Cases and authorities

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – application under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to transfer proceedings to Supreme Court of Victoria – whether it is in the interests of justice that that Court is the more appropriate

JUDGMENTS AND ORDERS — In favour of plaintiff JUDGMENTS AND ORDERS — Matter of public interest — Referral to the Minister and Commissioner of Police

APPEAL AND REVIEW – supervisory jurisdiction – review of judgment of District Court on appeal from Local Court – refusal to reopen sentence appeal – jurisdictional error – failure to vary sentence to take account of error in calculation of earlier partly concurrent sentence PROCEDURE – civil – discontinuance – notice given after hearing – leave requirement – dismissal – costs

CRIMINAL LAW – appeal against sentence – s 66EA(1) maintaining an unlawful sexual relationship with a child – unlawful sexual acts committed prior to the repeal of the predecessor offence – Ground 1 whether maximum penalty for the offence was life imprisonment or 25 years imprisonment – whether intent of legislation was to operate retrospectively – whether s 19(1) of the Crimes (Sentencing Procedure) Act (CSP Act) applies – whether s 66EA was enacted as a new offence – consideration of differences between predecessor offence and current offence – consideration of s 25AA(4) CSP Act – whether the intent of the Parliament is clear from text of the offence – consideration of Second Reading Speech – Ground 1 dismissed by majority CRIMINAL LAW – whether error in imposing sentence for s 166 related offence first – whether error in accumulation – Ground 2 dismissed by the Court CRIMINAL LAW – whether sentence manifestly excessive – Ground 3 dismissed by majority

SUCCESSION – Family Provision – Claim by adult daughter of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Limited provision made for Plaintiff – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Lack of close contact between adult daughter and the deceased – Allegation of violence and abuse made by the Plaintiff to explain the nature of the relationship - Significant dispute about the Plaintiff’s allegation of violence and abuse - Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for Plaintiff’s proper maintenance and advancement in life and, if so, in what amount

CRIMINAL PROCEDURE — pre-trial hearing — murder — application for separate trials — accounts given by co-accused to police implicating accused — accounts repeated to mental health professionals — whether evidence highly prejudicial to applicant such that case against accused impermissibly stronger — whether unfairness can be remedied by jury directions — whether possible to balance public interest of trials heard together and any prejudice to co-accused — possible prejudice can be ameliorated by direction — application refused

CORPORATIONS – application to set aside statutory demand – genuine dispute – construction of contract implied term – non-performance of contract – clear beyond argument that defendant provided services during period for which invoices rendered – suggested construction patently feeble.

HIGH RISK OFFENDER – preliminary hearing – no question of principle

EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Tracing — Money paid into bank account

COSTS — Gross sum costs order — plaintiffs seeking order following attempts to enforce judgment — whether counsel’s fees were appropriate and reasonable — whether any discount should be made to legal fees including counsel’s fees

DUST DISEASES – proceedings commenced against deregistered company in Dust Diseases Tribunal – claim for damages for non-economic loss – claimant died after commencement of those proceedings – s 2(2) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and s 12B Dust Diseases Tribunal Act 1989 (NSW) – reinstatement of company pursuant to s 601AH Corporations Act 2001 (Cth) – insurer itself deregistered - resort to the Insurers' Guarantee Fund CORPORATIONS – reinstatement and ancillary orders under s 601AH Corporations Act 2001 (Cth) – ancillary order appointing liquidator to company on reinstatement

CIVIL PROCEDURE – plaintiff sued first and second defendant for injuries arising out of medical negligence – Calderbank offer accepted by plaintiff – approval of settlement – where three statutory deductions must be made from amount of settlement – where defendants propose term to be included in consent judgment withholding interest payable until certificates received from Commonwealth entities – whether such term should be implied in consent judgment CONTRACTS – construction -- whether proposed term was a standard term in consent judgments – where implying term into judgment would have effect of varying s 101 of the Civil Procedure Act – where term does not fall within any of categories of implied terms identified in relevant case law – where no basis for implication of term

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Whether proceedings ought to be transferred to the Federal Court (Victoria Registry) where separate proceedings that raise related issues are on foot

FAMILY LAW – Children – Adoption – Interim care order – Whether an interim care order can be made under s.84(2) of the Adoption Act 2000 (NSW) in the absence of a formal application for adoption in favour of a specific adoptive parent or parents

CRIMINAL PROCEDURE – urgent application to stay interim forensic procedure order made under s.32 Crimes (Forensic Procedures) Act 2000 – hair samples sought from plaintiffs under the age of 18 years – urgent stay granted – whether stay should be continued – relevance of final hearing to take place before a Magistrate under s.30 Crimes (Forensic Procedures) Act 2000 – stay lifted – Summons dismissed

ADMINISTRATIVE LAW – Judicial review – Motor Accident Injuries Act 2017 – State Insurance Regulatory Authority – Dispute Resolution Service – Medical Assessor’s Certificate – Review Panel’s Certificate – Minor injury – Denial of procedural fairness – Jurisdictional error – Failure to exercise jurisdiction – Failure to conduct new assessment – Irrelevant consideration – Failure to respond to a clearly articulated argument – Failure to provide reasons – Failure to inquire

ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a sharefarmer on property owned by the deceased for approximately 40 years — Where the defendants are the executors of the deceased’s estate — Where the plaintiff claimed the deceased made an oral representation to him years ago that she would leave the property to the plaintiff — Where the deceased failed to do so — Where there was no witness to the representation and it was not in writing — Where the Court considered the credibility of the witness and circumstantial evidence to determine whether the representation was made — Where the Court found the plaintiff to be an exceptionally credible witness who was both truthful and reliable — Where the Court found on the balance of probabilities and on the basis of both credibility and circumstantial evidence that the representation was made — Where the defendant argued that the deceased did not know that the plaintiff was relying on the assumption — Where the Court found the deceased had constructive knowledge — Where the defendants argued that even if the representation was made, the representation was not the sole reason why the deceased stayed on the property and continued share farming — Where the Court held that it was sufficient for the plaintiff to have established that the representation was a significant factor in his decision to stay and continue share farming — Where the defendants argued that if the Court found the representation had been made, it would also have to make a finding that the deceased was dishonest — Where the Court held that it did not have to make a finding of dishonesty in order to find that the deceased acted unconscionably ESTOPPEL — Proprietary estoppel — Encouragement — Where the defendants raised defences as to why the plaintiff’s conduct disentitled him to equitable relief — Where the defences raised were to the effect that the plaintiff deceived the deceased in relation to accounting matters, that the plaintiff failed to conduct the share farming operation in a proper and workmanlike manner, that the plaintiff had received rent-free accommodation for the period in which he performed the share farming agreement, that the plaintiff failed to maintain his house on the farm, that the plaintiff received loans from the deceased which were forgiven over time, and that the deceased made a considerable monetary gift to the plaintiff in her will — Where the Court dismissed all defences raised by the defendants

CIVIL PROCEDURE - default judgment – Summons - Judicial Review - Notice of Motion seeking summary disposal - No reasonable cause of action disclosed - Rule 13.4 Uniform Civil Procedure Rules (NSW) 2005 - Summons dismissed

COSTS — Party/Party — applications for costs orders — plaintiff obtained judgment for nominal damages only following a finding that defendant breached contract — parties bear their own costs up to 1 September 2021 and plaintiff to pay defendant’s costs on an indemnity basis thereafter COSTS — Security for costs — whether money paid by way of security for costs ought be released — in the absence of evidence to establish quantum of defendant’s costs on an indemnity basis from 2 September 2021 it is not yet appropriate to order the release

PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — health care workers required to be vaccinated by particular dates as a condition of being permitted to provide health care services — whether it was open to the Minister to make the public health orders having regard to the risk to public health posed by COVID-19 — consideration of the width of the power in s 7 by reference to Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 — Chief Medical Officer gave evidence of her advice to the Minister to make the orders, the rationale for the orders and available data — concern to protect categories of persons at greater risk of severe COVID-19 illness who are over-represented in health facilities and to prevent disruption to the delivery of public health services — reasonably open to the Minister to make the orders PUBLIC HEALTH ACT — Time-limited orders — the Minister is not permitted to make an order which has an effect beyond 90 days — the direction requiring health care workers to be double-vaccinated by 30 November 2021 could not become operative since the 90-day period would expire on about 24 November 2021 — the direction does not render the order invalid in circumstances where the Minister’s purpose was to put staff on notice of his intention to prohibit staff who had not been double-vaccinated from performing duties — the potentially permanent effects of the orders are the inevitable consequence of the width of the power in s 7, risk posed by the virus and the Minister’s decision as to how to deal with the risk HUMAN RIGHTS — International law — the public health orders are not inconsistent with the International Covenant on Civil and Political Rights — freedom of religion and religious expression and freedom of thought and expression may be subject to limitations necessary to protect public health — obligation under the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics — not necessary to address whether Australia’s international obligations can be used to construe State legislation ADMINISTRATIVE LAW — Remedies — plaintiff seeks declarations that two public health orders were, and are, invalid and associated relief by way of injunctions — whether the plaintiff had a reasonable excuse to fail to comply with the directions cannot be determined in the absence of a charge under s 10 of the Public Health Act 2010 (NSW) and concrete facts

COSTS – no question of principle

CRIME – appeals – appeal against conviction – unreasonable verdict CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected

CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — whether extension of time required in the interests of justice — extension of time refused — appeal dismissed CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — fresh evidence — where applicant developed cirrhosis after sentencing — where applicant may have been infected with hepatitis B at time of sentencing — whether evidence of medical condition admissible — whether evidence of effect of COVID-19 pandemic admissible — extension of time and leave granted in respect of grounds of appeal based on evidence of medical condition and on evidence of effect of COVID-19 pandemic — appeal dismissed CRIME — violent offences — robbery armed with offensive weapon with wounding

CRIME – bail – de novo application before the Court of Criminal Appeal – bail sought in relation to federal and state offences – Commonwealth offences of unlawful export and possession of various protected species – fraud offences contrary to state legislation – appearance of two Crown prosecutors – potential unfairness in cross-jurisdictional opposition to bail – protracted criminal record dating back to 1988 – strong Crown case – applicant likely to spend a significant period in custody if convicted – COVID-19 considerations – offences not show cause – bail risks sufficiently ameliorated by stringent conditions

CRIME – complicity – accessory after the fact – multiplicity of acts designed to conceal the role played by the principal offenders – silence – where the appellant failed to go to the police at an early stage and provide assistance – whether the sentencing judge erred in finding that the appellant’s failure to go to the police at an early stage and provide assistance constituted an offending act

CIVIL PROCEDURE – notice of motion – no appearance by the plaintiff – adjournment – further determination of notice of motion to be dealt with on the papers

CHILD WELFARE – Parental responsibility – Order allocating parental responsibility – where the Children’s Court made orders in June 2021 allocating parental responsibility for the child to the Minister until the child turns 18 – where the applicant mother has appealed that decision in the District Court of New South Wales pursuant to Children and Young Persons (Care and Protection) Act 1998 (“Care Act”), s 91 – where a final hearing was set for November 2021 before the District Court, and Olsson SC DCJ appointed a Guardian ad litem for the applicant mother pursuant to Care Act, ss 98(2A) and 101 – where the applicant mother has sought to challenge that decision in the Supreme Court’s parens patriae jurisdiction. CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – where the Court has informed the applicant mother the appropriate forum to challenge Olsson SC DCJ’s appointment of a Guardian ad litem would be the Court of Appeal – where the applicant mother expressed she did not want the case referred to the Court of Appeal – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction. CHILD WELFARE – Care proceedings – Guardian ad litem – whether the Children’s Court may appoint a Guardian ad litem for an applicant parent pursuant to Care Act, ss 98(2A) and 101 where that parent is self-represented and does not wish to be legally represented – observations on the construction of Care Act, ss 98(2A) and 101.

CONTRACT OF INSURANCE – co-insured parties – insurance claim – part payment of claim – statement of claim – claim for damages – breach of contract – circumstantial evidence – two elements of defence of fraud – s 56 Insurance Contracts Act 1984 (NSW) – Fraud in the Claim – value of the stock and equipment claimed significantly and deliberately exaggerated – Arson – fire deliberately lit – means of entry – no alarm or security cameras – use of accelerants – opportunity – attendance at the warehouse – motive – financial difficulty – debts – Proof of Loss – double counting and inflation of claim – duty of good faith – cross-claim – further amended statement of claim failed – amended statement of cross claim succeeded – orders made

CRIME – Appeals – appeal against conviction – where applicant charged with two counts of sexual intercourse without consent and one count of indecent assault – where jury found the applicant not guilty of one count of sexual assault, but guilty of another count of sexual assault and indecent assault – where the events founding the three complaints were intertwined both temporally and contextually CRIME – Appeals – appeal against conviction – inconsistent verdicts – where the guilty verdicts on two of the counts were inconsistent with the applicant’s acquittal on one count of sexual intercourse without consent – where the acquittal on the one count of sexual intercourse without consent was explicable only by doubts the jury must have held as to the complainant’s credibility – where the events founding the three complaints were intertwined both temporally and contextually CRIME – Appeals – appeal against conviction – unreasonable verdicts – where verdicts were unreasonable and could not be supported having regard to the whole of the evidence – where the complainant’s assessed state of intoxication and the implausibility in aspects of her account should have caused a doubt in the mind of the jury as to whether or not the applicant was guilty – where certain DNA evidence appeared to have been critical to the jury’s returning of a guilty verdict against the applicant – where such DNA evidence was more consistent with a secondary transfer as a result of the complainant having picked up the applicant’s DNA in relevantly innocuous circumstances

INSURANCE — claim for indemnity — warehouse fire — theft of goods prior to fire — whether insured knew fire was to be started and consented to it — identification of the insured’s active and directing mind — fraud of individuals attributed to insured company — insured disentitled from indemnity INSURANCE – claim by owner of goods – not a party to warehouse operator’s policy — construction of policy — interpretation of “interests of other parties” clause — s 48(1) of the Insurance Contracts Act 1984 (Cth) BAILMENT – Bailee — Duties — Breach of obligation to return goods or their value — where bailed goods destroyed by fire — failure to take reasonable care —bailee liable for loss — Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd applied EVIDENCE — Standard of proof — Civil case — where fraud sought to be inferred — circumstantial evidence — Bradshaw v McEwans Pty Ltd applied

SUCCESSION – administration of estate – judicial advice – Trustee Act 1925, s 63 – continuation of proceedings by executors seeking repayment of amounts paid to a beneficiary of the estate prior to the deceased’s death – defence of cross-claim alleging maladministration, including by instituting those proceedings

CONTRACTS – discharge by frustration – parties entered into Put and Call Option Deed – Deed contemplated a purchase of a subdivided portion of the defendant’s land to facilitate road access to plaintiff’s development land – envisaged subdivision precluded upon commencement of Pittwater Local Environmental Plan 2014 – options under the Deed could nonetheless be exercised in absence of development consent or registration of subdivision – contract formed upon exercise of either option provided that the defendant would grant a right of carriageway over its land to benefit the plaintiff’s land if subdivision not registered for any reason 3 years after date of the contract – whether Pittwater Local Environmental Plan 2014 gave rise to a fundamental commercial difference between contemplated and actual performance – held that conveyance of portion of defendant’s property not the only purpose of the transaction – held that the grant of the right of carriageway could be seen as an alternative means of achieving road access to plaintiff’s land – Deed not discharged by frustration

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

FAMILY PROVISION – interim family provision orders – Succession Act 2006, s 62 – no contest that an interim family provision order should be made – issue concerning the timing of the interim family provision order – whether any interim provision should be paid on 30 December 2021 or in late January 2022 – capacity of the estate to pay interim provision in the short term – whether interim family provision order can be made against notional estate.

CRIME – Appeal and review – Application to Supreme Court under Part 7 – Similar issues raised in various appeals – Application dismissed

APPEALS – Jurisdiction of appellate court – Court of Appeal – Discretion to exercise jurisdiction – Appeal from District Court Judicial Registrar – Assignment to Supreme Court – Where no submissions by applicant in support of matter remaining in Court of Appeal – Remitted to Equity Division Corporations List

INSURANCE – Appeal from decision joining insurer to proceedings – Whether there was an insured liability – Where insured gave no notice of facts that might give rise to claim – Whether contractual obligation to give notice – Whether breach of obligation cured by statute

APPEALS — Contracts — Whether loan advance paid pursuant to loan agreement — Error of primary judge — Where loan advance never repaid EQUITY — Trusts and trustees — Express trusts — Unit trusts — Where trust documents not correctly executed — Where no unit holders had subscribed for units — Whether trust constituted — Whether unit holders had a right to trust property if trust constituted — error of primary judge — Where trust constituted and unit holders acquired beneficial interest in trust property

JUDICIAL REVIEW – District Court – conviction appeal from Local Court dismissed as outside three month time limit – erroneous as calculation should have excluded day of lodgement – whether error jurisdictional – whether necessary to show error was “material” – Held – relief granted

CRIME – appeals – appeal against conviction – discharge of firearm with intent to cause grievous bodily harm – reckless wounding – wrong decision on a question of law – the rule against double punishment – conviction on two counts – pursuant to plea of guilty – assertion that the criminality in respect of one count was totally subsumed by the other – whether the applicant was punished twice for the commission of elements common to both offences for which he was convicted – whether the fact of conviction constitutes an act of punishment CRIME – appeals – appeal against sentence – manifest excess – where indicative sentences are not themselves amenable to appeal CRIME – appeals – appeal against sentence – misapplication of principle – principle of totality – applicant sentenced on two counts – assertion that the criminality in respect of one count was totally subsumed by the other – whether the principle of totality required the sentences for both offences to be wholly concurrent – nature of the relationship between indicative sentences and aggregate sentence SENTENCING – appeal against sentence – aggregate sentence – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – Pearce – whether the principle of totality required the sentences for both offences to be wholly concurrent SENTENCING – appeal against sentence – severity – sentence manifestly excessive

CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant’s credibility – whether “fresh evidence” – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable

CRIME – appeals – appeal against sentence – applicant pleaded guilty to five offences – offences of carrying out a sexual act without consent and intimidation intending fear of harm – offending involved applicant approaching victims in his car and masturbating himself – where applicant had alcohol and substance use issues, intellectual disability, and anxiety and depressive disorders – aggregate sentence imposed - whether sentencing judge erred in specifying indicative sentence which was the maximum penalty for offence in Count 5 – where objective seriousness of offence found to be in midrange - where although sentencing judge accorded 25% discount for early plea he did not reduce indicative sentence by that discount – whether offence under s 66DD(a) of the Crimes Act was aggravated by victim’s vulnerability from her age – where age was an element of the offence - where errors conceded by Crown – applicant resentenced CRIME – appeals – appeals against sentence – whether applicant could rely on further report of psychologist for resentence purposes - report based on assessment made after applicant was sentenced – report not prepared to show applicant’s progress following sentence - no exceptional circumstances – no miscarriage of justice demonstrated if report rejected

SUCCESSION – family provision – applicant and deceased living together in six and a half year de-facto relationship prior to deceased’s death – both parties in their mid-to-late forties – relationship ending four months prior to deceased’s death – deceased’s will provided for applicant to receive one of his investment properties with a net value of $200,000 – whether adequate provision made for applicant – violence towards deceased as a disqualifying factor – application refused

HIGH RISK OFFENDERS – extended supervision orders – preliminary hearing – appointment of psychiatrists or psychologists – where defendant convicted of shoot with intent to murder in 2008 – previous non-compliance with medication for schizophrenia – successful completion of one year on parole – interim test satisfied – interim supervision order granted

INSURANCE — Insurance Contract — jewellery shop owner claiming for stolen and damaged stock after robbery — construction — whether policy imposed obligation to keep proper records — what information insured was obliged to provide about claim — whether obligations breached INSURANCE —Bilateral duty of utmost good faith — whether duty breached — whether claim for stolen jewellery substantiated — whether claim for damaged jewellery substantiated — whether insurer breached contract — failure to pay for admitted loss — what loss was substantiated EVIDENCE — Credibility and reliability of witnesses and reliability of business records — consequences of failure to plead fraud — consequences of failure to call witnesses and tender documents

CIVIL PROCEDURE – Appeals requiring leave – UCPR 50.12 – Interlocutory judgments – Whether dismissal of notice of motion to set aside default judgment interlocutory – Effect of failure to seek leave – Effect of failure to provide reasons for delay – Appeal dismissed as incompetent

COSTS – no issue of principle

CRIME – sentence – murder – plea of guilty entered – offender charged with five others who have pleaded not guilty – offender and deceased both attendees at a 16th birthday party – offender and co-offenders observed punching kicking and stomping on deceased – apparently random attack – deceased died at scene – offender under influence of drugs and alcohol – objective seriousness slightly below the mid-range – young offender – importance of general deterrence – reasonable prospects of rehabilitation and low risk of reoffending – offender remorseful – relevance of Covid-19 to custodial conditions – no finding of special circumstances - 10% discount for plea entered after committal for trial