Cases and authorities

CIVIL PROCEDURE – Court of Appeal – Application for stay of orders for payment of money out of court, pending application for special leave to appeal to High Court – Where leave to appeal against those payment orders and earlier orders refused by majority of this Court – Where similar application to present already refused for lack of prospect that special leave will be granted – Application for reconsideration under UCPR r 36.16 incompetent – No application made for review of previous decision nor suggestion that conclusion was incorrect – No change of circumstances since first decision identified – Stay not sought by only party potentially prejudiced by relevant orders – Application dismissed with costs

CRIME — appeal against sentence — by Crown against inadequacy – serious drug supply offences – error in assessment of objective seriousness — manifestly inadequate sentence — appeal upheld — residual discretion to resentence the offender exercised to maintain adequate standards of punishment — resentencing to reflect objective gravity as well as strong subjective case

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Defendant unsuccessfully relies on claims in estoppel and contract — No issues of principle

CORPORATIONS — Financial services — Misleading or deceptive conduct — Damages — Where plaintiff succeeded on a “no transaction” case in relation to an investment which produced returns COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where the successful parties only succeeded on narrow grounds and the claims on which they failed took up substantial time at the hearing.

ASSOCIATIONS AND CLUBS — Meeting of members — Whether appointment to the AFIC Executive Committee was valid — Whether AFIC Executive Committee was quorate when it met to expel the plaintiffs ASSOCIATIONS AND CLUBS — Proper construction of s 16 of the Associations Incorporation Act 1964 (Tas) — Test for inconsistency — Whether the Associations Incorporation (Model Rules) Regulations 1997 (Tas) applied in the circumstances — Whether Model Rules excluded, modified by or inconsistent with the AFIC Constitution ASSOCIATIONS AND CLUBS — Application of rules 33 and 34 of the Model Rules — Whether the AFIC Executive Committee was the relevant “committee” for the purposes of rule 33 — Whether appeals under rule 34 are to be heard by the Federal Congress of AFIC ASSOCIATIONS AND CLUBS — Procedural fairness — Whether breach of procedural fairness rendered obsolete or “cured” by appeal process — Whether appeal under rule 34 invalid for lack of sufficient notice ASSOCIATIONS AND CLUBS — Improper purpose — Where evidence of improper purpose on the part of one person in a decision-making body — “Rotten apple” theory —Whether AFIC Executive Committee expelled the plaintiffs for an improper purpose — Whether subsequent decisions made at special general meetings invalidated by the AFIC Executive Committee’s improper purpose

EQUITY – resulting and constructive trusts – defendant incorporated as special purpose vehicle to purchase property for development – purchase completed with external finance and overdraft – plaintiff’s money from another development applied to reduction of overdraft shortly after completion – Bloch v Bloch (1981) 180 CLR 390 – no resulting trust – no common intention constructive trust – plaintiff entitled to equitable proprietary interest by way of failed joint endeavour constructive trust

LOCAL COURT APPEAL – whether adequate reasons given – whether Local Court erred in not articulating construction of relevant clause in Contract – whether error in constructing clause – whether error in deciding there was no breach of clause 5.2 – no error – reasons adequate – appeal dismissed

CIVIL PROCEDURE — pleadings — negligence — amendment opposed — whether statement of claim deficient — statement of claim generally adequate — amendment allowed subject to further amendment as to precise risk of harm CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether any reasonable cause of action disclosed — claim of dual vicarious liability properly understood as alternative claims — summary dismissal refused

COSTS – representative proceedings – proceedings brought in relation to damages caused by Carwoola Bushfire – proceedings determined in favour of defendant – plaintiff successful on all but one issue – whether costs should be apportioned – assessment of time taken at hearing in relation to issue on which defendant successful – plaintiff ordered to pay 60% of defendant’s costs COSTS - Notice to Admit Facts served by plaintiff – where defendant disputed facts – where defendant filed amended defence 12 months later admitting facts – where plaintiff had incurred substantial expert and other costs in preparing to prove contested facts – whether plaintiff entitled to indemnity costs in respect of preparation for the purpose of proving those facts - r 42.8 UCPR – whether Court should otherwise order - where defendant had sufficient information to admit facts in response the Notice - declaration that plaintiff entitled to indemnity costs relating to those facts COSTS – offer of compromise – served by defendant - offer of verdict for the defendant with each party to pay own costs – representative proceedings – where offer was conditional on members of class being bound - unconditional offer – where settlement required Court approval – where no element of compromise for class members – whether court likely to have approved the settlement – rational basis for displacing costs order which would otherwise flow from r 42.15A UCPR - costs not payable on indemnity basis

NEGLIGENCE – causation – scope of liability – determining the cause of the incident causing injury – whether work induced fatigue caused the relevant incident resulting in injury NEGLIGENCE – duty of care – particular relationships – employer and employee – scope of duty – whether duty of care extends to travelling home from the workplace

APPEAL – representation of deceased estate – where interest of estate in the outcome of the appeal – where probate not to be applied for – appropriate for sole beneficiary under the will to be appointed to represent the estate APPEAL – security for costs – where security for costs sought against individual appellants – whether special circumstances existed warranting the grant of security for costs – special circumstances found

CRIME – appeals – interlocutory appeal – permanent stay of criminal proceedings – sexual offences – sexual act with or towards a child – masturbating while looking at child – child not aware of act – meaning of “with or towards” – meaning of “towards” – statutory interpretation – legislative history – presumption that legislature intends words to take the meaning given to them by courts

CRIMINAL LAW – Evidence – Tendency and coincidence evidence – Where Appellant charged with multiple counts of sexual offending – Where Crown served co-incidence notice – Where evidence admitted – Where direction by the Trial Judge failed to identify the relevant path of reasoning – Where the direction had the effect of reversing the reasoning process – Where the direction given resembled a direction as to tendency reasoning – Where evidence was admitted in the absence of the jury being given any direction as to how that evidence could be used in reasoning towards a conclusion that relevant aspects of the complainant’s evidence should be accepted CRIMINAL LAW – Juries – Where individual juror discharged – Where the trial judge rejected an application to discharge the entire jury – Where the jury’s verdicts were returned a short time after the discharge of the juror – Risk of substantial miscarriage of justice CRIMINAL LAW – Juries – Where individual juror discharged – Where appellant adduced evidence that the discharged juror had the appearance of a “man of black African ancestry” – Where the appellant was described as a “dark-skinned Aboriginal man” – Where it was submitted that the discharged juror would have been supportive of the appellant on the grounds of race – Where it was submitted that the there was a consequent risk of a substantial miscarriage of justice in not discharging the whole jury – Submission firmly rejected – Submission entirely overlooked the direction given by the trial judge to the jury to act impartially

CIVIL PROCEDURE — Pleadings — Particulars — Personal injury claims — Late application for amendment — Whether prejudice to the defendant

ADOPTION – discharge of adoption orders pursuant to Adoption Act 2000, s 93(4)(b) – applicant of First Nations heritage – the applicant was adopted in 1980 away from his First Nations community – the applicant suffered sexual abuse by his adoptive father and other persons over many years – applicant seeks the discharge of adoption orders – whether sufficient evidence of sexual abuse – whether adoption orders should be discharged – whether the applicant’s name should be changed back to his birth name.

REPRESENTATIVE PROCEEDINGS – Takata air bags class action – approval of settlement – s 173, Civil Procedure Act 2005 (NSW) – $52M settlement for 33,000 group members – plaintiffs seek $16M for legal costs – funder seeks $13M for funder’s commission – each group member to receive $1,560 but $600 after deductions. REPRESENTATIVE PROCEEDINGS – objections – small number of group members object to “outrageous”, “incredible” and “staggering” costs – other group members happy with Takata air bag recall and manufacturers’ response. REPRESENTATIVE PROCEEDINGS – settlement sum reasonable given poor prospects of success – legal costs confronting – judge initially taken aback – evidence of complexity of proceedings and costs assessors support sums sought. REPRESENTATIVE PROCEEDINGS – funder’s commission – common fund order – Brewster v BMW does not preclude common fund order on settlement – common fund order made – settlement approved.

CIVIL PROCEDURE – unrepresented defendants – possession – oral request for referral – insufficient information supplied to satisfy Court of matters in 7.36(2) – application refused at this stage

CIVIL PROCEDURE – application to proceed in the absence of the Plaintiff – where Plaintiff self-represented – where Plaintiff appeared on the first day but was absent on second and third day – where Defendants had not provided court book to the Plaintiff until the first day – where adjournments granted to enable Plaintiff to prepare for hearing – where medical certificates sent to the Court via email – application granted

ADMINISTRATIVE LAW – Judicial Review – Orders in the nature of certiorari, declarations – Error of Law and Jurisdiction – Medical Assessment Certificate in relation to Offender – Appeal to Panel – Nature of Appeal – need to find error – rehearing – “incorrect criteria” and “demonstrable error” – deduction for pre-existing condition – task to measure impairment, not condition – pre-existing impairment must exist immediately prior to injury being assessed - appeal to be heard by different panel.

PROCEDURE – costs – notice of motion – orders seeking judgment to be set aside – Uniform Civil Procedure Rules r 36.15 – jurisdiction of Costs Assessor – meaning of “payable” – whether irregular or against good faith

COSTS – dispute concerning a strata scheme – parties agree that proceedings should be transferred to NSW Civil and Administrative Tribunal – whether order for costs should be made against plaintiff – plaintiff not shown to have acted unreasonably – appropriate to make no order as to costs

COSTS — Calderbank offer — application to set aside statutory demand — application dismissed — defendant offered demand be set aside with no order as to costs — a discount on costs made to account for costs associated with a service issue otherwise indemnity costs ordered from date of offer

CRIME – fitness hearing – accused cognitively impaired after sustaining a severe traumatic brain injury – conflict in expert evidence as to impact on impairment on fitness to be tried – evidence pointing to malingering

COSTS – Orders against non-parties – Personal costs orders against lawyers – Application for such orders should be made at conclusion of proceedings – Whether judge had regard to irrelevant considerations

CRIMINAL PROCEDURE – trial – directions to jury – allegation that accused had sexual interest in complainant and tendency to act on it – jury directed to consider evidence of uncharged and charged acts collectively – whether judge should have directed jury that each act must be proved beyond reasonable doubt before use as tendency evidence – Criminal Procedure Act 1986 (NSW), s 161A EVIDENCE – record of interview with complainant adduced as evidence-in-chief – admissibility to support complainant’s credibility and as direct evidence of assault EVIDENCE – credibility evidence – evidence re-establishing credibility – complaints made 10 years after alleged offences – no application for leave to adduce evidence – no objection to evidence – whether admissible to support complainant’s credibility – Evidence Act 1995 (NSW), ss 66, 108(3) EVIDENCE – tendency evidence – single complainant sexual offences – evidence of uncharged acts – evidence of accused having a sexual interest in complainant and tendency to act upon it – cross-admissibility of charged acts as tendency evidence

CRIMINAL LAW – appeal against sentence – whether sentencing judge took into account an irrelevant factor – view expressed during proceedings on sentence as to availability of intensive correction order – exchange did not form part of reasons CRIMINAL LAW – appeal against sentence – reliance on applicant being on conditional liberty at time of offending as aggravating factor – whether revocation of earlier parole order with effect from date before offending conduct altered offender’s status in the community before revocation order was made – construction of Crimes (Sentencing Procedure) Act 1999 (NSW), s 171(4) CRIMINAL LAW – appeal against sentence –obligation to consider an intensive correction order – intensive correction order not pressed for by Counsel before sentencing judge

CRIME – SENTENCE – appeal against sentence imposed for reckless infliction of grievous bodily harm – whether the sentencing judge erred in finding risk of widespread COVID-19 infection in prison system diminished – whether error in failing to mitigate sentence due to COVID-19 – whether sentence manifestly excessive

CRIME – appeals – persistent sexual abuse of a child – nature of the offence – requirement that the unlawful sexual relationship be maintained – whether sentencing judge erred in sentencing the offender on the most favourable basis – effect of legislative reforms – significant questions of criminal culpability shifted from jury to judge – difficult fact-finding exercise on sentence – no unanimous jury finding on the underlying acts said to make up the relationship – sentencing judge bound to make own factual findings on uncertain evidence – error established – matter to be remitted to the District Court

SENTENCING — appeal against sentence — manslaughter on basis of excessive self-defence — assessment of the objective seriousness of the offending — necessity to identify the circumstances as the offender perceived them at the time of the criminal conduct — appeal allowed

SENTENCING — appeal against sentence — subjective considerations on sentence — finding by sentencing judge of special circumstances — finding not reflected in total effective sentence — appeal allowed

BAIL – release application – armed robbery – knife – s 22B – unacceptable risk – commission of further serious offence – bail refused

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse

BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication application by architect against developer - where developer informed adjudicator that it had not been served with adjudication application – where adjudicator invited submissions as to date and manner of service of adjudication application – whether adjudicator had power to do so – consideration of s 21 of the Act – whether developer’s response to adjudicator’s invitation constituted an adjudication response

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror tested positive for COVID-19 — where trial has already been substantially delayed due to COVID-19 — juror discharged CRIMINAL PROCEDURE — Trial — Jury — order that the trial continue with remaining jurors

CIVIL PROCEDURE – Interim preservation – Search orders – Grounds on which ordered

COSTS – Party/party – Bases of quantification – Calderbank offer – No issue of principle

PRACTICE AND PROCEDURE – discovery – alleged misleading or deceptive conduct – representations as to future matters – whether reasonable grounds to make representations – disputed categories – Redfern Schedule

COSTS — Succession — Where disproportionate costs incurred — Capping of costs — Consideration of Calderbank offers and claim for special costs orders

HIGH RISK OFFENDER – application for mandatory psychiatric and psychological examinations and interim detention order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – counsel for the defendant conceded the making of an interim supervision order but opposed an interim detention order – extensive history of incarceration for sexual offences and other violence, and breaches of conditional liberty – inevitable institutionalisation of older prisoner - recent allegation of violence in gaol awaiting resolution – plaintiff amended summons to interim detention order from interim supervision order in response – mandatory examinations and interim detention order imposed

ADMINISTRATIVE LAW – judicial review of official caution – effect of caution on legal rights – availability of declaration – establishing basis of alleged error ENVIRONMENT AND PLANNING – water – water management work approval – interpretation – condition to maintain outflow equal to lesser of inflow or pipe capacity – condition to release percentage of storage conserved in preceding inflow event – determining volume of releases ENVIRONMENT AND PLANNING – offences – penalty notice offence – use of water supply work otherwise than as approved – effect of official caution – Water Management Act 2000 (NSW), s 91B – Fines Act 1966 (NSW), s 23A

CRIMINAL LAW – murder trial – late evidence – whether the evidence was obtained improperly or as a consequence of an impropriety – whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant

CRIME — manslaughter — sentence after guilty plea — objectively very serious crime — offence committed by mother of deceased — no mitigating circumstances

APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant’s evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – circumstances warranting a grant of leave HEALTH – professional registration and discipline – complaints – breach by medical practitioner of patient’s sexual boundaries during consultation – practitioner used consultation to indulge his own social and sexual inclinations – challenge to decision to cancel registration – whether decision unreasonable – whether failure to consider or give sufficient weight to relevant evidence – no question of law identified by applicant – no substance to challenges against factual findings

LAND LAW – compulsory acquisition of land – compensation – compensable interests in land – bare licence to occupy land terminable at will by owners – interest had no market value – meaning of “privilege over, or in connection with, land” – claim for compensation for losses attributable to disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4, 59 STATUTORY INTERPRETATION – definition of “interest” in land – interest included “privilege over, or in connection with, land” – reliance on statutory context – consistency of meaning – reliance on object to provide compensation – statute using language of ownership – interest able to be divested, extinguished or diminished by acquisition STATUTORY INTERPRETATION – precedent – challenge to earlier decisions of Court of Appeal – whether court comfortably satisfied reasoning in earlier decisions wrong – Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 – Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 considered STATUTORY INTERPRETATION – extrinsic materials – legislative history – substantial amendments made without changing effect of precedent

EVIDENCE — Tendency evidence — Intoxication — Significant probative value

PRACTICE AND PROCEDURE – plaintiff’s application that former solicitor’s fees be disallowed under s 99 of Civil Procedure Act 2005 – discovery on that application – discovery sought of communications with counsel during period of impugned retainer – whether privilege waived

APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made for making of application to file an amended notice of appeal APPEALS – stay of execution pending appeal – where appellant seeks stay of orders for possession and sale of real property – where dispute as to amount of interest and costs recoverable – stay of execution conditional on payment into Court of security

CIVIL PROCEDURE — subpoenas — notices to produce — application to set aside — no legitimate forensic purpose — vague, uncertain and unlimited in time — set aside

CRIMINAL PROCEDURE – Stay of proceedings on basis of prejudicial evidence – evidence admissible or not admissible – stay exceptional remedy – proper remedy s137 of Evidence Act 1995 (NSW) – availability of documentation to be admitted to jury at opening – absent agreement not to be made available as distorts weight and not subject to directions and context EVIDENCE – admissibility of parts of record of interview – rulings issued

EQUITY – General principles and maxims – Set-off – Rule in Cherry v Boultbee – Defaulting trustee – Principle in Re Dacre – Principle in Morris v Livie – Assignment – Assignee takes subject to equities BANKRUPTCY – Discharge – Liabilities not released upon discharge – Meaning of ‘fraudulent’ in s 153(2)(b)