Cases and authorities

CIVIL – confiscation of proceeds of crime – statutory requirements satisfied – no point of principle

CRIMINAL LAW – murder trial – where Crown seeks to tender summaries of voluminous or complex documents – whether it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question – where volume or complexity of the documents is not known

COSTS – guarantee and indemnity under a sub-lease - where plaintiff seeks order to recover all legal costs pursuant to guarantee and indemnity under sub-lease in a specified amount – where legal costs incurred up to 27 July 2021 quantified at hearing – whether plaintiff’s later costs of proceedings should be ordered on a fixed sum or indemnity basis

COSTS – costs of an application for preliminary discovery – where applicant for preliminary discovery successful on some but not all categories for discovery – whether applicant should pay defendant’s costs of preliminary discovery application in addition to costs of compliance with orders

FAMILY LAW — property — marriage — adjustment of property interests — allegations of family violence against wife and parties’ children by husband — Court satisfied that husband committed serious acts of family violence from time to time — allegations of sexual abuse of parties’ children by husband — acquittal of husband on criminal charges in respect of alleged sexual abuse — Court not satisfied that husband committed sexual abuse of parties’ children — effect of wife’s belief in allegations of sexual abuse against parties’ children on wife’s post-traumatic stress disorder and chronic depression — parties’ children are persons with disability — whether just and equitable to make order — adjustment ordered in proportions of 52.5% as to wife and 47.5% as to husband FAMILY LAW — property — marriage — contributions — extensive history of dealings in real property in parties’ respective names — wife’s father exerts pressure on husband to transfer 80 percent interest in parcel of land to discretionary trust for benefit of wife and parties’ children — consideration of transfer in determining whether just and equitable to make order — consideration of transfer in determining contributions to children of the marriage — substantial contributions of parties’ respective families — Kennon principle applicable to effect of family violence on wife’s contributions EVIDENCE — standard of proof — civil cases — credit of both plaintiff and defendant in doubt — whether principles concerning proof of facts and credibility of evidence differ between New South Wales courts and Federal courts — whether correct to follow Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in light of uniform Evidence Acts, s 140

CIVIL PROCEDURE – Protective jurisdiction – Administration of estates – NSW Trustee and Guardian – Appointment of receiver – Powers of court – Whether intangible property within s 11(1)(f) of NSW Trustee and Guardian Act 2009 (NSW) CIVIL PROCEDURE – Appearance – Standing – Leave of court – Unrepresented litigants – Assistance of court – Non-party participation – Overriding purpose

EVIDENCE – appeal from magistrate – damages for breach of contract to construct bore – where fine sand egression prevented installation of pump – admissibility of evidence contained in a report – opinion rule – whether opinion was a lay opinion – whether evidence was an expert opinion – where author of report not called to give evidence – where appellant conceded report was a business record – other exclusionary rules still applied – diagram and structure of Evidence Act not applied – denial of opportunity to cross-examine – fundamental precept of adversarial system of justice

CIVIL PROCEDURE – application by first defendant for stay of proceedings – whether abuse of process established CIVIL PROCEDURE – application by first defendant for summary dismissal of proceedings – whether no reasonable cause of action disclosed – where first defendant self-represented – meaning of “notice” and “application” in s 136 of the Proceeds of Crime Act 2002 (Cth) CIVIL PROCEDURE – application by plaintiff for summary dismissal of the first defendant’s cross-summons – whether no reasonable cause of action disclosed – where cross-summons disputes the constitutional validity of the pecuniary penalty order regime under the Proceeds of Crime Act 2002 (Cth) in cases of tax fraud – where similar issue previously considered by Court of Appeal in related appeal brought by first defendant

PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant’s home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided “opinion on probable cost” of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – appellants engaged builder who commenced work on cost plus basis in December 2015 – falling out between parties and appellants continued with builder – by June 2016 substantial increase in costs and some aspects of design not pursued – renovations cost $780,000 but only increased value of house by $330,000 – appellants sued for false and misleading representation about cost of renovations and breach of contractual and tortious duty to advise about cost – appellants claimed damages on a no transaction basis namely that if known that cost would have exceeded $600,000 would not have undertaken renovations – trial judge rejected appellants evidence of express representations about cost of renovations – trial judge upheld contract and tort claim but only awarded nominal damages – whether trial judge’s approach to damages was erroneous – whether trial judge’s findings warranted finding that respondent obliged to advise appellants that renovations could not be undertaken for $600,000 – whether appellants would not have undertaken renovations if they had been so advised – held – trial judge’s approach to damages erroneous – however not able to conclude that had respondent not breached his contractual and tortious duties then appellants would not have undertaken renovations – appeal dismissed

APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge – whether concession ought be permitted to be withdrawn on appeal – appeal dismissed

SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – primary judge declined to make orders giving effect to settlement – whether adoption order caused applicant no longer to be a child of the deceased for purposes of s 57 of Succession Act – significance of executrix being on notice of the possibility of formal adoption – whether applicant remained a child of the deceased after being formally adopted – whether mistake as to basis of settlement warranted declining to make orders – appeal dismissed

CRIMINAL APPEAL – sentence appeal – extension of time – parity – where offenders sentenced for the same offences – where co-offenders sentences for additional offences – different roles and subjective cases – where the same sentence imposed on each offender – whether lack of disparity gives rise to justifiable sense of grievance – equal justice

CRIMINAL LAW – sentence – prosecution appeal against inadequacy – sexual offending against two children – whether judge failed to apply standard non-parole period – use of word “depart” or “departure” from standard non-parole period – whether indicative of error – aggregate sentence – where indicative sentences significantly below standard non-parole period – whether indicative of error CIRMINAL LAW – sentencing – totality and proportionality – whether Judge erred in application of totality principle – whether sentence reflected the criminality against separate victims and in separate time frames – whether sentence manifestly inadequate as a result – (by majority) aggregate sentence increased – totality principle – notional accumulation within aggregate sentence

CRIME — Appeals — Appeal against sentence — whether disparity between sentence imposed on applicant compared to co-offender — where open to sentencing judge to assess relative culpability as similar — where open to sentencing judge to impose same pre-discount sentence on both offenders — leave to appeal granted — ground not made out CRIME — Appeals — Appeal against sentence — whether sentencing judge could make finding on time of death based on evidence — where evidence existed — where ground devoid of merit and unduly technical — leave to appeal not granted

CRIMINAL LAW – conviction appeal – applicant convicted of one charge of sexual intercourse with the complainant without her consent – applicant met victim following contact on social media – applicant drove her to various locations and then to carport at his apartment block – applicant found to have raped her in car parked in carport – applicant and victim exchanged text messages in the following days – victim then spoke to her ex-boyfriend in Vietnam and approached police – whether verdict was unreasonable and cannot be supported having regard to the evidence – victim told jury that she sent messages to find out whether the person who raped her had any interest in her other than sex – any doubt about victim’s credibility or reliability arising from messages was a doubt that the jury’s advantage in seeing and hearing her evidence was capable of resolving – observations of trial judge in absence of jury about strength of Crown case – irrelevant to ground of appeal – whether absence of evidence from ex-boyfriend meant verdict unreasonable – ground rejected – leave to appeal granted but appeal dismissed

CIVIL PROCEDURE – prior court approval of settlement – application for orders for moneys to be paid out of court to person other than the plaintiff – application dismissed

LAND LAW – writ of possession – application for stay – where notion of motion brought by person no longer party to proceedings

APPEALS — appeal from Local Court to Supreme Court — application for judicial review — decision not to exercise jurisdiction under Dividing Fences Act 1991 — failure to draw Local Court’s attention to jurisdictional fact — error of law established — appeal upheld

EQUITY — Trusts and trustees — rectification of trust deed

SUCCESSION – Administration of estates – The deceased died intestate in 2020 – The first Plaintiff, the uncle of the deceased, seeks letters of administration – First necessary to determine the persons entitled on intestacy in order to ascertain whether he has a beneficial interest in the deceased’s estate – First Plaintiff seeks order giving liberty to distribute the estate on particular basis – Searches do not reveal identity of deceased’s father – Whether any further searches would reveal identity – Benjamin Order made – Determination of matters in doubt to enable entitlement to distribution and then administration of deceased’s estate – First Plaintiff justified in distributing the estate to himself as uncle of the deceased – Order also made that the Plaintiffs’ costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

INTERIM INJUNCTIONS – whether serious question to be tried – balance of convenience – no question of principle

SUCCESSION — family provision — approval of release — plaintiff enters into deed of family arrangement with deceased and others whereby deceased and deceased’s wife promise to transfer real property to plaintiff and plaintiff’s then-husband at undervalue — plaintiff promises by deed not to seek to challenge in any way the wills of the deceased or deceased’s wife — defendant executor seeks to enforce deed against plaintiff by approval of release of rights to apply for a family provision order under Succession Act 2006 (NSW), s 95 — whether relevant term of deed constitutes release for purposes of s 95 — whether to approve release — deceased exerts pressure on plaintiff to execute deed without seeking legal advice — plaintiff receives insufficient legal advice — plaintiff under financial pressure — attempt at early inheritance and equality of result among deceased’s children undermined by precariousness of plaintiff’s marriage — approval of release declined SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — plaintiff with significant medical needs — plaintiff receives early inheritance by deed of family arrangement — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — further provision ordered

LAND LAW – leases and subleases – interpretation of leases and subleases – where one condition of termination of leases and subleases by lessor is service of notice of termination requiring vacant possession 3 Months from the date of service – where lessor served notices of termination on 30 March 2022 requiring vacant possession no later than 30 June 2022 – where lessee alleges that notices should not have required vacant possession before 1 July 2022 and that notices are accordingly invalid – “Month” defined in leases and subleases as a named month – 3 Months from date of service held to include April, May and June 2022 – notices held to have erroneously called for vacant possession by 30 June 2022 – notices nonetheless held to be valid and effective as notices would make it clear to a reasonable recipient that lessor was seeking vacant possession only in accordance with identified provisions of leases and subleases WORDS AND PHRASES – “Month” – “Named Month” – “Calendar Month”

CRIME — Sentencing — Manslaughter — Self‑defence with excessive force — Early guilty plea to manslaughter — Special circumstances

CORPORATIONS – Winding up – Statutory demand – Demand issued for loan debt – Interstate address nominated in demand – Whether debt “due and payable” – Whether nullity – Demand not a nullity - Other defects alleged including alleged lack of verification – Service of Originating Process by email to solicitor for creditor – Effect of s 600G and the deeming provisions in ss 105A and 105B of the Corporations Act 2001 (Cth) – Whether originator believes on reasonable grounds electronic address for the addressee to be a current for receiving electronic communications s 9 Corporations Act 2001 (Cth) – Service valid – Failure to attach SEPA notice – Whether unconscionable reliance on defects – Whether applicant can rely on ground not raised in affidavit in support of application EXPERT EVIDENCE – ss 105A and 105B of the Corporations Act 2001 (Cth) – When is an electronic communication sent and received – “capable of being retrieved”

CRIMINAL LAW – charge of murder – judge alone trial – relevant principles and directions - causation – expert opinion – concurrent evidence – areas of disagreement in concurrent evidence – nature and extent of injuries – axonal injury and survival time – airway obstruction – positional and restraint asphyxia – interpretation of petechiae – role of methamphetamine – deliberations – acquittal on murder charge – conviction on s 86(3) charge

WORKERS COMPENSATION — medical assessment — medical dispute — referral of medical dispute for assessment by Approved Medical Specialist — degree of permanent impairment as a result of an injury — scope of referral ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record

Hore v The Queen Wichen v The Queen Criminal law – Sentencing – Indefinite detention – Release on licence – Where s 57 of Sentencing Act 2017 (SA) ("Act") conferred upon Supreme Court of South Australia discretion to order that persons convicted of certain sexual offences be detained in custody until further order – Where s 59(1a)(a) of Act provided that person detained in custody could not be released on licence unless person satisfied Supreme Court that person capable of controlling and willing to control sexual instincts – Where "willing" not defined in Act – Where s 57(1) of Act provided that, in that section, person regarded as "unwilling" to control sexual instincts if a significant risk that person would, given opportunity to commit relevant offence, fail to exercise appropriate control of person's sexual instincts – Whether "willing" in s 59(1a)(a) meant converse of "unwilling" in s 57(1) of Act – Whether Supreme Court obliged to reach state of satisfaction required by s 59(1a)(a) by excluding from consideration likely effect of conditions of release on licence upon person's willingness to exercise appropriate control of sexual instincts. Words and phrases – "capable", "conditions of release on licence", "exercise appropriate control of the person's sexual instincts", "ongoing capability and willingness", "release on licence", "reliable commitment to control", "significant risk", "state of mind", "unwilling", "willing". Sentencing Act 2017 (SA), ss 57, 58, 59.

MENTAL HEALTH – high risk offender – preliminary hearing – forensic patient – risk of harm to the community – substance use disorder – interim orders sought to extend status of defendant as a forensic patient – interim orders not opposed – making of final order opposed – statutory conditions for making of interim orders satisfied – orders made

JUDGMENTS AND ORDERS — Enforcement CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties

CRIMINAL LAW – murder trial – where question objected to based on relevance – question allowed

CRIMINAL LAW – murder trial – application to adduce evidence of Lynette Dawson’s work colleagues from 1969 – evidence irrelevant – no probative value – not admissible as evidence of a tendency on the part of the accused to act in a particular way

APPEAL – Crimes (Appeal and Review) Act – costs awarded against prosecutor following adjournment – lower court adopted wrong test – no question of principle

COSTS – whether costs of application for leave to reopen should be awarded on an ordinary or indemnity basis – no issue of principle

CRIMINAL LAW – murder trial – where tender of document objected to – document admitted

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — caveat lodged on basis of spurious claim to interest in land thwarting enforcement of writ for levy of property — caveator fails to prosecute claim when given opportunity to do so — summary declaration that caveator has no estate or interest in land

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant found guilty on one count, not guilty on five counts and jury unable to return verdict on one count — appeal dismissed

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdict — logical and rational basis for distinction drawn by jury

CRIME — appeals — application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against orders dismissing the applications for permanent stay or for separate trial — ruling on evidence is not an interlocutory order or judgment amenable to appeal under s 5F(3) of Criminal Appeal Act — the underlying basis for the application is a preliminary ruling on evidence — leave to appeal refused

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at time of proceedings – Felons Act – alleged victim of child sexual abuse by teacher – no question of principle

EVIDENCE – application to give evidence by audio visual link – Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) – application not opposed – no question of principle

CIVIL LAW – procedure – leave to commence proceedings – application refreshingly brought before proceedings commenced – plaintiff in custody at time of proceedings – Felons Act – alleged victim of child sexual abuse at school – no question of principle

CRIMINAL LAW – murder trial – unfavourable witness – whether leave to cross-examine should be granted

CONTEMPT — Civil contempt — Breach of orders – where orders required executors to file and serve a statement of accounts (in common form) – where new orders were made requiring more detailed accounts and documents to be produced – where executors filed and served accounts purportedly in response to both orders – where contempt charges brought in relation to both orders - whether contempt charge in relation to first orders has utility – where executors' accounts did not cover the whole period of their administration of the deceased’s estate but breach fully remedied by compliance with new orders – discretion not to exercise contempt jurisdiction – whether charges in relation to second orders should be dismissed for imprecision – whether contempt charges are an abuse of process where applicants also seeking relief to revoke the grant of probate to the executors – where contempt charges in relation to later orders raise multiple alleged breaches – finding of limited breaches and civil contempt

CIVIL PROCEDURE – discovery, subpoena and production – grounds for resisting – objection to production and inspection – public interest immunity – immunity granted – another process may be available if redacted material significant and capable of being protected

CRIME – Crimes Act 1914 (Cth) – breach of parole – appeal against non-parole period – fresh evidence relating to psychiatric issues – nature of appeal as rehearing – non-parole period varied

COSTS – winding up of partnership – where no partnership assets – where partners are equally responsible for the failure to keep proper accounts and records during the partnership – where defendant ought to be entitled to costs in respect of plaintiff’s abandoned claim – mixed outcome of proceedings – where referee appointed pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to take account of the partnership – adoption of referee’s report – where inconsistency in court orders as to whether a certain item should be allowed – where referee’s report proposed two scenarios, one in which the item was allowed and one in which the item was disallowed – question of which scenario in report should be adopted – no question of principle

APPEAL – nature of appeal – appeal from Local Court non-publication orders – de novo hearing – Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 MEDIA AND COMMUNICATIONS – non-publication orders – when “necessary” – need to identify relevant ground – scope of information “otherwise concerning” a party – suppression of affidavit evidence indicating expected response to publication – Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 MEDIA AND COMMUNICATIONS – non-publication orders – purpose of order – protecting safety of person – protection of other public interest – need to identify public interest PRACTICE AND PROCEDURE – statutory protection of child’s identity – court orders to similar effect inappropriate and unnecessary - Children (Criminal Proceedings) Act 1987 (NSW), s 15A

CRIME – confiscations – restraining order – proceeds of crime – where no exclusion application has been made in respect of the property –statutory requirements satisfied – no point of principle

JUDGMENTS AND ORDERS – stay of execution – where appeal lodged – judgments created by registration of certificate of costs assessor - whether “proceedings” constituted by registration – appeal against Review Panel determination - appeal by way of rehearing – whether Part 7 of the Legal Profession Uniform Law Application Act 2014 precluded reliance on ss 67 and 135 of the Civil Procedure Act - whether serious question to be tried at hearing of the appeal – where balance of convenience lies – stay granted on condition of partial payment into court of judgment sum