Cases and authorities

SUCCESSION — Family Provision — Costs — Where conventional costs orders made in favour of successful plaintiff and defendant executor for the costs of determining final orders after substantive orders made following primary judgment — Where because of payment of debts of the deceased’s estate the defendant executor had insufficient funds to pay costs ordered to be paid to the plaintiff — Where order made that the costs payable to the plaintiff be charged upon property the subject of a Crisp order made in favour of the plaintiff

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Where defendant filed motion seeking dismissal of proceedings for want of due despatch — Where plaintiff commenced proceedings though over a course of six months failed to comply with Court orders directed at the prosecution of his claim — Where Court made orders dismissing proceedings with such orders being stayed to provide plaintiff with a last opportunity to prosecute his claim

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) – second defendant adjudicator determined adjudication application by first defendant sub-contractor in respect of a payment claim served on head contractor – plaintiff head contractor contended that adjudicator’s determination was void for jurisdictional error on several bases, including that the adjudicator had failed to form an opinion that the payment claim had been served within the 12 month time period stipulated in s 13(4)(b) of the SOP Act (or, alternatively, had erred in forming that opinion) – whether s 13(4)(b) of the SOP Act is a “jurisdictional fact” in the first category or second category identified in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 – held that s 13(4)(b) is within the second category – adjudicator did not form an opinion that the payment claim had been served within the period stipulated by s 13(4)(b) – adjudicator’s determination void for jurisdictional error on that basis – not necessary to consider other alleged jurisdictional errors.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) – second defendant adjudicator determined adjudication application by first defendant contractor in respect of a payment claim served on principal – plaintiff principal contended that adjudicator’s determination was void for jurisdictional error on the basis that the adjudicator erred in forming the opinion that the payment claim had been served within the 12 month time period stipulated in s 13(4)(b) of the SOP Act – whether s 13(4)(b) of the SOP Act is a “jurisdictional fact” in the first category or second category described in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 – held that s 13(4)(b) is within the second category – adjudicator formed the opinion that the payment claim had been served within the period stipulated by s 13(4)(b) – no allegation that the opinion was not lawfully formed – adjudicator’s determination was not void for jurisdictional error.

COSTS - unsuccessful proceedings – challenge to public health orders – whether court should otherwise order such that each party pay their own costs – “public interest” litigation – orders differentially affected a class of persons – strength of claims made – crowd funded litigation – capacity of the plaintiffs to meet costs order

EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Where plaintiff’s former de facto partner was registered proprietor of real property and his interested was forfeited to the State as proceeds of the sale of crime — Where the plaintiff made no direct financial contributions to the purchase of the properties but made indirect contributions through homemaking and domestic duties as well as working in her ex-partner’s business — Where the plaintiff has continued to live in and pay the mortgage of one of the two properties after it was vested in the Crown — Whether the plaintiff has any beneficial interest in the properties — Declaration of constructive trust

CRIME – murder – trial by judge alone – wholly circumstantial case – whether there was an existence of joint criminal enterprise – dispute over outstanding debt to the deceased’s sister – deceased stabbed and shot several times in an underground carpark– whether accused went to the carpark on the basis of an agreement with his co-actor to intentionally inflict at least grievous bodily harm upon the deceased – Crown has proven beyond a reasonable doubt that there is no other rational inference available – verdict of guilty

OCCUPATIONS – Legal practitioners – Solicitors – Removal from roll of solicitors – Recommendation by NCAT – Misuse of trust funds in the order of approximately $50,000 – Dishonesty and professional misconduct admitted by respondent solicitor – Submitting appearance filed – Court not required to revisit, review, or rehear proceedings – Court nevertheless required to be independently satisfied that removal from roll appropriate – Court so satisfied – Removal from roll ordered

ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal - Workers Compensation Commission medical appeal panel – procedural unfairness –scope of procedural fairness determined by reference to statutory scheme – no opportunity given to address panel on definition of medical condition – medical experts’ function is to form opinion as to medical condition WORKERS COMPENSATION – medical dispute –appeal from certificate of assessor – scope of functions and powers of appeal panel – panel restricted to determining whether error in applicant’s grounds of appeal – decision to issue new certificate – no expansion of panel’s functions

JUDICIAL REVIEW – decision of Local Court of NSW (Small Claims Division) – decision of District Court of NSW on appeal from Local Court – whether time to challenge Local Court decision should be extended – challenge not fairly arguable – grounds of challenge to District Court decision – no jurisdictional error or error of law on the face of record established

NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant’s position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established

CRIME – appeal against sentence – whether manifestly inadequate – pharmacist – no consent – age differential – objective gravity – otherwise good character – residual discretion – appeal dismissed

CRIME – Appeals – Appeal against sentence –whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge gave “undue and overwhelming” weight to general deterrence – leave to appeal granted – appeal dismissed

CRIME — appeal against sentence — knowingly take part in supply of commercial quantity of methylamphetamine — possess unauthorised firearm — whether error in determining objective seriousness of applicant’s role — manifest excess — parity — where applicant showed limited remorse — where guilty plea entered at late stage —poor prospects of rehabilitation — no error found — appeal dismissed

CRIME — appeal against sentence — supply prohibited drug — failure to comply with reporting obligations — question of whether sentencing judge failed to consider mental conditions of applicant — where limited evidence of any mental disorders — question of manifest excess — where applicant in breach of intensive corrections orders and community corrections order at the time of offending — significant criminal history — limited remorse — medium risk of reoffending — poor prospects of rehabilitation — limited utility in comparing other sentences imposed for similar offences — appeal dismissed

CRIME – appeals – appeal against conviction – applicant found guilty of four counts of aggravated indecent assault of a person under 16 – whether trial miscarried as a consequence of trial judge’s failure to direct the jury in relation to lies – where lies relied on as affecting applicant’s credibility only - no miscarriage of justice occasioned by trial judge’s not giving an Edwards direction – character evidence – evidence only that applicant had no convictions - where trial judge did not give to jury the second part of usual character direction – no miscarriage of justice – failure to direct jury as to applicant’s right to silence – where in applicant’s ERISP applicant answered questions until specific allegations made by complainant were put to him – where applicant lost real possibility of an acquittal fairly open to him

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Prosecution under s 32 Work Health and Safety Act 2011 (NSW) of an engineer following a roof collapse – Consideration of the elements of an offence under s 32 - Causation

PRACTICE AND PROCEDURE – no question of principle

COSTS — offers of compromise — necessary to set aside considerations of whether plaintiff has the ability to pay any costs order — application of Uniform Civil Procedure Rules 2005 (NSW), r 42.15A — order made in the terms sought by the defendants

CRIME – murder trial – second trial after jury unable to agree upon verdict at first trial – defence application to leave manslaughter by criminal negligence to jury – trial Judge declined same application at first trial – application of s.130A Criminal Procedure Act 1986 – deceased shot by pistol being held by Accused – issue at trial as to whether discharge of firearm deliberate or accidental – Crown case that pistol fired by Accused with intent to kill or to inflict grievous bodily harm – whether Accused owed duty of care to deceased – whether scope and content of hypothetical duty is ascertainable – Court declines to leave manslaughter by criminal negligence to the jury

COSTS — Security for costs — to facilitate the just, quick and cheap determination of the issue regarding release of security some release of security ought be ordered — costs assessor to determine the amount of costs to comply with the order

COSTS — application for different order — defendants applied for an order that there be no order as to costs pursuant to UCPR, r 42.34 — proceedings could have been commenced in the District Court — whether commencement and continuation of proceedings in this Court was warranted — proceedings not considered particularly complex or novel — not satisfied on the basis of quantum that commencement or continuation of proceedings in this Court was warranted — no order as to costs COSTS — Security for costs — whether security ought be released — circumstances where there are costs orders that have not yet been quantified or paid — premature to order that security for costs be released — question may be more appropriately dealt with by Court of Appeal

HIGH RISK OFFENDERS – Extended supervision orders – Where defendant diagnosed with paedophilic disorder, personality disorder and substance use disorder – Where defendant assessed to be in the high risk category of sexually reoffending – Where defendant did not submit against an extended supervision order for five years – Where defendant disputed specified conditions including use of alcohol, weekly schedules, attendance on sex workers, and the use of encryption on devices

COSTS — Party/Party — Whether exception to general rule that costs follow the event where proceedings brought in the public interest applies — public interest may have been generated by the plaintiff’s representations online and in the media —limited public interest element to the litigation — plaintiff raised funds online — no evidence as to quantum costs paid by either party — brevity of hearing and absence of expert evidence — no application brought under UCPR, r 42.4(1) — plaintiff to pay the third defendant’s costs of the proceedings

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.

CORPORATIONS — Winding up — Liquidators — Grant of leave to distribute a surplus — Remuneration — Where contributory had appeared to oppose application for further remuneration — Where consent orders then agreed between the liquidator and contributory.

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Whether proceedings ought to be transferred to the Supreme Court of Victoria

CONTRACTS — Formation — Whether the parties made a binding agreement CONTRACTS — Breach of contract — Whether the defendant repudiated the agreement thereby entitling the plaintiff to damages CIVIL PROCEDURE — Cross-claims — Whether the plaintiff engaged in misleading and deceptive conduct

CRIME – appeal and review – application for leave to appeal from Supreme Court orders dismissing appeal from Local Court – where applicant convicted of unlawfully entering inclosed lands and interfering with business – where conduct done to remove chickens from cruel conditions – whether defence of necessity available – consideration of R v Rogers (1996) 86 A Crim R 542

CORPORATIONS – liquidator’s remuneration – liquidator’s conduct said to have caused appeal proceedings – special leave for interim distribution – surplus likely after paying creditors – stay of orders.

CRIME — Serious crime prevention orders — Application – consent orders provided – where defendant a member of the Comanchero OMCG – previous involvement in serious violent offending – likely future involvement in serious crime related activities – orders made

DUTY LIST — injunctive relief sought — plaintiff in custody — request for orders for access to personal laptop and other resources while in custody — plaintiff involved in ongoing NCAT and Supreme Court litigation — where plaintiff’s request for protection non-association prisoner status impacted upon access to legal resources — where plaintiff has already been provided access and has ongoing opportunity to access legal resources and facilities in line with custodial policy and procedures — notice of motion dismissed

CIVIL PROCEDURE – Permanent stay of proceedings – abuse of process – Where delay has resulted in relevant evidence becoming unavailable or impoverished – Where defendant is unable to give evidence – Whether delay results in inability to have a fair trial on balance of probabilities – Stay granted

INSURANCE — Application for leave pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (“Claims Act”) — Parties agreed that the requirements for leave under s 5 of the Claims Act were met, subject to the issue of the territorial scope of the legislation and the Court’s exercise of its residual discretion to refuse leave — Whether the Plaintiff’s application for leave itself was all that was required to enliven the jurisdictional scope of the Claims Act or whether the Plaintiff was required to establish that he could have brought proceedings in a New South Wales court against the insured (a New Zealand company) in respect of tortious conduct in New Zealand with damage suffered in New Zealand and whether, in fact, the Plaintiff could have done so — Consideration of the Court of Appeal’s decision in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212, including as to its applicability to the Claims Act and in ascertaining the “hinge” of the territorial scope of the Claims Act — Further, whether, assuming the requirement for leave was otherwise established, the Court should, in its residual discretion, refuse leave CONSTITUTIONAL LAW — Commonwealth Constitution — Legislative power — Service and execution of process — Challenge to the validity of ss 9 and 10 of the Trans-Taman Proceedings Act 2010 (Cth) (“TTPA”), upon which the Plaintiff sought to rely — Consideration of whether the Commonwealth Government, by the TTPA, sought to confer jurisdiction upon State courts in a manner inconsistent with Chapter III of the Constitution — Consideration of the High Court’s decision in Flaherty v Girgis (1987) 162 CLR 574 and whether the contentions of the Defendants were inconsistent with the reasoning in that case — Held: ss 9 and 10 of the TTPA are not inconsistent with Chapter III of the Constitution INSURANCE — Application for leave pursuant to s 5 of the Claims Act — Consideration of the Court’s residual discretion to refuse leave — Whether the Court should refuse leave on the basis that by granting leave, the Court may be interfering with the insolvency regime of New Zealand — Held: the alleged inconsistency is hypothetical only and various further factors considered as not supporting the refusal of leave — Leave granted pursuant to s 5 of the Claims Act

COSTS – Specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – the plaintiff estate applies for a gross sum costs orders under Civil Procedure Act 2005, s 98(4)(c) in protracted legal proceedings – whether the second defendant must also submit to a specified gross sum costs order in respect of any costs ordered in his favour – whether both applications should be heard together.

EQUITY – trusts and trustees – administrator’s costs – entitlement to indemnification for costs incurred in defence of claim – entitlement to remuneration – where judicial advice given under Trustee Act 1925 s 63 – where administrator actively defended claim against estate heard concurrently with inquiry in partnership proceedings – where defence unsuccessful – costs and expenses reasonably and properly incurred in performance of duties as administrator – administrator entitled to indemnification and remuneration

ADMINISTRATIVE LAW – statutory construction – Public Health Act 2010 (NSW), s 7 – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) does not turn upon whether those orders are of an administrative or legislative character – whether those orders were authorised by and validly made under s 7 of the Public Health Act 2010 (NSW) APPEALS – leave to appeal – principles governing – consequences for the parties – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) was sought to be challenged – where two of those orders had been repealed and ceased to operate as at the hearing of the appeal and the third was to expire imminently – where the reasons of the primary judge disclosed no error of principle – where the proper construction of s 7 of the Public Health Act 2010 (NSW) raises a matter of public importance in the midst of an ongoing pandemic – whether there is any utility in granting leave to appeal to review orders already repealed or imminently to expire CIVIL PROCEDURE – Court of Appeal – leave to appeal – concurrent hearing of leave application and appeal – where constitutional arguments sought to be raised – where no arguable case was advanced – where the reasons of the primary judge disclosed no error of principle – where the raising of constitutional arguments does not give a case elevated status when considering a grant of leave to appeal – whether leave to be granted in circumstances of limited utility HUMAN RIGHTS – discrimination – context – employment – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) coerced workers in particular industries and workplaces to be vaccinated – where none of the applicants had been vaccinated in the exercise of their own free will HUMAN RIGHTS – legislation – Public Health Act 2010 (NSW), s 7 – principle of legality – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – whether certain public health orders made during the COVID-19 pandemic interfered with rights – whether those rights recognised by the common law – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence STATUTORY INTERPRETATION – legislative purpose – Public Health Act 2010 (NSW) – statement of objects – where purpose of Act is to promote, protect and improve public health including by the prevention of the spread of infectious diseases – where s 7 of the Act expressly contemplates the limitation of freedom of movement to address a public health risk STATUTORY INTERPRETATION – Anthony Hordern principle – where multiple sources of power in a statute – where some sources of power expressly qualified – Public Health Act 2010 (NSW), ss 7 and 8– whether the same source of power as s 7(2) – where s 7(3) expressly authorised limitation of freedom of movement – where power in s 7(3) expressed “without limiting s 7(2)” – whether the specific power in s 7(3) expressly qualified the general power in s 7(2) STATUTORY INTERPRETATION – principle of legality – common law rights and freedoms – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence – whether any of those rights are recognised at common law – if so, whether they are “fundamental rights” – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) interfered with any of those rights – whether the principle of legality operated to constrain any interference with those rights STATUTORY INTERPRETATION– where s 7(6) of the Public Health Act 2010 (NSW) proscribes the making of orders in relation to any part of New South Wales for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (NSW) – COVID-19 pandemic – whether the emergence of the Delta strain was an “emergency” under s 4 of the State Emergency and Rescue Management Act 1989 (NSW) – where the Premier did not declare a “state of emergency” under that Act

COURTS AND JUDGES – Supreme Court – supervisory jurisdiction – District Court – jurisdictional error – appeal to District Court from conviction in Local Court – complainant not called as witness on appeal – District Court judge had regard to magistrate’s credibility findings – whether jurisdictional error by District Court COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – District Court – jurisdictional error – applicant convicted in Local Court – conviction appeal to District Court – onus of proof on prosecutor to establish guilt beyond reasonable doubt – whether appellant required to establish factual, legal or discretionary error by magistrate – whether requirement that appellant demonstrate error reverses onus of proof – Crimes (Appeal and Review) Act 2001 (NSW) s 18

COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court

TORTS – negligence – liability of employer – scope of employer's obligation to ensure safe system of work – where employee worked as shearers’ cook – where employee dispatched to other place or premises of work – where employee injured when step to accommodation collapsed – where employer conducted visual inspection of premises – whether scope of employer’s duty required employer to conduct physical inspection of the step – whether employer breached duty – whether causation established DAMAGES – past and future economic loss – where employee suffered from PTSD and diabetes – where employee’s income in prior financial years modest – where unchallenged findings that job suited employee’s PTSD and intended to work full-time – where primary judge allowed deduction of 30 per cent for vicissitudes – whether error in award of past economic loss – whether error in award of future economic loss – whether error by primary judge not to refer to appellant’s medical reports material DAMAGES – past domestic assistance and future commercial care – where employee’s son and friend provided gratuitous domestic assistance – whether threshold under s 15(3) Civil Liability Act met – where evidence that employee wanted to relieve son of duties of providing care – where future commercial care assessed at 8.5 hours a week – where primary judge allowed deduction of 15 per cent for vicissitudes – whether primary judge erred in award for past domestic assistance – whether primary judge should have allowed for greater reduction for vicissitudes

CRIME – bail – appeal bail – Court of Criminal Appeal – jurisdiction – “pending” proceeding – “substantive proceeding” pending – application for extension of time to file notice seeking leave to appeal against sentence – no substantive proceeding until extension granted – no jurisdiction to grant bail CRIME – bail – appeal bail – leave to appeal against sentence – extension of time required – proposed appeal not before court – whether extension should be granted – whether grounds reasonably arguable CRIME – bail – appeal bail – leave to appeal against sentence – “special or exceptional circumstances” – ground must be stronger than merely arguable – ground must support release before likely date of determination of proposed appeal

CRIMINAL PROCEDURE – Trial – Directions to jury – Misdirection – Whether effect of directions was to suggest the jury had to determine an intermediate fact – Whether jury diverted from a proper application of the onus and standard of proof – Whether directions as a whole had such an effect – Whether miscarriage of justice established

PROSECUTION – duplicity – whether summons bad for duplicity – multiple acts of water pollution – defendant charged compendiously with single offence of water pollution – exception to rule against duplicity – whether single criminal enterprise – multiple acts of water pollution involve single compendious instance of offending – guilty plea to single offence – application to withdraw guilty plea – question of duplicity decided before application to withdraw guilty plea – error in doing so

SUCCESSION — Family provision — Claim by adult daughter — Small estate

HIGH RISK OFFENDER — extension of interim order sought — extension neither consented to nor opposed by defendant — order made on the papers in chambers

CORPORATIONS — winding up — liquidator’s adjudication of proof of debt — appeal to Court from liquidator’s decision — whether plaintiff has discharged its onus of establishing that the debts were true liabilities of the Company as at the date of winding up — whether the plaintiff has adduced sufficient evidence to discharge said onus – no issue of principle

CIVIL PROCEDURE – medical negligence – subpoena – where defendant sought production of plaintiff’s diaries and journals – where plaintiff moves to set aside subpoena in part – whether legitimate forensic purpose for subpoena – whether category of documents too broad – whether nature of documents sought illegitimately infringed the plaintiff’s privacy – whether impractical for plaintiff’s lawyers to respond – plaintiff’s motion dismissed

COSTS — Security for costs

CONTRACTS — Breach of contract — Wednesbury unreasonableness — Whether the first defendant’s determination was so unreasonable that no reasonable decision maker could have made it CONTRACTS — Interpretation of the Australian Financial Complaints Authority’s rules — The relevant point in time for determining whether a property is the applicant’s principal or primary place of residence — The meaning of “principal place of residence” —Whether interest to be included in calculating jurisdictional limit — Whether Australian Financial Complaints Authority required to conduct a hearing — Whether legal costs incurred in connection with court proceedings were a direct financial loss or an indirect financial loss