Cases and authorities

MENTAL HEALTH – forensic patient – extension of status as forensic patient – schizophrenia –substance use disorder – parties in agreement that extension order should be made – consideration of statutory criteria – whether unacceptable risk of causing serious harm to others – consideration of other adequate, less restrictive management regimes under the Mental Health Act and Guardianship Act – experts agree as to appropriate length of time – extension of three years granted

SUCCESSION – Family provision – Claim by adult child – Provision sought to purchase a home

PRACTICE AND PROCEDURE – application to conduct proceedings and give evidence by video link or other communications – Uniform Civil Procedure Rules 2005 (NSW) r 31.3 – where unrepresented litigant applies to conduct proceedings remotely from the United Kingdom in proceedings against his unrepresented sister – where allegations of dishonesty will be made – inappropriateness of conducting the proceedings by video link – HELD – application refused.

Application under s 78(1) of the Crimes (Appeal and Review) Act 2001 for inquiry into sentence – two serious violence offences – domestic violence context – applied unsuccessfully to Court of Criminal Appeal for leave to appeal sentence – primary complaint in relation to appraisal on sentence of expert medical evidence on mental health – no new material or arguments – no doubt or question as to any mitigating circumstances or any part of the evidence – application refused

HIGH RISK OFFENDERS – Interim Supervision Order (ISO) – dispute confined to conditions – unacceptable risk – ISO issued

EQUITY — trusts and trustees — charitable trusts — whether trust is a trust for persons or for purposes — whether a trust is a charitable trust for the relief of poverty — whether a trust is a charitable trust for other purposes beneficial to the community

COSTS – Calderbank letter – no real compromise offered – indemnity costs not warranted.

COSTS – indemnity costs – offer of compromise – plaintiff’s offer – family provision proceedings – purported formal offer not specifying how proposed further provision to be borne by other beneficiaries’ shares of estate – whether effective – informal offers – whether failure to accept unreasonable

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed CORPORATIONS — corporate character — parent and subsidiary — liability of parent company for harm caused by its wholly owned subsidiary — no duty of care owed CIVIL PROCEDURE — summary disposal — dismissal of proceedings — principle in Wickstead v Browne — principle does not preclude summary dismissal in this case

REAL PROPERTY – Conveyancing Act 1919 (NSW) s 66G(1) – application for the appointment of trustees for the sale of property – where parties are co-owners and the first defendant seeks to assert that the plaintiff has no beneficial interest in the property and holds it on trust for him in circumstances where, in breach of directions of the Court, he has served no evidence and the Court declines his application to adjourn the hearing – HELD – no basis established for not making the order – trustees for sale appointed.

CRIME – Appeal and review – Application for leave to appeal from interlocutory decision of Local Court under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) – where sentencing decision and bail variation application listed on same day before a Children’s Court Magistrate – where Magistrate made finding of failure to comply with a bail condition following sentencing decision – whether Magistrate lacked jurisdiction to make a failure to comply finding because no substantive proceedings were pending or otherwise – meaning of “bail decision” in the Bail Act 2013 (NSW) – consideration of appropriate form of relief – alternatively, whether Magistrate applied incorrect standard of proof in making a failure to comply finding

HIGH RISK OFFENDERS – extended supervision order – final hearing – application for further extended supervision order (ESO) for three-year period – defendant convicted of offences including serious sexual offence – subsequent sexual offending including offences against a young person – prior ESO for two year period - unstable mental health – history of substance use disorder – assessment of defendant’s behaviour whilst under the ESO – whether alteration in risk – defendant breached former ESO but no serious offending or sexual reoffending – improvement in relation to substance use – where defendant still high-risk – whether further order should for two or three years - conditions of electronic monitoring and schedule of movements sought by plaintiff – where such conditions would not address defendant’s risk factors – where conditions likely to be breached by defendant – inimical to rehabilitative object of the Act – more onerous conditions than former ESO not warranted – no basis shown for longer period than former ESO – ESO imposed for two-year period with conditions

NEGLIGENCE – vicarious liability – liability for employee of labour hire company – whether liability transferred pro hac vice to the host employer WORKERS COMPENSATION – injury – personal injury – arising in the course of employment

CIVIL PROCEDURE — Court of Appeal — Application for review of decision pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) of dismissal of applicant’s notice of motion seeking referral for pro bono legal assistance — Notice of motion dismissed

CHILD WELFARE – care and protection of children – appeal from Children’s Court – mother seeks judicial review of appointment of guardian ad litem for mother – whether error of law on face of record – whether record included reasons for appointing previous guardian ad litem – whether necessary to make order that mother be legally represented before appointing guardian ad litem – whether jurisdictional error – ss 98 and 101 of Children and Young Persons (Care and Protection) Act 1998 (NSW) considered

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Where arguable case for the determination of the Summons — Application dismissed EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Judicial review — Jurisdiction of the Full Bench of the Commission may include hearing and determining an application for leave to appeal and an appeal against an interlocutory decision of a single Commissioner — Unnecessary determination of facts adverse to a party may constitute jurisdictional error

EQUITY — Authority of agent — Ostensible authority — Estoppel — Agent altered company’s ASIC record and represented himself as the sole director in dealings with a third party — Company directors aware of the alteration for 57 days before agent entered into contract with third party — 116 days before correcting ASIC record — Whether company is bound by the unauthorised agent’s dealings — No point of general principle

CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Questions sought to be determined do not arise in the proceedings

COSTS – party/party – bases of quantification – indemnity basis – gross lump sum costs order RESTITUTION – restitution for wrongdoing – equity – unconscionable conduct – account of profits – failure properly to account

CRIME – bail – where bail sought after conviction but before sentence – whether applicant will be sentenced to a imprisonment by fulltime detention – need to show special or exceptional circumstances – where non-parole period will probably not exceed time applicant has spent in custody on remand – special or exceptional circumstances shown

CIVIL PROCEDURE — parties — Vexatious litigants — Declaration of — Orders under the Vexatious Proceedings Act 2008 (NSW) COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — Vexatious litigant declaration — Where application in the public interest

COSTS – appropriate costs order after proceedings settled – plaintiff brings proceedings for trespass to a property arising out of excavation of a trench on a boundary of her property with the defendant’s neighbouring property – hearing proceeds in the duty list and the parties agree upon a grant of final relief apart from damages – damages issues – parties cannot agree upon appropriate order for costs – whether an order for costs should be made against one or other party and if so, what order for costs should be made.

APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge EVIDENCE – admissions – civil proceedings – torts – negligence – admissibility against co-defendant – common purpose – s 87(1)(c) of the Evidence Act 1995 (NSW) – where admissions to inappropriate sexual dealing with children said to have been made by defendant during police interview sought to be admitted in claim of negligence against co-defendant – where no express authorisation to make admissions on co-defendant’s behalf – where common purpose required to exist as at time the impugned admissions were made – where co-defendant learned of occasion of alleged admissions after the fact – whether alleged admissions were admissible against co-defendant EVIDENCE – hearsay – exceptions – witness unavailable – within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act 1995 (NSW) – where that definition properly encompasses the issue and service of a subpoena – where no subpoena had been served on the relevant witness – where the determination of the unavailability of a witness does not involve the exercise of direction – whether witness was unavailable to give evidence so as to render hearsay of disclosures admissible as tendency evidence EVIDENCE – standard of proof – civil cases – torts – trespass to the person – battery – sexual assault against children – at childcare centre – allegations of such gravity as to attract Briginshaw principles – s 140(2) of the Evidence Act 1995 (NSW) – where plaintiffs relied on substantial body of tendency evidence as to inappropriate sexual dealing with children – where certain witnesses as to tendency unable to be cross-examined – whether tendency evidence was admissible against defendant – where trial occurred some 10 years after events in question – whether allegations established to the requisite standard EVIDENCE – tendency evidence – civil proceedings – tendency rule – significant probative value – where evidence taken at its highest individually or cumulatively must strongly support existence of tendency asserted – where tendency must strongly support proof of material fact in issue – where distinction to be drawn between admissibility of tendency evidence and its use – where use of tendency evidence must have regard to Briginshaw principles EVIDENCE – tendency evidence – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where plaintiffs relied upon substantial body of tendency evidence as to inappropriate sexual dealing with children – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – where tendency evidence required to be of significant probative value of tendency – where tendency required to strongly support proof of material fact in issue – where some of the tendency evidence marked by inconsistency and unreliability – where certain witnesses as to tendency not able to be cross-examined – whether tendency evidence was admissible against defendant – where admissibility of one piece of tendency evidence affects probative value of all others and of asserted tendency – where judge’s reliance on one piece of tendency evidence unable to be separated from remainder of tendency evidence NEGLIGENCE – duty of care – owed by corporate licensee of childcare centre and its director to attendees of centre – where volunteer alleged to have committed sexual assaults against children at the centre – where regulation required volunteer to be “accompanied” by member of primary contact staff when in the presence of children – where that regulation required no more than that children not to be under supervision of volunteer alone – where no internal complaints made regarding conduct of volunteer – where policies and procedures of childcare centre substantially in accordance with regulation – whether licensee and director breached duty of care NEGLIGENCE – vicarious liability – employer and employee – where employer was corporate licensee of childcare centre – whether director of licensee also vicariously liable for conduct of employee – principle of dual vicarious liability not adopted in the common law of Australia NEGLIGENCE – damages – economic loss – earning capacity – future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances TORTS – general principles – damages – trespass against the person – battery – sexual assault – against child – damages awarded to child and parent – for future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances TORTS – trespass to the person – battery – sexual assault – against two children – at childcare centre – by defendant volunteer – alleged that defendant kissed one child with open mouth and pulled down child’s pants – alleged that defendant tickled other child on underwear – defendant alleged to have tendency for inappropriate sexual dealing with children – substantial body of tendency evidence admitted – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – whether certain tendency evidence was admissible against defendant – where certain witnesses unable to be cross-examined – where trial occurred some 10 years after events in question – whether claims established to the requisite standard per s 140(2) of the Evidence Act 1995 (NSW) WORDS AND PHRASES – “accompanied” – Children’s Services Regulation 2004 (NSW), cl 57(b)

APPEALS – leave to appeal – principles governing – monetary threshold – whether application identified issue of principle, question of public importance or reasonably clear injustice – where Parliament intended that matters involving relatively small amounts in issue should not come before the Court of Appeal as of right – where there is need for proportionality between value of matter and costs of proceedings CIVIL PROCEDURE – Court of Appeal – leave to appeal – monetary threshold – whether application identified issue of principle, question of public importance or reasonably clear injustice – where Parliament intended that matters involving relatively small amounts in issue should not come before the Court of Appeal as of right – where there is need for proportionality between value of matter and costs of proceedings

CIVIL PROCEDURE – leave to appeal – standing – application to set aside consent orders in Court below – applicant not a party to proceedings below – right to bring own proceedings not a sufficient basis to attract a right of appeal

TAXES AND DUTIES – payroll tax – employment agents – interpretation of s 37(1) of Payroll Tax Act 2007 (NSW) – where Chief Commissioner sought to overturn construction determined by UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 – construction consistently applied in subsequent cases – numerous subsequent amendments to legislation – some amendments had materially altered the operation of employment agency contract provisions – construction not shown to be unworkable or untenable – legislation harmonised with other jurisdictions – construction in UNSW Global not departed from

CRIME – sentence appeal – aggregate sentence of 24 years with non-parole period of 18 years for serious sexual assault and physical assaults – applicant brutalised partner over 11‑hour period – whether sentencing judge erred in assessing objective seriousness of sexual assault by reference to facts of other sexual assault committed shortly prior to and shortly after subject offences – facts of other offences relevant to vulnerability of victim and intention to commit further assaults – reliance on wrong maximum penalty and wrong standard non-parole period – error conceded – no lesser sentence warranted in law

CRIME – Appeals – appeal against sentence – parity – specially aggravated take and detain in company with intent to commit a serious indictable offence occasioning actual bodily harm – reckless wounding – where co-offender received ICO and applicant received custodial sentence – youth, rehabilitation and relative role in favour of co-offender – extent of disparity not justified – appeal allowed – re-sentence

CRIME – murder – criminal responsibility – jury directions – where two accused said to be party to a joint criminal enterprise raise self defence – whether the accused’s acts were in furtherance of a joint criminal enterprise or in response to a perceived threat – whether excessive self defence could be left with the jury

HIGH RISK OFFENDERS — Extended Supervision Order — Order not opposed — Length of order disputed — Conditions disputed — No matter of principle

COSTS – Probate proceedings – Settlement before determination – Contested probate application in which Plaintiff propounded copy undated document, which uncontested, but untested, expert evidence concluded did not bear authentic signatures – Application for grant to the Defendant of 2002 Will sought by her in Cross-Claim – No dispute about validity of 2002 Will other than to whom grant should be made – Shortly before commencement of first hearing, Plaintiff propounds another Will said to have been made by the deceased in 2008 – Expert evidence of each party, which remains untested, concluded that the 2008 document did not bear authentic signatures – The Plaintiff, shortly before final hearing, agrees to administration being granted of 2002 Will to independent administrator – Only outstanding issue for determination is how the costs of the proceedings should be borne – Application by Plaintiff that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased – Defendant seeks order that the Plaintiff pay her costs calculated on the indemnity basis, with no order as to the Plaintiff’s costs, of the proceedings – Under terms of 2002 Will, the deceased’s residuary estate is divided equally between the parties.

SUCCESSION – family provision – small estate – claim by adult daughter from mother’s estate – no provision made for plaintiff in mother’s will – estate left to plaintiff’s two sisters – where plaintiff had loving relationship with mother until two years before her death – where reason mother excluded plaintiff from will clear – whether adequate provision made for plaintiff – what provision ought be made

ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – refusal of Working With Children Check Clearance – defendant charged with multiple counts of indecent assault and sexual assault of a minor – defendant found not guilty following criminal trial – application to NCAT for review of clearance check cancellation – whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act 2012 – whether Tribunal erred by misconstruing or misapplying s 30(1A) of the Act – where Tribunal was unable to make positive finding that events occurred but found on balance of probabilities they did not occur – where Tribunal erred by not considering whether the defendant posed a real risk to safety of children – order of Tribunal set aside

APPEALS – leave to appeal – claim for summary judgment for possession of land – whether the defence raised triable issues as to (i) enforceability of mortgage and (ii) rate of interest accruing under mortgage CIVIL PROCEDURE – summary disposal – judgment for plaintiff – sufficiency of plaintiff’s evidence – inconsistency on face of affidavit – proof of sum advanced inadequate – whether defence obviously untenable – opportunity for defendant to amend inadequate pleadings – arguable case for relief MORTGAGE AND SECURITIES – mortgages – form, validity and effect – whether arguable case that mortgage unjust or plaintiff’s conduct unconscionable – 23-year bank mortgage replaced by one repayable in full in six months – interest rate varied from 7% to 15% compounding daily

CRIME – bail – release application following trial by jury resulting in no verdict on two most serious counts – terrorist offences – legislative requirement for “exceptional circumstances” – unusual position where judge heard entirety of Crown case – relevance of strength of Crown case in establishment of exceptional circumstances

SUCCESSION – will – construction – gift of rest and residue of estate to executor including testator’s house – after payment of funeral and testamentary expenses executor to hold property “to” the plaintiffs “in return for” caring for testator’s two cats – whether gift deferred for cats’ lifetimes and conditional on plaintiffs caring for cats – whether language of will ambiguous – whether extrinsic evidence of deceased’s intentions admissible – held that gift of house to plaintiffs not deferred or conditional

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed — frivolous and vexatious proceedings — abuse of process CIVIL PROCEDURE — parties — vexatious litigants — party referred to the Prothonotary to consider whether proceedings should be brought under the Vexatious Proceedings Act 2008

CRIMINAL LAW – murder trial – evidence – tendency evidence – whether proposed tendency evidence will have significant probative value

APPEAL – procedure – security for costs – two natural person appellants and one corporate appellant – whether discretion to order security for costs differed between appellants – interests of natural person appellants identical with that of corporate appellant – absence of special circumstances – grossly inflated estimate of respondents’ costs – whether, if otherwise a proper case for security, inflated estimate should disentitle

MISLEADING AND DECEPTIVE CONDUCT – plaintiff executes an agreement on 1 September 2016 for the acquisition of nine childcare centres from the first, second and third defendants – plaintiff alleges the fourth and fifth defendants engaged in misleading and deceptive conduct on behalf of themselves and other defendants inducing the plaintiff to execute the agreement – plaintiff terminates agreement and seeks recovery of the deposit – whether the fourth and fifth defendants represented to the plaintiff before execution of the agreement that a) due diligence documents required by the plaintiff were fully ready to allow the plaintiff to complete due diligence by 30 September 2016 (b) the accounts for the childcare businesses were audited by PwC (c) the due diligence ‘data room’ of the defendants was complete; and (d) there was another potential buyer of the childcare centres who had already commenced the due diligence process, and who was willing to pay a non-refundable deposit of AUD$1 million – whether any representations made by the fourth and fifth defendants were misleading – whether the plaintiff relied upon any representations made – what loss was caused by any misleading deceptive conduct of the defendants and what relief should be given, including return of the deposit. Alternatively, whether the circumstances occasion relief for negligent misrepresentation. CONTRACT – breach of contract – interpretation of contract terms – agreement for the acquisition of nine childcare centres – conditions precedent – deposit held in escrow – provisions of the agreement requiring due diligence before entry into a long form agreement on 30 September 2016 – a term of the agreement provides for the return of the deposit, if the sellers breached their obligations with respect to the due diligence process, or if the seller breaches certain obligations in relation to exclusive dealing with the plaintiff – whether the sellers have breached either their due diligence process obligations or their exclusivity obligations under the agreement – whether the sellers are required to the return of the deposit.

CIVIL PROCEDURE – interim preservation – appointment of interim receiver – serious question to be tried – balance of convenience – valuation

MENTAL HEALTH — Criminal proceedings — special verdict of act proven but not criminally responsible — subsequent disposition —recommendation of psychiatrist as to best placement of offender — danger to fellow inmates in correctional facility — best placement in Forensic Hospital

CHILD WELFARE — parens patriae jurisdiction — whether existing orders made on 29 May 2022 should be extended.

CRIME – Appeal and review – Application for leave to appeal from interlocutory decision of Local Court under s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW) – where Local Court hearing concerned six charges against plaintiff contrary to Prevention of Cruelty to Animals Act 1979 (NSW) – where application for an adjournment of Local Court proceedings refused by Magistrate – whether leave should be granted to appeal against Local Court decision – whether grounds of application for review to Supreme Court confined to question of law alone – whether plaintiff discharged onus to demonstrate that Magistrate’s decision was unreasonable – whether Magistrate’s reasons for decision to refuse adjournment inadequate or unreasonable – whether adequate consideration and weight given by Magistrate to availability of legal representation and expert evidence

CONTRACT – oral agreement – identity of the parties to oral agreement – persons alleged to have breached contract were not parties to the contract PARTNERSHIPS – whether shareholders in company and/or persons standing behind shareholders were in partnership – where company established as structure through which each shareholder would continue to operate its own freight services business to a particular client who wished to deal with one entity rather than several entities – where company not intended to make profit – no partnership EQUITY – fiduciary duties – whether directors of company owed fiduciary duties to one of the company’s shareholders and/or one of the principals standing behind that shareholder – no fiduciary duties owed

SUCCESSION – Probate and administration – Online document, in the form of answers to questionnaire, whether purporting to state the testamentary intentions of the deceased - Typed out by the deceased and sent to an online will writing platform – Formal will not drafted using the document forwarded by the deceased – No signature on the document that was created – Email sent by the deceased to her solicitor referring to having “drawn up and completed a will” – Unsent text message to Plaintiff on deceased’s mobile phone also referring to “will I had made this morning” - Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – No dispute that there was a document and that it purported to state the testamentary intentions of the deceased and that it had not been executed in accordance with Part 2.1 of the Succession Act – Question whether the deceased intended that the document form her will – Whether evidence sufficient to permit a finding that the deceased intended the document form her Will

MENTAL HEALTH — Criminal proceedings — Judge alone special hearing — Murder — Physical elements of offence proved beyond reasonable doubt — Defence of mental illness — Special verdict of not guilty by reason of mental illness

CRIMINAL LAW – murder trial – evidence – where Crown seeks to rely on documents filed in Family Court proceedings – whether the evidence was obtained improperly or as a consequence of an impropriety – whether the tender of the documents is in breach of the Harman principle – whether the Crown’s use of admissions contained in the documents would be unfair to the accused

CIVIL PROCEDURE — Court of Appeal — Whether the court has the power to reopen an appeal and set aside final orders on the ground of the discovery of new evidence

APPEALS – leave to appeal – interlocutory judgment – proposed appeal from refusal of leave to appeal from NCAT Appeal Panel – constrained approach to grant of leave for third level of appeal – primary judge found no error of law more than merely arguable – failure to consider submissions – LEASES AND TENANCIES – enforceability of commercial lease – breach of condition – landlord’s obligation to keep building in sound structural condition – breach – alleged inadequacy of water pump and pipes to provide fire protection