Cases and authorities

NEGLIGENCE — Negligent advice to settle claim for weekly workers’ compensation payments — whether claim for damages for professional negligence was “for personal injury damages” as defined COSTS — Whether costs capped at $10,000 — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “for personal injury damages” — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “personal injury damages” — Civil Liability Act 2002 (NSW), s 11

CRIME — Crown appeals — whether excessive allowance for totality — reconciling principles of cumulation and concurrency with totality principle —where offenders sentenced to both State and Commonwealth offences — whether sentences manifestly inadequate — Crown appeal against Rostankovksi dismissed — Crown appeal against Hausman allowed in limited respect — sentence which would have been imposed but for past and future assistance to authorities — Hausman resentenced — cross-appeals against severity of sentences — both respondents/cross-applicants convicted of one count of blackmail contrary to s 249K(2) of the Crimes Act (NSW) and one count of laundering the proceeds of the commission of the blackmail offence contrary to ss 400.3(1) and 11.2A(1) of the Criminal Code (Cth) — Rostankovski additionally convicted of one count of aid and abet fraud contrary to ss 135.1(3) and 11.2(1) of the Criminal Code (Cth) — separate sentences and non-parole periods for State and Commonwealth offences — application of s 19(3) of the Crimes Act (Cth) Rostankovski sentenced to imprisonment for 10 years and 5 months with a non-parole period of 7 years and 2 months — Hausman sentenced to imprisonment for 8 years with a non-parole period of 6 years — whether patent errors of sentencing principle required intervention in a resentencing exercise for both cross-applicants — error in dealing with Rostankovski’s prior good character — Crown conceded disparity between Rostankovski’s sentence and Hausman’s sentence for blackmail — no lesser sentence warranted in law — appeals dismissed

CRIME — Appeals — Appeal against conviction — Where applicant convicted of murder — Where alternative verdict of manslaughter left to jury —Circumstantial case CRIME — Appeals — Appeal against conviction — Directions to jury regarding use of evidence of lies and post offence conduct — Inference of consciousness of guilt — No miscarriage as evidence was not intractably neutral as between murder and manslaughter — No miscarriage as not seeking the direction was objectively justifiable as a rational forensic decision CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Directions to jury regarding reasonable hypotheses consistent with manslaughter — No miscarriage of justice as there was no need to explain further hypotheses CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Evidence supported the view that the applicant acted with intent to inflict at least really serious injury — Verdict of guilty supported on the whole of the evidence

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant convicted of two counts of perverting the course of justice – Where applicant submitted on sentence that the matter could appropriately be dealt with by the imposition of an Intensive Correction Order – Where the sentencing judge concluded that the objective seriousness of the offending was such that the only appropriate sentence was one of full-time custody – Whether the sentencing judge erred in failing to appropriately consider s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – No error established – No further decision to be made once the sentencing judge had determined that the only appropriate sentence was one of full time custody – Leave to appeal granted – Appeal dismissed

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether erroneous direction of trial judge as to the legal test in s 61HA(3)(c) of the Crimes Act resulted in a miscarriage of justice – whether admission of evidence in new trial proceedings under s 306I of the Criminal Procedure Act was unfairly prejudicial – adducing of evidence excluded at pre-trial under s 130A of the Criminal Procedure Act – admissibility of evidence relating to sexual experience under s 293 of the Criminal Procedure Act – whether verdict of the jury was unreasonable

COSTS — Costs assessment — Procedure CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Non-appearance of plaintiff

CRIME – Appeal from Local Court to Supreme Court – stay pending appeal – appeal filed after conviction but before sentence – plaintiffs then sentenced – operation of stay pending appeal

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

SUCCESSION – Family provision – Application for approval for release under s 95 of the Succession Act 2006 (NSW) Ch 3

LAND LAW – co-ownership – statutory trust for sale – discretion of court – whether seeking order for sale is precluded by an estoppel – statements made by plaintiff that she would not make any claim on a house the defendant had placed on the land – plaintiff recognises entitlement of defendant to an adjustment to reflect contribution to sale proceeds attributable to the house – no estoppel precludes plaintiff from seeking orders for sale – not shown that partition would be more beneficial for co-owners – orders for sale to be made – Conveyancing Act 1919 (NSW), s 66G

CORPORATIONS – oppression – whether conduct of shareholder and director in dealing with suppliers is oppressive – whether director preferred interests of another business – grounds of oppression not established – no buy out order granted CORPORATIONS – winding up – application to wind up on just and equitable grounds – where breakdown of relations and loss of confidence between equal shareholders and directors in quasi-partnership – irretrievable breakdown of relationship – winding up order made

MENTAL HEALTH – forensic patient – extension of status as forensic patient – schizophrenia – presently psychotic – parties in agreement that extension order should be made – consideration of statutory criteria – whether unacceptable risk of causing serious harm to others – consideration of other adequate, less restrictive management regimes under the Mental Health Act and Guardianship Act – length of time – different durations proposed in expert reports – transition period – extension of three years granted

CONTEMPT – civil contempt – penalties – imprisonment – where contemnor should only be committed to prison as a last resort – where common law purposes and principles of sentencing apply – high degree of necessity for deterrence – where contemnor engaged in serious, deliberate and contumacious conduct in attempt to frustrate search orders made by the Court – consideration of apology to the Court– where contemnor is admitted solicitor and officer of the Court – where conduct of contemnor and evidence regarding penalty warrant custodial sentence – contemnor to serve a term of three months’ imprisonment CONTEMPT – civil contempt – penalties – where contemnor should only be committed to prison as a last resort – where contemnor engaged in serious conduct in breach of prohibited contact order – where contemnor maintains innocence despite proffering unconditional apology to the Court – where contemnor’s conduct was secondary to that of co-contemnor – imposition of a fine – suspension of sentence conditional upon performance of period of community service SENTENCING – civil contempt – penalties – imprisonment – where contemnor should only be committed to prison as a last resort – where common law purposes and principles of sentencing apply – where Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to civil contempt proceedings – high degree of necessity for deterrence – where contemnor engaged in serious, deliberate and contumacious conduct in attempt to frustrate search orders made by the Court – relevance of apology – where contemnor is admitted solicitor of the Court – where conduct of contemnor and evidence regarding penalty warrant custodial sentence – contemnor to serve a term of three months’ imprisonment SENTENCING – contempt – civil contempt – where common law purposes and principles of sentencing apply – where Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to civil contempt proceedings – relevant factors of sentence – seriousness of contempt – contemnor’s culpability – motive for contempt – expression of contrition by contemnor – antecedents of contemnor – contemnor’s personal circumstances – necessity of deterrence – necessity to punish contemptuous conduct

COSTS – party/party – exceptions to general rule that costs follow the event – misconduct of a successful party – including strongly adverse findings as to credit – whether Court should depart from the usual rule that costs follow the event – where decisions on costs turn on their own facts – where successful party had entered into a settlement agreement in respect of the proceedings – where successful party was not the moving party in the proceedings – no departure from general rule – successful party entitled to his costs

COSTS — Whether indemnity costs should be awarded where the plaintiff has achieved a result better than what it would have received if the defendants accepted an informal offer made prior to the commencement of proceedings — Whether cross-claimant can recover costs on the ordinary basis

COSTS — Whether the matter should be referred back to AFCA to re-determine the issue of legal costs — Whether the plaintiff should pay the defendants’ costs of the proceedings in this Court where the defendants were mostly successful

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.

CIVIL PROCEDURE — Temporary stay of proceedings pending proceedings in other Court JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact — Where alleged fraud comprised of a complex alleged conspiracy between 23 defendants — Proceedings dismissed CIVIL PROCEDURE — Dismissal of proceedings — Abuse of process — Embarassing pleadings — Where serious allegations of fraud made by plaintiffs not adequately particularised — Where plaintiffs seek a stay pending determination of related proceedings — Whether abuse of process to leave proceedings involving serious allegations of fraud in abeyance CIVIL PROCEDURE — Parties — Vexatious litigants — Declaration by Court’s own motion — Whether declaration appropriate

COSTS — Whether offers were genuine offers of compromise — Whether costs should be awarded on the ordinary basis or an indemnity basis — Whether interest should be awarded on costs — Whether orders for set-off and apportionment of costs should be made JUDGMENTS AND ORDERS — Stay of execution — Whether stay should be ordered pending an appeal or quantification of costs

COSTS — Whether costs of two motions to set aside subpoenas should be costs in the cause or borne by each of the parties — Which party should bear the costs of complying with subpoena

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.

CIVIL PROCEDURE – Judgments – Suppression and non-publication – Application for redaction – Possible identification of children through identification of parent – Possible identification of children through reference to related proceedings – Order for use of pseudonym in judgment

CRIME – Appeals – Appeal against conviction –Unresponsive disclosure by witness that accused in custody – Whether refusal to discharge jury a miscarriage of justice – Requirement of material irregularity for miscarriage to arise – Significance of direction given to jury – No prejudice to applicant – No miscarriage of justice – No error in discretionary decision not to discharge jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Whether open to jury to be satisfied beyond reasonable doubt that applicant knew complainants were not of requisite age or did not have honest and reasonable belief that they were of age – Jury entitled to reach this conclusion CRIME – Appeals – Appeal against sentence – No error in sentencing judge making adverse findings re insight and rehabilitation – Inapplicable standard non-parole period applied by sentencing judge – Error giving rise to need to re-sentence – Crown submitted that the offender be re-sentenced on a more adverse factual basis than at first instance – Knowledge of the victims’ ages – “Exceptional case” – Procedural fairness extended to both parties – No other (lesser) sentence warranted – Appeal dismissed

SENTENCING — Appeal against sentence — where sentencing judge accepted that Bugmy principles were enlivened on the evidence — whether judge gave proper consideration to that factor — whether childhood deprivation reduced the offender’s moral culpability

CRIME — Appeals — Appeals against conviction — Unreasonable verdict — Judge alone trial — Single charge – Perverting the course of justice — Character evidence — Reasonable doubt about evidence of critical Crown witness

CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a “different offence” to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIMINAL LAW – sentence appeal – manslaughter – joint criminal enterprise – victim stabbed – sentencing judge not able to find beyond reasonable doubt which co‑offender stabbed victim – sentencing judge found knife obtained by applicant used to kill victim – challenge to finding – sentencing judge had advantage of observing witnesses – challenge rejected – whether sentencing judge could have and should have found on balance of probabilities that the applicant did not stab victim – finding could have been made and would have assisted applicant – no error in not making finding – whether sentencing judge erred in finding that offence partly committed in public place – offenders chased victim through streets before victim stabbed in backyard – no error – discount for offer to plead guilty to manslaughter prior to trial – 5% discount allowed – sentencing judge erred in considering failure to plead guilty in front of jury – whether sentencing judge erred in failing to find special circumstances – discretionary judgment – no error – applicant re‑sentenced

COSTS – court’s discretion as to costs – rule as to costs where merits of proceeding not heard – where contractual entitlement to indemnity costs – where proceedings precipitated by unreasonable conduct of defendants – where plaintiff in substance succeeded – entitlement to indemnity costs

TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence

CIVIL PROCEDURE – commencement of proceedings – by bankrupt – application by bankrupt before sequestration for review of costs assessment – where Manager, Costs Assessment refused to proceed after sequestration order notified – judicial review proceedings by bankrupt to quash Manager’s decision – whether plaintiff had standing to commence proceedings – proceedings dismissed

HIGH RISK OFFENDER – application for extended supervision order – history of sexual offences committed against girls and women who are developmentally delayed – repeated breaches of child protection legislation resulting in periods of incarceration – breaches concerning in themselves – interim supervision order in place – mandatory examinations indicate continuing risk – extended supervision order imposed – no dispute as to conditions

TORTS — General principles — Damages — Requirement to assess damages following successful appeal — Whether assessment should be undertaken by Court of Appeal in circumstances where adverse credit findings made by primary judge — Where quantification of damages turns primarily on expert medical evidence — Proportionality and convenience

Industrial law (Cth) – Nature of employment relationship – Employee or independent contractor – Where second appellant backpacker with limited work experience sought construction work from respondent – Where respondent in business of labour‑hire – Where respondent and second appellant entered written contract describing second appellant as "self‑employed contractor" – Where respondent assigned second appellant to work on construction site run by respondent's client – Where second appellant agreed with respondent to co‑operate with respondent and client in all respects in supply of his labour to client – Where no contract between second appellant and client – Where respondent paid second appellant for work performed for client – Whether second appellant employee of respondent. Words and phrases – "business of supplying labour", "contract of service", "contractor", "control", "employee", "independent contractor", "label", "labour‑hire", "legal rights and obligations", "multifactorial approach", "own business", "own business/employer's business dichotomy", "performance of work", "serving in the business of the employer", "subsequent conduct", "totality of the relationship", "triangular labour-hire arrangement", "written contract". Fair Work Act 2009 (Cth), ss 13, 14. 1

CRIMINAL LAW – release application – show cause obligation – cause shown – charge of attempting to possess a commercial quantity drug – heroin – very large importation – bail concerns and unacceptable risks – surety – electronic monitoring – bail granted with strict conditions

CIVIL PROCEDURE — application for summary judgment — where only defence relied on easily remedied deficiency in pleading CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution

CORPORATIONS – voluntary administration – deed of company arrangement – where corporation’s sole business is as trustee of trust – where corporation’s assets ae held as trustee and liabilities were incurred as trustee – where applicants appointed as voluntary administrators and deed administrators – where applicants also appointed as receivers and managers of trust assets – application for determination of remuneration as voluntary administrators, deed administrators and receivers and managers – inherent equitable jurisdiction to allow trustee’s remuneration, costs and expenses to be paid out of trust assets – remuneration of court-appointed receivers – discharge and release of court-appointed receivers

CIVIL – High Risk Terrorism Offender – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim relief – application for appointment of a psychiatrist and psychologist – application for interim detention order – alternative application for interim supervision order – validity of application pre-conditions in ss 23(3)(b) and 37(4)(b) – preliminary hearing principles – whether weigh probative value of supporting documentation – relevance of defendant’s evidence – statutory scheme – meaning of serious terrorism offence – nature of offences under Pt 5.3 of the Criminal Code – principles regarding unacceptable risk – threats – ss 25(3) and 39(3) factors – reports of any other assessment by a qualified psychiatrist or registered psychologist – reports prepared by Corrective Services NSW or the Police as to the extent to which the offender can reasonably and practicably be managed in the community – any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate – willingness and level of the offender’s participation in treatment or rehabilitation and initiatives – any beliefs or commitments of the offender that support engaging or participating in terrorism activities – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant poses an unacceptable risk of committing a serious terrorism offence – safety of the community – discretion to make an interim detention order or interim supervision order – interim supervision order insufficient to manage risks – interim detention order made – orders made for appointment of experts

HIGH RISK OFFENDERS — Extended supervision orders — Application HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — Determination of risk — consideration of criminal history — where only one serious violence offence — where multiple violent offences

HIGH RISK OFFENDERS – Preliminary hearing – application for interim supervision order – violent sexual offending – criminogenic needs “largely unchanged” – risk factors of substance abuse and impulsivity – numerous breaches of parole and previous supervision orders – limited time spent in community – consideration of statutory criteria – application granted

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 – 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.

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – serious sex offender – no controversy about making of order – dispute limited to conditions imposed – discussion of appropriateness of various conditions

CORPORATIONS – winding up – company liable to pay tax estimates of $4.9 million – company fails to revoke estimate – Commissioner serves statutory demand – whether application to set aside statutory demand are proceedings which “relate to the recovery of the unpaid amount of the estimate” under item 2, s 268-40, sch 1, Taxation Administration Act at [29]-[50] – Transtar followed – whether “other reason why the demand should be set aside” at [52]-[55].

CRIME – appeal – objective seriousness – whether cause of injury by applicant open on the evidence – natural justice – effect of mental condition and deprivation and environment of abuse during youth – normalisation of violence – appeal granted on so some grounds – resentencing

CRIME – appeal – assistance to authorities – Ellis discount – insufficient discount applied – appeal granted – resentenced

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether failure to reach verdict on certain counts informs the reasonableness of jury’s guilty verdicts — whether evidentiary inconsistencies affected complainant’s reliability

LAND LAW — Easements — Substantial interference with easements — Servient owner not entitled to place signs, fencing and other objects including 17 CCTV cameras in vicinity of easement detracting from dominant tenement’s reasonable enjoyment of rights — Extent of dominant owner’s ancillary rights including repair and maintenance and use of leaf blower TORTS — Private nuisance — Interference with use and enjoyment of land — Substantial and unreasonable interference — 17 CCTV cameras on servient property recording dominant owner’s use of easement

EVIDENCE — business record — advice about trade mark application — relevance — part of surrounding circumstances in which litigation settled by deed — whether advice fell within s69(3) Evidence Act 1995 (NSW) exception as having been prepared “in connection with” or “in contemplation of” legal proceedings — exception did not apply — advice admissible — business record — memoranda of legal fees and disbursements — whether memoranda fell within s 69(3)(a) Evidence Act exception — purpose for which documents created — exception applied — memoranda not admissible — published decision of a delegate under the Trade Marks Act 1995 (Cth) — whether s91 Evidence Act excludes decision — decision admitted — without prejudice communications and draft pleadings — whether admissible under s131 Evidence Act — admissible under s131(2)(g) CIVIL PROCEDURE — admissions — withdrawal — application unsupported by evidence — claimed representative error— no sufficient or just basis to grant leave under Uniform Civil Procedure Rules, r 17.2(2) — withdrawal refused — pleadings — reply — whether necessary — effect of Uniform Civil Procedure Rules, 14.27 — whether issue adequately joined over reasonableness of restraint — effect of r 14.14 — need to plead specifically any matter that if not pleaded specifically may take the opposite party by surprise — no unfair surprise as the result of absence of reply — effect of r 14.2 — proceedings may be tried without further pleadings — restraint issue adequately defined by pleadings supported by evidence and parties’ agreed issues and facts — no unfair surprise from absence of reply COMMERCE — restraint of trade — where restraints agreed in settlement of disputed use of trade marks passing off and other common law and statutory claims — agreement to cease use of trade marks and claiming commercial connection which did not exist — whether the restraint of trade doctrine applies to deed settling actual and foreshadowed litigation — where parties legally represented and settlement partly affected by Court order — public interest in upholding genuine and proper compromises of litigation, which result in restraints agreed by commercial parties — public interest in finality of agreements settling litigation — doctrine does not apply COMMERCE — whether restraints unlawful — validity and reasonableness — public policy — whether restraints against the public interest — Restraints of Trade Act 1976 (NSW), s4 — restraints valid CONTRACTS — construction — principles — whether various aspects of deed ambiguous — no ambiguity — whether restraints breached — breaches established — whether discretion to make orders should be exercised — orders made

CRIME – pretrial hearing – charge of money laundering under s.400.3(1) Criminal Code (Cth) – accused a solicitor charged with laundering proceeds of crime through trust account – consideration of directions to be given to jury concerning duties of solicitor and trust accounts – appropriate to give jury short directions early in the trial - rulings concerning Crown objections to tender of parts of conversations recorded under telephone intercept warrant

NEGLIGENCE – duty not to reduce support for supported land – excavation works carried out near boundary with adjoining land – whether works reduced support provided to adjoining land – whether excavation works and steps taken to restore support to adjoining land were undertaken negligently – failure to install retaining wall on part of boundary – dry stone retaining wall installed along another part of boundary – wall not designed and appropriately constructed to cater for hydrostatic pressure and migration of soil – defendants’ conduct held to be negligent and a breach of duty – breach of duty held to have caused damage to structures on adjoining land – mandatory injunctive relief to be granted to require defendants to carry out works to restore support to adjoining land – Conveyancing Act 1919 (NSW), s 177 LAND LAW – encroachment of buildings – dry stone retaining wall encroaches to a minor degree upon adjoining land – wall inadequate to maintain support for adjoining land – encroachment itself does not cause any substantial impediment or restriction upon use of adjoining land – inadequacies in wall able to be remedied by works that do not involve removal of wall – order sought for removal of wall in order to remove encroachment – large cost of removal and replacement of wall – held not appropriate in the circumstances to make order for removal of the wall – Encroachment of Buildings Act 1922 (NSW), s 3