Cases and authorities

CIVIL PROCEDURE — Pleadings — Fraud — Res judicata and issue estoppel — whether proceedings should be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) or dismissed as an abuse of process on the ground that they raise issues dealt with in prior proceedings

COSTS — Party/Party — Bases of quantification — Indemnity basis COSTS — Party/Party — General rule that costs follow the event

CIVIL LAW – unpaid barrister’s fees – where Local Court entered summary judgment for barrister – appeal against decision – whether costs agreement valid – where direct agreement between barrister and client – where solicitor also engaged – whether Act required agreement to be between barrister and client CIVIL LAW – identity of barrister – whether Act required barrister to practice in precise name in which practicing certificate issued – David John Lloyd SC v John Lloyd SC – whether client deceived – whether Magistrate erred in failing to afford right to cross-examine on the issue – no error established – no denial of procedural fairness

CRIME – Judge alone trial – murder – special verdict of “act proven but not criminally responsible” – consideration of orders to be made under ss.33 and 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – victim impact statement of family member received under s.30L Crimes (Sentencing Procedure) Act 1999 – importance of victim impact statement – orders made including order for detention until release by due process of law

CRIME – judge alone trial – murder – deceased stabbed multiple times – defence of mental health impairment under s.28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“MHCIFP Act”) – diagnosis of Bipolar 1 Disorder or Schizoaffective Disorder – parties agree defence available under s. 31 MHCIFP Act – function of Court at trial where s.31 applies – unanimous medical evidence that Accused subject to “mental health impairment” – unanimous medical evidence that Accused did not know that act causing death was wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong (s.28(1)(b) MHCIFP Act) – Court satisfied that defence of mental impairment established (s.31(c) MHCIFP Act) – special verdict entered under ss.30 and 31 MHCIFP Act of “act proven but not criminally responsible”

Industrial law (Cth) – Industrial agreement – Interpretation of Enterprise Agreement – Where Enterprise Agreement and Code of Conduct each applied to all employees of respondent – Where intellectual freedom protected by Enterprise Agreement – Where Enterprise Agreement imposed confidentiality requirements concerning disciplinary processes – Where disciplinary action taken and employment terminated for misconduct and serious misconduct including for breaches of Code of Conduct – Whether disciplinary action taken for breaches of Code of Conduct contravened Enterprise Agreement – Whether exercise of intellectual freedom subject to constraints in Code of Conduct – Whether exercise of intellectual freedom subject to confidentiality obligations in Enterprise Agreement. Words and phrases – "academic freedom", "censure", "Code of Conduct", "confidentiality", "critical and open debate and inquiry", "disciplinary processes", "Enterprise Agreement", "freedom of expression", "intellectual freedom", "lawful and reasonable direction", "obligations of confidentiality", "responsibility to respect the rights of others", "right to express unpopular or controversial views", "termination", "tone or manner of expression", "treat fellow staff members, students and members of the public with honesty, respect and courtesy". Fair Work Act 2009 (Cth), s 50.

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254 ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation

CORPORATIONS LAW — Securities — Application for orders extending the period for issuing cleansing notices under s 708A of the Corporations Act 2001 (Cth) — Securities issued without valid cleansing notice — Where failure to issue cleansing notice was an honest and inadvertent error — Other orders made under s 1322 of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE – costs – costs of notice of motion – indemnity costs order sought payable forthwith – failure to invoke liberty to apply – unnecessary notice of motion – each party to bear its own costs

COSTS – motion for leave to file cross-claim – objection taken to particular aspects of form of pleading – mixed success – neither party can be truly regarded as winner – parties acted reasonably – order made that costs of motion be costs in the cause

HIGH RISK OFFENDER – No issue as to the making of an extended supervision order – Issues as to some conditions – No point of principle

COSTS – Costs assessment – Civil Procedure Act 2005, s 98(4) – a mortgagee (“the mortgagee”) brings proceedings in 2014 for possession (“the Possession proceedings”) of real estate of a deceased mortgagor (“the mortgagor”) – the mortgagee appoints solicitor to act for her in the Possession proceedings – son of deceased mortgagor (“the son”) evicted from mortgaged property – mortgagee also dies – no legal representative of her estate is appointed – mortgage debt is $33,000 – the mortgagee’s solicitors’ fees consume the bulk of the proceeds of sale of the mortgaged property, which are in excess of $352,137.02 - a balance of $33,792.46 remains for the mortgagor – son questions reasonableness of solicitors' fees in acting for the mortgagee and seeks referral to costs assessment – solicitor resists referral to costs assessment to a referee, or the making of a specified gross sum costs order – whether solicitors' fees should be referred for costs assessment – whether any referral for costs assessment should be under Queensland law in Queensland or in New South Wales under New South Wales law – whether Civil Procedure Act, s 98 orders are possible after one failed costs assessment and before another. MORTGAGES AND SECURITIES – Priorities – estate of deceased mortgagor entitled to equity of redemption in net proceeds of sale of mortgaged property – solicitor for mortgagee entitled to equitable litigation lien over proceeds of sale of mortgaged property – which equity is prior in time – issue not clearly raised on the pleadings – directions made for issue to be pleaded. CIVIL PROCEDURE – Service of originating process in equity proceedings (“the Equity proceedings”) – where service of process is said to be defective pursuant to Uniform Civil Procedure Rules 2005 – where service failed to include a notice under the Service and Execution of Process Act 1992 (Cth) – the Court grants leave to serve originating process – what costs orders should be made.

NEGLIGENCE – public authority – Murray Darling Basin Authority – Authority or its delegates alleged to have negligently released water causing damage to plaintiffs’ lands – whether Authority or delegates a “public or other authority” within meaning of s 41 of Civil Liability Act 2002 (NSW) CONSTITUTIONAL LAW – relationship between constitutional and non-constitution issues – role of intervening Attorney-General submitting that constitutional issue does not arise PROCEDURE – defendant Authority pleaded defences from Part 5 of Civil Liability Act 2002 (NSW) on basis that it was a “public or other authority” – paragraphs struck out by primary judge – questions reserved on agreed facts and removed to Court of Appeal – consideration of appropriateness of determining such issue on final basis

COURTS AND JUDGES – application for recusal rejected by District Court judge – summons seeking judicial review of decision dismissed

PRACTICE AND PROCEDURE – notice of motion - application to vacate hearing date – not opposed – application granted – costs reserved

EQUITY – interim injunction – where existing undertaking and consent orders establish a regime for sale of secured property by plaintiff mortgagors with consent of defendant mortgagee, such consent not be unreasonably withheld - whether defendant unreasonably withheld consent to sale on terms negotiated by plaintiffs with proposed purchaser – whether interim injunction now sought would preserve the status quo – whether the balance of convenience favours the granting of an interim injunction

CRIME – Terrorism Offences – doing an act in preparation for or planning a terrorist attack – attempt to export goods that are prohibited under the Customs Act 1901 – objective seriousness for both offences below mid-range – reasonable prospects of rehabilitation – need for specific deterrence - aggregate sentence imposed

CRIME – Terrorism Offences – Doing an act in planning or preparation for a terrorist attack – Engaging in conduct preparatory to committing foreign incursion offence – objective seriousness towards low range – relatively young offender – aggregate sentence imposed

CRIMINAL LAW – Offences – Sentence – Intentionally advocating a terrorist act – Membership of a terrorist organisation – Where the offender was a member of Islamic State and advocated the commission of terrorist acts in accordance with that organisation’s philosophies – Consideration of general principles applicable to sentencing for terrorism-related offences – Where such principles have been developed in the context of sentencing for more serous offending than that committed in the present case – General principles nevertheless applicable – Serious offending committed over a concentrated period of 6 months – Where offender aged 21 at the time of the offending – Offending committed at a time which coincided with the offender’s association with members of an antisocial peer group – Some evidence of link between the offender’s immaturity and his offending – Unchallenged evidence given by the offender of his renunciation of previously held extremist beliefs – Evidence of contrition – Pleas of guilty entered at the earliest possible opportunity – Cautiously favourable prospects of rehabilitation

COSTS — Security for costs — Whether security should be ordered against an Owners Corporation

PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success

CRIME – Appeals – appeal against sentence – where applicant charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – whether there was error in the assessment of objective seriousness

CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — De Simoni principle — where documentation provided by the parties assumed applicant had pleaded guilty to a more serious offence — parties’ error identified during the hearing — whether sentencing judge nonetheless fell into error CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — whether sentence imposed was so far outside the range of sentences available that there must have been error CRIME — violent offences — reckless wounding — sentencing

CIVIL PROCEDURE – pleadings – notice of motion – application for defendant to have separate solicitors appear for separate parts of the one Statement of Claim - separate determination of the claim could give rise to inconsistent judgments and inconsistent findings – notice of motion refused

EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Property purchased by parents (the Plaintiffs) in daughter’s (the Defendant) name — Consideration of whether the Plaintiffs intended to gift the whole of the Property to the Defendant or retain the beneficial interest, or a part thereof, for themselves — Consideration of whether the Plaintiffs have rebutted the presumption of advancement — Plea by the Defendant, in the alternative, that if she holds the Property on trust for the Plaintiffs, it is only in respect of a life estate for the Plaintiffs — Held: the Plaintiffs have not discharged their onus of rebutting the presumption of advancement, save to the extent of a life interest — Declaration that the Defendant holds the Property on trust for the Plaintiffs for their lifetimes and then for herself absolutely EQUITY — Unconscionable conduct — Special disability or disadvantage — No special disability or disadvantage EVIDENCE — Witness evidence — Competence — Lack of capacity — First Plaintiff deposed to two affidavits — Plaintiffs assert that the First Plaintiff lost capacity on account of his diagnosis of mixed vascular Alzheimer dementia soon after swearing his second affidavit — Consideration of whether the Court should make an order permitting the Plaintiffs to use those affidavits pursuant to r 35.2(3) of the Uniform Civil Procedure Rules 2005 (NSW) — Second affidavit sworn so close in time to diagnosis that the First Plaintiff’s cognitive function is likely to have been seriously affected — Plaintiffs only permitted to use the first affidavit, but limited weight given to that affidavit EVIDENCE — Witness evidence — Cross-examination — Rule in Browne v Dunn (1893) 6 R 67 — Submissions involving assertions of fact not put to the Defendant in cross-examination

CIVIL LAW – administrative law – writ of habeas corpus – lawful detention – onus on gaoler to establish lawfulness – valid warrant sufficient to discharge onus – long history on one view – short history on another – whether periods of pre-sentence custody taken into account in earlier sentencing hearings and applications for review – questions dealt with in earlier proceedings – inappropriate collateral attack on earlier decisions of this Court – pending bail application – pending applications before Court of Appeal – no power to relieve applicant of her current burden – writ discharged and summons dismissed

EVIDENCE – special hearing – murder – where deceased stabbed three times to neck and back – wholly circumstantial case – Crown application to tender tendency evidence admitted on voir dire – where tendency evidence goes to identity of accused – previous ‘stabbing’ committed by accused – low degree of similarity – probative value not significant – unfair prejudice to accused not outweighed

JUDGMENTS AND ORDERS — amending, varying and setting aside — correction under slip rule

PRACTICE AND PROCEDURE – stay of proceedings – related proceedings in Federal Circuit and Family Court (Division 2) – no express power to transfer – Division 2 Court should determine all issues in dispute – stay granted

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

HIGH RISK OFFENDERS – Extended supervision orders – Unacceptable risk of committing a serious offence – Offender has an intellectual disability – Relevance of conditions to risk – Ability of offender to comprehend and comply with the conditions

CORPORATIONS — plaintiff’s application for appointment of receiver to the assets of the third and fourth defendants — where plaintiff is unsecured judgment creditor of the third and fourth defendants as a result of judgment given in earlier proceedings under the Corporations Act 2001 (Cth) — where solicitor acting for those parties in the earlier proceedings appointed a receiver to their assets pursuant to a charging clause in the solicitor’s costs agreement — whether appointment and actions of that receiver are in breach of an undertaking to the Court given by the third defendant in the earlier proceedings — where plaintiff complains that receiver has failed to follow “due process” in marketing the assets for sale — application for Court to appoint receiver (replacing the receiver appointed by the solicitor) under s 1323(1)(h) of the Corporations Act 2001 (Cth), s 67 of the Supreme Court Act 1970 (NSW) or in the exercise of the inherent jurisdiction to appoint a receiver in aid of equitable execution — application dismissed

CIVIL PROCEDURE – parties – vexatious litigants – whether the plaintiff has frequently instituted or conducted vexatious proceedings in Australia – whether plaintiff’s conduct of present proceeding demonstrative of future vexatious proceedings being pursued – vexatious proceedings orders made

CRIMINAL PROCEDURE — privilege claimed over documents seized pursuant to search warrant —application for injunction prohibiting police access to documents — where parties agree that application falls under legal professional privilege, not client legal privilege — discussion of general principles — factual findings — granular analysis of almost 100 documents — where police granted access to some documents and some portions of documents

JUDGMENTS AND ORDERS – supervisory jurisdiction – judicial review – application proceeding in Local Court special jurisdiction dismissed – where appeal to District Court under Local Court Act 2007 (NSW), s 70(1) dismissed for lack of jurisdiction – whether jurisdictional error in dismissing appeal CIVIL PROCEDURE – jurisdiction – appeal to District Court under Local Court Act 2007 (NSW), s 70(1) from orders made in special jurisdiction – whether right of appeal from order dismissing proceeding

COSTS — Chorley exception — where party represented by incorporated legal practice of which he was the principal and sole director and shareholder — whether primary judge erred in denying solicitor applicant costs payable to incorporated legal practice — Bell Lawyers Pty Ltd v Pentelow JUDICIAL REVIEW — what constitutes “the record” for the purposes of error of law on the face of the record

CRIME – appeal against sentence – Commonwealth offences – possess commercial quantity of a border controlled drug – attempt to possess a commercial quantity of a border controlled drug – aid and abet an attempt to traffic in a commercial quantity of a border controlled drug – sentences imposed in 2014 and 2016 – “Xiao” error – error conceded – requirement to re-exercise the sentencing discretion – application of the parity principle

CRIME – Appeals – appeal against sentence –Applicant convicted of state drug and firearm possession offences – Applicant convicted of Commonwealth offence of attempt to possess a commercial quantity of border control drug (cocaine) – question of whether sentence imposed for Commonwealth offence was manifestly excessive – determination

CRIME — appeals — appeal against conviction — where applicant had entered a plea of guilty to one “rolled up” count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) — where applicant sought leave to appeal on the basis that the conviction was wrong in law and the element of deception was not made out — where applicant had by her guilty plea admitted all of the elements of the offence — no miscarriage of justice — leave to appeal refused CRIME — fraud — dishonestly obtain financial advantage by deception — causation — meaning of “obtain” — meaning of “keep a financial advantage that one has” — Crimes Act 1900 (NSW), s 192D(1)(c) CRIME — fraud — meaning of “deception” — where relevant deception was the “fraudulent transfer of money” — Crimes Act 1900 (NSW), s 192E

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

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

COSTS — Party/Party — Costs orders in interlocutory proceedings — Circumstances where costs of an interlocutory application payable forthwith

CONTRACTS — termination — contractual promise to comply with terms of commercial lease — lease breached — right to terminate subject to notice requirement — peremptory termination without notice — repudiation of contract — acceptance of repudiation CONTRACTS — parties — failure to join all necessary parties to proceedings — corporate entities distinct from individuals

APPEALS – application for leave to appeal – proposed appeal has no prospect of success

CIVIL LAW – proceeds of crime – freezing orders – orders for disclosure of assets and liabilities – whether appropriate to deal with applicant ex parte – no question of principle

MENTAL HEALTH — Management of estate — Person incapable of managing his affairs — Financial Management – Fiduciary obligations – Liability to account

CONTRACTS – formation of contracts – intention to be bound – plaintiffs as purchasers and defendant as vendor signed front page of standard form contract for sale of land – signing occurs in the presence of a licensed conveyancer acting for all parties – nine lots the subject of sale comprised approximately half of the property known as “Myoora” – purchase price expressed to be $1.00 – form of contract records all matters essential for a binding contract for sale of land – defendant contended that form of contract was in the nature of a draft and not intended to be binding – dispute as to what was said about document at time of signing – held that form of contract was not merely a draft – held that binding contract for sale was made when the parties signed form of contract – orders made for specific performance of contract ESTOPPEL – equitable estoppel – proprietary estoppel – defendant to inherit “Myoora” under mother’s will subject to making payments of $500,000 – defendant tells plaintiffs that if they could provide the money to enable the payments to be made, she would transfer half of “Myoora” to them – plaintiffs make payment of $150,000 on basis that amount would be part of the buy in for half of “Myoora” – mother’s will amended so gift of “Myoora” to defendant now subject to making payments of $350,000 – following mother’s death plaintiffs assist defendant to make the payments of $350,000 – plaintiffs became borrowers with the defendant on a $340,000 loan and provided a further $10,000 – held that reference to a transfer of “half of Myoora” sufficiently certain to support an equitable estoppel – held it was reasonable for the plaintiffs to rely upon the defendant’s assurances and assume or expect that the defendant would fulfil her promise – held that it would have been unconscionable for the defendant to depart from the assumption or expectation she created

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving redomiciliation scheme of arrangement – Whether scheme of arrangement should be approved.

COSTS – No point of principle

ADMINISTRATIVE LAW – judicial review – where proper officer of the State Insurance Regulatory Authority refused application for review of medical assessment – whether proper officer fell into jurisdictional error by misconstruing the nature of the jurisdiction committed to her under s 63(3) of the Motor Accidents Compensation Act