Cases and authorities

CORPORATIONS – reinstatement – whether the company be immediately wound up upon reinstatement – where company owns real property of some value – orders sought pursuant to Corporations Act 2001 (Cth), s 601AH(3)(d) COSTS – where costs disproportionate to the outcome achieved – whether to reimburse costs out of the winding up under Corporations Act 2001 (Cth), s 466(2) – plaintiffs to bear their own costs

EQUITY — Trusts and trustees — Resulting trusts — Constructive trusts — whether monies, the proceeds of the sale of a home, were given as a gift or to hold on trust for an unspecific indefinite period RESTITUTION — Nature of restitutionary liability — Unjust enrichment — no operation of unjust enrichment in absence of specific pleaded case entitling restitution

EVIDENCE — Privileges — Client legal privilege — Evidence Act 1995 (NSW), ss 120, 131A — Privilege claimed over documents produced under subpoena by third party — Whether common law or statute applies — Legal professional privilege — Dominant purpose test

CRIMINAL PROCEDURE — application to exclude evidence – ss 55, 98, 137 Evidence Act 1995 (NSW) – whether evidence of the accused driving past the deceased’s house following a suspicious house fire five months prior to the shooting is relevant and admissible – held, evidence is relevant to motive and admissible – whether videos of accused participating in MMA bouts admissible – whether unfair prejudice due to violent nature of sport – where accused participating in organised and legal sporting activity – where more violent portions of fights are edited out of the videos – held, videos of MMA bouts admissible

CONTEMPT — Civil contempt — Breach of injunctions restraining defamatory publications — whether impugned publications are of and concerning the plaintiffs and therefore in breach of orders

CIVIL PROCEDURE – Representative proceedings – Sale of goods – claim that Volkswagen vehicles were not of acceptable quality for the purposes of s 54 of the Australian Consumer Law by reason of being fitted with driver side Takata airbags – where airbags contained a propellant (“PSAN”) that had propensity to degrade when exposed to moisture and temperature fluctuations – whether plaintiff established any functionally significant propensity of the PSAN to degrade in the airbag in his vehicle such as to cause it to explode or malfunction – whether the airbag in the defendant’s vehicle did not malfunction – where defendant replaced the airbag in the plaintiff’s vehicle without cost – whether the plaintiff established any loss by reason of any want of acceptable quality in his vehicle

HIGH RISK OFFENDER – Final hearing – Terrorism (High Risk Offenders) Act 2017 – Application for an extended supervision order – Application refused

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child –– change of name –– declaration of paternity –– registration of maternal adoption plan –– dispensation of the consent of the birth parents

HIGH RISK OFFENDER – serious sex offender – application for continuing detention order – availability of program in custody – safety of community – long history of incarceration and institutionalisation – history of failure to comply with supervision – high risk of future violent and sexual offending

CRIMINAL LAW - sentencing - credit card fraud and identity theft - skimming devices - proceeds of crime - grave criminality - exceptional hardship to children - where husband and wife both incarcerated - finding reflected in adjustment to non-parole period - “crafting” sentence to facilitate availability of intensive corrections order - contrary to orthodoxy - sentence severe but not manifestly excessive

SENTENCING – dangerous driving causing grievous bodily harm – effect of intoxicating drug – applicant suffered fatigue from withdrawal phase of using methylamphetamine – whether finding that driver significantly effected by drugs was open – whether sentencing judge failed to apply guideline judgment – Whyte – whether sentence manifestly excessive – appeal allowed – sentence reduced

CRIMINAL LAW – sentencing – finding of special circumstances – sentencing ratio – whether failure to give proper practical effect – discretion of sentencing judge – prospects of rehabilitation CRIMINAL LAW – sentencing – whether House v King error – whether material error – incorrect reference to Form 1 offence – slip – whether sentence vitiated CRIMINAL LAW – sentencing – aggregate sentence whether manifestly excessive – property and domestic violence offences – whether indicative sentences erroneous so as to infect sentence imposed – use of JIRS statistics – objective gravity – general deterrence

EVIDENCE – Pre-trial evidentiary hearing – Where Crown no longer presses material objected to – ERISP containing mixed statements – No breach of prosecutor’s duty – Notice of motion dismissed

CRIMINAL PROCEDURE – Trial – Directions to jury – Application by accused for jury to be reminded of directions concerning proof and circumstantial evidence – Where jury in deliberations for 25 hours over seven days – Where substantial volume of material adduced at trial

EVIDENCE – Relevance – Business record – Undated document signed by deceased – Document does not specify accused – Multiple bases advanced for application – Viewed in context of other contested evidence

EVIDENCE – Hearsay – Exceptions – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Contemporaneous representations about a person’s health – Representations made by the deceased about the accused to an official

EVIDENCE – Hearsay – Exceptions – Contemporaneous representations about a person’s health – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Where statement made to an official – Motive for fabrication – Suggestion of previously fabricated complaint

CIVIL LAW - cross-vesting - defamation proceedings in separate jurisdictions - self-represented litigants – palpable animosity - clouded judgment - whether proceedings should be transferred to South Australia - relevant considerations COSTS - self-represented litigant - interlocutory proceedings - payment deferred to conclusion of proceedings

CORPORATIONS — Meeting of members — Adjournment of meeting — Whether Court has power to make orders sought — Whether just and equitable — Whether substantial injustice would be caused.

CIVIL PROCEDURE — Hearings — Matter not ready for hearing — Plaintiffs’ default in complying with directions — Hearing date vacated

PRACTICE AND PROCEDURE – disclosure – notice to produce

COSTS – where plaintiff sought payment for variations – where defendant had made payment to plaintiff on account of variations following an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) – where plaintiff sought damages for variations in amount exceeding amount so paid – where plaintiff established entitlement to variations less than amount so paid – where costs should follow the event – whether plaintiff in substance successful

COSTS — Party/Party — General rule that costs follow the event

HIGH RISK OFFENDER – non-publication order sought by State of NSW – order sought in relation to identification of members of High Risk Offenders Assessment Committee - where provisions of Crimes (High Risk Offenders) Act point against orders being made – where no evidence of threats or risk of harm to members of Committee – where open discussion not inhibited – where nothing in CHRO Act or Government Information (Public Access) Act provides for confidentiality – plaintiff’s notice of motion dismissed

COSTS – Costs orders sought by and against executors – costs orders after review of the Registrar’s decision under Uniform Civil Procedure Rules 2005, r 49.19 - claim for executors’ commission – the Registrar awards commission under Probate and Administration Act 1898, s 86 – the beneficiaries allege maladministration of two estates by the executors, disentitling the executors to any award of commission – upon review of the Registrar’s decision the beneficiaries contend the decision should be overturned – in the Court’s first judgment the Registrar’s decision substantially upheld in both estates but with minor variations in favour of the executors – various costs issues raised as to the allocation of the costs of the proceedings before the Registrar and in these proceedings as between the beneficiaries and the executors in both estates. EQUITY – Trusts and trustees – powers, duties, rights and liabilities – indemnity – right of indemnity from the trust estate – whether executors and trustees should be indemnified out of the estates and associated testamentary trusts for their costs of various litigated contests with the beneficiaries associated with the passing of estate accounts and awards of commission.

COSTS – assessment of costs – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – the plaintiff, a local council, brings proceedings against an owner of land within the council district – plaintiff council successful against the first defendant land owner – findings made in the first judgment that the normal procedures of an assessment of costs may be likely to provide the first defendant the opportunity to engage in vexatious conduct – whether the Court should exercise its jurisdiction under Civil Procedure Act 2005, s 98(4)(c) to fix a specified gross sum instead of assessed costs.

Immigration – Visas – Application for special category visa – Where respondent's special category visa purportedly cancelled and respondent required to depart Australia in 2018 – Where purported cancellation decision subsequently quashed – Where respondent returned to Australia and refused a special category visa on the basis she was a "behaviour concern non-citizen" as defined in s 5(1) of Migration Act 1958 (Cth) ("Act") due to her removal in 2018 – Where s 5(1) of Act defined "behaviour concern non-citizen" in para (d) as a non-citizen who "has been removed or deported from Australia or removed or deported from another country" – Whether respondent was a "behaviour concern non-citizen" within meaning of para (d) – Whether "removed ... from Australia" means removed in fact or removed in accordance with Act. Words and phrases – "behaviour concern non-citizen", "harsh consequences", "nullity", "removed", "removed or deported from", "theory of the second actor". Acts Interpretation Act 1901 (Cth), s 18A. Migration Act 1958 (Cth), ss 5(1), 14, 32(2), Pt 2 Div 8. Migration Regulations 1994 (Cth), reg 5.15A, Sch 1 item 1219, Sch 2 cl 444.511, Div 444.6.

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters ("implied freedom") – Where Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ‑– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – "adequate in its balance", "burden", "communications activity", "compelling justification", "disclosure", "foreign influence", "foreign interference", "foreign political organisation", "foreign principal", "legitimate purpose", "narrowly tailored", "necessary", "political or governmental influence", "prior restraint", "register", "registration", "scheme information", "structured proportionality", "suitable", "transparency", "undisclosed influence". Foreign Influence Transparency Scheme Act 2018 (Cth), ss 11, 12, 13, 16, 18, 21, 38, 42, 43, 45, 46, 52, 53. Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth). Foreign Influence Transparency Scheme Rules 2018 (Cth), s 6.

CIVIL LAW - application by third party to be joined as a party to application under cross-vesting legislation - ungratifying arguments - application becomes redundant in course of argument

CIVIL LAW - contempt - whether Court should order that one party be charged with contempt - self-represented litigant - correspondence including threat to seek indemnity and personal costs - correspondence using judicial comments in a selective way - whether conduct capable of amount to contempt - application without merit - conduct sharp but not contemptuous

SUCCESSION – Forfeiture under public policy rule – where husband of deceased convicted of dangerous driving offences – where settlement reached in these and related proceedings – whether forfeiture modification order should be made

COSTS – security for costs – where no dispute that Court’s jurisdiction to order security enlivened – whether plaintiff’s claim should be seen as defensive – where defendant foreshadowed possible cross-claim but eschews current intention to bring a cross-claim

NEGLIGENCE — Application for settlement approval — Plaintiff claimed damages against defendant — Injuries sustained by the plaintiff when he fell from a racehorse — Whether settlement would be in the plaintiff’s interests turns on the existence of reasonable prospects of success of the plaintiff’s action — Injuries caused by the materialisation of an obvious risk of a dangerous recreational activity — The defendant would not be found liable — Settlement approved and judgment for the defendant ordered

SUBPOENAS – where document produced in redacted form – where redactions made in respect of material said to be the subject of client legal privilege – where further redactions made on the basis of material said to be confidential and irrelevant and not called for by the subpoena – where documents produced in redacted form without leave – circumstances where leave should be sought before producing documents in redacted form – whether it is common practice to produce documents in redacted form and later seek leave CONTEMPT – where party produced documents in response to subpoenas in redacted form – whether party that produced documents in response to subpoenas in redacted form in contempt of court – where declaration sought that such party was in contempt of court – where no punishment sought for the alleged contempt – whether any utility in making a declaration – whether the making of a declaration would be disproportionate to the conduct in question

COSTS — Where solicitor activated an enduring power of attorney on behalf of former client who had since become incompetent — Whether solicitor ought be entitled to costs in respect of abandoned claim

CIVIL PROCEDURE — Commencement of proceedings — Summons — Prejudice to defendant arising from an extension of time for filing would not be substantial — No significant delay — Time for filing the further amended summons extended pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10 ADMINISTRATIVE LAW — Judicial review — Relief sought pursuant to s 69 of the Supreme Court Act 1970 (NSW) — Whether the impounding and sale of the plaintiff’s alpacas complied with the relevant statutory provisions — Alpacas located unattended on a public road, impounded, held and sold by the defendant on two occasions — Framework for the impounding, holding and sale of animals provided in the Local Land Services Act 2013 (NSW) and Impounding Act 1993 (NSW) — The defendant is an impounding authority and the defendant’s officers were impounding officers who has written authority on their possession and were authorised to exercise power under s 116(3) of the Local Land Services Act 2013 (NSW) — Power to impound animals is not constrained by knowledge of the identity of the animal’s owner — The impounding officer need only suspect that the animals are on a public road — Power under s 116(3) does not depend on the commencement, or result, of criminal proceedings — Proceedings in the Local Court and NCAT do not operate as an automatic injunction restraining the defendant from exercising its statutory powers against the plaintiff’s alpacas — Filing a summons in this Court does not prevent the sale of the plaintiff’s alpacas — Further amended summons dismissed

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion.

CONSUMER LAW — Misleading or deceptive conduct - Causation or reliance — Unconscionable conduct CONTRACTS — Breach of contract - Failure to complete on time - Damages ESTOPPEL — Res judicata/Cause of action estoppel – whether merger of cause of action in consent judgment MORTGAGES AND SECURITIES — Charges - Floating - Creation and nature — Mortgages —Assignment - Equitable mortgage of legal interest — Personal Property Securities Act 2009 (Cth) – Enforcement - Disposal of collateral — Security interest - Exceptions PERSONAL PROPERTY — Assignment of choses in action RESTITUTION — Compulsion — Contribution and recoupment — Action for money paid to the defendant’s use

SUCCESSION - Letters of administration with will annexed - Application for revocation of the grant - Where due and proper administration of estate prevented by continuation of one of three co-administrators acting as administrator – Defendant a non-active party who does not appear at the hearing - Form of orders - Order for revocation of grant, with fresh grant to continuing administrators with consequential orders made

COSTS — Two proceedings heard together – Probate and family provision proceedings – Agreement reached following determination of the family provision proceedings that the Plaintiff’s costs and disbursements of those proceedings, being a specified gross sum instead of assessed costs, of $97,500 (including GST), be paid out of the estate of the deceased – Also agreed that the Defendants’ costs, calculated on the indemnity basis of the family provision proceedings and the Probate proceedings be paid out of the deceased’s estate – Only outstanding issue for determination is whether the Plaintiff’s costs of the Probate proceedings, in which her claim was unsuccessful, should be paid out of the estate of the deceased - Application by Plaintiff that her costs be paid, calculated on the indemnity, rather than on the ordinary basis, or in the alternative, calculated on the ordinary basis, be paid out of the deceased’s estate – Defendants’ seek order that Plaintiff should bear her own costs of the Probate proceedings – Form of orders in both proceedings otherwise agreed and orders made

FAMILY LAW AND CHILD WELFARE – adoption – interim order – application for interim order allocating parental responsibility to Secretary under s 84(2) of the Adoption Act 2000 (NSW) – where temporary care arrangement expiring imminently – where Secretary will not have parental responsibility under s 75 of the Adoption Act 2000 (NSW) on expiry of temporary care arrangement – whether s 84(2) applies where no existing application for adoption order – whether orders should be made in exercise of parens patriae jurisdiction where s 84(2) does not apply. FAMILY LAW AND CHILD WELFARE – adoption – consent – consent dispense order under Adoption Act 2000 (NSW), s 67(1)(a) – application for order dispensing with the consent of the birth father – where birth father cannot, after reasonable inquiries, be found or identified – where in best interests of child to make consent dispense order

CRIMINAL LAW – application for leave to appeal against sentence – fraud offences – aggregate sentence – whether in reasons for sentence the trial judge should have considered an intensive correction order – requirements of s 66 Crimes (Sentencing Procedure) Act 1999 – whether offences amounted to a breach of trust – whether trial judge’s finding as to objective gravity open

CIVIL PROCEDURE — stay of enforcement judgment — where judgment pending appeal — where question of stay already heard – lack of evidence to support application

SUMMARY JUDGMENT – law firm acts for client in District Court proceedings – client successful and obtains costs order against unsuccessful party – client’s costs assessed at request of unsuccessful party – monies paid into Court by unsuccessful party – law firm sues client for fees – law firm content to accept money in Court, being $30,000 less than fees assessed on party/party basis – assessment on solicitor/client basis unlikely to result in lesser amount – summary judgment ordered on solicitor’s undertaking to the Court.

JUDGMENTS AND ORDERS — Enforcement — Garnishee order — Discretion to make order absolute

ASSOCIATIONS AND CLUBS – Domestic and private tribunals – Procedural fairness – where the Plaintiffs were removed as members of the Australian National Sports Club Incorporated (“ANSCI”) for allegedly breaching a clause in ANSCI’s Constitution and sought declarations from the Court that the expulsions were in breach of ANSCI’s Constitution and were invalid and of no effect – the Plaintiffs were expelled by the “Interim Management Committee” or the Interim care-taker committee (“the ICC”) – whether the power to expel members was exercisable by the “Interim Management Committee” or the ICC – whether ANSCI had breached the implied Fairness Term and the implied Expulsion Term (see Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497) – Held: neither the ICC or the Management Committee (or the Interim Management Committee) had the power to expel the Plaintiffs and ANSCI also had breached the Fairness Term in respect of all Plaintiffs and the Expulsion Term in respect of some Plaintiffs. ESTOPPEL — Estoppel by convention — Mutual assumption – ANSCI contended the Plaintiffs were estopped from challenging their expulsion on the basis that the Interim Management Committee did not have the power to do so – whether there was a mutual assumption that the Interim Management Committee or ICC had the power to expel the Plaintiffs – Held: the estoppel defence not made out, there being no mutual assumption established. EQUITY — Defences – ANSCI contended that even if the Plaintiffs established a lack of power to expel there was no “practical injustice” to the Plaintiffs – whether administrative law and migration law principles were applicable here – Held: ANSCI had the onus of establishing the defence and failed to make it out. ANSCI sought to raise “discretionary defences” including that the declarations sought by the Plaintiffs would be of no utility and would give rise to further disputes – Held: there was a real utility in the declarations being made.

SUCCESSION – probate and administration – deceased executed two wills – whether evidence sufficient to establish due execution of later will – original of later will not in evidence – due execution of later will established – grant of probate under earlier will revoked – presumption of destruction with intent to revoke – presumption rebutted – grant of probate made under later will

MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Attachment — Rights in personal property — Whether the grantor held rights in the statutory licence at the relevant time — Where statutory licence was held by an employee of the company rather than company itself — Where interest in statutory licence subject to registration by statutory authority. MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Security interest — Interest in personal property. MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Security interest — Whether entry into contractual arrangements constituted a “transaction” that secured the performance of an obligation — Where the relevant obligation comprised prohibitions upon dealing with statutory licence and entitlements.

CRIME – Sentencing – Manslaughter – Early plea of guilty to manslaughter – trial for murder – not guilty to murder – Operation of Part 3, Division 1A of Crimes (Sentencing Procedure) Act – 25% discount applied – subjective circumstances – Bugmy principles – social exclusion – sentence imposed

CRIMINAL PROCEDURE – Trial – separate trial application – whether injustice to applicant from inability to compel co-accused – where evidence proposed to be called from co-accused in part not material – where accused able to give evidence on matters for which co-accused would be called – where co-accused’s credit in issue