Cases and authorities

EVIDENCE — Tendency evidence — Criminal proceedings – significant probative value – reasonable notice EVIDENCE — Discretions — Application to exclude evidence – where witness’ evidence had previously been given by audio-visual recording – where evidence later adduced by the Crown had not been put to witness during recording of evidence – whether Crown was under an obligation to disclose that evidence

CIVIL PROCEDURE – notice of motion by defendant seeking leave pursuant to UCPR 31.4(6) to rely on witness statement – whether late service of witness statement is prejudicial to the plaintiff – leave granted

SUCCESSION — Family provision — Claim by alleged de facto partner and alleged member of household of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether adequate provision made prior to death of the deceased

CRIME – jury trial – trial for money laundering under s.400.3(1) Criminal Code (Cth) – defence application for Mahmood direction as a result of Crown not calling person to give evidence – consideration of relevant factors – Mahmood direction declined – directions given to jury concerning statutory alternative verdicts and “no compromise” direction – charged offence required “belief” that money or property was proceeds of crime – alternative offences involving “recklessness” or “negligence” – possible relevance of s.5.4(4) Criminal Code (Cth) containing extended definition of “recklessness” – consideration of appropriate directions to jury concerning alternative verdicts

EQUITY – application by occupier of property for stay of owner’s possession proceedings – prima facie case – proprietary estoppel – joint endeavour constructive trust – balance of convenience – application refused and leave granted to issue writ of possession – further application for stay of writ of possession – repeated interlocutory application – stay refused but leave to caveat property granted

HIGH RISK OFFENDER – final hearing – application for extended supervision order – no controversy about making of order – dispute limited to conditions imposed – discussion of appropriateness of various conditions

COSTS — party/party — exceptions to general rule that costs follow the event — offer of compromise — where offer made to compromise claim and cross-claim — where no separate offer made in relation to appeal proceedings — circumstances in which it is appropriate to “otherwise order”

CIVIL PROCEDURE — Parties — Vexatious litigants – litigant the subject of an order under the Vexatious Proceedings Act prohibiting her from commencing proceedings against certain persons and in relation to certain subject matters prohibition dismissal of originating process – litigant seeks to file in Court a summons and affidavit – matter referred to the Equity duty Judge – whether the proposed proceedings are prohibited by the existing order under the Vexatious Proceedings Act.

COSTS — Party/Party — Where application to set aside statutory demand did not proceed

EQUITY – Trusts and trustees – Bare trust – Common intention trust – Assignment of real property – Assignment in name only LAND LAW – Co-Ownership – Rights between co- owners – Account for income and profits – Inquiry ordered

COSTS – where plaintiff successful on its claim and cross-claimant substantially successful on his cross-claim; whether plaintiff bettered its Calderbank offer; whether plaintiff should have a proportion of its costs rather than there being costs orders following the event in the claim and cross-claim

HIGH RISK OFFENDERS –supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for interim supervision order and examination orders – whether, assuming matters alleged in supporting material proved, unacceptable risk of committing a serious offence if not supervised – conditions to be imposed as part of the interim supervision order

HIGH RISK OFFENDERS – extended supervision orders – matters to be considered – unacceptable risk of committing a serious terrorism offence – whether Defendant a “convicted NSW terrorism activity offender” – mandatory considerations in s 25(3) of Terrorism (High Risk Offenders) Act 2017 (NSW)

EVIDENCE — Tendency evidence — Criminal proceedings —admissibility of evidence relating to tendency to participate in drug rips —evidence of the accused having a tendency to engage in drug rips after the alleged offence relevant and admissible — probative value outweighs danger of unfair prejudice — risk of unfair prejudice can be managed by directions to the jury as to appropriate and impermissible uses

CRIMINAL PROCEDURE — Stay of proceedings — Permanent — motion to permanently stay proceedings refused ­— motion to quash indictment refused

CRIME – appeals – appeal against sentence – s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) – parity principle – totality principle – applicant sentenced to 4 years imprisonment with non-parole period of 2 years, 6 months for single armed robbery offence – co-offender sentenced to aggregate sentence of 5 years, 3 months with a non-parole period of 3 years, 2 months for three offences – co-offender’s indicative sentence for shared armed robbery offence only 3 months more than applicant’s sentence – co-offender’s non-parole period extended by 12 months and total sentence extended by 13 months – whether applicant has a justifiable sense of grievance arising from disparity between his sentence and sentence imposed upon co-offender – both offenders had strong subjective cases – difference in sentence for the shared armed robbery offence sufficient to reflect differences in subjective case – Court must consider all the components of the sentence for all the offences that each offender is serving – total effect of the sentences on each offender not reflective of their respective criminality – justifiable sense of grievance arises – resentenced

CRIMINAL PROCEDURE — costs — application for certificate under Costs in Criminal Cases Act 1967 (NSW) — successful appeal against conviction for sexual assault — where complainant’s credibility a central issue at trial — whether institution of proceedings unreasonable

EVIDENCE – witness evidence – application for witness to give evidence via audio visual link – application refused

CONSEQUENTIAL ORDERS - application to enforce existing orders of the court – orders made pursuant to earlier judgments for the removal of caveats and the execution of conveyancing documents – caveats not removed – conveyancing documents not executed – what enforcement orders should be made in the circumstances. COSTS – specified gross sum order instead of assessed costs – Civil Procedure Act 2005 s 98(4)(c) – commercial dispute concerning the development of rural land into allotments – long-running and contentious proceedings resulted in five judgments of the trial judge and one appellate decision – proceedings resulted in two costs assessments, which are still ongoing – non-compliance with the Court’s orders – now desirable that proceedings be ended and the opportunity for further contention reduced – whether a specified gross sum order should be made instead of assessed costs.

CIVIL PROCEDURE — stay of proceedings — inherent power — abuse of process — application to restrain plaintiff from commencing further proceedings arising from same or similar facts until defendants’ costs paid

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person convicted or sentenced on a question of law alone — where appeal found to involve a mixed question of law and fact — whether to grant leave to appeal — where leave granted STATUTORY INTERPRETATION — where statute part of workers compensation scheme — where statute references guidelines — where related legislation and guidelines inform interpretation WORKERS COMPENSATION — Claim for compensation — offence of failing to determine a claim as and when required — where claims manager who is also an insurer was convicted of the offence — whether claims manager without legal obligation to determine claims was a ‘person’ for the purpose of the offence — where claims manager found not to be a ‘person’ for the purpose of the offence

HIGH RISK OFFENDER – convictions for serious sexual and violence offences – application for extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – whether unacceptable risk of re-offending if not supervised – whether the duration and conditions proposed by the plaintiff are appropriate

COSTS — Offer of compromise made in accordance with UCPR r 20.26 — “Walk away” offer — Indemnity costs sought pursuant to r 42.15A — Whether genuine offer of compromise

ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for adoption orders to be made in respect of an infant child – birth mother and birth father do not consent to the making of adoption order – child has been with adoptive parent since leaving hospital postpartum – child is now 3 years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order – whether child’s surname should be changed to be that of the prospective adoptive parent.

CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action COSTS — party/party — exceptions to general rule that costs follow the event — consent orders made without merits hearing

EVIDENCE – Witness evidence – Plaintiffs resident in the United Kingdom and unable to travel to New South Wales – Whether the plaintiffs’ evidence should be taken by having a judge of the Court travel to the United Kingdom – Whether the plaintiffs’ evidence should be taken by audiovisual link – The Court’s experience of using audiovisual link technology – The use of audiovisual link not unfair to either party

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued — where plaintiff sought orders requiring the preparation and audit of a financial report and directors’ report —whether there is reason to depart from the default order as to costs in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – notice of motion – extension of time to serve expert reports – r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether there are exceptional circumstances that warrant the grant of leave for service of expert reports five months out of time – defendant submitted that delay was partially attributable to plaintiff’s communications and to COVID-19’s impact on case preparation – expert available to be cross-examined – plaintiff submitted that defendant’s delay was unjustifiable – report was deficient – “primary specialty in bioelectricity” or “the interaction of electricity and the body” – “arcane” expertise – unfair prejudice to plaintiff – no exceptional circumstances found – motion dismissed – costs CIVIL PROCEDURE – notice of motion – advance ruling on admissibility – s 192A of the Evidence Act 1995 (NSW) – purpose of s 192A not to evade Uniform Civil Procedure Rules – motion dismissed – costs

CORPORATIONS — Winding up — Liquidators — Appointment of special purpose liquidator — whether special purpose liquidator should be appointed to conduct certain proceedings on basis of funding agreement that provides for funding fee of 70% of the net resolution sum — where funder has minimal assets — where prospects of the proceedings to be pursued not exposed to third party funders — where funder contends it will not support the proceedings on any other basis.

MENTAL HEALTH – forensic patient – extension of status as a forensic patient – extension order made

CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – killing by stabbing – sentence after trial – assessment of evidence – evaluation of objective seriousness – use of weapon – actual violence – where deceased first aggressor –– no intention to inflict grievous bodily harm or kill – little planning and premeditation – confrontation on staircase – offender’s evidence as to how he came by knife rejected – evidence that merely paring his fingernails with knife by lamplight – location of headlamp – offender’s evidence inconsistent with objective findings – mechanism of stabbing – offender’s evidence rejected - conflict between men over drugs – accused recovering addict – refusal to obtain drugs – earlier assault by victim – excessive self-defence – breadth of conduct by which manslaughter may be committed – offence towards low end of seriousness – good prospects of rehabilitation – remorse – criminal record – relevant considerations – purpose of punishment – no question of principle

SUCCESSION — Contested probate – Elderly will-maker – Validity of last Will of the deceased – The Plaintiff, a son of the deceased and a major beneficiary named in a number of earlier duly executed Wills of the deceased, propounds penultimate Will made in 2011 – Last Will of the deceased made in 2019 leaves estate to be shared equally between four of the five children of the deceased – Grant of Probate in common form of the 2019 Will sought to be revoked sought by Plaintiff – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances, alleged by the Plaintiff at the time the deceased made the 2019 Will – Whether the Defendant/Cross-Claimant, as the propounder of the 2019 Will, has established testamentary capacity and knowledge and approval and removed residual doubts – No dispute about validity of the 2011 Will by the deceased – Agreement of the parties that if the grant of Probate of the 2019 Will is revoked, Probate in solemn form of the 2011 Will, should be granted. Parties able to agree on how costs of the proceedings should be borne whatever the result of the proceedings

CRIME – Appeal and review – application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – murder – three convictions -– sentenced to life imprisonment – defences of mental illness and substantial impairment rejected at trial – new expert reports – advances in the understanding of the relationship between prodromal or first episode schizophrenia and violent offending – confirmation of the nature of the applicant’s illness at the time of the offending through subsequent treatment – expert opinion in new reports diverges from that given at trial – a doubt or question as to guilt found CRIME – Appeal and review – application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – sentence appeal dismissed – no appeal against conviction – discretion under s 79(3) to refuse to deal with application available as avenues of appeal not yet exhausted – special circumstances demonstrated – application for inquiry refused – whole matter referred to the Court of Criminal Appeal on the Court’s own motion

COSTS — Security for costs — Procedure and discretion — Plaintiff has minimal paid-up capital and is a trustee — Has right of indemnity and substantial trust assets — Relevant factors

HIGH RISK OFFENDER – application for continuing detention order or extended supervision order – history of sexual offences against boys – repeated offences of producing child abuse material committed while in custody – significant inheritance permitted access to anti-libidinal medication in custody – good progress – reduction in testosterone levels and sexual behaviours – extended supervision order imposed – no dispute as to strict conditions—discontinuation of medication for any reason constitutes breach of extended supervision order

COSTS – party/party – gross sums costs orders – successful defendants on notice of motion for summary disposal - where plaintiff sought costs assessments – doubtful capacity of plaintiff to meet costs orders – where plaintiff’s conduct and approach increased costs – gross sum costs order made

CIVIL PROCEDURE – service – where defendants had not been served with summons in accordance with UCPR – where six-month period of service had expired – whether extension should be allowed pursuant to r 1.12 UCPR – where there was no adequate explanation from plaintiff for failure to serve defendants properly – where, in any case, no reasonable cause of action disclosed against those defendants – where it would be inconsistent with s 56 of Civil Procedure Act to grant extension of time

CRIME — murder — sentence after judge-alone trial — joint criminal enterprise to cause grievous bodily harm — objectively serious crime — offence committed whilst subject to good behaviour bond — relevant psychological evidence — strong family support SENTENCING — aggravating factors — findings of fact beyond reasonable doubt — findings consistent with verdict — verdict given by judge after judge-alone trial

CONSUMER LAW — enforcement and remedies — remedies relating to statutory guarantees — action against supplier of services — calculation of damages for reduction in value of services — calculation of damages for distress and disappointment — calculation of damages for consequential economic loss

COSTS – party/party – award in favour of jointly represented active defendants against unsuccessful plaintiff – claim by non-active defendants in same interest – principle favouring single award where parties in same interest – claim by proposed defendants on joinder motion which lapsed with rejection of primary claim – whether plaintiff should pay costs of motion – Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 applied

APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a separate building project was significantly probative of the issue concerning the alleged builder’s role in the building project the subject of the proceedings – s 97 of the Evidence Act considered EVIDENCE – whether the primary judge erroneously failed to draw a Jones v Dunkel inference CONSUMER LAW – misleading and deceptive conduct – causation – whether, absent the misleading and deceptive conduct, the property developer would have obtained a valid contract of insurance by honest means

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the medical practitioner – whether the circumstances were urgent enough to warrant the exercise of the emergency power contained in s 150 – whether suspension of registration was in the public interest

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application for advanced ruling under s 192A Evidence Act 1995 (NSW) – objection under s 137 – whether the probative value of the evidence is out-weighed by unfair prejudice to the accused

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application for advanced ruling under s 192A Evidence Act 1995 (NSW) – objection under s 137 – whether the probative value of the evidence is out-weighed by unfair prejudice to the accused

TAXES AND DUTIES – payroll tax – liability – employment agency contracts – agency contracts with clients to provide services of models – whether agency’s contracts with models are “employment agency contracts” – did models work “in and for the conduct of the business” of the agency’s clients – fact-sensitive inquiry – UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852; 104 ATR 577 discussed STATUTORY INTERPRETATION – principles – whether literal meaning produced absurd results – reading down employment agency contract provisions by implied limitations – importing concepts from repealed provisions – purposive construction – use of extrinsic materials to divine purpose – Payroll Tax Act 2007 (NSW), Pt 3 Div 8 STATUTORY INTERPRETATION – extrinsic materials – legislative history – Pay-roll Tax Act 1971 (NSW)

PROCEDURE — miscellaneous procedural matters — funds paid into Court under Trustee Act Part 4 —Application for payment out of court — held: Order for payment made out

CORPORATIONS — insolvent trading — creditor claim to recover loss suffered by reason of Company’s insolvency following alleged contravention of s 588G by Company’s sole director — failure to prove elements of alleged contravention — proceedings dismissed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement to implement demerger – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS — Voluntary administration — Deed of company arrangement —where deeds of company arrangement executed and creditors’ trust established —where administrators continued to possess and use leased aircraft and aircraft equipment— where trustees of creditors’ trust allowed aircraft lessors’ claims for rent but not on a priority basis — whether the Lundy Granite principle applied — alternatively, whether the claims for rent due under the pre-administration leases are entitled to priority under s 443B(2) of the Corporations Act 2001 (Cth)

CIVIL PROCEDURE — Pleadings — Amendment — Application by second and third plaintiffs to join more plaintiffs where the first plaintiff is in liquidation and it is not clear whether the liquidators want to pursue the claim — Separate representation of co-plaintiffs