint evidence – pretext calls – verdicts not unreasonable – appeal dismissed

CRIME – trial – question of juror impropriety – question of whether perception of bias might arise – no impropriety by juror – possibility of perception of bias even though no reason to conclude actual bias – juror discharged

CORPORATIONS — Scheme of arrangement — Application to postpone the meeting of members to consider scheme of arrangement — Where meeting has been convened but not yet commenced — Where there is a question as to the adequacy of disclosure of information to shareholders — Whether the meeting should be cancelled, postponed or permitted to continue.

PRACTICE AND PROCEDURE – Application to transfer proceedings from the District Court to the Supreme Court – Where separate proceedings had been brought in the Supreme Court – Assertion that there were common parties and common issues across the two sets of proceedings – Assertion not made out having regard to the causes of action pleaded in each case – Where District Court proceedings had been listed for hearing – Significant delay in bringing the application for transfer – Granting the application at odds with dictates of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) – Application dismissed

CIVIL PROCEDURE — case-management orders — non-compliance OCCUPATIONS — legal practitioners — solicitors — duties and responsibilities — officer of the court

CRIMINAL PROCEDURE – application for trial by judge alone – consent – application granted

CRIMINAL PROCEDURE – trial – evidence in respect of judge alone application – unrepresented – evidence to be given by audio visual link

CIVIL PROCEDURE — originating process —application to further amend statement of claim — whether grant of leave in accordance with the dictates of justice — whether prejudice to the defendant — absence of explanation for delay in bringing the application

TRAFFIC LAW AND TRANSPORT – motor accident – personal injury claim – medical assessment for psychological injury – whether cause of injury part of motor accident – whole person impairment not assessed – application to review medical assessment certificate – application rejected by President’s delegate – Motor Accident Injuries Act 2017 (NSW), s 7.26 ADMINISTRATIVE LAW – failure to exercise statutory function – no power of medical assessor to determine scope of “motor accident” – failure of medical assessor to assess whole person impairment – failure of delegate to find reasonable cause to suspect assessment incorrect in a material respect COSTS – judicial review – defendant insurer submitted – submitting appearance filed promptly – insurer not responsible for error of delegate – no costs order against defendant – application by plaintiff for certificate under Suitors’ Fund Act 1951 (NSW) – whether delegate of President a “court” – indemnity certificate only available to defendant

CORPORATIONS – application by special purpose receiver for direction that he would be justified in not accepting a settlement proposal in its current form – where applicant was appointed by the Court as special purpose receiver under s 283HB of the Corporations Act – whether Court has jurisdiction under s 283HB of the Corporations Act to give such a direction – whether the direction sought is within the class of questions on which the special purpose receiver may legitimately seek directions – whether direction sought by the special purpose receiver should be given

CONTRACTS — construction — interpretation — whether the first defendant is required to pay to the plaintiff a certain amount pursuant to a deed signed between the parties

CRIMINAL PROCEDURE — costs — costs in Criminal Cases Act 1967 (NSW) — applicant acquitted after jury trial — whether proceedings instituted reasonably — lengthy period of investigation — causation and self-defence left to jury — proceedings not instituted unreasonably

CONTRACTS – Testamentary promise – claimed general and specific statements of inheritance – whether statements certain and enforceable – General statements vague and uncertain based on equality and fairness – No form of exchange of promises nor request of action – No intention to give rise to legal relations – Claimed historic specific statements not established – Frailty of memory ESTOPPEL – Equitable estoppel – Requirements – No clear and unequivocal representation – requirements of reliance – no evidence deceased aware of intended reliance or purported reliance – requirement of detrimental reliance – no substantial material disadvantage SUCCESSION – wills, probate and administration – validity of a will – whether undue influence – no evidence amounting to coercion SUCCESSION – family provision – structure of statutory scheme – requirements of dependency – requirements of factors warranting – reference point for assessing inadequacy of provision SUCCESSION – family provision – claim by granddaughters – strength of financial resources of granddaughters – strong competing claim of daughter who lived with deceased entire life – substantial care for deceased particularly in later years.

ADMINISTRATIVE LAW – review of medical assessment by Appeal Panel – judicial review of appeal panel decision – assessment of whole person impairment – whether methodology employed by Appeal Panel in rounding was incorrect – adequacy of reasons of Appeal Panel WORKERS COMPENSATION – proceedings before Commission – medical assessment of whole person impairment – psychological injury – appeal

POSSESSION – application for possession of land – where the defendant signed a Facility Agreement with the plaintiff to fund the fee of a Representative Agreement with a psychologist franchising business – where the Facility Agreement was secured over the family home – defendants cross-claim that the Facility Agreement should be set aside on the basis of unconscionable conduct of the plaintiff

PRACTICE – appeals – stay of execution pending appeal – subpoena and notice to produce issued by respondent opposing stay of execution – notice sought production of costs estimate of appeal –production of documents bearing on financial position of appellant’s partner – documents of no apparent relevance COSTS – indemnity costs – unfounded opposition to stay of execution on terms – significance of s 56 of Civil Procedure Act 2005 (NSW) – insignificance of respondent’s broader commercial interests – indemnity costs ordered

DEFAMATION – imputations – whether imputations conveyed by publications – plaintiff alleged alternative imputations - whether plaintiff entitled to decision that publication conveyed primary imputation as opposed to imputation most accurately reflected in publication – “single meaning rule” considered – contextual truth – whether contextual imputations conveyed DEFAMATION – justification – report of plaintiff’s offensive language mis-stated – plaintiff said to colleague “if you weren’t so young I’d come up there and rip your head off and shit down your throat” – reported as threat to “slit” colleague’s throat – significance of conditionality of language – significance of impossibility of literal meaning of plaintiff’s language – whether publication nevertheless substantially true DEFAMATION – honest opinion – fact/opinion distinction – significance of non-verbal and contextual aspects of publication – whether factual statements and opinion inextricably intermingled – whether opinion based on proper material DEFAMATION – offer of amends – offer to publish “correction” – offer did not include acknowledgement of error or statement of correct position – offer to publish matters claimed by plaintiff – offer held not to amount to correction for purposes of statutory defence APPEALS – principles governing appellate review – principles vary depending on nature of challenge – no obligation to resolve non-dispositive submissions – consideration of principle of judicial economy – consideration of “substantial wrong or miscarriage” precondition to ordering new trial – UCPR r 51.53 considered – significance of rule in case of judge-alone trial – significance of rule if evidence found to be wrongly rejected – relation between rule and s 56 of Civil Procedure Act 2005 (NSW)