Cases and authorities

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — Final or interlocutory order — Appeal from determination concerning constructive refusal of application to vary legal practising certificate — where practising certificate in question since expired — No utility in granting leave

CIVIL PROCEDURE - subpoenas - application to set aside - where production of material unduly burdensome and would not facilitate appeal CHILD WELFARE - care proceedings - interlocutory application - whether orders should be made allowing child to live with mother or allowing daily contact - whether tutor should be appointed

CRIME – sentence appeal – mental illness – medical opinion that Major Depressive Disorder combined with substance use contributed directly to offences – alcohol – benzodiazepines – moral culpability reduced “somewhat” – significance of general deterrence reduced “to some extent” but still important – De La Rosa principles not absolute – no suggestion offender acted without knowledge of his actions and their gravity – sentencing judge’s approach appropriate – ground dismissed CRIME – sentence appeal – manifest excess – aggregate sentence – guilty pleas – specially aggravated enter dwelling with intent to commit serious indictable offence – intimidation – detain person for advantage – use unauthorised firearm – substantial notional concurrency – considerable psychological trauma to victims – vulnerable victims – ground dismissed – appeal dismissed

CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — reliance on cases said to be comparable — sentences not manifestly excessive — extension of time and leave granted — appeal dismissed CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — misapplication of principle — whether sentencing judge erred in rejecting expert opinions of psychologist — whether sentencing judge failed to find special circumstances or give practical effect to such a finding — whether sentencing judge erred in placing too much weight on general deterrence — whether sentencing judge failed to request sentencing assessment report — whether excessive accumulation of sentences — no House v The King errors — extension of time and leave granted — appeal dismissed CRIME — apprehended violence order — contravene apprehended violence order CRIME — property offences — break and enter with intent to commit serious indictable offence — circumstances of aggravation CRIME — violent offences — common assault — choking, suffocation or strangulation — cause grievous bodily harm with intent WORDS AND PHRASES — “convicted inmate” — Crimes (Sentencing Procedure) Act 1999 (NSW), s 56

CRIME – sentence appeal – alleged failure to have regard to favourable evidence about three statutory mitigating factors – concession by defence counsel at sentence that each mitigating factor was not established – alleged error contrary to case at first instance – ground dismissed CRIME – sentence appeal – manifest excess – aggregate sentence – guilty plea – incest – assault occasioning actual bodily harm – incite aggravated act of indecency – further offences taken into account on Forms 1 – father-daughter relationship between offender and victim – uncharged acts – victim at lowest of age range of offence – breach of trust – victim not a willing participant in incest – De Simoni principle – offences part of a course of conduct over a significant period – objective severity above mid-range – starting points of indicative sentences near the maximum penalty – differential unable to be explained by Form 1 offences – aggregate sentence manifestly excessive - ground upheld – applicant resentenced

CRIMINAL LAW – appeal against conviction – fraud by loans manager of bank – directions to jury as to elements of offence – Crown conceded that trial judge had misdirected the jury with regard to mental element of dishonesty – knowledge, as opposed to recklessness, necessary on the part of an accused person as to conduct being dishonest according to the standards of ordinary people – miscarriage of justice established – whether “the proviso” can be applied – whether “no substantial miscarriage of justice has actually occurred” – by majority, appeal dismissed by way of application of the proviso

COSTS – specified gross sum costs order – risk that a costs assessment would be unnecessarily complex and costly relative to modest amount claimed – court in a position to make a logical, fair and reasonable estimate of costs likely to be recovered on an assessment – gross sum costs order made

PROCEDURE – dismissal of proceedings for want of prosecution – where one plaintiff deceased and no information available as to his estate – where the second plaintiff is under legal incapacity – where no tutor has been appointed

CIVIL PROCEDURE — medical examinations — claim for damages for psychiatric injury due to alleged assaults — application seeking that plaintiff be required to submit to examination by a psychologist — Uniform Civil Procedure Rules 2005 (NSW), rr 23.4 and 23.5 — evidence sufficient to establish psychometric testing as part of the examination capable of producing evidence relevant to matters in issue — limitation on examination so as not to include challenging the veracity of the plaintiff in relation to alleged assaults or generally — presence of psychologist under r 23.5 as support person during psychometric testing — limitation on duration of examination — splitting of examination so that interview and psychometric testing on different days but not exceeding six hours in total — order for examination made subject to conditions

COURTS AND JUDGES — Bias — Application for recusal – Apprehended bias – the Court delivers an interlocutory judgment in August 2021 – that judgment deals with two motions relating to monies paid into Court – the applicants alleged that the judgment demonstrated apprehended bias against them – an oral application for recusal was made and refused – on an adjourned date, a further application for recusal was made concerning the conduct of the Court on the day that the first recusal application was made and in the proceedings generally – need for separation out of issues for determination on the first and second recusal applications – what issues should be considered in the second recusal application and what issues have already been dealt with in the first recusal application – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided.

CIVIL PROCEDURE — Preliminary Discovery — To identify potential cause of action — Reasonable inquiries

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meetings are satisfied. CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

CRIME – Manslaughter – Excessive self-defence – Trial by judge alone

COSTS – application for costs against non-parties – principles at [4]-[15] – company wound up as woefully insolvent -$35M – defence of winding up proceedings funded by secured creditors – proceedings protracted as a consequence – 17 months under application heard – 4 day hearing –serious, unsubstantiated allegations made by secured lenders’ representative and then withdrawn – unsatisfactory witnesses – costs sought against director installed by secured creditors, secured creditors who funded the defence, representatives of secured creditors – non-party costs order made against some.

CIVIL PROCEDURE – pleadings – form and content of pleading – inconsistency of pleading – claim for possession of land – alleged default under mortgage – where mortgagor admitted signing mortgage but denied allegation that mortgage entered into – where cross-claim by mortgagor sought relief under the Contracts Review Act – where defence of non est factum unavailable – whether inconsistent pleadings permitted to stand – pleadings struck out

CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — evidence — application for exclusion of evidence — whether alleged admissions influenced by violence or oppressive conduct — Evidence Act 1995 (NSW), s 84 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 CRIME — federal offences — conspiracy — overt acts — Criminal Code (Cth), s 135.4(9)(c)

DUST DISEASES — damages for non-economic loss — where proceedings commenced before plaintiff’s death — where deregistered company named as defendant — whether subsequent reinstatement of registration has consequence that proceedings deemed to have been validly commenced and pending at time of death for purposes of operation of Dust Diseases Tribunal Act 1989 (NSW), s 12B CORPORATIONS — deregistration — order for reinstatement of registration under Corporations Act 2001 (Cth), s 601AH(2) — where deregistered company named as defendant in initiating process — whether by operation of s 601AH(5) subsequent reinstatement of registration validates commencement of proceedings

CIVIL PROCEDURE – notice of motion – plaintiff seeking material in defendant’s possession already provided – motion dismissed costs

JURISDICTION – supervisory jurisdiction – applicant commenced proceedings in Supreme Court impugning validity of certain COVID-19 Public Health Orders – related prosecution afoot in Local Court – where magistrate refused application to vacate hearing date – where both defence to Local Court prosecution and proceedings in Supreme Court raise constitutional issue – applicant seeks order staying Local Court proceedings – whether stay or injunctive relief sought – balance of convenience

CIVIL PROCEDURE – Strike out defence – Want of due despatch – Discloses no defence – Strike out pleadings – No reasonable cause of action – Summary judgment CIVIL PROCEDURE – Jurisdiction – Dismissal of claim due to lack of jurisdiction – Arbitration clause – Optional arbitration

COSTS – interlocutory applications – amendments to pleadings – by Notice of Motion the plaintiff sought to amend its Statement of Claim to reflect evidence served – Motion resolved by consent except as to costs – amendment resulted in deletion of certain claims against defendant – defendant sought order for costs thrown away by reason of the amendment on the indemnity basis and payable forthwith – held that the plaintiff did not act unreasonably in amending its pleadings – order that the plaintiff pay the defendant’s costs thrown away by the amendment on the ordinary basis – forthwith costs order declined

CORPORATIONS — Contracts — Formalities — Statutory assumptions — Whether documents were properly executed to bind the defendant company — Where the plaintiffs argued that they were entitled to rely upon the assumptions in s 129 of the Corporations Act with respect to the purported proper execution of documents by two directors of the defendant — Where the apparent signatures of the two directors had been forged and every apparent communication between the plaintiffs, their agent and the defendant had been fraudulently undertaken by a person who had no authority to act in any way on behalf of the defendant — Whether the plaintiffs had dealings with the defendant for the purpose of s 128 of the Act — Where the Court found that the plaintiffs were not entitled to rely on the assumptions in s 129 because the plaintiffs had no dealings with the defendant — Where the Court held that the plaintiffs have failed to establish that the defendant is precluded from denying that it is bound by the documents EQUITY — Equitable interests in property — Priority disputes — Earlier legal interest — Where the plaintiffs claimed that they had an equitable interest in property in circumstances where their registered mortgage did not on its proper construction and in the events which had happened secure the advance made by the plaintiffs — Where the plaintiffs’ interest in the defendant’s property was created by the fraud of a third party — Where the plaintiffs argued that the defendant’s conduct disentitled it from asserting its priority as the registered proprietor of the property over the plaintiffs’ equitable interest — Whether the earlier legal interest of the defendant would lose its priority to the later equitable interest of the plaintiffs — Where the Court found that the plaintiffs have not established that the defendant lost its entitlement to priority as the registered proprietor LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiffs claimed that, in the event the Court found that the registered mortgage was not effective to secure the amount advanced and that their later equitable interest did not have priority over the defendant’s legal interest, they are entitled to be paid compensation from the Torrens assurance fund on the basis of s 129(1)(e) of the Real Property Act — Whether the loss or damage that the plaintiffs would suffer would be as a result of the operation of the Act — Where the Registrar-General submitted that the plaintiffs are not entitled to compensation because the loss or damage would arise from the plaintiffs conduct rather than as a result of the operation of the Act — Where the plaintiffs argued that the Court should conclude that the plaintiffs will suffer loss as a result of fraud in that they will be deprived of an estate or interest in the property as a consequence of fraud — Where the Court found that the loss or damage that the plaintiffs will suffer is not as a result of the Act — Where the Court held that the plaintiffs’ claim for compensation from the Torrens assurance fund must be dismissed LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Where the plaintiffs claimed that they had a registered mortgage over the defendant’s property — Where the registered mortgage was procured by the fraud of a third party — Whether the plaintiffs’ registered mortgage was indefeasible — Where the Court found that the mortgage in effect did not secure any money — Where the Court held that the plaintiffs’ registered mortgage was indefeasible but that because it secured nothing, the defendant is entitled to an order that the mortgage be discharged

CRIME – appeal against sentence – applicant found guilty by a jury of causing grievous bodily harm with intent – whether sentencing judge failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 – arguments not advanced in court below – whether sentence imposed was manifestly excessive

CRIMINAL LAW – appeal against conviction – appellant charged with two federal drug offences and one state drug offence – indictment signed by person authorised by Commonwealth Director of Public Prosecutions but not authorised by NSW Director of Public Prosecutions – lack of authority in relation to state offence raised towards conclusion of trial – judge directed jury not to return verdict on state count – jury found appellant guilty on both federal counts – whether indictment and convictions a nullity – whether amendments introduced following R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 saved indictment – whether indictment severable – significance of power to amend a defective indictment – significance of District Court’s exercise of federal jurisdiction – whether jury’s verdict unreasonable – whether trial judge erred in not leaving defence that appellant did not know drugs were imported to jury – appeal dismissed

EQUITY — Trusts and trustees — Court’s supervision — Powers, duties, rights and liabilities — Breaches of trust — Court’s power to excuse — Remuneration

CORPORATIONS – application for leave to bring proceedings on behalf of company – Corporations Act, s 237 – equitable proprietary claim against trustees in bankruptcy – company willing to pursue claim but impecunious – applicant proposing to conduct claim in person – serious question to be tried – good faith – best interests of company – conditions that applicant provide security and proceedings be conducted by a qualified person

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagees — Mortgagors complain about difference between market price and price achieved by receivers but make no criticism of sale process — Receivers file evidence about sale process as on a final hearing — Whether mortgagors’ claim of breach of duty by receivers should be summarily dismissed or struck out

PRACTICE AND PROCEDURE —— Application for court-appointed barrister — further application for referral to pro-bono panel for assistance— whether special reasons for referral established — application dismissed — belated application for adjournment of hearing — plaintiff not ready to proceed — plaintiff’s failure to adhere to Court’s orders — alleged evidence tampering — disagreement over court book contents — application refused

HIGH RISK OFFENDER – Costs – Whether the defendant should have the benefit of an order for the costs of the proceedings including the costs of the preliminary hearing – Where the plaintiff brought proceedings pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) seeking an Interim Supervision Order and an Extended Supervision Order – Where the defendant was made the subject of an Interim Supervision Order following a preliminary hearing – Where that order was made largely upon a documentary risk assessment in which the defendant declined to participate – Where the Court made an order for psychiatric and psychological assessments of the defendant and the provision of expert reports detailing the results of those assessments – Where those assessments were conducted with the defendant’s co-operation – Where the proceedings were ultimately dismissed following a final hearing taking into account those assessments – Where the defendant sought an order for his costs of the proceedings – Where the plaintiff accepted that it should pay the defendant’s costs associated with the final hearing but argued against a costs order in respect of the preliminary hearing – Exercise of discretion – Consideration of relevant statutory provisions – Onus on the plaintiff to establish that the Court should exercise its discretion to depart from the general rule that costs follow the event – Where proceedings brought in the public interest – Extent to which the defendant’s failure to co-operate in the initial assessment should disentitle him to an order for costs in his favour – Scheme of the Act – Majority of preparatory work undertaken for the purposes of the preliminary hearing – Where it would operate unfairly to the defendant if he were not given the benefit of an order for the costs of the proceedings – Where the defendant had offered to resolve the matter on the basis that no costs would be sought if the proceedings were discontinued – Where the plaintiff rejected that proposal – Order made requiring the plaintiff to pay the defendant’s costs of the proceedings including the costs of the preliminary hearing

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Correction under slip rule – Uniform Civil Procedure Rule 2005, r 36.17 – first and second defendants apply to amend the orders entered on 5 October 2021 under the slip rule – whether the proposed amendment is an accidental slip or omission which may be corrected under the slip rule.

CIVIL PROCEDURE — proceedings commenced by person under legal incapacity — settlement of proceedings — Court approval

CIVIL PROCEDURE — Application to set aside a subpoena and notice to produce — Subpoena to the Minister for Health and Medical Research to give evidence at the substantive hearing — No reasons sought under Uniform Civil Procedure Rules 2005 (NSW), r 59.9 — Evidence would not be relevant in a substantial way as the plaintiff’s challenge is confined to the result (alleged legal unreasonableness) and not the process — Weight of competing demands in Parliament on the day on which the matter is listed for hearing — Subpoena and one paragraph of the notice to produce set aside — Notice to produce largely resolved by co-operation

CIVIL PROCEDURE — court administration — sittings and vacations — application to vacate and relist hearing opposed by plaintiff on account of delay — whether hearing to be vacated and relisted to allow defendants to retain counsel acquainted with proceedings involving a degree of complexity — application to vacate and relist hearing allowed

CRIME – murder – defence of mental health impairment – special verdict where prosecutor and defence agree that defence available – consideration of ss.4, 28 and 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – accused drove motor vehicle over deceased causing death – unanimous medical evidence that accused subject to mental health impairment at time of act causing death – schizoaffective disorder – schizophrenia, paranoid type – special verdict entered under ss.30 and 31 of Act of “act proven but not criminally responsible” – orders made under ss.33 and 34 of Act

CIVIL PROCEDURE – Judicial Review - Uniform Civil Procedure Rules – Frivolous and vexatious proceedings – No reasonable cause of action – Abuse of process – Proceedings dismissed

HIGH RISK OFFENDER – application for interim supervision order – defendant on parole – statutory pre-conditions conceded – conceded that an order for assessments by qualified psychiatrist/psychologist should be made – form of conditions proposed by plaintiff opposed – conditions imposed identical to parole conditions.

CONTRACTS — Construction of default fees and charges clause — Whether clause is unenforceable as a penalty GUARANTEE AND INDEMNITY — Contract of guarantee — deeds — whether guarantor is liable under Deed of Agreement to indemnify the plaintiff for borrower’s failure to repay loan sum and interest

EVIDENCE – documentary evidence – subpoenas – public interest immunity – where subpoena issued to Commissioner of Police seeking documents relevant to accused’s defence for murder charge – where email chain provided in redacted form – claim of public interest immunity over unredacted form of email chain – whether harm would be done by disclosure of the information as part of the proceedings – where examination of confidential material reveals sound basis for claim of immunity – where public interest in producing information outweighed by public interest in preserving confidentiality of unredacted email chain – Commissioner of Police excused from producing unredacted form of the emails

CRIME – appeals – application for leave to appeal against conviction – whether alleged incompetence of defence trial counsel resulted in the applicant not receiving a fair trial – whether defence trial counsel erred in not raising the possibility of concoction with the complainants in cross-examination – defence trial counsel’s conduct explicable as a rational forensic decision – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether the Crown’s closing address denied the applicant a fair trial – errors made by the Crown corrected by the trial judge in his summing up – no application by defence trial counsel for discharge of jury or for any further direction to be given – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittal not attributable only or principally to doubt about the complainant’s credibility – verdicts not inconsistent

EVIDENCE – tendency evidence – criminal proceedings – applicant charged with historical sexual offences against six complainants – applicant an officer in NSW juvenile justice system and complainants young female inmates – whether uncharged sexual acts admissible as tendency evidence – ss 97, 101 Evidence Act – correctness standard of review – whether significant probative value substantially outweighed prejudicial effect – standard of proof to be applied to uncharged acts in multi-complainant case – sufficient similarities for cross-admissibility of tendency evidence in relation to all counts EVIDENCE – exclusion of evidence – advance ruling made excluding evidence of psychologist witness under s 192A Evidence Act – evidence related to different inmates and different officer to those in this matter – evidence not relevant under s 55 Evidence Act – evidence properly excluded SENTENCING – appeal against sentence – severity – whether aggregate sentence of imprisonment excessive – need for House v The King error – whether sentencing judge sentenced in accordance with sentencing practices at time and considered delay – overall no indication that sentence is manifestly excessive

CRIMINAL LAW – review of conviction – allegation that plea of guilty was improperly procured – allegation that trial transcript doctored – no factual basis for contentions – no question of principle – application dismissed.

COSTS – specified gross sum – whether plaintiff law firm entitled to costs of principal – disbursements only allowed.

COSTS – Party/Party – Exceptions to general rule that costs follow the event – where parties experienced mixed success across two proceedings – where claims abandoned and discontinued at late stage – where unsuccessful claims of dishonesty, undue influence, duress and fraud – whether defendants invited litigation – whether successful defendant should be deprived costs – whether indemnity costs appropriate – whether global costs order appropriate

CIVIL PROCEDURE – standing – application to set aside previous judgment of the court – plaintiff bankrupted – whether application “property” which vested in trustee – whether proceedings automatically stayed – exception for “personal injury or wrong” done to bankrupt CIVIL PROCEDURE – res judicata – application to set aside previous judgment of the court – previous application dismissed by consent – whether dismissal final and “on the merits” – abuse of process CIVIL PROCEDURE – pleadings – application to set aside previous judgment of the court – whether statement of claim viable – defendants’ responsibility for alleged fraud – materiality of alleged fraud – where previous judgment of the court had been appealed

CRIMINAL LAW – bail – applicant charged with sexual intercourse without consent – sole issue for trial is consent – where available material suggests that Crown case is strong – where there is risk of applicant approaching complainant if released – where applicant has history of committing offences while on bail – where applicant has history of domestic violence offences including breaches of apprehended domestic violence orders

COSTS – gross sum costs order – no question of principle

NEGLIGENCE – work injury damages – coal-miner – where plaintiff received injury to right shoulder and neck while operating dump truck – whether bulldozer created hazard in the road – whether injury caused by ditch in road or rough surface – no liability DAMAGES – assessment – statutory thresholds for workers compensation – question of later exacerbation of injury at work

SPECIFIC PERFORMANCE – form of orders – orders for specific performance of heads of agreement to settle litigation and to grant an easement – orders for specific performance already made in a 2020 judgment which was upheld on appeal in 2021 – matter remitted to the trial judge to settle the final form of orders – dispute about whether caveats lodged by the proposed dominant tenement holder of the agreed easement over the proposed servient tenement should be withdrawn before a Conveyancing Act 1919, s 88B instrument lodged and deed of settlement executed – disputes about the form of instrument under Conveyancing Act 1919, s 88B – ascertainment of what was required by the original heads of agreement – scope of the Court’s discretion to settle additional terms to achieve that specific performance of an agreement.

CIVIL PROCEDURE – stay of orders – application for stay pending application for special leave to appeal to High Court – where no application yet filed in High Court – where no evident prospects of success of obtaining special leave under Judiciary Act 1903 (Cth), s 35A – where no offer by applicants to pay any part of judgments into court as a condition of a stay – whether applicant had accrued right to fee which could be set-off against judgment debts – whether orders should be stayed – whether exceptional circumstances established for grant of stay