Cases and authorities

CRIME – murder – judge-alone trial – only issue is self-defence – facts relatively uncontroversial – firearm brought into altercation to deter deceased from threats of grievous bodily harm to accused’s mother – deceased affected by methylamphetamine – deceased runs towards accused raising pick handle – accused shoots causing death – Crown fails to disprove accused acted believing it necessary to defend himself and/or his mother – Crown also fails to prove that conduct was, in the circumstances as the accused perceived them, unreasonable – accused acquitted of both murder and manslaughter

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether parties acted reasonably TORTS — Trespass to land — Continuing trespass — Where subterranean encroachment upon plaintiffs’ land from defendants’ land — Where defendants were not in possession when the encroachment was constructed — Whether defendants liable for trespass committed by predecessor in title — Whether encroaching material affixed to defendants’ land

CONTRACTS — Construction — Construction of insurance contract — Where policy insured against damage to construction projects — Where houses under construction damaged in hailstorm — Where policy provided for application of “deductible” — Whether “deductible” to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm

ADMINISTRATIVE LAW – Motor accident legislation – Review of assessment of claim for damages – Ground of review other than procedural fairness – Procedural error – Right to reasons – Under statute –Where statute required brief statement of reasons – Whether adequate reasons for assessment of past and future economic loss – Where five years of claimant’s income records in evidence – Where insurer argued for averaging method – Where income increased each year except one and likely to continue to increase – Assessor had regard to available evidence – Assessor engaged with insurer’s approach – Assessor correctly rejected approach as not sensible – Assessor provided clear reasons and reached an appropriate figure – Summons dismissed

HIGH RISK OFFENDER – serious sex offences – preliminary hearing – interim orders sought – interim detention order made

COSTS – Probate proceedings - Where Court finds in favour of an informal document propounded by the Plaintiff; rejected the defence of lack of testamentary capacity; and dismissed the Cross-Claim of the Defendants which alleged that there was a will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Defendants had also asserted that the unfound will was removed by the father of the Plaintiff, after the deceased’s death, from the deceased’s home – Serious allegation of what may have amounted to criminal conduct under s 135 Crimes Act 1900 (NSW) made but not proved – Whether Defendants maintained defences and made the serious allegation which had no reasonable prospects of success COSTS - Whether there should be exception to general rule that costs follow the event bearing in mind nature of the proceedings or otherwise – Consideration given to the nature of the proceedings COSTS - Offers made by the Plaintiff – Whether each a Calderbank offer – Each offer not accepted by the Defendants, and the Plaintiff obtains an order on the claims no less favourable to her than the terms of the offer - Relevance of offer made if it was not a Calderbank offer on question of costs Plaintiff contends that the Defendants should pay her costs of the proceedings calculated on the indemnity basis – Defendants orally submit that their costs should be paid out of the estate of the deceased COSTS - How costs should be borne and whether the circumstances warrant the exercise of the Court’s discretion to make an indemnity costs order in favour of the Plaintiff.

CRIMINAL LAW - release application - membership of a terrorist organisation - requirement for exceptional circumstances - assessment of strength of prosecution case - possession of ISIS propaganda - pledge of allegiance - conflicting expert opinion on meaning of “giving Bay’ah” - where applicant under observation since 2018 - no escalation in activities - where applicant seeks psychological intervention before arrest - where deradicalisation therapy available in community - COVID 19 - relevance to bail - where applicant suffers from asthma - not the “new normal” for purposes of considering bail - conditions of incarceration - relevance of delay - whether unacceptable risk - conditions of bail - release application granted CRIMINAL LAW - bail application - availability of appeal under Crimes Act 1914 (Cth) - statutory stay - detention application - appropriateness of stay allowing Director to challenge decision to grant conditional bail - stay granted

EVIDENCE – Privileges – Client Privilege – litigation privilege – common interest privilege – the defendants and their associated entities sold certain rural roadside service stations to the plaintiffs and their associated entities in a complex suite of transactions – the plaintiffs and the defendants engaged the same solicitor for the transaction (“the joint solicitor”) – the plaintiffs sued the defendants for specific performance of one of the suite of agreements made between them, alternatively for damages for breach of contract and for misleading and deceptive conduct – the defendants cross-claim for misleading and deceptive conduct, for amounts said to be due as a result of the taking of accounts between the parties and for declarations that they have validly terminated a sale agreement for one of the service stations – from a time shortly before and then for about two months after the plaintiffs commenced these proceedings their solicitor communicated with the joint solicitor (“the questioned communications”) – the defendants subpoenaed the questioned communications from the joint solicitor and now seek access to them – whether the question of granting access to the questioned communications by or on behalf of the plaintiffs with the joint solicitor should be determined under the common law relating to legal professional privilege or by the application of client privilege under Evidence Act 1995, s119 – whether the questioned documents attract legal professional privilege or client privilege – whether any common law legal professional litigation privilege has been waived, or whether any client privilege that would otherwise arise under Evidence Act 1995 s 119 has been lost, by reason of the plaintiffs and the defendants retaining the joint solicitor.

CONTEMPT – sentencing – defamation – failure to comply with permanent injunctions restraining further publication of defamatory material

CONTRACTS — Construction — Whether letters of variation had the effect of reinstating a previous version of an employment contract CONTRACTS — Rectification — Intention — Discerning the parties’ intention to correct an absurdity in an employment contract — Where reference in letter of variation to a previous version of an employment contract was an obvious error CONTRACTS — Construction — Whether the employee’s contract of employment was terminated after he had given notice less than was contractually required or after his employer had given notice CONTRACTS — Breach of contract — Whether former employee breached non-solicitation clause by aiding recruitment of another employee with competitor EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of Trade — Whether restraint operates because parties are “in competition” EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of Trade — Validity and reasonableness — Restraints of Trade Act 1976 (NSW) — Legitimate interests — Confidential Information — Length and scope of restraint EQUITY — Fiduciary duties — Fiduciary relationships — Employee and employer — Whether former employee breached fiduciary duties by taking up employment with a competitor while still employed by original employer TORTS — Economic torts — Inducing breach of contract

APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no issue of principle – no question of general public importance

CRIME — appeals — appeal against sentence — application for leave to appeal — whether failure to reflect special circumstances having regard to overall time to be spend in custody — whether manifest excess — application of comparable cases and sentencing statistics — no error established CRIME — appeals — appeal against sentence — application for leave to add ground of appeal raising error by sentencing for an offence to which the applicant did not plead guilty— where relevant provision merely misidentified on one occasion and no other error — leave to add ground of appeal refused

OCCUPATIONS – legal practitioner – barrister – where barrister subjected to injunction restraining him from legal practice – where actions of barrister evince an intention to so practice – contempt proceedings afoot – further and more particular injunction made

COSTS — Recovery of costs — Indemnity principle — Operation of —whether party indemnified by third party payer still able to have costs paid by other party to the proceedings — where third party payer had real interest in the outcome of proceedings

PRACTICE AND PROCEDURE – security for costs – order that plaintiff provide security – plaintiff suing in capacity as trustee – impecuniosity – indemnity by trust – delay – conduct of proceedings vexatious – amount – stay pending compliance – dismissal in event of non-compliance

SUCCESSION — Family provision — Claim by adult granddaughter for provision from notional estate of deceased maternal grandmother under Succession Act 2006 (NSW), Ch 3 — Whether dependent at any time on the deceased — Whether factors warranting — Application dismissed

TAXES AND DUTIES – land tax – exemption – land used for primary production – where independent users conduct separate primary production activities on land – whether each activity relevant to determine if dominant use of land is for primary production – whether uses can be considered as a whole to determine if exemption applies – whether primary production business conducted on other land relevant to determining commercial character of activities on subject land

PRACTICE AND PROCEDURE – application for leave to appeal – stay of enforcement of costs order – referral for pro bono assistance – motion dismissed

APPEAL – leave to appeal – where application under UCPR, r 36.15 to set aside costs orders made in earlier interlocutory proceedings – where primary judge made one of the costs orders sought to be varied – where primary judge refused to disqualify himself for apprehended bias – where r 36.15 application dismissed – where challenges to those orders have no realistic prospects of success – leave to appeal refused

LAND LAW — Caveats — Application for removal under s 74MA of the Real Property Act 1900 (NSW) — Whether the balance of convenience favours the withdrawal of the caveat — Where conditions proposed by the defendants would expose the company’s proprietary interest.

COSTS – indemnity costs – Calderbank offer – whether plaintiffs’ non-acceptance of defendant’s offer was unreasonable – HELD – it was not

EQUITY — Equitable remedies — Interlocutory injunctions — Whether the balance of convenience favours maintenance of interim relief — Where restraining the defendants would also prevent their communication with a public authority in their capacity as members of the public.

COSTS — Party/Party — Where no determination on the merits.

CONTRACTS — Construction — Interpretation — Use of recital in construction of partnership agreement where instrument contains inconsistencies — Determination of timing and method of payment of the parties to the agreement

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

CORPORATIONS — Schemes of arrangement — Application for order convening meeting of members to consider scheme of arrangement.

APPEALS – From Local Court – Appeal as of right on questions of law – Appeal by leave on mixed question of fact and law – Leave not granted – Procedural fairness – Apprehended bias – No basis for apprehended bias – Erroneous agreement on applicable law between parties does not bind decision-maker when decision-maker’s view is drawn to parties – Magistrate acted appropriately in discharge of duty – No error DAMAGES – Inclusion of GST in damages for claim in conversion – No error

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Preliminary discovery CIVIL PROCEDURE — Interrogatories — Application for — Necessity CORPORATIONS — Management and administration — Application to inspect books EQUITY — Trusts and trustees — Beneficiaries — Access to trust documents — Where claimed by reference to general administration suit — Whether trustee obliged to provide information or an account of trust dealings

COSTS — Party/Party — General rule that costs follow the event — Orders when proceedings involve multiple parties — Apportionment — Bases of quantification — Indemnity basis — Offer of compromise

OCCUPATIONS — Legal practitioners — Legal professional privilege — Inadvertent discovery and inspection of document — Application for removal

CRIME – appeals – appeal against conviction – miscarriage of justice – evidence of vulnerable persons – warnings – where complainant gave evidence in the form of a recorded interview – whether trial judge failed to direct and warn the jury as to the effect of the replaying of the evidence of the complainant – where warning given immediately prior to the jury being provided with a transcript of the recorded interview – Criminal Procedure Act 1958 (NSW), s 306X CRIME – appeals – appeal against conviction – miscarriage of justice – majority verdict – directions to jury – perseverance direction – whether trial judge erred in directing the jury as to the availability of a majority verdict – whether a reasonable time had elapsed before the giving of the direction – whether trial judge had reached the requisite degree of satisfaction that the jury was unable to reach a unanimous verdict before the giving of the direction – Jury Act 1977 (NSW), s 55F

CRIME - appeal - conviction - unreasonable verdict –inconsistent verdicts – multiple counts of sexual offences – single complainant – consent – knowledge – acquittals able to be explained without recourse to complainant’s credibility – ground rejected CRIME – appeal – conviction – jury note – apparent reversal of burden of proof in jury question – no specific correction by trial judge – no request for further direction in response to jury note – leave granted under r 4.15 – accused deprived of real chance of acquittal – miscarriage of justice – retrial ordered

LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Caveat claiming same interest is of no effect

COSTS — Costs assessment — Review Costs Assessment – Extension of time to file review application – Application refused

ADMINISTRATIVE LAW – Judicial review – where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure “questions of law” – where any jurisdictional error by the primary judge in finding that she lacked power to refer questions to the Court of Criminal Appeal because she was functus officio was thus immaterial – where relief withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – nature of the power and role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal – contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act 1912 (NSW) CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where applicant submitted questions informally via email to the Registrar of the Local Court – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where questions sought to be referred to the Court of Criminal Appeal were plainly not pure “questions of law” JUDGMENTS AND ORDERS – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court – general requirement for judgments to be given in open court where practicable to do so – requirement for clarity as to when a judgment has been given – requirement that a judgment reaches the parties

CIVIL PROCEDURE – stay of proceedings – under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in dispute between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court” CONSUMER LAW – industry codes – Franchising Code of Conduct – what constitutes a “franchise agreement” – whether a deed of guarantee is a “franchise agreement” as defined in cl 5 of the Code – where the guarantors assumed certain obligations of the franchisee and covenanted to be personally bound by the terms and conditions of the Franchise Agreement pursuant to the deed of guarantee – where the deed of guarantee conferred no right to carry on the business of offering, supplying or distributing goods or services as a franchisee CONSUMER LAW – industry codes – Franchising Code of Conduct, cl 21(2)(a) – where franchise agreement must not contain a clause that requires a party to the agreement to bring an action or proceedings in relation to a dispute under the agreement in any State or Territory outside that in which the franchised business is based – whether franchise agreement may contain a non-exclusive jurisdiction clause – where the prohibition refers to a clause that “requires” the parties to litigate in a particular forum EVIDENCE – standard of proof – civil cases – application for stay of proceedings under the Service and Execution of Process Act 1992 (Cth) – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – jurisdiction clauses – non-exclusive jurisdiction clauses – whether excessive reliance placed upon non-exclusive jurisdiction clause in favour of New South Wales – where s 20(4)(d) of the Service and Execution of Process Act 1992 (Cth) requires the court of issue to take into account “any agreement between the parties about the court or place in which the proceeding should be instituted” – whether dictum in Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652 at [18] was correct PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – standard of proof – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in issue between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court” WORDS AND PHRASES – “franchise agreement” – Competition and Consumer (Industry Codes­­––Franchising) Regulation 2014 (Cth) sch 1 cl 5

CIVIL PROCEDURE – where notice of motion dismissed on the basis that it was to be replaced by an amended summons – amended summons filed after the applicant became subject to a vexatious litigant order – whether primary judge in error in determining that the amended summons was taken to be dismissed by the operation of the Vexatious Proceedings Act – whether amended summons was filed as the continuation of the application commenced before the applicant became subject to a vexatious litigant order COURTS AND JUDGES – bias – grounds alleging actual bias and apprehended bias – repeated applications for recusal on substantially the same grounds – no basis for recusal

ADMINISTRATIVE LAW – judicial review – error of law – review of decision of consent authority – construction of State Environmental Planning Policy – whether decision-maker considered conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable ADMINISTRATIVE LAW – judicial review – error of law – obligation to consider case presented by applicant – minimising scope 3 greenhouse gas emissions of thermal coal – whether refusal of proposal could lead to use of inferior resource with higher emissions ADMINISTRATIVE LAW – judicial review – error of law – reference in reasons to “no evidence” – where information before decision-maker – whether reasons indicated decision-maker not satisfied that information provided rational basis for finding sought ENVIRONMENT AND PLANNING – development application – refusal of consent – judicial review – State significant development – coal mine proposal – consent required from Independent Planning Commission – construction of Mining SEPP, cl 14 – conditions of development STATUTORY INTERPRETATION – “applicable … policies … concerning greenhouse gas emissions” – State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 14(2)

CONTRACT – contract to transfer land, subdivide it and reconvey lots to vendor on which were constructed a House and Duplex – developer failed to provide Layout Plans to vendor of House and Duplex – plans ultimately provided – plans gave rise to dispute as to dimensions of “Duplex” – developer in breach of promise to reconvey lots with House and Duplex constructed – common ground that reasonable not to construct Duplex until dispute resolved – whether order for reconveyance of lots as vacant land plus Lord Cairns’ Act damages appropriate – Soames v Edge (1860) Johns 669; 70 ER 588 considered – whether primary judge misapprehended plaintiff’s case – whether anything turns on misapprehension of plaintiff’s case – whether primary judge erred in proper construction of “Duplex” – whether primary judge erred in failing to address availability of contractual limitation of liability SPECIFIC PERFORMANCE – nature and availability of remedy – relevance of historic breach – need to establish not just for plaintiff to be confined to damages – damages under Supreme Court Act 1970 (NSW), s 68 (Lord Cairns’ Act) – nature and availability of remedy

COSTS — security for costs — on appeal — application under UCPR r 51.50 — special circumstances — non-compliance with curial procedure — application granted

CRIMINAL LAW - fitness to be tried - murder of wife - delusional and paranoid beliefs - belief the victim is trying to kill him - belief the victim may be a “duplicate” - new mental health legislation - codified criteria of fitness - opinions of psychiatrists - accused not fit to be tried - whether likely to become fit in the next 12 months - appropriate orders

PRACTICE AND PROCEDURE – application for default judgment where no Commercial List Response filed – no issue of principle

PRACTICE AND PROCEDURE – transfer from District Court to Supreme Court – no question of principle

LAND LAW — Adverse possession — Possessory application over Torrens title land — Where the plaintiff sought a declaration that it and its predecessors had exercised adverse possession over neighbouring land and that it was entitled to be registered as the proprietor of that land — Where the active defendant is the executor of the estate of the registered proprietor of that land — Where the plaintiff claimed that the defendant is statute-barred from seeking recovery of the land — Where the defendant did not admit the plaintiff’s claim and put the plaintiff to strict proof of its validity — Where the plaintiff’s case was that it and two predecessors had exercised adverse possession over the land in fact and had the relevant intention to possess for the required 12 year period — Where the Court found that the evidence of actual possession in fact relied upon by the plaintiff was not sufficient to establish adverse possession over the land, as opposed to mere use — Where the Court found that it was not satisfied that the plaintiff and its predecessors had the relevant intention to possess the land for the required 12 year period — Where the Court held that the plaintiff did not establish that it and its predecessors successively exercised adverse possession over the land for the relevant 12 year period LIMITATION OF ACTIONS — Operation of bar — Extinction of title after expiry — Where the plaintiff adverse possessor claimed that the defendant was statute-barred from exercising a right of recovery of land — Where the plaintiff claimed that it and its predecessors had successfully exercised adverse possession over the land for the relevant 12 year period — Where the Court found that the actions of the plaintiff were likely sufficient to establish adverse possession over the land in recent years but were insufficient to establish adverse possession over the land for the entire 12 year period

APPEALS – application for leave to appeal – practice and procedure – refusal of stay – separate civil proceedings in Supreme Court – common factual basis – differing issues – findings in one not admissible in the other – no prejudice demonstrated APPEALS – Civil and Administrative Tribunal, Occupational Division – refusal of stay – interlocutory decision – requirement for leave to appeal – applicable principles – error of law – issue of principle – demonstrated unfairness

NEGLIGENCE – Duty of care – Particular relationships – Users of public right of passage – Duty owed to postal delivery officer by owners of caravan parked on nature strip – Formulation of risk – Where postal delivery officer claimed to have collided with concealed extender bed protruding from caravan – Presence of caravan insufficient – Risk arising specifically from concealed extender bed – Formulation must account for driver taking reasonable care for own safety NEGLIGENCE – Breach – Whether risk foreseeable – Whether risk not insignificant – Whether reasonable person would have taken precautions – Probability of harm – Seriousness of harm – Burden of taking precautions – Where limited or no social utility of activity creating risk – Where a reasonable response was to do nothing – Breach not established – Appeal dismissed APPEALS – Procedural fairness – Failure to give reasons – Adequacy of reasons – Requisite standard of reasons for accepting and rejecting evidence and for making credit findings APPEALS – From findings of fact and credit findings – Function of appellate court – Restraints on appellate interference – Obligation to undertake a real review of the evidence and reasons – Where overarching adverse credibility finding made – Where appellant’s account of incident rejected – Whether credit finding informed by assessment of demeanour or only by inconsistencies in evidence – Where demeanour neither expressly relied upon nor disclaimed – Court able to interfere with factual findings but fresh findings would require retrial

CRIME – application for request to Sheriff to investigate whether jury verdict affected because of improper conduct by jury member – Jury Act 1977 (NSW), s 73A – juror sent emails to Commonwealth Attorney General and National Security Committee – email headed ‘Torture and inhumane from intelligence Agencies’ – mental state not improper conduct – application dismissed

CORPORATIONS — Application for leave to bring proceedings against company under s 471B of the Corporations Act 2001 (Cth) and against court-appointed liquidator — Whether to exercise discretion to grant leave for proceedings against liquidator personally.

CRIME – appeal and review – judicial review – order of Local Court declaring plaintiff registrable person under Child Protection (Offenders Registration) Act 2000 – order quashed – defendant acknowledged errors by Magistrate and that relief sought should be granted – Court satisfied of jurisdictional error - consequential orders

SUCCESSION — Administration of estates — Construction of residuary clause in deceased’s will SUCCESSION — Family provision — Claim by adult child — Proceedings not commenced within time