Cases and authorities

CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — evidence — application for exclusion of evidence

CRIME — appeal and review — appeal from Local Court to Supreme Court — by person against whom an interlocutory order is made with leave on a question of law alone — whether question of law alone — whether leave should be granted — only one out of seven grounds involved a question of law alone — no reason for leave to be granted CRIMINAL PROCEDURE — subpoena — application to set aside — illegitimate use of subpoena to obtain in effect discovery — no legitimate forensic purpose — not “on the cards” that the documents would assist the plaintiff’s case APPEALS — procedural fairness — failure to give reasons — adequacy of reasons — reasons adequate

HIGH RISK OFFENDER – extended supervision order whether an ESO should be made in issue – length of ESO and conditions in issue – order made for 18 months

CIVIL PROCEDURE – Uniform Civil Procedure Rules (“UCPR”), r 55.9(6) - money paid into Court after the sale of a car parking space under powers conferred on the local council (“the Council”) under Local Government Act 1993, s 713 – owner of the car space is a company that was deregistered before the Council’s sale of the car parking space – the Council seeks by motion the deduction of its costs of these proceedings from the funds in Court – persons interested in the deregistered company apply by motion for the payment of the funds in Court out to them – persons interested in the deregistered company foreshadow cross-claims against the Council – what orders should be made on the Council’s motion for the payment of its costs from the funds in Court – what orders should be made on the motion brought by the persons interested in the deregistered company.

CRIME — murder – intention to kill — complicity — joint criminal enterprise — same level of culpability among offenders despite different roles SENTENCING — aggravating factors — planned or organised criminal activity — substantial harm, injury, loss or damage — victim impact — use of weapon SENTENCING — mitigating factors — late plea of guilty — utilitarian value of plea reduced in absence of acceptable justification for delay — mental illness — extensive history of anxiety and depression — low level of intellectual capacity — mental condition not causally connected to offending — prospects of rehabilitation — remorse — unlikely to re-offend SENTENCING — relevant factors on sentence — co‑offenders — joint criminal enterprise — parity — offenders given same starting point for sentences — deterrence — emphasis on general deterrence to reflect affront of gun violence in public — need for general deterrence, retribution and denunciation reduced due to level of cognitive capacity and mental condition — extensive history of anxiety and depression — special circumstances — avoidance of double counting

CORPORATIONS — directors and officers — director accused of appropriating company’s funds for personal use — no constitution – no board meetings – no minutes – few records – cash business – whether director authorised to expend funds without resolution of board, principles at [89] – onus of proof – serious allegation – Briginshaw – insufficient evidence – strict liability to account for unauthorised payment of home electricity bill.

COSTS — Security for costs — On appeal – Security for costs of appeal provided by appellant in form of bank guarantee – Terms of bank guarantee required appellant to pay costs to respondent “in the event that its appeal is unsuccessful and it is required to do so by Court Order” – where interlocutory costs orders made against appellant – where appellant substantially successful in appeal – Finding that proceedings not “unsuccessful” and guarantee not engaged – Order that security be released COSTS — Security for costs — Security provided in form of bank guarantee — Held, costs ancillary to administering bank guarantee not recoverable in circumstances where guarantee was an indulgence for convenience of party providing security

CONTRACTS – repudiation – whether the Builder repudiated the Lump Sum Contract – whether the Builder’s claim for payment under the Lump Sum Contract constituted repudiation – whether the Builder’s “failure to resume work” constituted repudiatory conduct RESTITUTION – mistake – restitution of money paid by the Owners to the Builder – whether a comparison of sums paid under the Lump Sum Contract with the value of the work completed revealed whether there had been an overpayment by the Owners to the Builder CIVIL PROCEDURE – Owners sought leave to reopen case after judgment to tender additional evidence concerning loss – election had been made to claim damages on a particular basis – whether there were special circumstances that justified departure from the ordinary rule that a party is bound by the case that it conducts to judgment

CRIMINAL LAW – application for leave to appeal against sentence – where applicant convicted of firearm offences – where no suggestion that firearms held for sale or storage for any third party – whether sentence imposed manifestly excessive

CRIMINAL LAW – appeal against sentence – cultivation of indictable quantity and commercial quantity of cannabis – further offences of supply and proceeds of crime taken into account – inferences available from acknowledgement of guilt to further offences – whether error in finding that cash found on premises was proceeds of sale of cannabis – whether error in characterising offending as “small cottage industry” or “small commercial enterprise” – whether sentence manifestly excessive

EVIDENCE – admissibility of voice identification evidence by “ad hoc expert” – where police officer had limited interactions with the accused – where there are no particular features of the accused’s voice, language or accent – where the jury will have heard played more extensive interviews with accused – where asserted opinion evidence is irrelevant and the police officer is not an “ad hoc expert” – ancillary rejection based on probative/prejudicial “discretion”

CRIMINAL LAW – proceeds of crime – restraining orders – ex parte – orders made

CRIMINAL LAW – proceeds of crime – restraining orders – ex parte – orders made

CRIMINAL LAW – proceeds of crime – restraining orders – ex parte – orders made

CRIMINAL LAW – proceeds of crime – consent orders

CRIMINAL LAW – proceeds of crime – consent orders

CRIMINAL LAW – proceeds of crime – consent orders

CRIMINAL LAW – proceeds of crime – consent orders

CRIMINAL LAW – proceeds of crime – consent orders

COSTS – Costs disproportionate to amount at stake — Whether administrator’s conduct of litigation unreasonable so as to reduce entitlement to indemnity for costs from estate — Whether proceedings should have been brought in District Court — “proceedings for the administration of the estate” — District Court Act 1973 (NSW), s 134(1)(f) SUCCESSION — Executors and administrators — Administrator sues executors de son tort to recover estate property

CONTRACTS – termination of contract for the sale of land due to breach of condition by the purchaser in lodging a caveat over the subject land – whether the condition relied upon by the vendor in terminating the contract was in fact a condition – whether the vendor induced or invited the purchaser to breach the contract – whether a failure on the part of the vendor to complete the contract by date specified in notice to complete precluded the vendor for terminating for purchaser’s breach of condition – whether readiness, willingness and ability to perform one’s contractual obligations necessary to exercise an express right of termination – whether the vendor’s right to terminate was lost by effluxion of time

CIVIL PROCEDURE — Pleadings — Defamation — Whether pleadings contain sufficient particulars — Particulars required to demonstrate publication where publication disseminated via the internet — Whether leave should be granted for plaintiff to replead DEFAMATION — Pleadings — Serious harm element in s 10A of the Defamation Act 2005 (NSW) — Definition of serious harm — Discussion of relevance of Lachaux v Independent Print Ltd and another [2020] AC 612 in Australia

REMOVAL OF TUTOR – whether first defendant’s tutor regularly appointed – whether evidence to support first defendant’s legal incapacity or inability to manage his affairs – whether tutor should be removed

CIVIL PROCEDURE – alternative dispute resolution – Court referral to a referee – Uniform Civil Procedure Rules 2005, r 20 – proceedings between co-owners referred to a referee to determine their respective financial and non-financial contributions to the property to determine their final interests in it, varying those interests from a baseline of equal ownership – the defendants seek orders that the referee's report be adopted – the plaintiffs resist the making of such an order – previous judgment indicating that the report will be adopted but could be varied and the defendants were given options as to which course they wish to take in relation to the adoption and variation of the report – defendants declare an option – upon what terms should the report be adopted – what variation should be made to the report. TRUSTEES FOR SALE – co-owners of land – one co-owner seeks upon the trustees for sale – whether the trustees for sale should be appointed – one co-owner seeks to buy out the other co-owner – whether the appointment of trustees for sale should be further stayed.

ADMINISTRATIVE LAW — Jurisdictional error — Decision by Review Panel under Motor Accidents Compensation Act 1999 (NSW) — Whether Panel failed to respond to a substantial argument — Whether Panel decided the matter on a basis of which the plaintiff was not given notice — Function of Panel to make a new assessment

CLIENT LEGAL PRIVILEGE – defamation proceedings – waiver – no question of principle

CIVIL PROCEDURE – subpoenas – application pursuant to Rule 7.3 Uniform Civil Procedure Rules 2005 (NSW) for leave to issue subpoena to produce – application for leave to issue subpoena to give evidence – legitimate forensic purpose – subpoena may lack a legitimate forensic purpose if the terms “are so wide that it is oppressive” – improper if sought for a spurious reason – improper where no “conceivable relation” with the proceeding – leave refused where subpoena issued as a substitute for due process – leave refused where requiring persons to attend court for examination not authorised by statute or rules HIGH RISK OFFENDERS – interlocutory application – extended supervision order – application for revocation pursuant to order under s 13 Crimes (High Risk Offenders) Act 2006 (NSW)

EQUITY — Trusts and trustees — Constructive trusts — Rule in Barnes v Addy — Whether the in personam exception to indefeasibility applies to the first and second limb of Barnes v Addy EQUITY – Breach of fiduciary duty – where fiduciary held interest transferred to herself on constructive trust for principal – assessment of equitable compensation where fiduciary transferred assets to herself and sons for no consideration LAND LAW — Torrens title — Exceptions to indefeasibility — Rights in personam

JUDGMENTS AND ORDERS – Court of Appeal – Review of previous decision of the Court of Appeal – Application to set aside decision pursuant to UCPR r 36.16 or court’s inherent jurisdiction – No identified matter raised in appeal overlooked – No misconception, misapprehension, oversight or inadvertence – Application dismissed COSTS – Party/Party – Unmeritorious application seeking to reargue unsuccessful appeal – Indemnity costs awarded

NEGLIGENCE – Causation – Purely psychiatric injury – Post-traumatic stress disorder – Where trial judge disbelieved plaintiff’s evidence as to the event she witnessed and as to her symptoms – Whether error in fact-finding established – importance of paying due deference to the trial judge’s advantage in hearing the evidence

DEFAMATION – defamatory matter – series of letters published conveying defamatory imputations – inference that all of the letters were published by the same person – whether the appellant the publisher of any or all of the letters DEFAMATION – remedies – where primary judge awarded general and aggravated damages – whether primary judge’s assessment of damages was excessive – whether respondents entitled to award of aggravated damages COSTS – party/party – whether costs should be assessed on an indemnity basis

CRIME — Appeal and review — Judicial review — Where Supreme Court refused to consider or otherwise deal with applicant’s third application for inquiry into convictions under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) — Where decision-maker considered that the matters raised by the applicant had been dealt with in two prior unsuccessful applications — Whether decision was legally unreasonable — Whether medical evidence was considered — Whether new hypotheses had been “invented” by the judges who determined the previous applications

EVIDENCE – objection to evidence being relied upon by prosecution to prove alleged consciousness of guilt – evidence of destruction of computer and hard drive by accused – problem of “bootstrapping” in context of alleged consciousness of guilt evidence – test for use in that way founded upon potentiality – evidence admitted for that purpose

CRIME – jury trial – jury of 15 empanelled – juror raises mental health issue on second day of trial – juror discharged under s.53B(a) Jury Act 1977 – another juror tested positive for COVID-19 on rapid antigen testing – juror discharged under s.53B(d) Jury Act 1977 – order that trial continue with jury of 13 persons

CRIME – jury trial – charge of money laundering under s.400.3(1) Criminal Code (Cth) – entire trial subject to time limited non-publication order to protect administration of justice in future related trial of other accused persons – Applicant Witness to be called by Crown at both trials – Applicant Witness seeks further protective orders by way of a non-publication order, non-disclosure or suppression order and closed court order – Applicant Witness housed in Special Purpose Centre – calculus of risk approach applied - test of necessity under s.8 Court Suppression and Non-publication Orders Act 2010 not met – no proper basis for orders sought – application refused

No point of principle

APPEAL – Appeal from Local Court pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) – Error of law – Where telephone intercept material was ruled inadmissible as evidentiary certificate under s 18(3) and s 18(4) of the Telecommunications (Interception and Access) Act 1979 (Cth) was found to have no application to the proceedings – Where charge dismissed as no prima facie case without the telephone intercept material – Whether appeal lies against the order dismissing the charge where alleged error occurred in an antecedent determination that resulted in the order dismissing the charge – Whether appeal pursuant to s 56 is available if appeal under s 57 was available but not brought – Whether appeal involves a question of law alone – Whether the court should address question of law that is not particularised in notice of appeal – Appeal dismissed ADMINISTRATIVE LAW – Judicial Review – Whether reviewable error of law – Error of law on the face of the record – Whether reasons for determining admissibility of evidence constitutes part of the record – No error on the face of the record ADMINISTRATIVE LAW – Judicial Review – Whether reviewable error of law – Jurisdictional error – Difference between jurisdictional error and mere error in the exercise of jurisdiction – Asserted error is not jurisdictional

CONTEMPT OF COURT – sentencing – breach of consent orders preventing conduct with respect to residential building work – fences – plea of guilty to 18 acts of contempt – contempt committed during non-parole period of a sentence imposed for a similar breach of the same orders – establishing a company structure to minimise prospect of detection and to distance himself from the offending – no genuine contrition – onerous conditions in custody due to COVID-19 – 24-hour lockdown is not good for your health - no substantial delay – late plea of guilty – wisdom of a new line of work – third sentence for breaches of the same orders – discretion to impose term of imprisonment exercised

EQUITY — Trusts and trustees — Express trusts — Where no declaration of trust — Whether benefit of contract pr plaintiff’s alleged interest therein held on trust — Whether defendant acquired interest in contract subject to any interest of the plaintiff therein or “subject to the equities” EQUITY — Fiduciary duties — Partners and joint venturers — Where plaintiff negotiating with a third party company to enter into a joint venture agreement — Where business of that company purchased by defendant prior to conclusion of formal joint venture or partnership agreement — Where undertaking by defendant to “honour the intent of previous discussions” — Whether sufficient to give rise to fiduciary duties and breached when defendant obtained for itself benefit of contract in respect of which “joint” tender for installation of patient entertainment systems had been lodged CONTRACTS — Formation — Whether binding contractual undertaking to “honour the intent of previous discussions” —Whether agreement to agree, or agreement to negotiate — Whether undertaking breached ESTOPPEL — Proprietary estoppel — Promissory estoppel — Conventional estoppel — Whether defendant estopped from resiling from undertaking

CIVIL PROCEDURE — Summary disposal — Whether proceedings against the eighth defendant should be dismissed — Whether the claim identifies any representation and if so whether it has been sufficiently particularised CIVIL PROCEDURE — Interim preservation — Freezing orders — Whether freezing order should be issued against the eighth defendant where there have been allegations of deceit made against the eighth defendant

MISLEADING OR DECEPTIVE CONDUCT — capital raising for ‘start-up’ company — founder assigns intellectual property rights to his company, the third defendant — founder amends constitution to ensure control — founder secrets amended constitution from investors — founder then assigns IP to the ‘start-up’ company — fellow director raises $950,000 investment from family and friends based on founder’s representations — representations false in material particulars or materially misleading — misleading or deceptive conduct — representations made by founder personally — third defendant ‘knowingly involved’ — indirect causation — representations relied upon by investors causing damage — assessment of damages — investors ‘locked in’ — damages were monies invested —declaratory relief. APPORTIONABLE CLAIMS — section 1041E Corporations Act 2001 (Cth) not an apportionable claim — not properly pleaded, nor established.

ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94 CONSTITUTIONAL LAW – inconsistency – State law having discriminatory impact on ethnic group – whether inconsistent with Racial Discrimination Act 1975 (Cth), ss 9, 10; Constitution, s 109 HUMAN RIGHTS – discrimination – grounds – racial discrimination – ethnic origin – restrictions on use of language – disparate impact – prison security – extreme high risk inmate – communications with family and lawyers – Racial Discrimination Act 1975 (Cth), ss 9, 10 PRISONERS – administration – supervision of visits and telephone calls – requirement to communicate in English – validity of Regulation – Commissioner’s monitoring policy – validity of policy – application to legal visits and communication with legal representatives – prisoners’ right to lawyer of choice and access to courts – whether criminal record check authorised – power to refuse visits by legal practitioners for any other reason STATUTORY INTERPRETATION – regulation-making power – authorising regulations limiting common law rights – sufficiency of general words – administration of prisons – rights of access to courts and legal advice – Crimes (Administration of Sentences) Regulation 2014, cll 15, 101, 116, 119

CRIME – appeal against convictions following refusal of application to discharge jury – references in prosecutor’s address to complainant’s lack of sexual experience – s 293 Criminal Procedure Act – retractions by Crown and trial judge’s directions to jury overcame prejudice – appeal dismissed

APPEALS — From jury verdict — Misdirection or non-direction — whether an anti-tendency direction was required — where trial counsel did not seek an anti-tendency direction — whether trial judge erred by not giving direction SENTENCING — Appeal against sentence — whether fact on which sentence was based was proved beyond reasonable doubt — whether it was open to trial judge to find existence of fact beyond reasonable doubt SENTENCING — Appeal against sentence — whether trial judge erred in assessing prospects of rehabilitation — whether it was open to trial judge to assess prospects as slim

CIVIL PROCEDURE – Parties – Vexatious litigants – Declaration of – Stay of proceedings

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) ss 4(1), 8, 13(1), 17(2), 22, 31 – Challenge to an adjudication determination on the grounds that there was no jurisdiction because a payment claim had not been served and, separately, that the Adjudicator denied the plaintiff procedural fairness – HELD – Both challenges made out – Adjudication determination quashed

CRIME — murder — death of a child — circumstantial case EVIDENCE — opinion evidence — exceptions — expert opinion CRIMINAL PROCEDURE — trial — judge alone

EVIDENCE — tendency evidence — significant probative value ­— probative value outweighs danger of unfair prejudice

EVIDENCE – tender of summary evidence – Evidence Act 1995 (NSW), s 50 – whether report is a summary of voluminous or complex evidence incapable of convenient examination

CONTRACTS – termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – performance by landlord not insisted upon during this period – where certain rights under the agreement for lease expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned CONTRACTS – termination – frustration – agreement for lease – where landlord agreed to carry out works to construct shopping centre and to grant lease of part of shopping centre to tenant – development consent obtained – where parties contemplated incorporation of department store into shopping centre – where development application for incorporation of department store refused – whether agreement for lease was varied to incorporate plans for department store CONTRACTS – termination – frustration – agreement for lease – landlord to perform works for construction of shopping centre development – where those works were authorised by and subject to a development consent obtained in 2008 – where parties operated under common assumption that landlord would be able to carry out works lawfully in accordance with development consent – neither party responsible under agreement for maintaining that state of affairs – development consent lapsed in 2014 prior to commencement of works – works subsequently unable to be performed lawfully – whether agreement frustrated – whether lapse of development consent resulted in a “radical difference” in circumstances of performance – whether landlord responsible for lapse of development consent LEASES AND TENANCIES – default and termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – where performance not insisted upon – where certain rights under the agreement expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned – whether by conduct and correspondence parties mutually intended that contract was not to be performed