Cases and authorities

CIVIL PROCEDURE – summary dismissal of proceedings – continuing inability to plead appropriately – no arguable case disclosed – time limit issues – abuse of process – proceedings dismissed CIVIL PROCEDURE – parties – vexatious litigant – principles – vexatious litigant orders limited to subject matter and parties granted

CORPORATIONS — Accounts — Lodgement of financial reports — Where company seeks relief under s 1322(4)(d) of the Corporations Act 2001 (Cth) to extend the time for lodgement of various financial reports, directors’ reports and auditors’ reports — Where the Australian Securities and Investments Commission has commenced prosecution in relation to the company’s failure to lodge those reports — Where the company’s financial position was in a parlous state

EVIDENCE – tendency evidence – accused fatally stabbed deceased with shiv in gaol – ultimate issue at trial whether accused acted in self-defence – Crown sought to adduce evidence of accused’s tendency to possess shivs in gaol and use them to assault inmates – evidence capable of establishing the tendencies alleged by Crown – no significant probative value where ultimate issue self-defence – tendency evidence excluded

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – same subject matter – where accused was employee of the defendant – where accused not cooperating with defendant – where accused’s trial imminent – where civil proceedings recently commenced – stay refused but case management orders made to take account of trial

SENTENCING — Crown appeal against inadequacy of sentence — Principles — approach to sentencing where statute provides mandatory minimum sentence — whether sentencing judge erred by not applying the Bahar approach — where sentencing judge should have applied Bahar approach — where ground made out SENTENCING — Crown appeal against inadequacy of sentence — Manifest inadequacy — where failure to apply Bahar approach led to starting point of minimum mandatory sentence — whether indicative sentence inadequate — where indicative sentence not ‘of a severity appropriate in all the circumstances of the offence’ as required by statute — where ground made out CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — when ‘relevant conduct’ in s 474.22A of the Criminal Code (Cth) had to occur for s 16AAB of the Crimes Act 1914 (Cth) to apply CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — whether conduct was a ‘State or Territory registrable child sex offence’ — where offence was not a registrable offence at the time committed

CRIMINAL PROCEDURE — Trial — Directions to jury — Self-defence with excessive force — Mental health impairment STATUTORY INTERPRETATION — Definition of “mental health impairment” — Exclusion — Onus of proof — Whether meaning of “mental health impairment” is question of fact for the jury

CIVIL PROCEDURE – freezing orders – proceeds of sale of Australian property formerly owned by foreign defendants – proceeds held by second defendant – freezing order made in aid of cross-claim for contribution by first defendant – second defendant applies to vary freezing order on ground of hardship – alleged lack of funds to defend proceedings – no assurance that funds released would be used for that purpose – application refused

LEASES AND TENANCIES – whether landlord unlawfully re-entered into possession of retail tenancy – where administrator appointed to tenant company – whether tenant repudiated lease – whether changing of locks constituted re-entry and taking possession – whether administrator had given written consent to exercise property rights under s 440B of Corporations Act – held landlord lawfully terminated for repudiation and fundamental breach GUARANTEE AND INDEMNITY – claim by landlord to recover unpaid rent, loss of bargain damages and other losses under guarantee and indemnity in sub-lease – whether guarantee and indemnity discharged by unlawful re-entry or splitting of debts on assignment of lease and guarantee – consideration of various heads of claims – held landlord entitled to recover from guarantor under sub-lease terms

CRIMINAL LAW – proceeds of crime – restraining orders

COMMERCIAL ARBITRATION — Composition of arbitral tribunal — Grounds for challenge to arbitrator — Circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence — Whether there is a real danger of bias on the part of the presiding arbitrator CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether public interest in reasons for judgment outweigh public interest in suppression

CIVIL PROCEDURE – summary disposal - dismissal of proceedings – plaintiff unrepresented – application for summary dismissal by one of fifteen defendants – proceedings commenced by summons in 2021 – defendant was a solicitor who had been retained by the plaintiff in 2013 - affidavit material suggesting claims in negligence and/or breach of retainer – where retainer terminated in 2013 - any claim of plaintiff statute-barred – where no loss caused by any breach of duty or retainer – no reasonable cause of action – proceedings dismissed

ADMINISTRATIVE LAW — road traffic infringement notice — application for judicial review of District Court decision on appeal from Local Court — whether applicant denied procedural fairness in relation to admission of further evidence in District Court

JUDGMENTS AND ORDERS — Reasons — Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2) — Delivery of reasons subsequent to delivery of judgment — Delay APPEALS — From finding of fact — Impermissible inferences — Improper admission or rejection of evidence TORTS — Intentional torts — Trespass to the person — Battery — Statutory defences — ss 52, 53 and 54 of the Civil Liability Act 2001 (NSW) — Whether contributory negligence is available as a defence to an intentional tort

BUILDING AND CONSTRUCTION – adjudication – payment claim – existence of “one contract” rule – whether entitlement to serve payment claim must arise under one contract – whether “one contract” rule conditions validity of payment claim CONTRACTS – construction – where contract provided that each work order constituted a new agreement – whether there was one or multiple construction contracts – characterisation by parties not determinative – other provisions inconsistent with each work order constituting new agreement STATUTORY INTERPRETATION – jurisdictional constraints on function of adjudication – whether express constraints augmented by implied condition statutory context – focus on work performed under construction contract – no requirement that claim identify source of entitlement – reference to putative entitlements – legislative purpose – facilitation of money flow to subcontractors – Building and Construction Industry Security of Payment Act 1999 (NSW), Pts 2, 3

CRIMINAL LAW – appeal against conviction – trial by judge alone – whether trial judge should have directed herself in terms of s 165B of the Evidence Act – where no application for such a direction was made – whether failure to make direction resulted in a miscarriage of justice

CRIME – appeals – appeal against conviction – challenge to prosecutor’s address to jury – misstatement of evidence – use of colloquial expressions – tendency to inflame prejudice – expression of personal opinions – miscarriage of justice CRIMINAL PROCEDURE – whether prosecutor’s submissions on accused’s lies unfair – prosecutor’s characterisation of defence case as “red herring” and “myth” inappropriate but qualified – whether prosecutor impugned own witnesses’ credit – whether prosecutor impugned defence counsel – trial judge correction of baseless allegation against accused – whether prosecutor’s emotive language caused prejudice – no miscarriage of justice

CRIME — appeal against sentence — whether sentence manifestly excessive — relevance of encouragement of undercover operative to assessment of objective seriousness — application of Taouk principles

CONVICTION – APPEAL – applicant found guilty of two counts of sexual assault – acquitted on other two counts – no dispute on two guilty counts that sexual acts occurred – victim gave answer to ambiguous question capable of suggesting she consented – necessary to consider evidence as a whole – whether verdicts inconsistent – verdicts can be reconciled on basis victim’s evidence imprecise about whether sexual acts on counts that led to acquittals occurred – whether verdicts of guilty unreasonable – reasonably open to jury to be satisfied beyond reasonable doubt that applicant knew victim did not consent

SENTENCING – appeal against sentence – manifest excess – difficult sentencing exercise – sexual offences committed on child when offender was also a child – Bugmy background – delay of 16-17 years between offending and charges laid – offender lost opportunity both to be dealt with as a child and to be dealt with prior to amendments to sentencing regime in 2018 – threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 – objective seriousness of offending required custodial sentence – sentence did not reflect delay, age of applicant at time of offences and overwhelming subjective case – leave to appeal granted – appeal allowed

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 of for objection – where in the interests of justice that the witness give the evidence - s 128 certificate granted

CRIMINAL PROCEDURE – trial – judge alone – murder – Court Suppression and Non-publication Orders – interim order revoked

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Whether plaintiff can recover damages pursuant to s 236 of the Australian Consumer Law in respect of loans made to the first defendant that are unpaid

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust schemes – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

SUCCESSION – Family Provision – claim by an adult son, for provision from the estate of his deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased's will makes limited provision for the plaintiff, the deceased’s younger son – the deceased conducts farming and grazing operations on a family property in western New South Wales – under his last will the deceased left the family’s farming and grazing property to his elder son, the defendant – early in his career the plaintiff departed from the family property and established a rural agency business – the deceased encumbered the family property in order to fund the younger son’s acquisition of the agency business – the defendant remained on the family property during the deceased’s lifetime – whether the deceased made adequate provision for the plaintiff under his last will – whether further provision out of the deceased’s estate should be made for the plaintiff’s advancement in life – whether the plaintiff made any financial contribution to the acquisition, conservation and improvement of the deceased’s estate – whether the plaintiff obtained substantial financial benefits from the deceased during the deceased’s lifetime – whether the plaintiff was estranged from the deceased – whether the plaintiff has sufficient financial resources that he does not require further provision out of the deceased’s estate.

CRIMINAL PROCEDURE – trial – judge alone – murder – notice of motion – public interest immunity – non-publication order made restricting publication of transcript until seven days after conclusion of trial

SUMMARY DISPOSAL – re‑litigation of claim already decided – res judicata – estoppel – abuse of process

EQUITY – trusts and trustees – court’s power to appoint new trustee – testamentary trust – plaintiff with disability – plaintiff has life beneficial interest in fund – plaintiff’s sister appointed by will as trustee – falling-out between plaintiff and sister – whether to appoint plaintiff’s brother or public trustee – general desirability of independent trustee – modest trust estate – public trustee to charge fees – no position taken by residuary charitable beneficiary – plaintiff’s brother appointed as trustee

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Application — whether Motor Accidents Compensation Act 1999 (NSW) applies — where not immediately clear from pleadings — where question not suitable to be answered in notice of motion — where left to trial judge

CIVIL PROCEDURE – funds in Court – dispute as to whom funds should be paid – competing claimants mutually indebted – set-off – order for payment to both claimants to reflect set-off – one claimant not a party to proceedings – order made for joinder COSTS – proceedings concerning caveats – underlying dispute determined in other proceedings – no need for proceedings to continue once money paid into Court – proceedings to be dismissed – appropriate to order otherwise than the plaintiff pay the defendants’ costs – costs order made in favour of plaintiff

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused when held on remand at juvenile justice centre – leave granted

CIVIL PROCEDURE - commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil attending a Department of Education school – leave granted

SUCCESSION – Probate of the Will granted to the Plaintiff and two Defendants – Application brought by Plaintiff for revocation of the grant and for grant to be made to independent administrator – Where due and proper administration of deceased’s estate not able to be completed – Defendants are non-active parties who do not file an appearance, a defence to the Statement of Claim and who do not appear at the hearing – Form of orders – Whether to appoint independent administrator or simply revoke grant and make fresh grant to the Plaintiff – Little point in making grant to independent administrator as unlikely that Defendants would co-operate with her – Order for revocation of grant, with fresh grant to the Plaintiff – Consequential orders made relating to collection of known assets and repayment to the estate of amount said to be the subject of investigation

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – plaintiff serving sentence for serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as a pupil of a school run by the Department of Education – leave granted

CRIMINAL LAW – procedure – radical departure from orthodoxy – proceedings a travesty – entire proceedings conducted in absence of prosecutor – three minutes – prosecutor not notified of sentencing hearing – where Magistrate aware of absence of prosecutor but chose to continue – transcript must be seen to be believed – denial of procedural fairness – ground of appeal upheld CRIMINAL LAW – sentencing – requirement to give reasons – “incident of judicial process” – massive workload of Magistracy – brief reasons may suffice – no reasons given at all – ground of appeal upheld CRIMINAL APPEALS – judicial review – prerogative relief – where statutory appeal available – ordinary course to decline prerogative relief – case out of the ordinary – process fundamentally flawed – decision should be quashed – advantages of remitter in particular circumstances – certiorari granted

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1968 – where alleged perpetrator died before applicant on notice of allegation – where no other witnesses to alleged assault – where no documents dating back to or around the time of the alleged assault relating to allegation – no meaningful opportunity for applicant to engage with central question of whether alleged perpetrator committed alleged sexual assault

CONSUMER LAW – Misleading or deceptive conduct – Whether conduct is “in trade or commerce” – Requirement that conduct is commercial in character – No requirement of an extant commercial operation – Negotiations may be commercial even though the setting is social CONSUMER LAW – Misleading or deceptive conduct – Whether primary judge erroneously considered effect of unpleaded or unproven representations – Held that other representations may be contextually relevant to meaning and effect of pleaded representations CONSUMER LAW – Misleading or deceptive conduct – Remedies – Damages – Where shares acquired because of misleading representations – Whether loss should be measured by reference to residual value of shares at date of transaction or at date of hearing – Held appropriate to use date of hearing where deterioration of value inherent and not caused by supervening events, or where purchaser “locked in” to business

APPEALS — Appeal against sentence — Severity — Whether sentence was manifestly excessive — Multiple offences — Accumulation, concurrency and totality — Where criminality involved in offences under the Child Protection (Offenders Registration) Act 2000 (NSW) is distinct from criminality of other offences

CRIME – Appeals – Interlocutory appeal – s 5F of the Criminal Appeal Act – Appeal against refusal of permanent stay by primary judge – Delay of two decades between murder and charge – Whether delay was unreasonable – Whether proceedings were unfairly burdensome and vexatious – Whether continuation of proceedings amounted to abuse of court’s process – General principles governing grant of permanent stay of criminal proceedings – Where delay was not unreasonable – Where aspects of unfairness could be dealt with at the trial – Appeal dismissed

CRIMINAL PROCEDURE – where the jury during deliberations requested a transcript of all three final addresses – where one defence counsel presented a hybrid address using oral submissions and PowerPoint presentation – submission by that defence counsel that paper copy of PowerPoint presentation or USB with PowerPoint should accompany transcript of their final address into jury room – where defence counsel chose not to provide PowerPoint presentation to jury in paper or digital format before, during or after delivery of final address – where transcript of final address would be incomplete without presentation

PRACTICE AND PROCEDURE – Recusal application – No point of principle

CRIMINAL PROCEDURE – trial – judge alone – murder – evidence – application for three Crown witnesses to give evidence via AVL – application not opposed – orders made

CORPORATIONS – statutory demand – application by plaintiff to set aside the defendant’s statutory demand under s 459G of the Corporations Act 2001 (Cth), plaintiff argues that it has raised a genuine dispute with respect to delivery of the goods the subject of invoices, payment of which is claimed under the statutory demand – requirements for genuine dispute – genuine dispute not established – HELD – proceedings dismissed

INSURANCE – indemnity – operation of Insurance Contracts Act – alleged misrepresentation by insured – rights of insurer – operation of ss 21, 26, 27 and 28 of Insurance Contracts Act 1984 (Cth) – whether reasonable person in insured’s position would be expected to understand significance of certain disclosures in a confusing renewal questionnaire – relevant to insurer’s decision to underwrite – whether there was any relevant misrepresentation or failure to disclose – waiver by insurer – no rights under s 28(3) in circumstances

COSTS — party/party — exceptions to general rule that costs follow the event — administrative tribunals — appeal from decision of Guardianship Division of New South Wales Civil and Administrative Tribunal — appeal unsuccessful — appeal to Supreme Court commenced and carried on by plaintiff’s sister in the plaintiff’s name at plaintiff’s request — order subsequently made by the Court subject to further order that the plaintiff’s sister be appointed as the plaintiff’s tutor — New South Wales Public Guardian seeks personal costs order against tutor — whether costs principles applicable in the Court’s protective jurisdiction favour making no order as to costs where person under incapacity requests tutor to commence and carry on proceedings — no order as to costs with intent that parties bear own costs

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Abandonment of claim

INSURANCE – trade credit insurance, description at [2] – financier insured for default of customer’s guarantor – construction of insurance policy, principles at [135]-[144] – construction of defined terms, principles at [145]-[147] – relevance of post-contractual conduct at [149]. SHIPPING – bills of lading – “to order” – negotiable bills – principles at [78]-[79] – significance of “notify party” at [80]. FINANCE – supply chain finance to commodities trader – Sharia-compliant Murabaha facility, description at [21] – trader submits sham commodity contracts in support of drawdown requests – financier and trader did not strictly comply with finance documents when advancing funds – transactions not Sharia-compliant – trader goes into liquidation – guarantor defaults – insurer denied indemnity on basis of non-compliance with Sharia principles and finance documents. PRIVATE INTERNATIONAL LAW – choice of law clause in favour of New South Wales (NSW) law – non-exclusive jurisdiction clause in favour of the Dubai International Financial Centre (DIFC) in United Arab Emirates (UAE) – policy required insured to comply with “applicable material laws” – DIFC would apply chosen law – arguable in DIFC that NSW law displaced by public policy of UAE – where public policy of UAE based on Sharia principles of Islamic law – UAE public policy not “applicable material law” within the meaning of the policy. WORDS AND PHRASES – “material”, “material default”, “applicable material laws” at [186]-[188], [209].

ADMINISTRATIVE LAW – Judicial review – error of law – error of law on the face of the record – s 69 of the Supreme Court Act 1970 (NSW) – not in issue that Coroner’s reasons form part of the record ADMINISTRATIVE LAW – Jurisdictional error – error of law on the face of the record – failure to consider clearly articulated claim or submission – failure to consider substantial evidence in respect of clearly articulated claim – failure to accord procedural fairness EVIDENCE – Public interest immunity – general principles – identification of relevant harm to public interest from disclosure – identification of relevant harm to public interest from non-disclosure - balancing the gravity of harm to public interest from disclosure against the gravity of harm to public interest from non-disclosure – whether potential relevance in coronial proceedings sufficient to establish harm to the public interest in the administration of justice from non-disclosure of material information – significance of tailored orders COURTS AND JUDGES – Coroner’s court – coronial proceedings – procedural fairness – excluding information on the basis of public interest immunity does not involve denial of procedural fairness COURTS AND JUDGES – Principles of open justice – open justice in coronial proceedings – relevance to determining public interest immunity claim and effect of tailored orders

COSTS – application for security for costs of appeal – respondent did not establish that there is reason to believe that the appellant will be unable to pay the costs of the appeal (see UPCR r 42.21(1)(d) and Corporations Act s 1335(1)) or that the appellant has divested assets with the intention of avoiding the consequences of the proceedings (see UPCR r 42.21(1)(f)) or that any special circumstances exist (UCPR r 51.50)