Cases and authorities

COSTS — security for costs — whether plaintiff “ordinarily resident outside of Australia” — proceedings dismissed after non-provision of security — r 42.21(1)(a) and (3) of UCPR — application for leave to appeal dismissed — no arguable prospects of success on appeal

Criminal practice – Appeal – Where appellant tried and convicted of murder of wife by judge alone in Supreme Court of South Australia – Where appellant appealed conviction on ground that verdict unreasonable or could not be supported having regard to whole of evidence – Whether Full Court of Supreme Court of South Australia sitting as Court of Criminal Appeal misapplied test in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 – Function of court of criminal appeal determining appeal against conviction on unreasonableness ground following trial by judge alone. Words and phrases – "advantage in seeing and hearing the evidence", "circumstantial case", "function of a court of criminal appeal", "independent assessment of the evidence", "inference of guilt", "jury questions", "pathway to proof of guilt", "unreasonable verdict", "unreasonableness ground". Criminal Procedure Act 1921 (SA), s 158(1)(a).

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Where s 8 of Surveillance Devices Act 2007 (NSW) ("SD Act") relevantly prohibited knowing installation, use or maintenance of optical surveillance device on or within premises to record visually or observe carrying on of activity if installation, use or maintenance of device involved trespass – Where ss 11 and 12 of SD Act prohibited, respectively, publication or communication of record or report, and possession of record, obtained in contravention of, relevantly, s 8 of SD Act – Whether ss 11 and 12 burdened implied freedom – Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – "adequate in its balance", "breach of confidence", "burden", "complicit in trespass", "implied freedom of political communication", "incremental burden", "lawful activity", "legitimate purpose", "mens rea", "optical surveillance device", "partially disapplied", "privacy", "public interest", "reasonably necessary", "structured proportionality", "suitable", "surveillance devices", "trespass". Surveillance Devices Act 2007 (NSW), ss 8, 11, 12.

Criminal law – Parties to offence – Principal offenders – Where appellant and another charged jointly with offence of unlawfully doing grievous bodily harm with intent under s 294(1)(a) of Criminal Code (WA) – Where prosecution relied on s 7(a) of Criminal Code, which deems "[e]very person who actually does the act ... which constitutes the offence" to be guilty of offence – Where uncertainty as to which act or acts of appellant or co-accused, or combination of their acts, caused grievous bodily harm – Where trial judge relevantly directed jury they could convict appellant under s 7(a) if satisfied beyond reasonable doubt that appellant and co-accused were "acting in concert, each of them doing one or more of the acts which caused" grievous bodily harm and that "[t]he relevant accused's acts were unlawful" – Whether s 7(a) permits acts of person to be attributed to another – Whether jury direction occasioned miscarriage of justice. Words and phrases – "acting in concert", "actually does the act", "attribution", "criminal responsibility", "deemed to have taken part in committing the offence", "parties to offence", "principal in the first degree", "principal offender", "unlawful common purpose". Criminal Code (WA), s 7(a).

EXPERT CONCLAVES – no question of principle

CIVIL PROCEDURE – freezing order – whether danger that prospective judgment will be wholly or partly unsatisfied by reason of assets of debtor being deliberately diminished in value – whether there would be utility in freezing order – where proposed exceptions to freezing order likely to be enlivened

SUCCESSION – Probate and administration – Administration of estates – Appointment of interim administrator – Administration pending contested probate suit

COSTS – application for order for costs in specified gross sum – insufficient material for the Court to determine an appropriate sum – application dismissed – no question of principle COSTS – application for indemnity costs dismissed – no question of principle

COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — Statutory and Inherent jurisdiction — Motion filed 10 months after conclusion of substantive proceedings — Where substantive proceedings resolved by consent — No neglect, incompetence or misconduct

CIVIL PROCEDURE – Vexatious litigants – Leave to institute proceedings – Where procedural aspects of seeking leave to institute proceedings not followed – Where the Vexatious Proceedings Act 2008 (NSW) requires dismissal – Where proceedings sought to be instituted involve reagitating previous litigation – Where proposed proceedings themselves justify continuation of vexatious proceedings order – summons dismissed

APPEALS — Damages — Personal injury or death cases — Motor Accident — Appellant suffers atypical psychotic disorder — Appellant had pre-existing susceptibility to psychotic disorder — Whether primary judge found that the accident accelerated the development of the appellant’s psychotic disorder from 2020 to 2016 — Whether primary judge erred in finding that the accident accelerated the development of the appellant’s psychotic disorder by four years

CONTRACTS – construction – whether vendor’s covenant to construct building in a proper and workmanlike manner was only a “best endeavours” obligation – whether vendor is liable under covenant for incomplete or defective work by builder – where covenant did not merely require compliance with physical description of the building according to approved plans CONTRACTS – construction – whether good workmanship covenant merged on completion – absence of express statement that the covenant survived completion – primary obligation to convey title merged upon completion – nature of subject matter of secondary obligation as to good workmanship – where performance of covenant could not be investigated prior to completion – where occupation certificate is not determinative of performance CONTRACTS – damages – whether lot owners can claim damages in respect of proportionate share of cost to rectify common property – where damage to common property is infringement of lot owner’s proprietary interest in common property as equitable tenant in common – whether lot owners can recover costs of rectification where works have not been undertaken CONTRACTS – assignment – whether assignment of chose in action was effective – whether assignee had genuine, substantial pre-existing commercial interest in the suit – whether claim is time barred where plaintiff substituted – where effect of substitution order under UCPR, r 6.32 placed substituted plaintiff in same position as party replaced APPEAL – orders on appeal – building case – whether appropriate relief is remitter for retrial or reference out to referee – where reference out is the most efficient and timely option

APPEALS – leave to appeal from order for security for costs – representative proceedings – where litigation funder agreed to indemnify plaintiffs against adverse costs order and to provide security for costs – where identity of funder not disclosed – where respondent unable to assess funder’s financial ability to meet indemnity – no reasonably arguable error or question of principle COSTS – security for costs – sources of power to order security – UCPR r 42.21 – inherent power

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether loss of tooth amounts to grievous bodily harm CRIME – Appeals – Appeal against sentence – Error in indicative sentences

CRIMINAL PROCEDURE — trial — murder — service of late evidence — time required for responsive evidence — discharge of jury — hearing adjourned — costs certificate issued

PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Agreement of partnership — No issue of principle

HIGH RISK OFFENDERS — Interim detention orders — Application — serious sexual offending — whether risk mitigated by imposition of interim supervision order — where interim supervision order made

JUDGMENTS AND ORDERS — Enforcement — Suspending operation — where plaintiff successful in claim for possession of land — where execution of writ of possession stayed to enable third parties to remove property from land — stay of execution lifted subject to undertaking by plaintiff to allow period of reasonable access to land to enable removal of property

PRACTICE – appeals – stay of execution – whether appropriate case made out – where undertaking and security provided – where appeal to be heard in near future – where respondents had failed to apply over previous two years to vary interlocutory regime based on changed circumstances – stay continued PRACTICE – appeals – security for costs – respondents sought substantial security – respondents claim to have spent more costs on opposing stay of execution and in support of application for security for costs than in defending the appeal – respondents sought to divide appeal into that brought by first appellant and that brought by second appellant – respondents’ submission misconceived – respondents substantially unsuccessful in opposition – security ordered in amount proffered by appellants

CIVIL PROCEDURE – judgments and orders – consent orders – error of law – certiorari – requirement that the Court be satisfied there was an error of law – termination of tenancy agreement - absent at hearing due to arrest – failure to give adequate reasons – failure to have regard to a relevant consideration – remittal

COSTS – gross sum costs order – section 98(4)(c), Civil Procedure Act 2005 (NSW) – plaintiffs make late amendment to pleadings, leading to vacation of trial – principles at [8]-[16] – whether counsel’s cancellation fee should be included – consideration at [21]-[24] – cancellation fee not recoverable – gross sum costs order made.

CRIME – application for trial by judge alone – where prosecution does not consent to such an order – where accused charged with murder and firearms offences – where defence may raise partial defence of substantial impairment – where forensic psychiatrists to be called as expert witnesses – whether in the interests of justice to order a trial by judge alone

PRACTICE – parties – misjoinder – third respondent to appeal died after appeal commenced – appellant challenged findings that worker was injured and that appellant was employer – third respondent contingently liable in event that appellant established that third respondent was the deemed employer – neither appellant nor third respondent had paid workers compensation insurance premiums – Nominal Insurer liable to indemnify worker but entitled to recovery from employer – risk that estate of third respondent might contest Nominal Insurer’s entitlement to recover if not joined to this litigation – certainty that joinder of third respondent’s estate would involve expense and time – many circumstances in which joinder would serve no end – third respondent removed from proceedings

CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Subsequent referral – Special reasons – Where Court has found case sufficiently arguable to justify grant of leave to appeal – Where hearing of appeal unlikely to involve any contradictor – Referral made

PRACTICE – appeals – application to vacate – absence of evidence to explain why appeal could not proceed – heavy burden accompanying such applications – application refused

CRIME – appeals – appeal against sentence – aggregate sentence imposed with commencement back-dated – whether error in not back-dating commencement earlier still – totality – significance of two month period during which applicant was at liberty following earlier imprisonment – whether inadequate weight given to youth – appeal dismissed

CRIME – appeal against sentence – sentence after trial – sexual intercourse with person under 10 years – multiple counts – aggravated indecent assault – significant delay in bringing application for leave to appeal – delay unexplained – aggregate sentence imposed – question of level of concurrence and accumulation in determining aggregate sentence – question of manifest excess

MENTAL HEALTH — Forensic patient — Application for extension order pursuant to 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 — Whether the defendant poses an unacceptable risk of serious harm to others if he ceases to be forensic patient — Court not satisfied that the defendant poses an unacceptable risk — summons dismissed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Amendment of scheme – 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 amended scheme of arrangement.

CORPORATIONS — management and administration — application to validate deed extending the term of trust pursuant to s 1322(4) — extension of time to lodge documents with ASIC — whether the court should make a declaration pursuant to s 1322(4) that the plaintiff has continued to validly operate the trust

CRIMINAL PROCEDURE – application to permanently stay proceedings – accused facing trial for murder and inflict grievous bodily harm with intent – long and unfortunate procedural history – delay – upcoming trial to be accused’s fourth trial – alleged unfairness due to “opportunistic” “patching up” of Crown case with new evidence – exceptional remedy sought – accused must show fundamental defect – prosecution duty of disclosure – application refused

CONTRACTS – contract for the sale of land – contractual formation – land owned by defendants as joint tenants – authority for one vendor to execute contract on behalf of the other vendor – where second defendant alleges that her signature as vendor on contract for the sale of land was forged by first defendant – where first defendant accepts that he forged second defendant’s signature – where plaintiffs allege that the second defendant generally or specifically authorised the first defendant to sign on her behalf – whether second defendant authorised the first defendant to execute the contract on her behalf – whether objective circumstances of the case demonstrate such authorisation – held that second defendant did not authorise the first defendant to execute the contract on her behalf – no contract held to have come into existence between the plaintiffs and the defendants

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – where plaintiff fails to plead material facts in statement of claim – proceedings commenced against six defendants

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIME – murder – elements of the offence of murder – defence of mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 – Judge alone trial – special verdict – act proven but accused not criminally responsible – consideration of orders to be made under ss 33 and 34 – victim impact statement of family member received under Crimes (Sentencing Procedure) Act 1999 (NSW) s 30L – importance of victim impact statement – orders made including order for detention until release by due process of law

CRIME – murder – elements of the offence of murder – defence of mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 – Judge alone trial – two limbs of the defence of mental health impairment – meaning of “mental health impairment” under s 4 – whether the act was wrong – s 29 directions – Criminal Procedure Act 1986 (NSW) – s 133 directions – expert evidence – special verdict – act proven but accused not criminally responsible

CIVIL PROCEDURE – cross-vesting legislation – plaintiffs seeking equitable compensation for the unrecovered proceeds of sale of the Twigg Group and unrecovered costs of earlier proceedings – whether Supreme Court of Victoria a “more appropriate” forum – whether transfer of proceedings “in the interests of justice” – relevance of commonality of issues to those in earlier proceedings – relevance of exclusive jurisdiction clause – relevance of forthcoming strike out application

TORTS — Trespass to the person — assault and battery — historical sexual misconduct — claim for damages due to psychiatric harm — whether misconduct caused harm — expert evidence TORTS — Trespass to the person — whether trespass to the person is an independent tort EVIDENCE — Tendency evidence — Civil proceedings — where no tendency notice provided — whether open to use evidence for tendency purpose — where not open — where evidence could be used as relationship evidence

COSTS — Application for leave to appeal from costs order — Proceedings dismissed by consent — Costs awarded against defendants — Whether defendants capitulated to plaintiff — No issue of principle or question of general public importance

SENTENCING ­– appeal against sentence – fresh or new evidence – impact of the COVID-19 pandemic on custodial conditions – where sentence was imposed prior to the outbreak of the pandemic ­– where the consequences of COVID-19 had resulted in the applicant suffering harsher punishment in custody than could have been anticipated by sentencing judge – where no error of principle could be demonstrated on the part of sentencing judge SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 that appellate intervention is dependent upon the demonstration of error – where applicant was sentenced before outbreak of the COVID-19 pandemic – where co-offender was sentenced during the pandemic, and the impact of COVID-19 on custodial conditions was taken into account by sentencing judge ­­– whether there was a disparity in sentences warranting appellate intervention SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 that appellate intervention is dependent upon the demonstration of error – where applicant was sentenced before outbreak of the COVID-19 pandemic – where co-offender was sentenced during the pandemic, and the impact of COVID-19 on custodial conditions was taken into account by sentencing judge ­­– whether there was a disparity in sentences warranting appellate intervention

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where direct evidence only available from conflicting accounts of complainant and accused – Where trial judge gave self Liberato direction and then rejected accused’s evidence – Finding that having regard to the whole of the evidence, accused’s account cannot be set aside as not a reasonably possible version of events, and thus a reasonable doubt as to his guilt is entertained – Held that trial judge enjoyed no relevant advantage over appellate court and thus ought to have entertained the same reasonable doubt – Conviction and sentence quashed and substituted with verdict of acquittal

SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment — application dismissed

CRIME — Appeal and review — Appeal from District Court to Supreme Court — Applicant sentenced to a term of imprisonment for offences of importing a border controlled drug and trafficking in a substance, the substance being a border controlled drug — Whether sentence was manifestly excessive — Weight afforded to the Applicant’s subjective case — Leave to appeal granted — Appeal dismissed

CRIMINAL LAW – proceeds of crime – restraining orders

EVIDENCE — expert evidence — whether use of particular software within electronic evidence expert’s expertise — whether delay and Crown’s evidence served late results in unfairness — consciousness of guilt evidence

CRIMINAL PROCEDURE — jury trial — expanded jury — discretionary discharge of individual juror — sickness

PRACTICE AND PROCEDURE – contested application for first defendant to give evidence by audio-visual link from Lebanon – where first defendant does not wish to travel to Australia because of the risks posed by COVID-19 and because he is the carer for his ill father who resides in Lebanon – application granted on conditions

COSTS — party/party — costs orders in earlier proceedings — extension application — withdrawal of substantive application before hearing — costs payable forthwith

ADMINISTRATIVE LAW – judicial review ­– appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – Whether the Tribunal misconstrued the concept of ‘risk’ in their assessment under s 18(1) –Whether the Tribunal failed to consider the accumulative weight of the allegations – Whether the Tribunal erred in its application of s 30(1A) – Whether the Tribunal provided adequate reasons – Appeal dismissed