Cases and authorities

CRIMINAL LAW – Sentence – Appeal – Where applicant was convicted of conspiring to import a border controlled precursor – Where Crown case at trial asserted that the conspiracy encompassed four separate importations – Where the sentencing judge found that the applicant was actively involved in all importations – Whether the evidence was sufficient to establish such involvement beyond reasonable doubt – Where issue addressed in the course of a previous determination of the applicant's appeal against conviction – Where evidence supported the findings of the sentencing judge – Leave to appeal on that ground refused CRIMINAL LAW – Offences – Sentence – Appeal – Error in the sentence imposed arising from a failure to take into account the entirety of the periods of the applicant's pre-sentence custody – Agreed position between the parties – Sentence quashed and applicant re-sentenced to correct the mathematical error – No requirement to engage in a fresh exercise of the sentencing discretion

SUCCESSION – burial rights – where mother and father have equal ranking at common law – whether mother or father should have carriage of the funeral and custody of the deceased's body – burial or cremation – religious, cultural and spiritual considerations – mother granted relief sought

CIVIL – confiscation of proceeds of crime – amendment sought to restraining orders previously made – mortgagee seeking to exercise right of sale over restrained property – orders made ex parte – no question of principle

CIVIL PROCEDURE – suppression and non-publication – orders for suppression of names and use of pseudonyms in action for trespass to the person – no question of principle

CIVIL PROCEDURE – Appeal from Local Court to Supreme Court – Declarations and costs sought COSTS – Party/party – Appeals LAND LAW – Community title – Neighbourhood scheme – Neighbourhood association – appointment of law firm to represent neighbourhood association – appointment of managing agent

COSTS – whether usual rule that costs follow event applies – where plaintiffs had mixed success against multiple parties – where time spent on unsuccessful claims not significant COSTS – whether costs should be awarded on issues basis – where evidence applicable to several claims – where identical defences for two defendants – where unsuccessful claims occupied little time in evidence and argument

CRIME — Federal offences — Conspiracy — bribing a foreign public official — elements of offence — ‘obtain or retain business’ CRIMINAL PROCEDURE — Trial — Directions to jury — where indictment includes one of eight potential offences in provision — whether to make direction on offence provisions not in indictment — where direction made STATUTORY INTERPRETATION — Importance of context — Consistency of operation — where broad interpretation would result in redundancy of alternate offence provision STATUTORY INTERPRETATION — Literal meaning — Natural and ordinary meaning — where natural and ordinary meaning constrained by surrounding provisions

COSTS — Party/Party — General rule that costs follow the event — where plaintiff successful in her claim for equitable compensation — whether plaintiff’s conduct, including post judgment conduct, warrants departure from usual rule — where defendant/cross-claimant successful in its cross-claim for injunctive relief

ADMINISTRATIVE LAW — Judicial review of administrative action — Where plaintiff (a solicitor) suspended by the Council of the Law Society of New South Wales (Council) following comments made by plaintiff on social media in relation to the consequences of a judgment of this Court — Where plaintiff represented inter alia that a judge of this Court condoned murder and other violent crimes — Where plaintiff alleges that the suspension decision is vitiated by jurisdictional error due to a failure by the Council to interpret and apply s 82 of the Legal Profession Uniform Law (NSW) in accordance with the implied freedom of political communication — Where plaintiff alleges jurisdictional error by virtue of the failure to consider alternative sanctions — Distinction between principles of constitutional law relevant to the implied freedom of political communication and principles of administrative law relevant to exercises of statutory powers or discretions — Whether failure to apply “proportionality testing” to exercise of power under s 82 constitutes jurisdictional error ADMINISTRATIVE LAW — Remedies — Certiorari, declaration and injunction — Discretionary nature of prerogative writs — Availability of appeal or merits review

CIVIL PROCEDURE - Stay pending hearing of appeal from NCAT Panel decision – short stay to 9 April 2022 to allow appeal to be heard – execution of judgment from NCAT affects plaintiff’s building license – urgent stay required

CONTRACT – existence – offer and acceptance – whether acceptance of offer by conduct – whether necessary to plead – consideration – whether consideration must move from promisee – whether provision of money from account of lender’s wife effected by negotiator amounted to consideration moving from promisee – judgment entered in favour of plaintiff

CIVIL PROCEDURE – leave to issue a subpoena – subpoena to compel attendance of plaintiff – substantive proceedings for orders under Vexatious Proceedings Act – where plaintiff is the Attorney General – allegation of “willy-nilly” use of the Attorney’s name to harass and intimidate – where “somebody doesn’t know what they’re doing” –whether legitimate purpose for issue of subpoena – whether party can compel another party to attend by use of subpoena – tendentious flourishes

LEGAL PRACTITIONERS FIDELITY FUND — claims against fund — right of appeal to Supreme Court — nature of appeal — relevance of Fidelity Fund documents in Supreme Court — documents not relevant CIVIL PROCEDURE — notices to produce — before hearing — objection to inspection — whether documents privileged — whether privilege waived — documents privileged

EQUITY — Breach of confidence — Where plaintiffs and defendants provide telecommunications hardware solutions and services — Where plaintiffs and defendants procure new customers by way of telemarketing — Where both plaintiffs and defendants purchase databases of potential “leads” from the same suppliers — Where first, second and third defendants left the employ of the plaintiffs and commenced employment with the fourth and fifth defendants — Where first and third defendants alleged to have taken confidential information of the plaintiffs with them in the form of spreadsheets and emails — Where first, second and third defendants alleged to have used confidential information in the business of the fourth and fifth defendants to solicit, approach, or entice away customers of the plaintiffs — Where plaintiffs suffered no loss — Where concurrent confidentiality obligation in employment contract — Where first, second and third defendants admit to owing fiduciary duties to the plaintiffs — Whether breach of fiduciary duties — Whether breach of duty of confidence CONTRACTS — Breach of contract — Where confidentiality obligation concurrent with equitable duty of confidence and fiduciary duties — Whether transfer and use of spreadsheets and emails breached obligation of confidence CONTRACTS — Illegality — Restraint of trade CORPORATIONS — Employees — Improper use of position — Improper use of information EQUITY — Equitable remedies — Permanent injunctions

COSTS – Security for costs – moneys paid into court by appellant – appellant succeeded on appeal – whether certain sums should not be released because of costs orders in favour of respondent in relation to application for security for costs and unsuccessful variation and adjournment application – moneys ordered to be released without any retention

RESTITUTION – mistaken payment by transfer to defendant’s bank account – payments on to third parties – tracing – equitable jurisdiction of the District Court – money judgments sought against recipients – proceedings transferred to District Court

ADMINISTRATIVE LAW – Judicial Review – Motor Accidents Compensation Act – Failure to provide reasons – Finding not based on evidence – Failure to respond to substantial and clearly articulated argument – Psychiatric injury secondary to pain – Resolution of physical injury – Decision of Appeal Panel set aside

EQUITY – trusts and trustees

REAL PROPERTY – securities – rights of a subsequent encumbrancer as against a prior encumbrancer – rights to enforce rights and equities of mortgagor against mortgagee – where plaintiff held an equitable charge over the property – where defendant held a registered mortgage over the property – whether the principle that a subsequent mortgagee can enforce the mortgagor’s rights or equities against a prior mortgagee applies in the case of an equitable charge and a registered mortgage – plaintiff held to have standing to enforce mortgagor’s rights and equities against the defendant MORTGAGES – equity of redemption – clogs on the equity of redemption – where mortgage contained an option for the mortgagee to purchase the mortgaged property following failure of mortgagor to repay – whether the option to purchase constituted a clog on the mortgagor’s equity of redemption – whether the option to purchase was penal in nature – whether the option to purchase was unfair and unconscionable

PRACTICE AND PROCEDURE – whether expert evidence served permitted by earlier order – whether such evidence is evidence in chief – whether plaintiffs require and should be granted leave to rely on that evidence – on what terms should such leave be granted

HIGH RISK OFFENDER – application for interim supervision order under the Crimes (High Risk Offenders) Act – preliminary hearing – weight given to material before the court – s 9 factors – interim relief granted

CRIME – Appeal and review – application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – new evidence – whether new evidence casts a doubt or question as to the credibility of the complainant – whether attempt to “rerun the trial on the papers” – complainant’s evidence as to the applicant’s outfit critical to her account – evidence suggests error in complainant’s account – doubt as to guilt found – not an attempt to rerun the trial on the papers given additional evidence

CRIMINAL LAW – appeal against conviction – attempting to import commercial quantity of border controlled drug – applicant involved in seeking to possess two packages carried by air from Netherlands to Australia – applicant claimed he believed packages contained polymer for making counterfeit banknotes – applicant had previous counterfeiting conviction – applicant when arrested possessed counterfeit banknotes – whether conviction unreasonable – only element in content was knowledge that packages contained illicit drugs – surveillance evidence, text messages and intercepted telephone calls supported Crown case – applicant cross-examined before jury – applicant accepted aspects of his case were untrue – open to jury to convict

PRACTICE AND PROCEDURE – Application for adjournment – Repeated failures on the part of the defendant to comply with orders of the Court requiring the filing of pleadings and evidence – Application for adjournment refused – Judgment entered – No point of principle

EQUITY — Trusts and trustees — Superannuation funds — Application by trustee for Supreme Court consent pursuant to s 249E of the Crimes Act 1900 (NSW) and similar provisions in other State jurisdictions to receive and give a benefit in the context of a successor fund transfer CIVIL PROCEDURE — Cross-vesting — Supreme Court’s power to grant consent under legislation of other States

PROCEDURE – order sought under Rule 13.1 of the UCPR – plaintiff loaned money to first defendant – not paid – no appearance in proceedings – no defence

CRIME – jury trial – trial commenced with 15 jurors – 13 jurors remaining – member of household of juror tested positive for COVID-19 – household member a “diagnosed person” under Public Health (COVID-19 Self-Isolation) Order 2022 – juror required to self-isolate for seven days - jurors not “critical workers” under Critical Worker Exemption – juror discharged under s.53B(d) Jury Act 1977 – order under s.53C that trial continue with jury of 12

PROCEDURE – application for leave to commence civil proceedings – where plaintiff in custody – Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

PROCEDURE – discovery – must be relevant to a fact in issue – no question of principle

EQUITY — Trusts and trustees — Court’s supervision of — Administration of trust — review of decision by trustees of a creditor’s trust to reject proof of debt — extension of time to appeal trustees’ decision — where employee’s insurance policy was not maintained — whether there would have been a valid claim under the insurance policy had it been maintained — whether loss suffered

CRIME – application for Murray and Shepherd directions to be given in respect of direct evidence of a conspiracy – pre-requisites not met – applications refused

COSTS – Whether costs should follow the event – Whether order should be made in terms of the payment of a gross sum of costs – Order made – No point of principle

PRACTICE AND PROCEDURE - Summary dismissal - Principles applicable - Question whether the Supreme Court of NSW has jurisdiction to make a family provision order where, at the time of death, the deceased was domiciled outside New South Wales, but where there was, and is, property situated within New South Wales that may be the subject of a notional estate order - Whether appropriate for summary dismissal where question of construction of statute, the Succession Act 2006 (NSW) may be considered

CIVIL PROCEDURE – proceedings in Equity Division – claim for order that solicitor disgorge fees from proceeds of mortgagee sale – removal to Court of Appeal – whether exercise of disciplinary jurisdiction – order to disgorge excess legal costs not claim for costs against legal practitioner COURTS AND JUDGES – supervisory jurisdiction – Court of Appeal – solicitor acting for mortgagee – property sold – solicitor appropriated proceeds from sale of property for professional fees – claim by mortgagor for amount in excess of reasonable legal costs – whether order for disgorgement by solicitor invoked disciplinary jurisdiction – Supreme Court disciplinary jurisdiction not enlivened

CIVIL PROCEDURE — application for leave to rely on expert reports — reports filed and served on day 14 of four-week hearing — reports elicit expert opinions based upon additional documents not previously considered by experts — documents always available to parties — other party unable to reasonably reply — unexplained delay — interests of justice favour rejection of reports — leave refused

CIVIL LAW – procedure – leave to commence proceedings – when plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – no question of principle

CRIME – TRIAL – murder – hearsay evidence – non-hearsay purpose - question of admissibility of evidence of portions of an interview of a witness – lies – consciousness of guilt - question of prejudice to the accused - whether probative value outweighed by prejudicial effect

CRIME – jury trial – charge of money laundering under s.400.3(1) Criminal Code (Cth) – Accused a solicitor charged with dealing with proceeds of crime – substantial sums pass through solicitor’s trust account - state of mind of Accused concerning source of funds passing through trust account – Crown objection to certain questions in cross-examination of Crown witness concerning what the witness said to the Accused about source of funds – whether questions ambiguous, unfair, misleading or confusing - certain questions allowed and others disallowed

CRIME – jury trial – application by Crown for witnesses to give evidence by audio-visual link – witnesses not vaccinated for COVID-19 or decline to reveal vaccination status – witnesses do not consent to rapid antigen testing – order made for witnesses to give evidence by audio-visual link

CIVIL PROCEDURE – Strike out pleadings – No reasonable cause of action pleaded – Notice of motion dismissed

CRIMINAL PROCEDURE — Trial — Verdict by direction — ‘no case to answer’ application by accused — where Crown case based on circumstantial evidence — where application dismissed

PRACTICE AND PROCEDURE – review of decision of Registrar – show cause direction – proceeding dismissed for non-compliance – failure to comply with directions and attend directions hearings – proceedings lacking utility

CRIMINAL LAW – application for leave to appeal against conviction and sentence – trial by judge alone – where applicant convicted of murder as participant in joint criminal enterprise – where arrangement that applicant pay money to co-participant in return for killing deceased – where trial judge relied on circumstantial evidence and admissions of guilt by applicant – whether verdict unreasonable – whether trial judge’s reasons inadequate – reasons requirement in judge-alone trial under Criminal Procedure Act, s 133(2) – whether sentence manifestly excessive

CRIMINAL LAW – appeals – application for leave to appeal against conviction – proposed appeal on mixed questions of fact and law – trial by judge alone – where applicant convicted on 21 counts of sexual intercourse without consent and two related offences – where offences committed against wife as “punishment” for alleged infidelity – whether trial judge misdirected himself as to element of consent under Crimes Act 1900 (NSW), s 61HA – whether trial judge erred in admitting evidence as to relationship or in using it to engage in tendency reasoning – whether verdict unreasonable or cannot be supported CRIMINAL LAW – appeals – application for extension of time in which to appeal – whether merit in any proposed ground of appeal – extension of time refused

CIVIL PROCEDURE – Representation – Unrepresented litigant – referral to solicitor and barrister on the Pro Bono panel – not likely to obtain legal assistance outside the scheme – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) r 7.36

LAND LAW – possession of land – where defendant is bankrupt – where no defence disclosed in defence filed – defence struck out

LEGAL PROFESSION – solicitors’ lien over settlement funds payable to client – client obtains payment direct from opposing party – solicitor obtains ex parte freezing order – sum covering solicitor’s claimed fees paid into court – costs assessor later sets aside solicitor’s costs agreement and substantially reduces claimed fees – costs of proceedings – whether solicitor successful – solicitor relies on “offer” made before termination of retainer to reduce fees – “offer” did not warn client of costs consequences of failure to accept – conflict of interest – costs refused to both parties

INTERESTS AND COSTS – date from which interest on judgment sum should run – time of loss –– prior cost orders –– Calderbank letter – non-acceptance of Calderbank offer –contributory negligence – damages – whether a broad brush approach should be adopted in determining liability for costs – interest on costs –– return of security costs – costs of further proceedings – orders

CIVIL PROCEDURE — Service outside Australia — Hague Convention — Originating process — Whether service was effected in circumstances where the defendant had recently changed its address — Whether the Court should make an order under UCPR r 10.14(3) confirming service or under UCPR r 2.1 dispensing with the requirements of the rules relating to service where the defendants were aware of the proceedings