Cases and authorities

CRIME — appeals — appeal against sentence —sentencing judge erred in the consideration of pre-sentence custody – applicant’s borderline intellectual functioning – moral culpability – understanding of offending – re-sentence – independent exercise of discretion – findings on objective seriousness at first instance – applicant’s subjective factors – applicant’s mental condition – dietary considerations – hardships – conditions in custody – COVID-19 – rat infestation – objective gravity of offending – general deterrence – special circumstances – sentence quashed – aggregate term of imprisonment imposed

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant was arrested at a time when there were outstanding charges pending against him in the Local Court – Where the applicant was sentenced to a term of imprisonment in respect of those pending charges and served that sentence whilst awaiting sentence on other matters – Whether the failure of the sentencing judge to fully backdate the sentences amounted to a miscarriage of justice – Where applicant’s solicitor acquiesced to the approach taken by the sentencing judge – Ground of appeal not established – Leave to appeal granted – Appeal dismissed CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant sought to argue that his conditions of custody had been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence – Where applicant had been sentenced before the onset of the pandemic – Court unable to intervene where, after the time of sentence, an offender’s conditions of custody are rendered more onerous because of the response of the prison authorities to the pandemic – Ground of appeal not established – Leave to appeal granted – Appeal dismissed

EVIDENCE – admissibility of oral evidence of two young, female witnesses – where accused would have been forensically forced to reveal prejudicial material in order to impugn the credibility of witnesses – focus of s 137 on “danger” of unfair prejudice and thereby potentiality – documentary evidence pertaining to two witnesses admissible – oral evidence excluded

COSTS – application for indemnity costs – plaintiff’s false defamation claim – cross-claim for rescission for fraud – potential issue of reliance – later informal offer of compromise – indemnity costs awarded from time of offer only

CIVIL PROCEDURE — court administration — case management — application for summary judgment — costs orders

CRIME – trial – pre-trial hearing to determine admissibility of disputed evidence – hearsay evidence

PLEADINGS – summary dismissal – strike out – application for summary dismissal or strike out on the grounds that plaintiffs have pleaded inconsistent allegations, one of which must be known to the plaintiffs to be false – allegations are pleaded in the alternative and involve legal and factual analysis – not a case where plaintiffs must know one of the allegations is false – application dismissed – further application to summarily dismiss or strike out oppression claim as disclosing no reasonable cause of action – application dismissed – no question of principle

CRIME – appeal and review – appeal from Local Court to Supreme Court under s 56(1)(c) of the Crimes (Appeal and Review) Act – question of law alone – assault occasioning actual bodily harm – domestic violence – admissions made by defendant in ERISP – Magistrate satisfied complainant and defendant both truthful to police – Magistrate failed to make factual or legal findings – requirement to make findings an aspect of judicial duty to give reasons – appeal allowed – decision set aside – proceedings remitted CRIME – appeal and review – judicial review – Supreme Court Act s 69 – failure to give adequate reasons – can be jurisdictional error – error of law on the face of the record

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court of Australia – related proceedings in Federal Court – special federal matter – property proceedings in Supreme Court – dispute over priorities of interests in land – bankruptcy of borrower/registered proprietor – proceedings in Federal Court for orders under ss 120 and 121 Bankruptcy Act arsing from interests of claimants – jurisdiction of Supreme Court in bankruptcy – more appropriate court - interests of justice

PROCEDURE – Applicants seeking leave to consolidate proceedings – Whether proceedings of a similar nature – Whether issues of fact common to proceedings – Commonality of witnesses – Alternatives to consolidation of proceedings – Prospect of substantial delays – Trial management – Inconvenience – Saving of time – Whether one proceeding is further advanced than another

CONTRACT – damages – plaintiffs successful in an action for breach of contract against the first defendant – the parties contest four issues in relation to the calculation of damages for breach of contract – the first defendant is found to have breached a “buyback” agreement to repurchase two parcels of real estate at the same purchase price at which they were acquired by the plaintiffs from third parties – the plaintiffs originally completed the purchase of the two properties from the third parties – the plaintiffs held the properties for rental out under government schemes providing incentives to the plaintiffs for investment in affordable rental property – after the first defendant declined to repurchase both properties the plaintiffs continued to hold the properties – the first plaintiff took an assignment of the second plaintiff’s interest in the two properties in an earlier judgment the Court found the defendant had breached the buyback agreement but that the plaintiffs were not entitled to specific performance of the buyback agreement – the parties have not agreed upon a single date for the assessment of damages – the parties also disagree as to what adjustments should be made to the calculation of the plaintiffs’ claim for damages for breach of contract – whether in the calculation of the plaintiffs’ claim for damages: (1) the full benefits received by the plaintiff under the NRAS scheme for investing in the two properties as rental housing need not be brought to account to reduce the plaintiff’s claim, because the plaintiffs had allegedly forgone market rent on the properties as a result of accepting the NRAS benefits; (2) depreciation claimed on the two properties on the rental properties claimed in the plaintiffs’ tax returns should be included in or excluded from the plaintiff’s losses; (3) tax savings associated with the plaintiffs’ future ownership of the rental properties should be brought to account in reduction of the plaintiff’s losses; and (4) capital gains associated with the plaintiffs’ ownership of the two rental properties up to the time of the Court’s first judgment should be brought to account in reduction of the plaintiff’s losses. SPECIFIC PERFORMANCE – plaintiffs’ claim for the remedy of specific performance is denied but the Court finds that the defendant has breached the contract for the sale of land – plaintiffs seek damages for breach of contract – whether the appropriate date for the assessment of damages for breach of contract is the date of the breach or a later date when the remedy of specific performance is no longer available – whether it was reasonable for the plaintiffs to seek specific performance of the contract such that the date for the assessment of damages should be deferred until after the date of breach.

Practice and procedure – Practice Note SC Eq 3 para 62 – Commercial List Statement – Application to strike out where Commercial List Statement is deficient but not to the level where it is plain that it should be struck out

FAMILY LAW — Children — Adoption — whether adoption clearly preferable and in the best interests of the child — whether the Court should order that child is an Aboriginal child pursuant to s 4(2) of the Adoption Act — whether the consent of the birth parents ought to be dispensed with — change of name

CRIME – jury trial – defence objection to proposed examination-in-chief of Crown witness – Crown seeks to play recordings already in evidence and then ask questions concerning content of recordings – whether leading questions in breach of s.37 Evidence Act 1995 – held not leading questions – even if approach utilised leading questions, questions permissible under s.37(1)(d) as they relate to a matter not in dispute – objection overruled

APPEAL – NCAT – leave to appeal – principles – appeal on question of law, with leave – leave refused – no issue of principle or of general importance – no error of law ADMINISTRATIVE LAW – jurisdiction of NCAT – strata titles – broad jurisdiction – importance of finality – alleged denial of procedural fairness – none disclosed STATUTORY INTERPRETATION – Strata Schemes Management Act 2015 (NSW) – common property – alteration of definition of boundary between lots – common property on upper surface of floor, inner surface of wall and under surface of ceiling – cosmetic work still on common property – rights and obligations of owners corporation

BAIL – bail conditions – application to revoke all conditions – whether Crown case doomed to fail – where applicant contends charges are legally and factually incapable of success – whether present application permits consideration of such contentions – application refused

ADMINISTRATIVE LAW – judicial review – decision Racing Appeals Tribunal – errors of law – construction of Australian Rules of Racing – whether evidence capable of supporting findings of fact HORSE RACING – offences – administration of prohibited substance – preparation supplied by veterinarian – preparation containing excessive quantity of cobalt – whether knowledge of presence of prohibited substance required – whether knowledge of on-supply or administration required – whether plaintiff party to breaches of Rules by others

CIVIL PROCEDURE – Application for summary dismissal of proceedings – whether no reasonable cause of action disclosed

JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17

APPEAL – leave to appeal – discretionary decision on matter of practice and procedure – admission of further evidence on remitter – no issue of principle, public importance or injustice

APPREHENED BIAS – previous dismissal of motion in proceedings at first instance – no question of principle

APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application APPEAL – motion to adduce further evidence – where appellant sought to examine opponent’s lawyers as to conduct of trial – full transcript of trial available APPEAL – challenge to finding as to credibility of police informant – finding not inconsistent with objective evidence nor glaringly improbable – allegation not put to police officer in cross-examination CIVIL PROCEDURE – hearings – application to vacate hearing – challenge to covid-19 protocol requiring persons entering court to be vaccinated – matter not fixed for live hearing – hearing by audio-visual link or telephone available – applicant homeless – inconvenience where no live hearing CIVIL PROCEDURE – application for trial by jury – application for appeal to be heard by jury – no jury available on appeal COURT AND JUDGES – procedural fairness – reasonable apprehension of bias – plaintiff wrongly accused State of concealing documents - judge told plaintiff he owed the State an apology – whether lay observer might think judge might be biased TORTS – malicious prosecution – evidence of improper purpose – whether prosecutor concealed evidence – improper motive said to be revenge for prior successful claim by appellant

CRIME – appeal – victim under 18 – fact taken into account in assessment of objective seriousness – not an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – error – resentenced – enter with intent to commit serious indictable offence – aggravated break and enter and commit serous indictable offence – in each case, serious indictable offence not an aggravating feature of the principal offence – lesser sentence warranted

ENVIRONMENT AND PLANNING – offences – appeal – failure to comply with condition of environment protection licence – condition to maintain plant in a proper and efficient condition – meaning of “maintain” – release of ammonia gas during upgrade works – circuit piping not able to contain ammonia – Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 applied

BAIL – release application – bail refused in Local and Supreme Court for original charges – bail refused in Local Court for new charges – whether this Court has jurisdiction to hear release application with respect to new charges – construction of Bail Act 2013 – bail and bail decisions are specific to offences – no bail decision has been made by the Supreme Court – no jurisdiction to hear application – no view expressed as to merits

CRIME — Appeals — Appeal against sentence — Whether sentencing judge erred in the assessment of the objective seriousness of the firearm offence — Sentencing judge appeared to treat the presence of ammunition as an aggravating factor — Unfair to have regard to ammunition as an aggravating factor where there was no evidence that the ammunition could be used with the firearm — The relevance of the ammunition required closer scrutiny — House v The King error established CRIME — Appeals — Appeal against sentence — Whether sentence manifestly excessive — Circumstances of this case departed from the circumstances contemplated in the armed robbery guideline judgment — Starting point in excess of that contemplated in the guideline was warranted CRIME — Appeals — Appeal against sentence — Whether the court proceeded on an erroneous view of the facts — Fresh evidence of child sexual abuse disclosed post-sentence — Unnecessary to determine CRIME — Appeals — Appeal against sentence — Appeal allowed — Resentence — Child sexual abuse — Post-traumatic stress disorder leading to substance abuse — Mental health conditions were present at time of offending — Willingness to seek assistance for mental health and substance use issues — Lesser sentence imposed

STATED CASE – prosecution under Work Health and Safety Act 2011 – primary judge published reasons but not final orders – utility of stated case procedure – necessity to identify “pure question of law” – not a means to address or consider whether alleged finding of mixed fact and law affected by legal error – primary judge has power to submit question or multiple questions prior to making final orders – question as to power of primary judge to withdraw properly submitted questions – does not arise – question posed contending that primary judge had obligation to address components of an element of the offence in a specified order – no such requirement – questions asked concerning relevance of the reasonable foreseeability of the relevant risk and the accident in which the risk manifested – Court limited to strictly answering question posed – questions answered “yes, but not necessarily determinative” – balance of questions posed do not arise or not appropriate to answer

EVIDENCE – admissibility of expert evidence regarding extreme right-wing ideology – counsel for accused resisted experts giving extensive evidence from the witness box – whether general evidence about extreme right-wing organisations, symbols, and ideology is irrelevant – concern that jury would give expert evidence about ideological matters undue weight – evidence admissible

CRIMINAL PROCEDURE – whether the Crown prosecutor may provide the jury with a documentary timeline of asserted key events during opening address – where the timeline has selected pictures and text from the foreshadowed evidence – discretion of counsel to determine what events they submit to be key – provision of document permitted

CIVIL PROCEDURE – Leave to adduce expert evidence – Where expert to produce report utilising materials obtained by search order subsequently set aside ab initio

INCORPORATED ASSOCIATION — Members’ rights and remedies — Whether winding up on just and equitable grounds should be ordered — Whether winding up order should be stayed for period.

SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — substantial competing claim of another of the deceased’s sons, the defendant executor — reasonably large estate — no provision made for plaintiff in the deceased’s will — plaintiff and the deceased estranged for 30 years — estrangement provoked by the deceased in wake of divorce from plaintiff’s and defendant’s father and subsequent family rift — family provision litigation by deceased against own parents’ estates diverted inheritance from plaintiff — extensive series of written statements by the deceased explaining exclusion of plaintiff from will — further provision ordered

GUARANTEE – enforcement of guarantee – plaintiff supplies goods to the first defendant – the second defendant guarantees the first defendant’s financial obligations to the plaintiff – first defendant defaults on financial obligations to the plaintiff – first defendant goes into liquidation – whether the second defendant is liable as surety – quantification of the second defendant’s liability as surety. CIVIL PROCEDURE – undefended hearing – plaintiff brings proceedings against the second defendant and other defendants in April 2020 – the first and second defendants filed a Defence to the Statement of Claim filed by a solicitor but the second defendant’s retainer of legal representation was thereafter terminated – where second defendant has not taken an active part in the proceedings after the termination of legal representation – whether adequate notice of hearing given to the second defendant – whether necessary to consider the second defendant’s pleaded defences.

COSTS — part/party costs — bases of quantification – ordinary basis – indemnity basis — no plain unreasonableness, delinquency or other special or unusual feature justifying departure from the usual position that party/party costs be assessed on the ordinary basis CIVIL PROCEDURE – hearings – suppression and non-publication orders – no such orders previously made – no anonymity to be lifted CIVIL PROCEDURE – judgments and orders – whether order in the nature of mandamus should be varied to require performance forthwith – variation not necessary or appropriate

EVIDENCE – admissibility of evidence pursuant to Evidence Act 1995 (NSW) s 87(1)(c) – whether representations are capable of being characterised as “in furtherance of the common purpose” – discussion of principles underpinning the “co-conspirator’s rule” at common law and pursuant to Evidence Act – admissibility for hearsay purpose of representations determined on their own facts and in their own contexts

EQUITY — Equitable remedies — Ex parte interlocutory injunctions — Where applicant failed to disclose material facts — Whether culpable non-disclosure

COSTS – Whether Court should order the successful party to pay the costs of a part of his claim abandoned – HELD – that the Court should not depart from the general rule that Court does not differentiate between issues on which the successful party won and those on which he did not.

CIVIL PROCEDURE — Alternative dispute resolution — Court referral to referee — Court’s use of report — Whether the referee was entitled to rely on the evidence that it did

APPEAL – stay application refused – no issue of principle

APPEAL – stay application refused – no issue of principle

CRIME – APPEAL – sentence appeal – breach of ESO – breaches do not give rise to increased risk of offending for which ESO imposed – manifest excess

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to two offences concerning the illegal importation and distribution of tobacco products – Where applicant submitted that an intensive correction order was appropriate – Where sentencing judge imposed a full-time custodial sentence – Whether sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing a sentence of full-time imprisonment – Whether sentencing judge failed to engage with applicant’s submissions regarding appropriateness of an intensive correction order – Whether sentencing judge erred in his assessment of the objective seriousness of the offences – Whether the sentence imposed was manifestly excessive

CIVIL PROCEDURE — offer of compromise — where plaintiff accepted offer of compromise — where leave sought to withdraw acceptance — where grant of leave not opposed by defendant — where leave granted

CONTRACTS – general contractual principles – construction – interpretation of critical terms of the contract – whether compliance with a contractual mechanism for claiming progress payments was a condition precedent to payment of the entire contract sum – implied terms – necessary to give business efficacy to the contract – contractor entitled to payment of unpaid contract sum on completion of works CONTRACTS – breach of contract – forms of breach – amount of damages calculated as a result of defective work and delay – whether defective work and 141 week delay amounted to “substantial” breaches – whether contract validly terminated BUILDING AND CONSTRUCTION – determination of the cost of construction of the work EQUITY – whether estoppel by convention available – no mutual assumption adopted – no sufficient detriment to party seeking estoppel

LAND LAW – possession of land – where registered proprietor is bankrupt – right of trustee to obtain possession

VOLUNTARY ASSOCIATIONS – Construction of written constitution – Where annual general meeting (AGM) was to be held by, at latest, the end of February 2022 – Where term of office to end at “next AGM” – Where no AGM was held – Whether term of office expired

ADMINISTRATIVE LAW – judicial review of Secretary’s decision not to approve exhumation – plaintiff’s husband and son buried in same grave many years ago – plaintiff applied for approval to exhume remains for re-interment at different cemetery pursuant to Public Health Regulation 2012 (NSW), cl 70 – surviving children of marriage opposed exhumation applications – Secretary’s delegate refused application on basis of children’s opposition – whether children were “nearest surviving relatives” in respect of the deceased son – whether applications required to be determined separately – whether delegate entitled to have regard to children’s objections to application in respect of the deceased son – whether remains buried in consecrated land – whether procedural fairness required delegate to give notice of aspects of the decision in advance - Secretary’s decision not circumscribed as plaintiff contended – no denial of procedural fairness – summons dismissed