Cases and authorities

ADMINISTRATIVE LAW – Judicial review – Review of decision of the State Parole Authority refusing the plaintiff’s release on parole – Whether Authority erred in law in its interpretation of the relevant statutory provisions STATUTORY INTERPRETATION – Interpretation of statutory provisions governing the release of terrorism related offenders on parole – Whether the State Parole Authority erred in concluding that the plaintiff was a person who had an association with another person or organisation who has advocated support for any terrorist act or violent extremism – Whether it was necessary for the Authority to be satisfied that the plaintiff shared a common purpose of terrorism or violent extremism with the other person or organisation in order to come to the view that the plaintiff had the relevant association WORDS AND PHRASES – associate – association

LEAVE TO APPEAL – slip and fall case – whether an injustice in rejecting plaintiff’s claim – proposed challenge to factual findings underpinning findings of obvious risk, no breach of duty and limitation defence – no issue of principle

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1981 – alleged perpetrator died before defendant on notice of any allegation – no other witnesses to assaults – many critical witnesses deceased or unavailable – absence of documents – no basis for grant of leave to appeal from grant of permanent stay

PROCEDURE – application to vacate hearing date – no question of principle

EVIDENCE — Privileges — Legal professional privilege — Waiver — Where the plaintiff as purchaser of land alleges non-disclosure by the defendant as to the extent of contamination — Where plaintiff claims legal professional privilege over discovered documents — Whether plaintiff expressly or impliedly waived legal professional privilege.

COSTS – gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long running and strongly contested proceedings among family members in relation to the estate of a deceased parent – claim made by the legal representative of the estate for the recovery of estate property from two family members – claim for further provision out of the estate made by one family member against the estate – orders made in favour of the estate against two family members for the recovery of estate property – claim by one family member against the estate for further provision dismissed – indemnity costs orders made in favour of the estate against the unsuccessful other family members – appeal from these orders is dismissed – proceedings remitted to the trial judge for the making of final orders in relation to costs – application made for a specified gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) – whether a costs assessment likely to be protracted – whether a specified gross sum costs order should be made.

COSTS – three proceedings heard together – plaintiff in main proceedings substantially successful in relation to all claims other than its building contract claims – plaintiff had limited success in relation to building contract claims – offers of compromise – whether the offers complied with the Uniform Civil Procedure Rules 2005 (NSW) – whether the offers involved substantial compromise

COURTS AND JUDGES — Courts — cross-vesting — where first defendant as liquidator has brought proceedings against plaintiffs in District Court for insolvent trading and seeks recovery — where second plaintiff has commenced proceedings in Federal Circuit and Family Court of Australia for division of matrimonial property — where first plaintiff seeks orders to remove District Court proceedings to Supreme Court and then transfer to Federal Circuit and Family Court of Australia — where orders are opposed by liquidator — whether Supreme Court should exercise its power — Civil Procedure Act 2005 (NSW), s 140 — Corporations Act 2001 (Cth), s 1337H — interests of justice — balance of relevant factors — whether proceedings are intertwined or discrete — orders refused

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – consolidation of two Common Law Division proceedings and District Court proceedings with Technology and Construction List proceedings – all proceedings involve common facts as to liability – all parties but one consent to transfer and consolidation. SEPARATE QUESTIONS – plaintiff seeks damages determined before liability – plaintiff “will certainly win” – contrary to common sense – unlosable cases are not infrequently lost – waste of time and costs to proceed otherwise.

CIVIL PROCEDURE — second application to file further amended statement of claim — no preclusive rule — dependent upon interests of justice in the particular circumstances of the case

DAMAGES – plaintiff partially successful in claims for misleading and deceptive conduct and in a claim for indemnity under a mortgage during a hearing on issues relating to liability – damages hearing then takes place – plaintiff elects to pursue indemnity based on the mortgage and abandons an inconsistent remedy for misleading and deceptive conduct that would otherwise result in the mortgage being set aside – whether all the plaintiff’s damages were caused by the misleading and deceptive conduct of the defendant – what particular legal costs and expenses are recoverable under the indemnity clause in the mortgage. COSTS – plaintiff successful on some but not all issues in the principal proceedings – what costs orders are appropriate in the circumstances – what costs order should be made in respect of the damages hearing. CIVIL PROCVEDURE – damages hearing after hearing on liability – during damages hearing plaintiff advances extensive claims for indemnity on a mortgage in respect to a range of legal costs and expenses which have not been the subject of detailed pleadings and were not the subject of specific determination during the liability hearing – whether the damages hearing is an appropriate vehicle for the determination of these claims.

HUMAN RIGHTS – political discrimination – university statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs – university nursing degree requires students to complete clinical placements approved by university – student expresses scepticism about safety of Covid-19 vaccination – university cancels student’s clinical placements – internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct – whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination – Nursing and Midwifery Board of Australia Code of Conduct – whether student’s views or beliefs about Covid-19 vaccination are “religious or political”

CONSUMER LAW – representative proceedings – misleading or deceptive conduct – self-propelled crop sprayer – whether representations as to robustness, 4WD capability, crop spraying and braking ability misleading or deceptive – whether representative plaintiffs have established loss

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim against Senior Member of NCAT for actions in the exercise of their functions as a Member — Members of NCAT immune from civil liability in such circumstances — proceedings dismissed as having no prospect of success

CIVIL PROCEDURE — stay of proceedings — claim for damages for alleged sexual abuse in 1966 — where alleged perpetrator died before applicant on notice of allegation — where no other witnesses to alleged assault or management of the school — where no relevant documentary records — no meaningful opportunity for applicant to investigate or challenge alleged sexual abuse — no meaningful opportunity for applicant to investigate or challenge issues of vicarious liability — stay ordered

CRIME – appeals – appeal against sentence – principle of parity – where applicant and co-offender pleaded guilty to different offences arising from identical facts – where different offences reflected different levels of moral and criminal culpability CRIME – appeals – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending SENTENCING – appeal against sentence – co-offenders – disparity between sentences – applicant shot victim in leg after co-offender lured him into position – applicant and co-offender pleaded guilty to different offences arising from identical facts – where maximum penalty for applicant’s offence is 25 years’ imprisonment compared to 10 years for co-offender’s offence – where applicant’s moral and criminal culpability significantly higher than that of co-offender – where applicant obtained lesser discount than co-offender for guilty plea – whether there was unjustifiable disparity between applicant and co-offender’s sentences SENTENCING – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where applicant and co-offender pleaded guilty to offences in the same terms – where a comparison is drawn between an indicative sentence, noted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentence imposed on a co-offender for a single offence – the use of indicative sentences as a guide to the application of the parity principle – where the disparity in sentences reflected different levels of moral and criminal culpability SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender assisted applicant in the manufacture of methylamphetamine – where applicant recruited and paid co-offender to assist in the criminal enterprise – where co-offender had no prior knowledge or expertise in the manufacturing process – where applicant and co-offender pleaded guilty to offences in the same terms – the use of indicative sentences as a guide to the application of the parity principle

CRIME – Crown appeal against sentence – manifest inadequacy – sentence was manifestly inadequate – insufficient accumulation for separate offence of assault over unrelated drug offences – no issue of principle requires intervention – “residual” discretion to intervene refused.

CIVIL PROCEDURE – Preliminary Discovery – Applicants previously commenced proceedings against proposed defendants – no evidence of alteration of view – jurisdiction of the Court where no proceedings – jurisdiction and power of the Court to order discovery or production when proceedings on foot – applicants had already decided to sue – UCPR rule 5.3 not applicable – summons dismissed.

JUDGMENTS AND ORDERS — Enforcement — where defendant successful against two plaintiffs —whether to vary orders staying enforcement pending appeal by one plaintiff — where overriding purpose promoted no variation — no variation to orders made

JUDGMENTS AND ORDERS — Judgment sum — Interest payable COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Set off — Whether costs should be set off against judgment debt

JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – criminal jurisdiction – jurisdictional error – failure of judge to refer to submission of defendant – failure of judge to refer to absence of corroborative evidence – no basis for concluding judge mistook the extent or limits of his appellate function

CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery

COSTS – offer of compromise – offer more favourable than judgment obtained – whether basis for displacing default costs orders – Calderbank offer – whether failure to accept offer warranted departure from ordinary rules as to costs

CRIMINAL LAW – murder trial – application to take evidence by audio visual link – whether witness should be required to attend court personally

EQUITY — Trusts and trustees — whether daughter and son-in-law held proceeds of property sale on trust for father/father-in-law — whether daughter and son-in-law were in breach of trustee obligations and duties — breaches of trust established — equitable compensation ordered CIVIL PROCEDURE — where settlement of proceedings is commenced on behalf of a person under legal incapacity — s 76 Civil Procedure Act 2005 (NSW) — where agreement requires the approval of the court — approval granted CIVIL PROCEDURE — Appearance — where leave to withdraw a submitting appearance is belatedly sought — Uniform Civil Procedure Rules 2005 (NSW) — trial by ambush or surprise may result — leave refused

SUCCESSION — Family provision — applicant daughter — substantial inter vivos provision — resources depleted through bankruptcy — very substantial testamentary provision — obligation of applicant to provide accurate financial information — moderate additional provision awarded

EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where there was a common intention between the plaintiff and the deceased that the plaintiff hold a proprietary interest in the property the subject of the will — Where defendant held property as constructive trustee for the benefit of the plaintiff — Where defendant sold property without consulting plaintiff, and transferred the proceeds of the sale to his personal bank account — Where defendant breached duties as constructive trustee SUCCESSION — Trusts and trustees — Breach of trustee’s duties — Where defendant failed to keep proper accounts, to facilitate inspection of those accounts, and distributed estate funds otherwise than in accordance with fiduciary duties — Whether liability of defendant excused by operation of s 52 and 85 of Trustee Act 1925 (NSW) SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal SUCCESSION — Construction — Whether the plaintiff’s interest is subject to provisions in the will entitling the defendant to the income from investment of the proceeds of sale of property in which the plaintiff had an interest prior to the deceased’s death

COSTS — Security for costs — Quantum and form — Where antecedent orders made for security to be given in tranches — Applicant seeks additional security to “top-up” amounts ordered by reference to past costs actually incurred

COSTS – application for special costs orders made after delivery of judgment – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – principle of finality favours refusal of belated application

HIGH RISK OFFENDERS – extended supervision order – whether the respondent is a “supervised offender” within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5I – whether an extended supervision order can commence earlier than when the respondent’s current sentence expires

CRIME – appeals – appeal against sentence – Crown appeal on sole ground of manifest inadequacy – eight serious sexual offences committed on five victims aged between 15 and 20 years over a period of one year – 12 similar offences on five Form 1s – pattern of offending where victims approached offender’s piercing business as customers – relationship of trust or victims in vulnerable position – offender with chronic drug abuse and mental health problems – application of principle of totality – appeal allowed – aggregate sentence and non-parole period increased – special circumstances

CRIME — Drug offences — Manufacture prohibited drug Supply prohibited drug — Appeal against sentence — where sentencing judge erred in concluding the applicant’s previous conviction amounted to an aggravating factor and taking that aggravating factor into account – where sentencing judge erred in failing to give sufficient reasons for treatment of the prior conviction as an aggravating factor

CRIMINAL LAW – appeal – appeal against sentence – supply prohibited drug – possess unauthorised prohibited firearm – possess more than three unregistered firearms – whether sentencing judge erred in sentencing the applicant twice in relation to the same offence – whether sentencing judge erred by failing to take into account the applicant’s mental health status – whether sentencing judge erred in assessing objective seriousness – whether sentence was manifestly excessive – error conceded – appeal dismissed

HIGH RISK OFFENDER – Serious sex offending – Defendant already released to parole – Interim supervision order sought – Significant progress made by the defendant both prior to and since his release on parole – Court could not be satisfied that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision – Proceedings dismissed – Costs order made in favour of the defendant

SENTENCING – penalties – recognizance – breach – re-sentencing for foreign incursion offences – community safety – principles of proportionality and totality – whether there is any alternative to a sentence of imprisonment – need for supervision, medical treatment and de-radicalisation – imposition of Community Corrections Order

CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – privilege against self-incrimination – where witness to be asked about events in which drugs were used – where reasonable grounds for objection – where in the interests of justice that the witness give the evidence - s 128 certificate granted

CRIMINAL LAW – murder trial – exception to the credibility rule – whether leave should be granted to adduce evidence to restore the credibility of a witness

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Enforcement of foreign judgment – Enforcement at Common Law – People’s Republic of China – People’s Court – Civil mediation judgment – Minshi tiaojie shu (民事调解书) – Civil mediation judgment – Whether judgment to be registered must be determined to be a judgment by reference to the law of the foreign jurisdiction or the law of the forum – Judgments to be enforced

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively

CONTRACTS — Duress — Illegitimate pressure — Where parties entered into a deed of settlement and a further deed of amendment — Where the plaintiff claims for amounts owing under the deeds — Where the defendant alleges that his entry into the deeds was procured by threats and violence by the plaintiff or his agents — Whether the deeds were signed under duress

CORPORATIONS — Winding up — Conduct of liquidation — Costs, charges and expenses — Where plaintiffs being directors, creditors and shareholders of a company in liquidation incur costs said to be for and on behalf of the company, or in the advancement or protection of the company’s interests — Where records of costs do not distinguish between costs incurred for the benefit of the plaintiffs personally or the company exclusively — Whether the liquidator would be justified in paying the costs claimed by the plaintiffs

HIGH RISK OFFENDER – extended supervision order – length of ESO and some conditions in issue – recidivist pedophile – offended whilst on parole in 2020 – already breached ISO and orders made under the Child Protection (Offenders Prohibition Orders) Act – offending against young children spanning 30 years – importance of scheduling conditions – order made for 4 years

SUCCESSION — Family provision — Claim by adult grandson CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — Incapacity for self-management – Protected Management order – Part only of Estate – Management committed to NSW Trustee MENTAL HEALTH — Management of estate — Financial management order

HIGH RISK OFFENDER – application for extended supervision order – history of sexual offences against children –long history of forms of conditional liberty pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – significant physical and mental ailments -residence in secure aged care facility – possibility of alternative forms of supervision – continuing unacceptable risk – extended supervision order imposed – no dispute as to less onerous conditions

NEGLIGENCE — Defences — Civil Liability Act 2002 (NSW), s 45 — Whether defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm — Extent of specificity required by phrase “particular risk”

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not describe or identify any relevant question of law necessary to engage the right of appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – application refused

CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives - whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer