Cases and authorities

CIVIL PROCEDURE — notices to produce — before hearing — notice to produce served by defendants on plaintiffs — application by plaintiffs to set aside notice to produce — where plaintiffs earlier ordered to give discovery to defendants — plaintiffs ordered to comply with some items of notice to produce and not others

HIGH RISK OFFENDERS – extended supervision order – preliminary hearing – appointment of psychiatrists or psychologists – aggravated sexual assault – solicit murder – entirety of adult life in custody – sexual preoccupation – diagnosed with mental illness in custody – relevance of unproven charges in assessing risk – high risk of committing further serious offence – interim orders not opposed – certain conditions opposed – interim supervision order made

CRIMINAL LAW – sentence – murder – victim impact statement – young offender – objective seriousness – extended joint criminal enterprise - psychological evidence – family and developmental history – psychological history – physical and mental health – drug and alcohol use – sexual abuse history – criminal history – future offending – risk assessment – general and specific deterrence – special circumstances – orders

INJUNCTIONS — application for orders under UCPR r 25.3(3) preserving the fund that is the subject of these proceedings — where fund is being depleted by payment of a defendant’s legal costs of these proceedings and other payments — order made preserving fund — no question of principle

Promissory estoppel — Formal lease agreement —where representations of a rental rebate and replacement of a waste water management system made to first lessee who conveyed them to the assignee/plaintiff — Representations conditional and conditions not met — Reliance by the plaintiff unreasonable due to express lease provisions — No detriment established — No promissory estoppel established

CRIME – sentence – murder – offender found guilty following trial by jury – victim shot by offender – assessment of objective gravity of offence – offender took loaded firearm to premises where victim present – offender angered by victim’s violent conduct towards friend of offender - single shot fired followed by physical attack upon victim – offender acted with intention to cause really serious bodily injury but not to kill – finding of upper mid-range objective gravity – substantial moral culpability – offender on parole at time of offence for firearm offence – importance of specific and general deterrence – absence of contrition and remorse – substantial term of imprisonment imposed CRIMINAL PROCEDURE – agreed error in commencement date – slip rule applied – commencement date of sentence varied

BUILDING AND CONSTRUCTION – plaintiff to build tunnel under Project Deed – defendants to build tunnel for plaintiff under D&C Deed – ‘back to back’ contracts – disputes concerning same issue under both contracts treated as “Linked Disputes” – claim concerning contamination determined as “Linked Dispute” adversely to plaintiff and defendants – defendants nonetheless seek contamination costs from plaintiff. COMMERCIAL ARBITRATION – application for stay – ‘tiered’ dispute resolution clause requiring negotiation, expert determination then arbitration – expert determination yet to begin – whether arbitration agreement “inoperative” under section 8(1), Commercial Arbitration Act 2010 (NSW), New York Convention and UNCITRAL Model Law – case law review at [95]-[117] – agreement “operative” notwithstanding expert determination yet to occur – John Holland v Kellogg Brown & Root not followed at [118]-[120] – proceedings stayed. WORDS AND PHRASES – “inoperative” at [95]-[117] – “urgent” at [138].

CONTRACTS — Breach of contract — Remedies — Debt — Where plaintiff provided vocational education training and obtained funding under a contract with the Department of Education to provide such training — Where plaintiff had various reporting obligations to the Department in order to qualify for funding — Where students were required to “participate” in training, rather than merely access such training — Where defendant terminated the contract following alleged Events of Default — Whether plaintiff entitled to recover money owing under contract as debt — Whether defendant entitled to set off overpayments made to the plaintiff against debt owed to the plaintiff

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – whether unacceptable risk of committing another serious offence – where defendant charged with new offences prior to hearing of application – consideration of the effect of the fresh charges – consideration of defendant’s right to silence in respect of the fresh charges

RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director can rely on “defence” of payment over to company where not expressly pleaded – whether primary judge erred in dismissing claim against Director without expressly finding had no notice of illegality – form of notice required for agent who pays funds to principal received under illegal contract – HELD: claim rejected – manner in which case conducted meant that “defence” was available – primary judge’s findings inconsistent with Director having relevant notice AUSTRALIAN CONSUMER LAW – representation that visa “would be” granted – whether such a representation made – whether “illegality” of representation or underlying transaction meant no conduct in trade or commerce or recovery impermissible – HELD: representation not made – if it was made was in trade or commerce and recovery permissible

TRUSTS – new trustee – provision of documents by former trustee to new trustee – effect of vesting order – former trustee prima facie required to provide trust documents to new trustee – where former trustee failed to distinguish between documents received and possessed by her as trustee and documents received and possessed by her in other capacities – former trustee required to make copies of documents used by her, even if not owned or co-owned by her, for new trustee – primary judge found that particular documents were trust documents but need not be provided to new trustee until completion of pending arbitration – whether primary judge found that former trustee did not own or co-own documents in her capacity as trustee – whether primary judge erred in the exercise of discretion – appeal allowed and former trustee ordered to provide documents to new trustee

CRIME – Appeal by Crown against acquittals – charges of sexual touching – respondent suffering from “sexsomnia” – question of volition – construction of phrase “mental health impairment” – s 4 Mental Health (Forensic Provisions) Act 2020 – whether Act codifies or alters the common law concerning the mental illness defence - relevance of common law defence of non-insane automatism –whether sexsomnia is a mental health impairment – question of correctness of construction and application of Act at trial

CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an “adaptation” of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present

EVIDENCE – witness evidence – refreshing memory – in court – application under s 32 of the Evidence Act 1995 (NSW)

EVIDENCE – opinion evidence – exceptions – lay opinion

EVIDENCE – opinion evidence – exceptions – lay opinion

EVIDENCE – representations – whether admissible

CRIMINAL PROCEDURE – murder – view – Crown application for view of various locations – town of Bingara – not opposed – orders made – reasons

EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions — criminal proceedings where maker not available where representation against the interests of the person who made it at the time it was made and was made in circumstances that make it likely the representation is reliable — trial judge not affirmatively satisfied that the evidence is likely to be reliable — evidence not admissible

RECEIVERS – Authority – Power to sell property – Claims for remuneration, costs and expenses.

COSTS – security for costs - sought in the order of $595,000 – whether reason to believe plaintiff unable to meet adverse costs order – whether “quantum of risk” warrants award of security

COSTS — Security for costs — Power to order — Procedure and discretion — Where proceedings brought in part for benefit of litigation funder whose identity is unknown

HIGH RISK OFFENDER – final hearing – application for extended supervision order – whether the offender poses an unacceptable risk of committing another serious offence

CRIMINAL LAW - application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the applicant’s conviction – matter previously dealt with under Pt 7 of the Act – matter has been the subject of appeal proceedings where proceedings withdrawn or been allowed to lapse – Court not satisfied special facts or special circumstances that justify the taking of further action – alternatively, no doubt or question raised about the applicant’s guilt

FAMILY LAW – children – adoption – whether adoption order clearly preferable and in best interest of child – whether consent of mother and father should be dispensed with – whether change of name should be approved

APPEALS — appeal as of right or by leave from Local Court APPEALS — Procedural fairness — whether refusal to grant leave to adduce expert evidence amounted to a denial of procedural fairness — where refusal did not amount to a denial of procedural fairness CONTRACTS — Construction — Interpretation — Background — nature of agreement — whether agreement constituted a guarantee or separate agreement — whether signatory signed in own right or on behalf of the company CONTRACTS — Formation — Consideration — Forbearance to sue — whether “please allow until particular date to investigate” constituted a forbearance to sue COSTS — indemnity costs — whether defendant’s conduct constituted relevant delinquency COSTS — offer of compromise — whether offer including “costs as agreed or assessed” is compliant with UCPR, r 20.26

EVIDENCE – where plaintiff seeks to rely on evidence filed in other proceedings – whether tender of evidence offends UCPR 31.9 – whether documents subject to Harman undertaking

COSTS – trusts and trustees – indemnity of trustee – series of judgments given, determining the scope of the indemnity of a trustee – the parties contest the quantification of the indemnity – Court considers gross sum costs orders under Civil Procedure Act 2005, s 98(4)(c) – what final costs order should be made.

CIVIL PROCEDURE – reference out to a referee – Uniform Civil Procedure Rules 2005 r 20.24 – dissolution of a partnership between doctors – complex structure of partnership entities – reference to referee to undertake final accounting between the partnership entities – referee reports – parties dispute whether the whole of the referee’s report should be adopted – whether the referee’s report should be adopted or varied in part and if so in which respects.

COSTS – indemnity costs – three offers of compromise served by plaintiff – where verdict exceeded all three offers - where first offer served three days after proceedings commenced – not unreasonable for defendant to have rejected offer – second offer served months after pleadings closed and following mediation – unreasonable for defendant to have rejected offer – plaintiff seeking gross sum costs order – where defendant had become bankrupt since proceedings commenced – where defendant had unnecessarily put the plaintiff to proof of matters that should not have been in issue – gross sum costs order made

HIGH RISK OFFENDERS — interim supervision orders — interim supervision order agreed — conditions disputed

APPEALS – Leave to appeal – Arguable case – Whether primary judge erred in making advance finding that expert evidence was inadmissible – Where evidence was submitted to be relevant as responsive to issue of causation by providing an alternative explanation for cause of loss – Where primary judge found such alternative should have been pleaded and thus admitting the evidence would be a breach of procedural fairness – Appeal raises insufficiently arguable case that primary judge erred

CRIMINAL LAW – Sentence – Appeal – Where the applicant pleaded guilty to importing a border controlled drug concealed in the lining of a suitcase – Where the Crown specifically disavowed a case based on the applicant having actual knowledge of the drugs – Crown case put on the basis of recklessness – Where the effect of the applicant’s evidence was that he had turned his mind to the possibility that he was importing drugs – Where the relevant legislation defined recklessness in terms of the existence of a substantial risk rather than a possibility – Where the sentencing judge made reference to the applicant’s evidence when assessing his criminality and his level of recklessness – Whether that approach reflected the application of an incorrect test – Necessity to read the reasons for sentence as a whole – No error established – Leave to appeal granted – Appeal dismissed

EVIDENCE — Tendency evidence — Criminal proceedings – where implement located in search of a deceased person’s premises following their death – probative value – relevance

LAND LAW – contract for the sale of land – notice to complete – obligations of vendor and purchaser under contract for the sale of land – where purchaser issued notice to complete making time of the essence – where purchaser itself then failed to complete within the time specified in the notice to complete – where vendor terminates the contract – whether vendor validly terminated contract for sale by reason of purchaser’s failure to complete – whether vendor in breach of contract by failing to provide keys to facilitate inspection of property – whether conduct of vendor a default that materially contributed to the failure of the purchaser to complete – whether vendor was itself ready, willing and able to perform its obligations to complete within the time specified in the notice to complete – held that vendor was entitled to terminate the contract – held that vendor is entitled to deposit

CIVIL PROCEDURE — Time — Extension of time — application to extend time for service of expert report and witness statement — whether there were exceptional circumstances warranting a grant of leave — whether in interests of justice to grant leave — leave refused COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — whether delay or defendant’s attitude warrant award of indemnity costs — where conduct did not warrant order for indemnity costs

CRIME – sentence – murder – where the offender attacked the deceased with his fists and knees – cause of death ruptured spleen sustained during attack – where the deceased’s spleen was severely diseased prior to attack – low level of intent to cause grievous bodily harm – offender remorseful

CORPORATIONS – application for curative orders pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) – where issue or transfer of shares is void due to the operation of s 259C of the Corporations Act – whether the issue and transfer of shares should be validated under the Act – where transactions sought to be validated span a period of 18 years and likely involved the transfer or issue of millions of shares to the company’s controlled entities in their capacities as responsible entities, trustees and/or custodians of various managed investment schemes and trusts of which the members and beneficiaries were “largely retail investors” – application granted

CONTRACTS – heads of agreement executed following mediation – ambit of indemnity – whether expenses incurred by plaintiff recoverable under indemnity – whether quantum meruit available

PROTECTIVE PROCEEDINGS – guardianship – determination of separate question – Uniform Civil Procedure Rules, r 28.2 – widow of a deceased person applies for the continuation of orders that were made against the living estate of a “managed person”, when he was subject to management orders in protective proceedings brought under the NSW Trustee and Guardian Act 1987 – whether existing orders made in the protective proceedings bind the estate of the deceased after his death – effect of NSW Trustee and Guardian Act, s 93 – what directions should be made in respect of other contested issues concerning the future management of the deceased’s estate, including the appointment of a special administrator.

CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – where delay in completion – claim for consequential loss – expenditure incurred in mitigating action – interplay between causation and mitigation – whether causative link between breach and action to mitigate loss – where purchaser agreed to pay mortgagee up to $500,000 if shortfall on recovery of mortgagee’s loan from second security CONTRACT – remedies – damages – mitigation of loss – vendor unable to obtain discharge of mortgage – expenditure incurred by purchaser to obtain discharge of mortgage – whether reasonable action to mitigate loss – where available alternatives would have exposed purchaser to potentially greater loss CONTRACT – remedies – damages – remoteness – whether in contemplation of parties that purchaser would need to pay off part of mortgagee’s loan to obtain discharge of mortgage – where vendor had not obtained mortgagee’s consent to contract for sale or the release of deposit or prepayment to the vendor – where vendor failed to complete on fixed date

EVIDENCE – witness evidence – refreshing memory – in court – application under s 32 of the Evidence Act 1995 (NSW) – consideration of the words “at such a time” in s 32(2)(b)(ii) – leave alternatively considered under s 192 considerations – leave refused

CIVIL PROCEDURE — Subpoenas — Application to set aside subpoena — Whether subpoena fishing — Where subpoena relevant only to credit

CRIME – Sentence - murder of female partner – 14 stab wounds inflicted in prolonged attack – intent to kill – ongoing denial of guilt

CIVIL PROCEDURE — Subpoenas — Application to set aside — documents already produced CIVIL PROCEDURE — Miscellaneous procedural matters — Application to restrain access and use of subpoenaed documents

ADMINISTRATIVE LAW — Judicial review — Motor Accident Injuries Act — Statutory construction — Calculation of pre-accident weekly earnings — Meaning of gross earnings received by the earner as an earner – Whether earner as an earner define the period by which earnings are to be averaged or limit the earnings to be taken into account – Decision of Merit Review Panel set aside

LAND LAW — Conveyancing — Contract for sale — Deposit — where deposit is secured by way of mortgage over another property — where the contract for sale is terminated by the purchaser in response to the vendor’s purported notice of termination despite failing to have provided a land tax certificate MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Repayment — whether the obligation to repay the mortgage is dependent on the deposit being owed under the contract ESTOPPEL — Estoppel by convention — Mutual assumption — whether an acknowledgement contained in the mortgage of receipt of a sum establishes an estoppel by convention

CRIME – appeals – appeal against sentence – applicant sentenced for sexual offences committed against 14-15 year old student – where applicant was a physical education teacher – explicit material exchanged on Snapchat – touching on the outside of clothing – where the applicant’s borderline personality disorder materially contributed to the commission of the offending – sentence manifestly excessive – weight to be afforded to the promotion of rehabilitation of the applicant – error in taking into account in relation to one offence a standard non-parole period that had ceased to be applicable

CRIME – sentencing – appeal against sentence – two counts of vehicular manslaughter – additional count of dangerous driving causing grievous bodily harm – two people killed – offender heavily intoxicated – whether sentencing Judge erred in finding facts – whether Judge failed to afford procedural fairness – finding that offender always intended to drive away from hotel – thoughtful and comprehensive sentencing judgment – no patent error established – no denial of procedural fairness CRIME – sentencing – whether sentence manifestly excessive – tragic case – offending approaching but not within the worst category of case – survey of comparable cases – totality – aggregate sentence – where individual indicative sentences high but within range – totality and notional accumulation – (by majority) aggregate sentence held to be excessive – appeal allowed – applicant re-sentenced

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – whether verdicts of the jury were inconsistent – whether rational explanation for differing verdicts