Cases and authorities

COSTS – interlocutory application heard for a day – adjourned at request of applicant to explore two bases for resolution – neither achieved – applicant now wishes to take up offer made months ago for resolution – application now futile – ordered to pay costs – applicant argued should only pay one set of costs given two opponents taking same position – opponents acting for different interests – applicant to pay both respondents’ costs.

ADMINISTRATIVE LAW – Judicial review– Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of the decision of a Medical Appeal Panel – Jurisdictional error – Error on face of the record – Complex regional pain syndrome – Whether Medical Appeal Panel erred in finding the Medical Assessor did not provide sufficient reasons

CIVIL PROCEDURE — Commencement of proceedings — Summons — Abridgment of time – Interlocutory injunction TORTS — Economic torts — Injurious falsehood — Interlocutory injunction — Defendant restrained

COSTS — application for stay of enforcement order following judgment against defendant – earlier stay application dismissed – fresh application also dismissed – request for a gross sum costs order

CRIME — proceeds of crime — forfeiture of property — forfeiture by operation of s 92 of the Proceeds of Crime Act 2002 (Cth) — declaration of forfeiture under s 95 of that Act — whether requirements of s 95 satisfied — when is a person “convicted” for the purposes of s 92(1)(a) — discretionary considerations as to whether declaration should be made

CONTEMPT – criminal contempt – sentencing – principles at [2]-[12] – contemnor prosecuted for three earlier contempts for publications on his website – contemnor then established anonymous website and published blog containing plaintiffs’ confidential information – orders made to take down blog – orders served on contemnor – blog not removed until plaintiff acquired anonymous website through WIPO proceedings – contemnor then established second anonymous website and continued to publish blog – plaintiffs put to considerable cost in proving contemnor was responsible for anonymous websites, including expert witness – contemnor motivated by animus against plaintiffs and wish to portray himself as a “journalist” – no remorse – used such proceedings to promote himself and seek donations – high risk of re-offending – need for personal deterrence high – imprisonment of 10 months appropriate.

SUCCESSION – Administration of estates – persons entitled on intestacy – whether body corporate entitled to estate STATUTORY INTERPRETATION – Definitions – Interpretation Act 1987 (NSW) s 21 – “person” – whether s 61B(8) of Wills, Probate, Administration Act 1898 is read to include body corporates as a person entitled to an intestate estate

LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – recovery of fees – retainer to investigate dispute between client and third party arising from frauds committed by solicitors’ employee –actual conflict between solicitors’ personal interests and fiduciary duty to client – whether solicitors obtained fully informed consent to act – whether nature of conflict precluded reliance on consent LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – undertaking not to charge fees for work done – whether undertaking given in a professional capacity – whether reliance, loss or consideration required to enforce undertaking – whether Court should prevent solicitors reneging on undertaking

CORPORATIONS – shares – exercise of power to allot shares – where director of family company allotted shares to himself – where effect of allotment was to confer control of company on the director – where hearsay evidence that director provided paperwork concerning allotment to shareholders – where no evidence of paperwork or content of paperwork – whether shareholders gave fully informed consent to allotment – whether share allotment should be set aside EQUITY – defences – laches – knowledge of the wrong – where impugned share allotment occurred in 2004 – where director of company has since passed away – where appellants reside in Indonesia and speak minimal English – whether appellants had means of knowledge of the wrong – whether respondents pleaded that appellants could have searched public records and ran that defence below EVIDENCE – expert evidence – whether letter from overseas lawyers in the nature of an investigative report was expert evidence – whether the primary judge erred in rejecting the tender of the evidence – whether the primary judge should have waived the rules of evidence – Evidence Act 1995 (NSW), s 190

APPEALS – application to receive further evidence – s 75A Supreme Court Act 1970 (NSW) – whether “special grounds” established – special grounds not established because the further evidence could have been obtained with reasonable diligence for use at the trial and there is no significant prospect that the outcome at first instance would have been different if that evidence had been led at first instance

CIVIL PROCEDURE – Court of Appeal – notice of motion – application for review of decision of single judge – no error shown – application dismissed – Supreme Court Act 1970 (NSW), s 46(4)

TORTS — Trespass to the person — Battery — Sexual assault — where resolution of the issues depended on the assessment of the truthfulness of each party — no issue of principle TORTS — Evidence — proof of a fact relied on by defendant TORTS — Malicious prosecution — where defendant provided statement to police in connection with criminal investigation — whether defendant a prosecutor for purposes of the tort — whether defendant knowingly provided false information to a prosecuting authority

APPEALS — from exercise of discretion — procedural decisions — refusal to extend time for filing summons — reasons for delay — significance of first instance decision decided on basis of authority later overturned on appeal — interest rei publicae ut sit finis litium COSTS — costs assessment — determination — review/appeal — jurisdiction to appeal from certificates in proceedings commenced prior to 1 July 2015

CRIME – Appeals – Appeal against sentence – Special circumstances – Findings of the sentencing judge – Whether adjustment of non-parole period reflected findings of special circumstances – Appeal dismissed

SENTENCING — Application for leave to appeal against sentence — whether sentencing judge erred by failing to assess whether the applicant was unlikely to reoffend under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(g) — where sentencing judge considered applicant’s prospects of rehabilitation but not unlikelihood of reoffending — where sentencing judge was not asked to make a finding about the likelihood or unlikelihood of the applicant’s re-offending — severity — whether sentence manifestly excessive

CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim’s claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as “independent” was not capable of having any real bearing on the jury’s understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested “video transcripts” — applicant’s trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of “appropriate concessions” — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity

SENTENCING – appeal against sentence – aggregate sentence – intensive correction order –availability for sentence under 3 years – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW) s 66 – consideration of “community safety” in deciding whether to make an intensive correction order – relevance of general and specific deterrence SENTENCING – federal offence – availability of State sentencing options - intensive correction order – operation of Crimes Act 1914 (Cth), s 20AB, in picking up State sentencing alternatives – application of sentencing alternatives under State legislation – consistency between State and federal sentencing options – whether custodial sentence SENTENCING – appeal against sentence – whether failure to consider mandatory consideration – relevance of submissions for offender – if matter considered, whether reasons inadequate – issues raised adequately addressed in reasons SENTENCING – appeal against sentence – co-offenders – disparity between sentences – different offences involved – material difference in roles

SENTENCING – appeal against sentence – sexual intercourse with a child aged 14-16 years – aggravated indecent assault – possess child abuse material – assessment of objective seriousness of offending – low range aggravated indecent assault a first offence – possession of three brief video clips – possession of cartoon images SENTENCING – appeal against sentence – severity – manifest excess – relevant factors on sentence – objective seriousness – mitigating factors – autism spectrum disorder – developmental age of applicant

SENTENCING – possession of firearms and ammunition – receipt of stolen goods – possession of stolen motor vehicle – pervert course of justice – aggregate sentence – whether sentencing judge erred in concluding applicant was on a bond at time of offending – bail conditions as quasi custody – whether form 1 offence of not stop in police pursuit should have been charged as lesser offence – post sentence assault in custody – effect of pandemic restrictions – comparable cases – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Application to act as tutor not in compliance with requirements — Applicant not engaging with Court or Pro Bono Counsel

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — Child requiring heart surgery — Where sole parent consents to surgery but refuses consent to use of blood and blood products due to religious belief

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Alternative claims in estoppel, resulting trust, constructive trust or for charge over property where adult children contributed to substantial improvement of family home — No issue of principle — Plaintiffs fail to prove any matter that would make it unconscientious for parents to retain benefit of contributions absolutely — Plaintiffs motivated by commercial benefit to them of family home as security for their business and cultural expectation of entitlement of sons to share in parents’ estate

JUDGMENTS AND ORDERS — In favour of plaintiff

CIVIL PROCEDURE – transfer motion – building rectification order – judicial review proceedings – merits appeal – jurisdiction in Class 2 and 4 of Land Environment Court – related proceedings – discretionary considerations with transfer applications – whether appropriate to transfer to related proceedings – nature and jurisdiction of Court in related proceedings – procedural aspects of judicial review and related proceedings – efficiencies in terms of time and cost – motion granted

Client legal privilege – whether communications for the dominant purpose of legal advice – waiver – inconsistency – no question of principle

CIVIL PROCEDURE – interim order pending special leave application – appeal dismissed – caveat protecting interest of dispossessed due to expire – application to extend caveat

INSURANCE – Claims – Property insurance – Fire – Proof – Circumstantial case – Where insurers alleged that fires in hotel premises deliberately lit – Whether plausible hypotheses consistent with innocence – Relevance of financial motive – Whether means and opportunity – Passive infrared sensors – Timing – Layout of premises – Plausibility of intruders – Appeal dismissed APPEALS – From findings of fact – Function of appellate court – Where primary judgment not dependent on credibility findings – Court obligated to conduct a real review of the evidence and reasons

SERIOUS CRIME PREVENTION ORDER – Where first defendant a member of an Outlaw Motorcycle Gang – Consideration of steps to be taken in determining whether an order should be made – No point of principle

CIVIL PROCEDURE - Subpoenas - Legitimate forensic purpose

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether to depart from ordinary position — Where the active defendants relied upon a fabricated document.

OCCUPATIONS — Legal practitioners — Practitioner made unauthorised withdrawals from trust account and authorised false tax invoices to conceal withdrawals — Practitioner seeking appeal against or review of decision of the Council of the Law Society of New South Wales — Decision to appoint a manager and not renew the practitioner’s practicing certificate — Decisions followed a decision of the New South Wales Civil and Administrative Tribunal finding practitioner guilty of professional misconduct and recommending that his name be removed from roll of lawyers — Whether practitioner is a fit and proper person— Evidence of insight into his wrongdoing and his good fame and character — Gravity of misconduct prevents practitioner from proving that he is a fit and proper person — The challenge to the decision to appoint a manager unsuccessful as the need for a manager is finite and will be kept under review by Council CIVIL PROCEDURE — Principles of disciplinary proceedings — Protection of the public includes whether practitioner will commit the same misconduct again, the reputation of the profession and the salutary effect of the proceedings on the practitioner and the profession generally — Consequences necessary so as to not bring the legal profession into disrepute

CIVIL PROCEDURE — Default judgment — Whether court has power to extend time for compliance

EQUITY — Fiduciary duties — Fiduciary relationships — Partners and joint venturers — Breach — Unauthorised profit ESTOPPEL — Promissory estoppel — Existing or expected legal relationship — Estoppel by convention — Mutual assumption EQUITY — Assignment — Of causes of action — Nature of interest required EQUITY — Unconscionable conduct — Special disability or disadvantage CONSUMER LAW — Misleading or deceptive conduct — Conduct evaluated in all the circumstances— Silence or non-disclosure— “Likely” to mislead or deceive CONSUMER LAW — Unconscionable conduct — Unconscionable conduct within the meaning of the unwritten law — Special disadvantage CONSUMER LAW — Enforcement and remedies — Person involved in a contravention — Person knowingly concerned TORTS — Miscellaneous torts — Deceit — Exemplary damages

PRACTICE AND PROCEDURE – Failure to give reasons – Where the first defendant pleaded not guilty to a charge of sexually touching the victim – Where hearing proceeded before a Magistrate on the sole issue of consent – Charge against the first defendant dismissed by the Magistrate – Failure to give adequate reasons – Failure to explain what findings were actually made as to the victim’s consent or the first defendant’s knowledge of the absence of consent – Error established PRACTICE AND PROCEDURE – Failure to apply specific statutory provisions governing the issue of consent – Error established PRACTICE AND PROCEDURE – Where the alleged offending was constituted by the first defendant touching the breast of the victim – Where that conduct was referred to by the Magistrate as amounting to the first defendant “trying his luck” – Observations as to the inappropriate use of such a term in the context of an allegation of sexual assault

CRIMINAL LAW – sentencing – armed robbery – guideline judgment – twenty year old offender with no convictions – history of trauma and neglect – whether sentencing Judge erred in application of “Bugmy principles” – where the applicant was a victim of violence as a teenager – relevance to assessment of moral culpability – impacts of childhood sexual abuse – resort to drugs – error as to commencement date of sentence – sentence varied – appeal otherwise dismissed by majority

PRACTIVCE AND PROCEDURE – application for leave to amend the Commercial List Statement

COSTS – Party/Party – Court’s discretion – where proceedings relating to deceased’s estate resolved by consent orders without hearing of plaintiff’s claim – where independent third party appointed as administrator of deceased’s estate rather than the plaintiff at plaintiff’s cost – whether defendant’s conduct unreasonable – plaintiff’s application for costs refused – no order as to costs

LAND LAW – Torrens title — Compensation for loss of interest in land – Torrens assurance fund – plaintiff held an equitable interest as unpaid vendor or as equitable mortgagee – plaintiff’s agent left signed withdrawal of caveat form with director of registered proprietor – director dishonestly used form in order to remove plaintiff’s caveat as part of refinancing transaction – refinancing transaction involved creation of new interests including new first registered mortgage – new first mortgage secured greater sum – first mortgagee exercised power of sale – proceeds remaining after satisfaction of first mortgage divided by agreement amongst competing claimants – plaintiff received 26% of remaining funds – whether plaintiff deprived of land as a consequence of fraud – whether plaintiff suffered loss or damage as a result of the operation of the Real Property Act – not shown that plaintiff would have been financially better off had refinancing transaction not occurred – plaintiff failed to establish that he suffered loss or damage that falls within s 129(1)(e) of the Act – compensation in any event not payable under s 129(2)(a) of the Act because any such loss or damage is a consequence of acts or omissions of the plaintiff

COSTS — party/party — gross sum costs orders — applicable principles – bases of quantification of gross sum costs orders — factors relevant to the court’s discretion when quantifying costs for purposes of gross sum costs orders CIVIL PROCEDURE — suppression and non-publication — proper administration of justice required disclosure of solicitors’ hourly rates — solicitors’ hourly rates confidential and commercially sensitive in context of an ongoing tender process for inclusion on legal services panel — suppression order appropriate until tender process completed

CIVIL PROCEDURE – Pleadings – Amendment – where defendants conceded certain relief and parties agreed for judicial sale order on basis of original pleading and agreed facts – where proposed amendments include new cause of action and claim rescission and order for transfer of property – no issue of principle – leave to amend those matters refused

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 50.16A – Application for dismissal – Whether proceedings frivolous or vexatious – Whether appeal grounds are incompetent – Application dismissed

SUCCESSION – Wills, Probate and Administration – validity of wills – Mr McGettigan challenges the validity of a 2000 will created by his brother, the deceased, which gave the deceased’s estate to his wife – the deceased’s wife dies shortly after the deceased in 2018 – the defendants, the executors and beneficiaries of the deceased’s wife, seek probate of the deceased’s 2000 will – Mr McGettigan propounds a 2016 will of the deceased, which gave the deceased’s estate substantially to Mr McGettigan – the defendants contend that Mr McGettigan forged the 2016 will to prevent the deceased’s estate devolving away from the deceased’s siblings – whether Mr McGettigan has standing to challenge the deceased’s 2000 will – application of the suspicious circumstances rule. EQUITY – Equitable interest in property – Mr McGettigan relies on two groups of instruments to claim an interest in certain real property in his brother’s estate – Mr McGettigan claims that he made both groups of instruments with the deceased and his wife and other persons – the first group instruments are three agreements, allegedly made between 1991 and 2016 – the second group of instruments are four leases made in July 2016 – whether Mr McGettigan forged both groups of instruments – if not, whether Mr McGettigan can enforce the instruments against the real property in the estate of the deceased. CIVIL PROCEDURE – application filed by Mr McGettigan after judgment is reserved to tender additional evidence six weeks after the conclusion of evidence – consideration of whether to reopen the case in circumstances where substantially the same evidence was put before the Court at trial – where that evidence was rejected on the basis that it was inadmissible hearsay – application is dismissed with costs – a further application by Mr McGettigan to reopen after judgment is reserved also dismissed with costs. EVIDENCE – Credibility evidence – where both parties allege fraud by the other side – where Mr McGettigan was convicted of historical offences of embezzlement and obtaining a financial advantage by deception.

CONTRACTS – payment of sum of money by the plaintiff to the defendant – whether the payment constituted a loan repayable by the defendant – identity of borrower EQUITY – equitable remedies – account – purchase of the property funded in part by a bank loan obtained by the cross-defendant and in part by remittances by the cross-claimant – cross-defendant borrows additional sum largely for his own purposes, and lets property to tenant – scope of account to which cross-claimant entitled LIMITATION OF ACTIONS – equitable defence of laches and acquiescence – whether inordinate delay in commencing the cross-claim – prejudice to cross-defendant LIMITATION OF ACTIONS – statutes of limitation – Limitation Act 1969 (NSW), s 15 – whether s 15 applied directly or by analogy – whether the cross-claim was an action founded on a duty at common law to account – whether s 15 operated by analogy to claim for account in equity’s exclusive jurisdiction – relation back of amendments to cross-claim – discretionary factors – effect on items in account prior to beginning of limitation period

HIGH RISK OFFENDERS – final hearing – extended supervision order – interim supervision order previously made – assessment of whether defendant poses an unacceptable risk – extended supervision order imposed with conditions

COSTS - application for costs of Summons for injunctive orders - orders made restraining defendant from practising as a barrister without a practising certificate - submitting appearance filed by defendant to Summons - question of whether costs should be awarded after submitting appearance filed - costs awarded for whole of proceedings

EQUITY – Trusts and trustees – Express trusts – Declaration of trust – Where only evidence of trust was a conversation purported to have occurred 23 years before hearing – Where evidence inconsistent with later documentary evidence – No issue of principle LAND LAW – Co-ownership – Rights between co-owners – Account – Where accounts showed beneficial co-owners paid “rent” to third beneficial co-owner – Where accounting secured a tax advantage for the third co-owner – Where no evidence that the accounting was intended to reflect payment of an occupation fee – Whether beneficial co-owners entitled to adjustment

NEGLIGENCE – dangerous recreational activities – appellant suffered injury in mid-air collision between light aircraft and Ferris wheel – appellant engaged in dangerous recreational activity of landing at an unregulated aircraft landing area – whether appellant suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity – appropriate level of generality when characterising risk – obviousness of risk – appellant’s harm resulted from manifestation of the obvious risk of colliding with obstructions in the splay of the landing area – appeal dismissed

CIVIL PROCEDURE – Defendants seeking stay of proceedings by reason of s 60(2) of the Bankruptcy Act 1966 (Cth) and dismissal of plaintiff’s notice of motion as he lacks standing — Plaintiff seeking review of Registrar’s directions to list defendants’ notice of motion prior to determination of his earlier notice of motion — Plaintiff’s notices of motion dismissed as per the Bankruptcy Act 1966 (Cth) as he does not have standing to prosecute them in his own name – declaration of stay BANKRUPTCY — Exclusive jurisdiction of federal courts “in bankruptcy” — Jurisdiction of State courts conferred under s 39(2) of the Bankruptcy Act 1966 (Cth) to determine matters arising under the Act other than those falling within the Federal Court’s exclusive jurisdiction — effect of s 60 of the Bankruptcy Act 1966 (Cth) on proceedings in this Court does not require the exercise of jurisdiction “in bankruptcy” — this Court has no jurisdiction to determine the validity of a bankruptcy notice as it is a matter “in bankruptcy” — by operation of ss 60(2) and (3) of the Bankruptcy Act 1966 (Cth) the plaintiff does not have standing to prosecute these proceedings or notices of motion in his own name

CRIME – Appeal and review – Application to Supreme Court under Part 7 – Applicant entered pleas of guilty – No question or doubt as to the applicant’s guilt – Application dismissed

WORKERS COMPENSATION – Determination of claims – Complex regional pain syndrome – Appeal by employee on ground of demonstrable error – Where both approved medical officer and medical appeal panel did not consider criteria which governed the assessment of complex regional pain syndrome specified in the applicable Guidelines for the Evaluation of Permanent Impairment ADMINISTRATIVE LAW – Judicial review – Whether appeal panel erred in not considering grounds of appeal – Whether appeal panel erred by not providing sufficient reasons for its decision