Cases and authorities

CIVIL PROCEDURE – court administration – assignment of business – application to transfer from Common Law Division to Commercial List in Equity Division – sufficient case for transfer not made out CIVIL PROCEDURE – subpoenas – application to set aside – whether subpoenas had apparent relevance to issues in dispute – whether subpoenas oppressive – claims of confidentiality and legal professional privilege – subpoenas set aside in part – as two current Chief Justices then were

APPEAL – application for leave – interlocutory decision dismissing application for summary dismissal of summons – no question of principle – leave refused

COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross sum to be awarded – appropriate discount

CRIMINAL LAW – evidence – admissibility – multiple counts of drug supply – where some offences admitted and others denied – cross-admissibility of evidence – where evidence not relied on as tendency evidence – whether admissible on any other basis – whether relevant to rebut accused person’s defence – whether relationship evidence – where co-offender in custody at the time of subsequent offending – risk of tendency reasoning – danger of unfair prejudice – whether directions able to cure risk of impermissible reasoning CRIMINAL LAW – adequacy of directions – whether anti-tendency direction required – risk of impermissible reasoning high – where direction not to reason “automatically” that accused guilty of other offences – whether Prosecutor’s address increased the risk of tendency reasoning

CRIMINAL LAW – Offences – Sentence – Appeal – Statutory construction – Where applicant pleaded guilty to offences of entering a building or land with intent to commit and indictable offence – Where applicant also pleaded guilty to committing those offences after being convicted of an indictable offence – Whether two separate offences created or whether one offence should be regarded as an aggravated form of the other – Whether a miscarriage of justice arose from the fact of the applicant’s pleas of guilty to both groups of offences PRACTICE AND PROCEDURE – Where sentencing judge cited incorrect maximum penalties for offences on the basis of erroneous material provided by the Crown – Where that error had the capacity to infect the exercise of the sentencing discretion – Leave to appeal granted – Applicant resentenced – Observations as to the pressure on Judges of the District Court and the consequent necessity for legal practitioners to ensure that accurate information is provided to a sentencing Court

PRACTICE AND PROCEDURE – whether plaintiff should be granted leave to amend Commercial List Statement on third and fourth days of hearing – whether amendments sought based on material available for some time – whether amendments sought based on material recently discovered – whether amendments would prejudice defendants

CIVIL PROCEDURE — Jurisdiction — Transfer from District Court —Civil Procedure Act 2005 (NSW) s 140(1) — Whether there is ‘sufficient cause?’ — Application granted

PRIVATE INTERNATIONAL LAW – Foreign Judgments Act – Registration – Motion to set aside – defendant not served with initiating process in foreign country – defendant appeal in foreign on merits – motion dismissed.

OFFER OF COMPROMISE – defendants represented by solicitors throughout proceedings –solicitor’s retainer terminated a month before trial – offer of compromise made 8 days before trial – offer open for 8 days – rule 20.26(5), UCPR – whether closing date for acceptance “reasonable in the circumstances” – more time may be needed where offeree is self-represented – relevant that defendants put themselves in the position of being unrepresented by terminating retainer – time sufficient – indemnity costs order made.

FINANCIAL SERVICES – elderly French resident opens trading account with holder of Australian Financial Services Licence – accesses highly leveraged investments not then available in the EU – trades in CFDs – loses the lot – makes complaint to AFCA – AFCA staff consult AFCA Decision Maker when making preliminary assessment – AFCA Decision Maker consults AFCA staff when making Determination. AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY SCHEME – external dispute resolution scheme – Part 7.10A Corporations Act 2001 (Cth) – AFCA Rules – complaint resolution process – procedural fairness requirement – the Court’s role – general review at [4]-[21]. JURISDICTION – construction of AFCA rules on jurisdiction at [127]-[140] – rule B.2.1 – definition of Financial Service (rule E.1.1) – broad jurisdiction – ‘one stop shop’ to resolve disputes about products and services provided by Financial Firms. IMPARTIALITY – construction of AFCA rules on complaint resolution process at [144]-[157] – separation of preliminary assessment and Determination – separation of AFCA Decision Maker from preliminary assessment – Isbester applied – Determination not made in accordance with AFCA Rules – Determination invalid. WAIVER – no requirement in AFCA Rules to raise jurisdictional challenge during complaint resolution process – no waiver – see [119]-[123]. ESTOPPEL – must be pleaded properly – pleading deficient – see [124]-[126]. WORDS AND PHRASES – “arise from” at [130] – “relate to” at [131] – “in connection with” at [139].

JUDICIAL REVIEW – challenge to three Local Government elections – failure of technology assisted voting on election day – small number of voters disenfranchised – disproportionate effect on election due to use of proportional system of voting – standing of Electoral Commissioner to make application – whether breach of Local Government Act in conduct of election – test of materiality of breach to outcome – approach to determining materiality to outcome – whether materiality assessed by attempting to model disenfranchised voters’ likely voting intentions by reference to voting patterns of other voters – whether materiality assessed by comparison between number of disenfranchised voters and margins between elected and non‑elected candidates and margins between excluded and non‑excluded candidates – relief – whether elections should be declared wholly void or only void in respect of the election of particular councillors – election of at least one candidate in each contest was directly affected – interrelationship between election of candidates under proportional representation – inappropriate to impose on electorate Councillors elected under two different electoral systems – relief – discretion – whether discretion to declare elections void should not be exercised on account of cost and dislocation of new election to the affected Councils – whether discretion to declare elections void should not be exercised on account of effect on candidates – discretion to declare void will be exercised – making of declaration deferred to allow for contingencies affecting conduct of elections – Electoral Commissioner to advise Court of any proposal to address wasted costs of successful and unsuccessful candidates

SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under s 93, following service of notice under s 92 of the Wills Probate and Administration Act 1898 – Claims to which such a notice can apply – Applicable principles

CIVIL PROCEDURE – parties – misjoinder – where no relief sought against a number of parties – order removing the parties from the proceedings pursuant to r 6.29 UCPR CIVIL PROCEEDINGS – summary disposal - dismissal of proceedings – no reasonable cause of action disclosed - where plaintiff practised as endocrinologist until suspension due to impairment – where NCAT cancelled plaintiff’s registration as a doctor – where Court of Appeal upheld cancellation - where plaintiff named fifteen defendants in summons – where no relief sought against defendants – where claim in substance appeared to be negligence - where defendants as tribunal members, barristers and expert witnesses had immunity from suit – where proceedings statute-barred - orders dismissing proceedings pursuant to r 13.4 UCPR

APPEAL – interlocutory ruling rejecting Crown evidence – CCTV footage – assessment of relevance – no question of principle

COSTS – No point of principle

CONTEMPT — Criminal contempt — Contempt in the face of the court — Witnesses ­— witness refusal to give evidence interfered with the administration of justice — appears witness is guilty of contempt — direct Registrar to commence proceedings

CIVIL PROCEDURE – notice of motion – joinder of defendant – application granted – costs

SETTLEMENT – plaintiff under a legal disability – whether in the best interests of the disable person – whether settlement sum should be paid directly to the plaintiff

CIVIL PROCEDURE – notice to produce – subterranean land compulsorily subdivided off and resumed for toll road tunnel – subdivision allegedly procured by fraud – use of land allegedly a trespass – measure of damages – relevance of advice to government on sale of toll road to private consortium CIVIL PROCEDURE – public interest immunity – cabinet submissions – documents annexed to cabinet submissions – public interest in production – public interest in secrecy – immunity claim upheld – costs

CRIME – Sentence – Manslaughter by unlawful and dangerous act – use of car as weapon to pin deceased to garage – non-exculpatory provocation – attendance at deceased’s home for lawful purposes – mental health issues – Bugmy factors – Special Circumstances – Effect of accumulation on ratio – sentence imposed

CIVIL PROCEDURE – appeal – security for costs – stay of proceedings pending provision of security – jurisdictional requirement – criteria relevant to exercise of power – corporate trustee appellant – unpaid gross sum costs order – stay not sought

CRIME — Crown appeal against sentence — respondent pleaded guilty to dealing with funds reasonably suspected of being proceeds of crime under s.1 93C(1) Crimes Act 1900 (six counts), attempt to obtain financial advantage by deception under s.192E(1)(b) Crimes Act 1900 (one count) and dealing with money reasonably suspected of being proceeds of crime under s.400.9(1) Criminal Code (Cth) (one count) — two further s.193C(1) offences taken into account on sentence — aggregate sentence imposed for s.193C(1) and s.192E(1)(b) offences — total effective sentence of imprisonment for five years and six months with minimum term of two years and eight months — offences involved total of about $103 million over 15-month period — first ground asserted error by failing to assess individually the objective seriousness of each of the s.193C(1) offences — same indicative sentences nominated for four offences despite very significant differences between amount of money and number of transactions involved in each count — each s.193C(1) charge a rolled-up count—approach to assessment of objective seriousness of rolled-up counts - capacity to consider challenge to indicative sentences as components of aggregate sentence — first ground of appeal established — second ground asserted that overall sentence manifestly inadequate— error concerning s.193C(1) indicative sentences contributed to imposition of manifestly inadequate sentence — significant objective gravity of offences — combined 40% discount for pleas of guilty and assistance to authorities — other strong subjective factors — held overall sentence manifestly inadequate — consideration of residual discretion — substantial ongoing assistance to authorities in new areas since imposition of sentence in District Court — earliest release date imminent — function of Crown sentence appeals — exceptional and unusual case — held Court should not resentence — Crown appeal dismissed

CRIMINAL LAW – appeal against sentence – error conceded in respect of the failure to refer to and apply s16A(2AAA) of the Crimes Act 1914 (Cth) – resentence

CRIME – acquittal after Judge-alone trial – child sexual abuse offences allegedly committed in 1985 – complainant a 12-year old student at school where accused was a teacher – Crown appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001 – appeal on grounds involving questions of law alone – unchallenged evidence admitted at trial as tendency evidence – accused had committed child sexual abuse offences against two other 13-year old students from school between 1985 and 1987– first ground asserted that Judge failed to take tendency evidence into account in acquitting accused – second ground asserted that, if tendency evidence taken into account, Judge erred by failing to record findings concerning tendency evidence - consideration of significance of unchallenged tendency evidence – duty to give reasons – first ground rejected (by majority) – second ground upheld (by majority) – whether discretion should be exercised to quash acquittals and order a new trial – discretionary considerations - held (by majority) that acquittals should not be quashed and a new trial ordered – Crown appeal dismissed - acquittals of accused affirmed under s.107(5) Crimes (Appeal and Review) Act 2001

CRIMINAL LAW – appeal – appeal against sentence – larceny – dishonestly obtain property by deception – whether sentencing judge erred in failing to consider the remorse and contrition of the offender when discounting sentence for early guilty plea – whether sentencing judge erred in failing to consider special circumstances

COSTS – interlocutory applications where costs reserved – model litigant principles

CORPORATIONS – winding up – where company in liquidation – examination of persons about examinable affairs of corporation – application to set aside summonses issued under Corporations Act s 596B for examination – whether examinees have an arguable case to discharge the examination summonses for alleged material non-disclosure – where examinees are parties to pending civil proceedings – where substantial overlap between issues in pending civil proceedings and company’s examinable affairs – where no evidence that liquidators are involved or presently intend to be involved in pending civil proceedings – no material nondisclosure – whether, if summons not discharged, examination should be conducted in private – whether forensic advantage afforded to party means examination should be conducted in private

REAL PROPERTY – leases – construction of lease – whether rent amount is inclusive or exclusive of GST – where lessor claims unpaid components of rent due to erroneous invoices and failure to adjust for movement in the Consumer Price Index – where lessor claims unpaid outgoings despite departure from outgoings regime under the lease – whether conventional estoppel or estoppel by representation precludes lessor from claiming the actual rent owed under the lease – whether departure from outgoings regime under the lease defeats claim for unpaid outgoings

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 – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme

PROCEDURE – application for disqualification – application refused – no question of principle

NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered

EVIDENCE — Opinion evidence — Exceptions — Expert opinion — whether blood splatter evidence based on expert knowledge or based on observations of similarities between bloodstains that jurors could make themselves — knowledge and experience required to make such a comparison ­— evidence admissible as expert opinion.

HIGH RISK OFFENDER – final hearing – continuing detention order no longer sought – an extended supervision order sought in the alternative – accommodation found – decision reserved as to conditions of the extended supervision order – agreed orders revoking interim detention order and imposing an interim supervision order

EVIDENCE ON COMMISSION – ex parte application seeking orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) – Request For Assistance from United States District Court for the District of New Jersey – Request For Assistance for witness to be examined but not documents to be produced – need to give request effect to the fullest extent possible – application granted regarding examination of witness

COSTS – application by plaintiff for costs against first defendant and cross-claimants – where first defendant filed submitting appearance – where there was no clearly successful party as between plaintiff and cross-claimants – no point of principle

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — industrial action – dispute orders – Industrial Relations Act (1996) (NSW) (“the Act”) – statutory scheme – statutory interpretation – objects of the Act – maximum penalty – construction of s 139(4) of the Act – industrial organisation – history of the industrial organisation –Federation registered as industrial organisation – whether different legal species of organisation than its predecessor – validity of dispute orders – whether validity of dispute orders can be the subject of collateral attack in enforcement proceedings – whether dispute orders required the Federation to do something it cannot do – procedural fairness – notice of members of Federation –members not notified of the dispute orders – whether dispute orders were manifestly ambiguous and unclear – contravention of dispute orders – whether multiple separate contraventions of dispute orders – whether dispute orders imposed separate and distinct obligations on the industrial organisation – single course of conduct – assessment of penalty – sentencing principles – prior contraventions as a factor in sentencing – principle of totality – objective factors – nature and extent of contravening conduct – seriousness of conduct – deliberateness of conduct – loss and damage caused – circumstances of contravention – previous breach of dispute orders – general deterrence – specific deterrence – subjective factors – orders

PARTNERSHIP – partnership accounts – value of partnership assets – goodwill – family law practice – assets taken over by one former partner – files with future fee-earning potential – “established workforce” – practice manual with precedents – whether amounting to transfer of goodwill of partnership practice – basis and method of valuation – “fair value” – partners’ obligations on dissolution – Partnership Act 1892, ss 38 and 39 EQUITY – accounts and receivers – dissolution of partnership – unpaid liabilities exceed realised assets – form of account – application to have former partners pay monies to put receivers in funds to discharge partnership liabilities – former partners’ responsibility for receivers’ fees

CRIME – TRIAL – murder – pre-trial hearing to determine admissibility of evidence – question of admissibility of evidence of telephone calls made by the accused – capacity of evidence to rationally affect the assessment of facts in issue – question of prejudice to the accused – questioning admissibility of expert evidence of common or typical injury occasioned by ligature strangulation – whether such evidence is based on specialised knowledge – whether probative value outweighed by prejudicial effect

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – order in place pursuant to Vexatious Proceedings Act 2008 – appeal without leave sought – contravention of vexatious proceedings order – appeal dismissed

EQUITY – trusts and trustees – judicial advice – whether jurisdiction under s 63 Trustee Act 1925 (NSW) engaged – whether Court should exercise discretion to provide advice – where allegations of breach of duty against trustees and director of trustees – whether trustees should incur the expense of defending claims if there is another party with a personal interest in defending the same claims

CORPORATIONS – liquidators’ remuneration –application by liquidators for orders pursuant to Insolvency Practice Schedule (Corporations), ss 60-10 and 60-20 – whether remuneration claimed by liquidators is reasonable – application by liquidators for special leave to distribute surplus to contributories.

EQUITY – trusts and trustees – beneficial ownership of real property – express trust – resulting trust – Quistclose trust – where Torrens title land allegedly transferred to be held on trust for transferor and/or for purpose which later failed and/or with no consideration for transferor’s “equity” in the land or for false consideration ESTOPPEL – proprietary estoppel – where first plaintiff transferred property to second defendant allegedly assuming it would be reconveyed to him and claims that property was held in trust for him – whether second defendant is estopped from denying the trust BANKING AND FINANCE – cheque account – whether first plaintiff was the legal and beneficial owner of “the money” standing to the credit of its bank account – where first plaintiff provided defendants with signed blank cheques and signed debit card for first plaintiff’s bank account and online access to that account – scope of the defendants’ authority to withdraw from the account by completing signed blank cheques as payable to cash in specified amounts, by using debit card and by making online transactions – whether the moneys withdrawn were stolen and held on trust for the first plaintiff in the hands of the defendants RESTITUTION – money had and received – whether defendants unjustly enriched by receipt of moneys withdrawn form and allegedly stolen from first plaintiff’s bank account TORTS – alleged conversion by defendants of signed blank cheques for first plaintiff’s bank account – alleged conversion by defendants of notes and coins received from the bank when defendants made withdrawals using signed blank cheques competed by defendants

PRACTICE AND PROCEDURE – Application for referral to pro-bono panel for assistance – whether special reasons for referral established PRACTICE AND PROCEDURE – Application to vacate hearing date

PROCEDURE – stay of proceedings – application to stay proceedings in Local Court – pending application to transfer proceedings to Supreme Court

CIVIL PROCEDURE – Default judgment – Default in filing a defence or entering appearance – application for default judgment under Uniform Civil Procedure Rules 2005, r 16.10 – where plaintiff brings proceedings against the defendant in July 2021 by Statement of Claim – where the defendant has not filed a defence and has not taken an active part in the proceedings – where orders for substituted service were made and the defendant was served with the statement of claim and notice of motion – whether default judgment should be granted. JUDGMENTS AND ORDERS – Cost – Calculating costs – Judgment in foreign currency – where the plaintiff loaned money to the defendant in United States dollars – where the defendant failed to repay the principal and interest owed on the loan calculated in United States dollars – where the plaintiff claims damages in Australian dollars – whether the Court can make a judgment for damages in Australian dollars – where the date of currency conversion is the date which the court enforces judgment.

HIGH RISK OFFENDERS – extended supervision order – conditions – content of conditions to reflect First Nations cultural heritage and understanding of the person to whom the conditions apply – form of conditions to reflect cognitive needs of person to whom the conditions apply – use of simplified language and visual cues

APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary’s decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16 CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a “necessary party” –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary

ADMINISTRATIVE LAW – decisions of Legal Services Commissioner – judicial review – whether decisions reviewable – whether decisions perverse or legally unreasonable APPEALS – judicial review – proceeding summarily dismissed – order interlocutory – leave to appeal –grant of leave where judgment effectively a final determination of proceeding – whether reasonable cause of action disclosed LEGAL PRACTITIONERS – complaints to Legal Services Commissioner about conduct of own lawyers – complaints dismissed – application to review decisions not entertained – scope of Commissioner’s discretion

COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of knowingly giving false evidence before the Independent Commission against Corruption – failure to consider substantial component of defendant’s case – significance to defendant of subject-matter of false statement – significance first raised by prosecutor COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of giving false evidence before the Independent Commission against Corruption – defendant called expert evidence of cognitive impairment and memory loss – whether judge failed to apply criminal burden and standard of proof – whether burden cast on defence – judgment to be read as a whole