Cases and authorities

CRIMINAL PROCEDURE – Subpoenas – legitimate forensic purpose – oppression – criminal proceedings – NSW Police documents from investigation jointly of NSW Police and AFP – liberal approach to adjectival relevance.

SENTENCING – remarks on sentence – manslaughter – substantial impairment – unprovoked stabbing attack on victim – where offender had been diagnosed with schizophrenia but continued to consume alcohol and was non-compliant with medication – where offender diagnosed with mild intellectual disability and chronic alcoholism – assessment of moral culpability where offender refused interventions for alcohol consumption – offence committed while on ICO for assault while intoxicated – plea of guilty – some evidence of remorse – guarded prospects of rehabilitation

CRIMINAL CODE – continuing detention order – unavailability of control order – control order by Federal Court – relevant principles operating s 105A.7(b) – comparable State legislation – unacceptable risk – less restrictive measures – criminal history – views of sentencing court – expert evidence – concurrent evidence – practical management in the community – treatment and rehabilitation programs – mental health – fixation with religion – suite of measures to mitigate risk – accommodation - community treatment order – control order - NDIS – Firearms order – control order limitations – serious Part 5.3 offence – risks associated with deterioration of mental state and substance abuse – susceptibility to develop violent extremist beliefs – future prospects – duration – continuing detention order

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth parents ought to be dispensed with — Change of name — Registration of adoption plans

CRIME – confiscations – leave to apply for relief from property forfeited to Commonwealth – where application not made in period between s 92A notice and date of forfeiture – whether ‘good reason’ for not having made application in relevant period or ‘special grounds’ justifying grant of leave – impecunious applicant – dependent on her husband – lawfully acquired property preceding distribution of ill-gotten gains – mental health issues in relevant period – husband offender source of solicitor’s instructions – discretion to grant leave – futility – not established

CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — evidence — application for exclusion of evidence — whether probative value of evidence outweighed by the danger of unfair prejudice — Evidence Act 1995 (NSW), ss 135, 137

AGENCY — Power of attorney — Revocation — Declaration that revocation of Powers of Attorney and Enduring Guardianship effective in law EQUITY — Equitable compensation — Whether the defendant holds monies given to him by the plaintiff — Whether monies given to the defendant were gifts — Presumption of gift not rebutted EQUITY — Undue influence — Whether money given to the defendant in return for access to the plaintiff’s other funds transferred under undue influence

CONTRACTS — termination — whether agreement wrongfully terminated — construction — meaning of “change in control including change in the majority shareholding” — whether satisfied where majority shareholder ceased to hold any shares but no new majority shareholding created

COSTS – party/party – appeals – unsuccessful applications for joinder and reopening of appeal after appeal decision handed down – limited success of applicants in having orders varied to cure misapprehension of Court – respondents achieved significant measure of success on substantial issues – applicants to pay 50% of the respondents’ costs

ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – committees – association constitutions – whether an unincorporated association was capable of being a State Council under the AFIC Constitution – where the unincorporated association was a group of individuals ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was removed as the State Council – whether the meeting at which the resolution removing UMNSW as State Council was properly convened ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was replaced as the State Council by an elected committee of individuals ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – election of members – association constitutions – whether an elected person was duly appointed as delegate of the State Council under the AFIC Constitution

CONTRACTS — Remedies — Specific performance — Equitable damages under Lord Cairns’ Act in addition

FAMILY LAW – Children – Adoption – Interim care order

COSTS — Party/Party — Costs follow the event

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Distribution of supplementary documents to shareholders – Amendment of proposed scheme to convert condition precedent to condition subsequent – Adjournment of second Court hearing.

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where the defendants were successful on application for security for costs — Whether costs of the application should be the defendants’ costs in the cause — Where the plaintiffs are impecunious and the application was resisted for the commercial benefit of the ultimate holding company of the plaintiffs — Where the plaintiffs are ordered to pay the successful defendants’ costs COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause — Where a defendant sought an order for the separate determination of the effectiveness of a contractual provision capable of providing a complete defence to the defendant — Where the defendant ceased to press the application as a result of delays in the completion of pleadings and the complexity of issues raised by the plaintiffs in response to the defendant’s reliance upon the contractual provision — Where the Court ordered that the costs of the application should be the parties’ costs in the cause in respect of the effectiveness of the contractual provision as a defence

CIVIL PROCEDURE – vacation of hearing date – where ongoing failure of defendants to comply with court directions for the filing of evidence – where guillotine order not complied with – hearing date vacated

APPEAL – question of law alone – Crimes (Appeal and Review) Act – sentencing decision of Local Court – custodial sentence imposed for breaching conditions of an Extended Supervision Order – whether s 5(2) of Sentencing Act applicable to indicative sentences of less than 6 months if aggregate sentence exceeds 6 months – ground not established – complaints about contents of reasons – leave granted to raise question of mixed fact and law – ground rejected – appeal dismissed

CONSUMER LAW — Misleading or deceptive conduct — Whether certain of the defendants engaged in misleading or deceptive conduct EQUITY — Equitable remedies — Injunctions — Whether certain of the defendants ought to be restrained from claiming ownership of certain patents

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – Where defendant assessed as having a mild to moderate intellectual disability – Where defendant diagnosed with schizophrenia, substance use disorder and antisocial personality disorder – Where defendant assessed by forensic experts as having a high risk of reoffending – Where no less restrictive means available to adequately manage the defendant’s risk – Where defendant did not oppose making of interim extension order

PRACTICE AND PROCEDURE — application for freezing order against third parties — whether plaintiff has a good arguable case against defendants now in liquidation and bankruptcy — where there is presently no application for leave under s 500(2) of the Corporations Act 2001 (Cth) and/or s 58(3)(b) of the Bankruptcy Act 1966 (Cth) — whether the plaintiff has demonstrated a good arguable case for leave — whether the third party respondents have possession of, or control or influence over assets of the defendants — whether the plaintiff is required to and has demonstrated a good arguable case for disgorgement by a third party under s 37A of the Conveyancing Act 1919 (NSW) — where assets of one of the respondents which would be subject to the freezing order are jointly owned and joint owner was not a respondent to the motion PRACTICE AND PROCEDURE — application for ex parte interim injunction — whether the proceedings raise any claim for final relief that warrants preservation of the status quo

EQUITY — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 EQUITY — Trusts and trustees — Superannuation funds

EQUITY — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 EQUITY — Trusts and trustees — Superannuation funds

CIVIL PROCEDURE – summary dismissal of proceedings – abuse of process – separate proceedings brought by different plaintiffs against same defendant – overlapping factual and legal issues – judgment delivered in first proceedings – application for leave to appeal against primary judge’s refusal to summarily dismiss second proceedings – actions of plaintiff in second proceedings not unreasonable – absence of any decisive overriding consideration of public interest – no abuse of process in second proceedings

RESTITUTION — where contribution assessment determination made as part of claims resolution process under Pt 4 of the Dust Diseases Tribunal Regulation 2013 — where co-defendants to a claim in the Dust Diseases Tribunal consent to orders giving effect to determination without admission of liability — where claim in restitution by one co-defendant against the other — onus of proof

COSTS — Security for costs — Relevant factors — Impecuniosity — Whether evidence establishes that members of incorporated association do not have means to provide the security sought — Strength of the claim — Where opponent’s submissions on appeal fail to grapple with finding central to the determination below

DAMAGES – developer purchases land by tender – developer obliged to construct development as specified in masterplan – developer makes profit – solicitors acting for developer give misleading advice concerning whether land flood affected – developer incurs costs in persuading council to remove flood notation – developer sues solicitors, advances “no transaction” case and claims difference between purchase price and “true value” – consideration of “Potts v Miller” damages – significance of absence of market for land – significance of obligation to construct development – appeal dismissed

APPEALS – Local Court entered judgment in favour of respondent and dismissed cross-claim – appeal to Supreme Court constituted by Associate Judge dismissed – leave refused to bring appeal on mixed question of fact and law – nature of further appeal to Court of Appeal – whether appeal as of right or with leave – no error attending refusal of leave – appeal dismissed

CRIMINAL LAW – sentence – error regarding totality conceded – missed reference to 5 month period sentenced in interstate custody – re-sentence – recalcitrant domestic violence offender – retribution, deterrence and protection of society – no lesser sentence warranted

SENTENCE APPEAL – aggregate sentence – numerous offences of intimidation and violence – finding of special circumstances but not given effect to – error – scope of re-exercise of sentencing discretion – whether confined to adjusting non-parole period or complete re-exercise required – Crown did not consent to confining appeal to adjusting non-parole period – sentencing discretion re-exercised

ESTOPPEL ­– Proprietary estoppel – where plaintiff undertook works on land on expectation that 99-year lease had been granted – where defendant took back possession of land – where statute prevents enforcement of plaintiff’s expectation of leasehold interest in land – where plaintiff seeks value of improvements made to land which have increased over period of plaintiff’s continuing trespass on subject land – whether equitable compensation available – quantification of relief ESTOPPEL – Anshun estoppel – where consent orders in earlier proceeding dismissed plaintiff claims for declarations and specific performance regarding agreement for lease – where further orders in earlier proceeding dismissed plaintiff’s cross-claim for monetary relief on terms that did not prevent plaintiff claiming same relief in fresh proceedings – whether unreasonable for plaintiff not to bring present claims in earlier proceeding LAND LAW – Indigenous land rights – Aboriginal Land Rights Act 1983 (NSW) – Dealings by Aboriginal Land Councils – where agreement for lease entered into in 1992 between plaintiff and Local Aboriginal Land Council void as not approved by New South Wales Aboriginal Land Council – whether void agreement for lease is subject to new land dealing provisions introduced in 2010 – whether plaintiff denied relief for equitable compensation or restitution by operation of s 42E(5)

CORPORATIONS – statutory demand – based on non-payment of judgment debt under Building and Construction Industry Security of Payment Act 1999 (NSW) – offsetting claim – no question of principle.

COSTS – interest on costs – where costs orders made in 2016 and 2018 – where there were negotiations between 2019 and 2021 about quantum of those costs – where no bill of costs served until August 2021 – whether court should order for the purpose of s 101(4) of the Civil Procedure Act 2005 that interest not be payable for period since costs orders were made – whether application for an order that interest not be payable is an application to vary the original costs order

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – Amended Statement of Claim struck out pursuant to UCPR r 14.28(1) – plaintiff given a further opportunity to produce an acceptable pleading – held that the proposed Further Amended Statement of Claim fails to disclose a reasonable cause of action and has a tendency to cause prejudice, embarrassment and delay – held that it is unlikely a properly formulated claim will emerge if further time is given to the plaintiff – order made for dismissal of the proceedings pursuant to UCPR r 13.4(1)(b)

SUCCESSION – family provision – application by adult child – advancement – deceased’s will left a small legacy of $40,000 to applicant – majority of the estate left to applicant’s sister, including former family home worth $780,000 – testamentary statement by deceased purported to justify will – statement procured by applicant’s sister and misrepresented merits and demerits of applicant and applicant’s sister – previous will giving applicant one-third share of estate – application successful

COSTS — Party/Party — Bases of quantification — Ordinary basis — Where successful defendant sought an order that the plaintiffs pay its costs on the indemnity basis for failing to accept a Calderbank offer categorised as a ‘walk away’ with each party paying its own costs — Where the Court accepted that the offer did not involve a sufficient level of compromise and that it was reasonable for the plaintiffs to have rejected the offer — Where costs ordered to be assessed on the ordinary basis — No point of principle

CIVIL PROCEDURE – Court of Appeal – Summary disposal – Dismissal of proceedings – Want of due despatch – Multiple defaults by applicant to date – Submissions now filed and applicant not presently in default – Remaining need for proceedings to be brought into order – Orders made for filing of Amended Summons but with self-executing dismissal of application if not complied with

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Appeal out of time – No compliance by appellant with directions for filing of affidavits and submissions on question of extension of time – No motion for dismissal filed by respondent – First default by appellant in this Court – Indulgence granted to appellant but with self-executing dismissal of appeal if orders not complied with

APPEALS – procedure – stay pending appeal – District Court decision on appeal in child care and protection proceedings – District Court found realistic possibility of restoration of child to mother and ordered preparation of amended care plan – Secretary seeking judicial review of District Court decision in Court of Appeal – motion by Secretary to stay District Court orders pending determination of judicial review application – stay granted

APPEALS – leave to appeal – where application for permanent stay of proceedings dismissed – Anshun estoppel pleaded as defence in second proceeding by respondent claiming damages for breach of contract – first proceeding sought declaratory relief as to existence of contract and whether validly terminated by applicant – delay by applicant caused prejudice to respondent – no interim stay sought pending leave application – whether reasonably clear injustice going beyond something that is merely arguable

COSTS – application for gross sum costs order – where gross sum costs order was not sought by the applicants when an earlier application to vary the original costs orders was sought and made – application refused

GUARANTEE AND INDEMNITY – Guarantor – Right to indemnity – Refinance agreement entered into by corporate agent of partnership comprised of three companies – Respective directors as guarantors – One partner seeking to leave the partnership – Corporate agent defaults – Settlement negotiated by one guarantor – No express right of indemnity of guarantors – Whether implied contractual right of indemnity inferable – Whether principal debtor requested guarantors to give guarantee – Whether request inferable from circumstances of case – Majority of directors of corporate agent and majority of partners in partnership aware guarantee would be provided and acquiesced to such a course – Commercial circumstances evinced request for guarantee so business could continue to operate – Guarantee given in same document that established debt obligation – Express request for guarantee by creditor irrelevant – Right to indemnity established – Appeal allowed GUARANTEE AND INDEMNITY – Indemnities – Construction – Whether right to indemnity excluded by inconsistent express or implied agreement or otherwise estopped – Assurances by one partner to departing partner regarding freedom from liability not made with knowledge or authority of third partner – Departing partner did not consider concluded agreement to have been reached – No inconsistent agreement – No estoppel PARTNERSHIPS AND JOINT VENTURES – Rights and duties between partners – Implied authority to bind other partners by representations – Representations of freedom from liability made to departing partner – Representations not made to third party – Representations not made in ordinary course of business of partnership – No authority GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – Contribution before payment made – Partners liable to contribute in proportion to their interests in partnership – Declaratory relief granted

SENTENCING – indecent assaults committed on young male employees over a 30-year period – five victims – aggregate sentence – erroneous reference to standard non-parole period – error established – no lesser sentence warranted in law

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether cross-examination of accused asserting he tailored his evidence lacked factual foundation – whether accused deprived of chance of acquittal that was fairly open – whether good character direction deficient – Rule 4.15 – miscarriage of justice – leave granted

HIGH RISK OFFENDER - experts appointed by the Court to examine defendant and report to Court – dispute by defendant as to terms of letter of request to be sent to experts – use of actuarial risk assessment tools - contention that experts should provide material and information as to statistical and algorithmic information that underpins risk assessment tools – dispute as to questions to be asked of experts – relevance of attitude of defendant to past offending to risk assessment task

DUTY JUDGE — application for settlement approval — mental harm suffered by children resulting from unsuccessful medical procedure of father — settlement approved

DUTY JUDGE — procedure — application for leave to commence civil proceedings — where plaintiff in custody — "prima facie ground" — Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5

PRACTICE AND PROCEDURE – releasing security for costs – stay of order pending appeal – no question of principle

SUCCESSION — Family provision — Claim by adult sons for further provision — Estrangement explained — Relief granted

CIVIL PROCEDURE - PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 50.16A – Application for dismissal – Whether proceedings frivolous or vexatious – Limitation Act 1969 (NSW), s 55 – Whether claims in the new pleading are statute barred – Whether claim is arguable – Dismissed

PROCEDURE – joinder of former mortgagee – current mortgagee objects – claims of unconscionability by mortgagor – whether rights to relief propounded in proposed amended cross-claim arise out of ‘series of transactions’ – where common fact the mortgagor’s vulnerability – question whether if successful cross-claimant still required to account for amount paid in discharge of former mortgage if former mortgagee not joined – possibility of inconsistent results if separate proceedings required