Cases and authorities

CIVIL PROCEDURE — Interim preservation — Search orders — Grounds on which ordered — Competing applications by the Plaintiff and First Defendant in relation to search orders made by the Court — By its application, the Plaintiff seeks orders for a mapping analysis to be conducted in respect of the documents seized pursuant to the Court’s search orders — By his application, the First Defendant seeks an order that the Court’s search orders be set aside for material non-disclosure — The First Defendant also resists the Plaintiff’s application for a mapping analysis to be conducted and seeks usual orders for the progress of the proceedings — Consideration of whether there was any material non-disclosure by the Plaintiff at the ex parte hearing at which the search orders were obtained — Consideration of whether the Plaintiff is entitled to orders by which the independent forensic computer experts appointed by the Court are to conduct a mapping analysis in respect of the documents seized and/or imaged pursuant to the search orders — Held: no material non-disclosure by the Plaintiff — The Plaintiff is entitled to orders by which the independent forensic computer experts appointed by the Court are to conduct a mapping analysis in respect of the documents seized and/or imaged pursuant to the search orders and produce a report outlining their findings, on conditions imposed by the Court

VEXATIOUS PROCEEDINGS – application for leave to commence proceedings – no question of principle

CRIME — release applications pending determination of appeals — applicants convicted of conspiracy to commit the common law offence of wilful misconduct in public office — applicants currently serving sentences following conviction — ss 22 and 74 Bail Act considered — whether “special or exceptional circumstances” established by applicants — no special and exceptional circumstances demonstrated — release applications dismissed

SENTENCING – Murder – Trial by jury – Verdict of guilty to offence of murder – Where deceased’s death caused by blunt force trauma – Where offender and deceased in domestic relationship – Where evidence demonstrated offender was jealous and possessive of deceased – Whether intent to kill could be established by extent of injuries inflicted on deceased and offender’s expertise as a martial arts fighter – Where disposal of deceased’s body in bushland an aggravating factor – Where offender allegedly sexually assaulted as a child – Whether causal connection between offender’s history of child sexual assault and his issues of jealousy and anger – Whether moral culpability reduced by reason of offender’s alleged history of child sexual assault – Where offender subject to conditional liberty at the time of the offence – Where offender diagnosed with substance use disorder – Where offender’s prospects of rehabilitation guarded due to long-standing drug abuse and refusal to accept responsibility for the offence – Where defence case facilitated the procedural administration of justice

CRIME – Sentence – Murder – Three murders on separate occasions – Premeditation and extensive planning – context of organised criminal activity – Life sentences CRIME — Sentence – Accessory after the fact – Getaway driver

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of superannuation fund give trustee power to levy fee on members and accumulate trustee capital – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where superannuation fund operates under profit-to-member structure with nominal capital – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

COSTS – where the plaintiff was substantially successful in the first proceedings – the parties have since been engaged in negotiations and argument about the final form of a Conveyancing Act 1919, s 88B instrument and a Deed of Release – mixed result in the negotiations – the plaintiff was partially successful on a procedural Motion since the first judgment – what orders are appropriate for the period since the first judgment. LAND LAW – Easements – Registration of Easements – Section 88B instrument – final form of section 88B instrument agreed upon by the parties with the assistance of directions from the Court on a relief hearing.

HIGH RISK OFFENDER – application for interim orders – whether court satisfied that the matters alleged in supporting documentation would, if proved, justify the making of an extended supervision order or a continuing detention order – court satisfied – interim orders made

CIVIL PROCEDURE – Alternative dispute resolution – the Court determines dispute concerning a joint venture between the plaintiffs and the defendants to develop land – Court finds a joint venture and refers the balance of the proceedings to a referee to determine the quantum of each party’s contribution to the venture – referee’s report received quantifying the respective financial and non-financial contributions of the plaintiffs and the defendants – Court’s use of report – the defendants seek orders that the report be adopted – the plaintiffs resist orders for the adoption of the report – whether the referee’s report fails to account for financial contributions made by the plaintiffs towards improvement of the real property, denies procedural fairness to the plaintiffs, fails to take into account the plaintiffs’ evidence, or fails to disclose adequate reasoning – whether the Court should reject, vary or adopt the report pursuant to Uniform Civil Procedure Rules 2005, r 20.24. LAND LAW – Application for appointment of trustees for sale of land pursuant to Conveyancing Act 1919, s 66G – property owned by first plaintiff and first defendant in equal shares – one of the co-owners resists the application – outstanding dispute between the parties in relation to various property related payments and contributions made by one of the co-owners.

CONSUMER LAW – school buys a bus – some components date from 2012 – bus completed manufacture in 2016 – 2018 compliance plates – sold in 2018 as “new” – VIN numbers – Build Year – compliance plates – meaning of “new” vehicle – case law review at [19]-[32] – misleading and deceptive conduct by silence – reasonable expectation that dealer would disclose Build Year where material difference to Compliance Year – no causation – bus sold at substantial discount – school aware that bus was old stock – bus attractive for other reasons. EVIDENCE – solicitors should not write the expert report: at [40].

NEGLIGENCE – Damages – Economic loss – Earning capacity – Assessing loss of future earning capacity by way of buffer – Where primary judge reduced the period of earning capacity without a sufficient evidentiary basis – Appeal allowed

COSTS — security for costs — where appellants provided security for respondents’ costs of the appeal — where appeal allowed — order for release of sum paid as security

CIVIL PROCEDURE – application to expand scope of leave to appeal after final hearing and determination of appeal – repeated applications COURTS AND JUDGES – bias – repeated applications for recusal on substantially the same grounds – no basis for recusal

EVIDENCE – admissibility – hearsay – business records exception, s 69 Evidence Act 1995 (NSW) – where appellant/tenant introduced soil onto property alleged to be contaminated – where Council issued clean-up notice to respondent/landlord – where respondent commissioned expert report – where samples collected and tested by persons other than author of report – whether report business record of respondent – whether primary judge erred in giving weight to report EVIDENCE – expert reports – where no orders made for service of expert reports – where both parties served expert reports late – where both parties had opportunity to cross-examine experts – whether “exceptional circumstances” for admitting expert report in reply served by respondent – Uniform Civil Procedure Rules 2005 (NSW), r 31.28(4) – whether primary judge erred in House v The King sense DAMAGES – damages awarded for costs of remediating land – where only evidence of quantum was two quotes obtained in preparation of proceedings – where quotes contained hearsay material – where no objection by appellant to admissibility of quotes at trial – where appellant self-represented at trial – whether primary judge erred in giving weight to quotes DAMAGES – damages awarded for unpaid rent – where primary judge made declaration that lease validly terminated by respondent – where appellant remained in possession of property – where no termination order yet made by NCAT – whether residential tenancy agreement remained on foot – whether landlord’s remedy limited to loss of bargain damages

CONTRACTS – Unconscionable conduct – Special disadvantage – Contract for sale of 50% of real property – Advertisement by respondent for $300,000 – One page agreement for $250,000 presented by appellant – Other terms of agreement improvident – Respondent suffering from very poor eyesight – Appellant aware or ought to have been aware of such facts – Appellant unable to surmount high bar for overturning demeanour-based findings that respondent could not read agreement and was unaware of different price – Special disadvantage established – Agreement void – Appeal dismissed CONTRACTS – Remedies – Specific performance – Appellant unable to demonstrate that ready, willing, and able to complete – No entitlement to specific performance in alternative that agreement not void EQUITY – Equitable remedies – Equitable compensation – Order setting aside agreement for unconscionability conditional upon party obtaining relief doing equity – Insufficient evidence of appellant’s expenditure on property or of enhancement to property’s value – Any entitlement offset by appellant’s rent-free enjoyment of property despite void agreement – No compensation payable APPEALS – Procedural fairness – Bias or apprehension of bias – Interventions by primary judge during appellant’s questioning of witnesses – Rejection of evidence and strong adverse findings – Allegations that primary judge lied – Late grant of leave to respondent to amend pleadings – No bias demonstrated CIVIL PROCEDURE – Hearings – Adjournment – Appellant received material from respondent shortly before taking of evidence – Evidence had been served long before – Submissions did not commence for another three weeks – Ample time to respond – No injustice identified CIVIL PROCEDURE – Hearings – Procedural Fairness – Use of audio-visual link – Technology imperfect but no resulting injustice identified CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Primary judge suggested that respondent amend originating process to explicitly plead unconscionability – Case always conducted on basis of unconscionability – No injustice identified

CIVIL PROCEDURE – application to vacate hearing – where admissions by appellants of loan balances outstanding – appellants belatedly sought access to records held by provisional liquidator in aid of potential application to withdraw admissions – primary judge found appellants had access to relevant documents and delayed seeking and reviewing documents – whether appellants deprived of opportunity to review documents – whether error in discretionary decision refusing to vacate the hearing CIVIL PROCEDURE – pleadings – where derivative proceedings on behalf of company to recover management fees – where pleadings alleged certain management fees were “excessive” – defence asserted entitlement to reasonable remuneration – parties had served lay and expert evidence as to reasonable remuneration – respondents’ written opening put in issue whether remuneration was reasonable – whether appellants put on notice of case they had to meet

PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Partnership and contribution claims by corporate appellant as assignee of the rights of the trustees in bankruptcy of two former business associates of respondent – Respondent and two associates previously members of appellant firm operating in Kazakhstan but departed to establish competitor – Prior arbitration in London between appellant and respondent – Prior proceedings in Australia by appellant against two associates – Appeal from permanent stay of claims pursuant to rules for service outside of Australia PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Person outside of Australia a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the court – Whether insufficient prospects of success to warrant service – Whether amount in issue only approximately USD$2,000 – Whether any right of contribution – Appeal on contribution claim dismissed PRIVATE INTERNATIONAL LAW – Orders with extraterritorial effect – Anti-suit injunctions – Anti-suit injunction restraining claims previously determined and adverse findings previously made by arbitration in London – Interpretation of arbitral award – Majority of aspects of contribution claim covered – No error in finding that claim could only amount to USD$2,000 EQUITY – Contribution – Exclusion of right – Knowing assistants – Persons with liabilities not of same nature and extent not entitled to contribution – Persons without clean hands not entitled to contribution – Previous High Court proceedings identified two associates as knowing assistants in dishonest breach of trust, with liability of potentially differing nature and extent – Appellant as assignee not entitled to claim contribution, let alone indemnity EQUITY – Contribution – Exclusion of right – Persons who have not paid just proportion of liability or not willing and able to do so not entitled to contribution – Two associates both bankrupt and one deceased – No prospect of payment – Appellant as assignee not entitled to claim contribution PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Whether partnership formed or carried on business in Australia – Whether partnership agreement governed by Australian law or enforceable or cognizable in an Australian court – Nothing to indicate satisfaction of such requirements – Leave to serve required PRIVATE INTERNATIONAL LAW – Applicable law – Choice of law rules – Partnerships – Place where partnership formed or carries on business – Partnership formed and operated in Kazakhstan – Partnership not governed by Australian law PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Leave to serve – Real and substantial connection – Previous proceedings in Australia resulting in partnership liability, bankruptcy events, unsigned consultancy agreements, citizenship, and litigation funding all insufficient – Existence of partnership assets in Australia – Partnerships can, and possibly only can, be wound up and accounts taken in Australia – Real and substantial connection established – Australia an appropriate forum – Leave to serve granted PARTNERSHIPS AND JOINT VENTURES – Partnership property – Identification – Evidence that partnership has asset-owning and operating entities in Australia – Evidence in the form of engagement contracts, receipts, and Australian bank account APPEALS – Point not taken below – Conduct of trial – Existence of partnership assets not referred to in submissions below nor primary judgment but was in evidence and articulated in affidavit of solicitor – Raised in submissions on appeal and not contested by respondent – Radical effect upon outcome – Permissible to consider on appeal PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Effect of recognition and enforcement – Whether English courts mandated consideration of partnership claim by Australian courts – English courts merely ordered case management stay in context of lis pendens – Judgments say nothing about jurisdiction or appropriateness of Australian courts PRIVATE INTERNATIONAL LAW – Non-exercise of jurisdiction – Inappropriate forum – Existence of real and substantial connection makes Australia an appropriate forum and negates inappropriate forum conclusion APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Appeal from permanent stay – No final determination of rights and obligations of parties – Distinction from final resolution by way of estoppel arising from earlier proceedings – Leave required – Decision nevertheless finally determined ability of appellant to litigate – Appeal heard concurrently and in full – Appeal meritorious – Leave to appeal granted CIVIL PROCEDURE – Time – Extension of time – Motion by appellant seeking extension of time to comply with orders for provision of transcripts, orders, and reasons of English courts – Material of relevance – Material said to already have been in possession of solicitor – Material not responsive and ought to have been obtained prior to hearing – Extension granted but appellant to pay costs of motion APPEALS – Further evidence – Evidence not available at hearing – Evidence of transcripts, orders, and reasons of English courts – Motion not required for Court to have regard to such evidence – No reason to permit other further evidence identified in motion – Motion dismissed with costs COSTS – Party/Party – Appeals – Equal measure of success and failure for each party on appeal – Appellant improved position but incurred and inflicted unnecessary costs – No order as to costs of appeal and primary proceedings

BAIL – application for bail pending appeal – attempt to re-open court’s dismissal of application – no question of principle

CRIME – Sentence appeal – Crown appeal – manifest inadequacy – error in classification of objective seriousness – aggravated break and enter – no error in particular circumstances of offence and offender, particularly non-exculpatory provocation – appeal dismissed.

CRIME – Appeal against sentence – Misapplication of principle – De Simoni – No error – appeal dismissed.

CRIME – appeal against sentence – domestic violence offences – three victims – whether Applicant’s mental health conditions at time of offending properly taken into account on sentence – no error demonstrated – former occupation of Applicant taken into account on sentence – potential for greater degree of hardship in custody as a result of former occupation – Applicant seeks to rely upon post-sentence fresh evidence of assaults and hardship actually experienced in custody – whether fresh evidence admissible – consideration of relevant principles – miscarriage of justice not demonstrated – appeal against sentence dismissed

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Driving offences – Dangerous driving occasioning death – Dangerous driving occasioning grievous bodily harm – Where Crown concedes that trial judge misdirected jury as to onus and standard of proof in respect of voluntariness – Where real prospect that jury did not properly consider whether Crown proved beyond reasonable doubt that applicant not driving involuntarily due to epileptic seizure – Appeal allowed – Convictions quashed – Retrial ordered CRIME – Bail – Appeal bail – Where appeal against conviction successful – Bail not opposed – Bail granted subject to conditions

CRIMINAL LAW – appeal – Crown appeal against sentence – where count carrying a maximum sentence of life imprisonment placed on a Form 1 contrary to s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 – where sentencing proceedings miscarried – where offender to be re-sentenced – whether offender should be re-sentenced in this Court or remitted to the District Court

Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape – Where evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 ("impugned evidence") – Where impugned evidence irrelevant and inadmissible – Where Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety – Where Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury's assessment of reliability or credibility of complainant – Whether no substantial miscarriage of justice had actually occurred. Words and phrases – "contested credibility", "jury's assessment of the reliability or credibility of the complainant", "miscarriage of justice", "natural limitations", "nature and effect of the error", "proviso", "substantial miscarriage of justice". Criminal Code (Qld), s 668E(1A).

CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — Where presumption of insolvency that arose from failure to comply with statutory demand not rebutted. CORPORATIONS — Winding up — Statutory demand — Whether to exercise discretion to stay winding up — Where company submits it will recover funds in near future — Where that was not established on the evidence.

CRIME — Murder — Cold case — Forensic evidence retained — DNA match SENTENCING — Aggravating factors — Home of victim

STAY – stay pending appeal – no question of principle

CIVIL PROCEDURE - amended statement of claim – assault and battery – liability – damages - loss and injury - limitation period - self-represented litigant - costs reserved - orders

PRACTICE AND PROCEDURE – application for summary judgment in respect of insolvent trading claim under Corporations Act 2001 (Cth), ss 588G(2) and 588M – Uniform Civil Procedure Rules 2005 (NSW), r 13.1 – principles applicable to summary judgment application ­– whether plaintiffs’ claims will ultimately succeed – where the defendant has not filed a notice of appearance, has not appeared and has not filed any defence or evidence – whether defendant has no defence to insolvent trading claims. CORPORATIONS – insolvent trading – director’s liability – whether the company was insolvent when the debts were incurred – whether reasonable grounds for suspecting insolvency – whether a reasonable person in the director’s position would have been aware at that time that there were grounds for suspecting that the company was insolvent.

CRIMINAL LAW – aggravated kidnapping charge – foundational offence – murder charge – application for judge alone trial order – community standards – interests of justice – causation – limited factual issues – complexity of medical evidence – relative delays – juvenile offenders – judge alone trial granted

SUCCESSION — Family provision — Determination of final substantive and costs orders to be made following earlier judgments — No point of principle

COSTS – general rule that costs follow the event – departure from general rule – where plaintiff obtained relief less extensive than that sought in Summons – whether plaintiff obtained relief on a case not run – whether the relief actually given was granted pursuant to the Summons or the Cross-Summons – held that the plaintiff is the successful party and there is no good reason to depart from the usual position – order made that the defendants pay the plaintiff’s costs of the proceedings

HEALTH – professional registration and discipline – complaints – where complaint against medical practitioner referred by Health Care Complaints Commission to Director of Proceedings under Health Care Complaints Act 1993 (NSW) s 39(1)(a) – where referral decision challenged – failure to give reasons – reasons subsequently provided ADMINISTRATIVE LAW – whether reviewable error of law – error of law on the face of the record – where Health Care Complaints Commission gave notice of referral decision under Health Care Complaints Act 1993 (NSW) s 41(1) – where notice provided conclusion without explanation – where only semblance of reasons given – failure to provide reasons amounts to error of law on the face of the record – availability of certiorari – reasons subsequently provided – certiorari unavailable HEALTH - professional registration and discipline – complaints – where Director of Proceedings determined to prosecute complaint against medical practitioner before NSW Civil and Administrative Tribunal under Health Care Complaints Act 1993 (NSW) s 90B for unsatisfactory professional conduct and professional misconduct – where prosecution decision challenged – where conduct not capable of constituting professional misconduct – prosecution decision unreasonable as lacking evident and intelligible justification ADMINISTRATIVE LAW – remedies – certiorari – availability of certiorari – where preliminary decision a precondition to ultimate decision affecting legal rights and interests – sufficient connection with ultimate decision to attract certiorari ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – where Tribunal had previously given reasons for setting aside suspension of registration – whether Tribunal reasons relevant to referral decision or prosecution decision in relation to the complaint – different legal tests in each case – Tribunal’s reasons not a mandatory relevant consideration

APPEALS – leave to appeal – challenge to dismissal of summons seeking relief against the Judicial Commission – no arguable reason advanced for concluding that primary judgment erroneous – no prospects of success on an appeal – leave to appeal refused

CIVIL PROCEDURE – Court of Appeal – application for stay of orders pending application for special leave to appeal to High Court – where orders made in underlying proceedings for payment out of funds held in court – where leave to appeal against those payment orders and earlier orders refused by majority of this Court – whether substantial prospect that special leave will be granted – application dismissed

PROCEDURE – no issue of principle

APPEALS – leave to appeal – challenge to dismissal of summons seeking relief against the Judicial Commission – no arguable reason advanced for concluding that primary judgment erroneous – no prospects of success on an appeal – leave to appeal refused

APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons – failure to engage with the case presented by each party – duty to give reasons for rejecting evidence of expert or preferring evidence of one expert over another – whether the primary judge failed to adequately explain why the Appellant’s expert evidence was rejected or why the Respondent’s expert evidence was preferred. BUILDING AND CONSTRUCTION — Contract — Termination — Repudiation – the Respondent, the builder, was shut out from site after repudiatory conduct by the Appellant, the owner – whether the owner repudiated the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – relevance of repudiation to claims for damages for defects – whether repudiation by the owner not relevant – Appellant had accrued rights in respect of work carried out prior to determination of the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – engagement of second builder to complete work of the Respondent including repair of defects of Respondent not exculpatory of Respondent and not relevant to the loss claimed in respect of defects solely the result of work performed by the Respondent – whether owner had accepted the defective work. BUILDING AND CONSTRUCTION — Contract — Damages – proof of loss – adequacy of evidence supporting loss – where failure to mitigate damages not pleaded – whether evidence from the Appellant’s expert that would enable the Appellant’s loss to be calculated albeit on the basis of demolition of the building.

SUCCESSION – Family provision – claim by adult son for provision from the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW) – where primary judge erred in her conclusion that adequate provision had not been made for the adult son’s proper maintenance and advancement in life – where adult son had remained on farming land but had received earlier significant benefits from his parents recognised as an “early inheritance” – extent to which anticipated adverse costs liability from non family provision claim should affect analysis of adequate provision COSTS – Offers of compromise – where offers of compromise were capable of acceptance and did represent a genuine element of compromise – where although the offeror could be said to have obtained a judgment no less favourable than the terms of the offer within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2), the Court “ordered otherwise” as to costs

TORTS – negligent misstatement – whether a planning certificate issued by Council under s 149 of the Environmental Planning and Assessment Act contained negligent misstatements – whether resolution adopted by Council constituted a “policy” – whether any such policy was abandoned TORTS – negligent misstatement – answers to requisitions supplied by vendor of real property did not contain misstatements TORTS – negligent misstatement – s 43A Civil Liability Act – whether the issue of a planning certificate under s 149 Environmental Planning and Assessment Act constituted the exercise of a “special statutory power” TORTS – negligent misstatement – s 733 Local Government Act – whether s 733 exemption from liability applied to s 149 planning certificate issued by Council – whether “advice… relating to the likelihood of any land being flooded”

NEGLIGENCE – damages – challenge to award of damages made by primary judge to injured respondent – whether post-accident surveillance footage of respondent and medical evidence properly taken into account by primary judge – whether primary judge erred in making awards under certain heads of damage – credit-based factual findings by judge – no appellable error by primary judge established WORKERS COMPENSATION – uninsured liabilities – payments of workers compensation by Nominal Insurer to injured worker – partial reimbursement to Nominal Insurer by employers – third party tortfeasor liable for worker’s injury – whether employers able to claim against third party tortfeasor under s 151Z(1)(d) Workers Compensation Act for all of workers compensation payments made – proper construction of s 151Z(1)(d) – meaning of “the person by whom the compensation was paid” – employers properly to be regarded as person by whom compensation paid

APPEAL – applicant convicted of offences in 2007 – received unconditional pardon in 2011 – applied to quash his convictions under s 84 of Crimes (Appeal and Review) Act 2001- whether application under s 84 can only be made if convictions subject to inquiry under Division 4 of Part 7 – Held – no jurisdiction to determine application.

CRIME – bail – application for variation – bail varied

CRIME — Appeals — Appeal against conviction — leave to appeal granted — sexual intercourse without consent in circumstances where the victim had overdosed and was trying to get to hospital — whether Crown closing gave rise to a miscarriage of justice — consideration of principles governing the constraints on the Crown in closing — effect of Crown closing was that the applicant’s version was objectively improbable — defence closing sufficiently dealt with the Crown’s reliance on “perceived social mores and morals” — reference to the applicant being Mongolian was relevant to explain his limited English and ability to engage in meaningful discussion — applicant’s age relevant to the objective probability of consent — lack of “sexual appetite” relevant to objective probability of victim initiating physical conduct — Crown closing was not inappropriate — verdict was not unreasonable — complaint evidence, observations of professionals and CCTV footage assisted the Crown case on consent — open to the jury to consider that the objective probabilities favoured the Crown case and the applicant could not have believed that the victim was consenting — appeal dismissed

CRIME – appeal and review – appeal against sentence – failure to consider properly offender’s youth and prior good behaviour – offender 18 years of age at the time of offending – whether immaturity affected conduct CRIME – appeal and review – procedural fairness – failure to fix period of recognizance when sentencing – offender to be present and sentenced in open court – element of sentence contained only in orders as entered on court record CRIME – appeal and review – procedural fairness – offender’s evidence consistent with defence – evidence elicited by prosecutor – offender given choice to change plea or change evidence on oath – withdrawn evidence treated as affecting credit CRIME – federal offences – drug importation offence – defence available if drugs not to be sold – evidence of predominant personal use – no evidence of intention to profit financially – factor in mitigation SENTENCING – mitigating factors – youth of offender – effects of immaturity – addiction to drug – substance abuse disorder – whether offender had control of drug use – drug use commenced at younger age

CRIMINAL PROCEDURE – suppression and non-publication orders – order made to protect integrity of completed trials in Supreme Court – further trial listed in District Court in two months – refusal to extend order – likelihood of extensive publicity if order lifted – likely prejudice to accused in subsequent trial – weighing principle of open justice and ensuring fairness in forthcoming trial

CRIMINAL LAW – appeal against sentence – aggregate sentence – whether manifestly excessive – drug manufacturing and supply offences – apex of organisation - objective gravity of offending – sentences imposed are within the available range – leave to appeal granted – appeal dismissed

CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — whether sentencing judge erred by holding that intensive correction order was too lenient when considering sentencing options — whether sentencing judge erred by holding that no punishment in addition to supervision could reasonably be imposed by way of conditions under intensive correction order in circumstances where supervision would be suspended by Community Corrections — manifest excess — where patent error not identifiable but error nevertheless inferred from all the circumstances — re-sentence — special circumstances on the basis of youth, previous good character, language difficulties and lack of family support CRIME — violent offences — detain for advantage — circumstances of aggravation

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Varying consent orders appointing trustees for sale to permit sale by private treaty — No issue of principle

LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiff claimed compensation from the Torrens Assurance Fund pursuant to s 129(1)(a) or s 129(1)(c) because of an error recorded by the Registrar-General on a deposited plan — Where the plaintiff claimed it suffered loss or damage because it relied on the deposited plan in making the decision to acquire the land — Where the Registrar-General argued that the chapeau to s 129(1) only refers to the operation of the provisions of the Act dealing with title to land and indefeasibility — Where the Registrar-General claimed that as any loss or damage suffered by the plaintiff was not related to title to land or indefeasibility, the Torrens Assurance Fund is not liable to compensate in the circumstances — Where the Court found that the chapeau to s 129(1) did not imply that any loss or damage suffered as a result of the Act must be in relation to title to land or indefeasibility — Where the Court held that the loss or damage suffered by the plaintiff was materially caused by an act of the Registrar-General in the execution or performance of his functions or duties under the Act pursuant to s 129(1)(a) as well as by an error in the Torrens register pursuant to s 129(1)(c) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) of the Real Property Act 1900 (NSW) because the loss or damage was a consequence of the act or omission of the plaintiff — Where the Court found that relevant officers of the plaintiff acted upon information in the deposited plan as if they were entitled to assume its accuracy because it was contained in official plans — Where the Court found that the material cause of any loss or damage suffered by the plaintiff was an act or omission of the plaintiff for the purposes of s 129(2)(a) and that the plaintiff’s responsibility for the loss or damage extended to the whole of that loss or damage — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(a) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b)(i) of the Real Property Act 1900 (NSW) because the loss or damage was caused by the negligent act or omission of the plaintiff’s solicitors — Where the Registrar-General did not plead section 129(2)(b)(ii) with respect to the loss or damage being compensable under an indemnity given by the solicitors’ professional indemnity insurer — Where the plaintiff’s solicitors and the professional indemnity insurer were not joined to the proceedings — Where the Court found that the solicitors had acted pursuant to their retainer — Where the Court could not make a finding with respect to the professional indemnity insurer because of a lack of evidence — Where the Court held that the Registrar-General had not established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(b) LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the Registrar-General argued that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) of the Real Property Act 1900 (NSW) because the loss or damage arose because of an error or miscalculation in the measurement of land — Where the plaintiff argued that the definition of “measurement” was limited to the process of ascertaining a size within the context of s 129(2) — Where the Registrar-General argued the definition included both the process and the outcome — Where the Court found that “measurement” had the meaning as contended for by the Registrar-General — Where the Court held that the Registrar-General has established that the plaintiff is excluded from the right to compensation by reason of section 129(2)(e) LAND LAW — Torrens title — The register — Whether a deposited plan was registered in the Torrens register under the Real Property Act 1900 (NSW) or in the register of plans under the Conveyancing Act 1919 (NSW) — Where the plaintiff argued the deposited plan was registered in the Torrens register — Where the Registrar-General argued it was registered in the register of plans — Where the Court found that the deposited plan was registered in both the Torrens register and the register of plans