Cases and authorities

CIVIL PROCEDURE – Failure to pay security for costs – Application for dismissal of proceedings

CONTRACT – written retainer of accountants – scope – whether primary judge erred in concluding retainer extended to all work for a client of an accounting and financial nature – opinion evidence – whether evidence of accounting partner that certain work “required” to complete task was opinion evidence – whether evidence was admissible as expert opinion – Held – primary judge correct – appeal dismissed

COSTS — Security for costs — Quantum and form

COSTS – whether usual order for costs should be displaced – where respondent successful party overall – where primary judge apportioned costs – respondent awarded costs up to date shortly before hearing and thereafter no order for costs as between respondent and applicant – whether exercise of discretion miscarried – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 APPEALS – new point on appeal – where applicant for leave sought to raise new and different costs application on appeal – inimical to the interests of justice to allow new argument APPEALS – leave to appeal – practice and procedure – challenge to costs order – no question of principle or general public importance – whether an injustice which is more than merely arguable – whether failure to consider material consideration – where reasonableness of applicant’s conduct of the proceedings not relied upon below – leave to appeal refused

CRIMINAL LAW – appeal – leave to appeal against conviction – question of mixed fact and law – where applicant convicted of one sexual offence against a child and acquitted of multiple similar offences against that child and another – where guilty verdict depended on complainant’s credibility – whether guilty verdict unreasonable having regard to inconsistency with acquittals on other counts – whether acquittals necessarily indicate the jury had a doubt about complainant’s credibility – Criminal Appeal Act 1912 (NSW), s 6(1)

CRIME — Appeals — Appeal against sentence — Drug offences — Supply prohibited drug — Large commercial quantity — Comparison of co-offender’s sentence — Parity — Assessment of objective seriousness

CIVIL PROCEDURE – Interlocutory applications – Defendants seeking access to plaintiff’s Centrelink records – Power of court to order plaintiff to provide an authority to allow the defendants to access Centrelink records – Social Security (Administration) Act 1999 (Cth)

CONTRACTS – Expert determination regarding contract to perform road widening works on Pacific Motorway – where expert determined issue adversely to plaintiff – where plaintiff commenced proceeding to reagitate that issue – whether plaintiff precluded by the terms of the contract from litigating that issue– whether an expert determination that no further compensation is payable is a determination that does not involve paying a sum of money CONTRACTS – provision for expert determination – whether there was a deficiency or error in determination that disclosed expert did not make a determination in accordance with the contract PRACTICE AND PROCEDURE – expert determination as to part of the claim the subject of the proceedings – whether proceedings commenced in the face of an expert determination should be stayed in part

PRACTICE AND PROCEDURE – application to amend List Response to allege proceedings out of time – whether building contract made date in Certificate of Practical Completion conclusive as to when completion took place

PRACTICE AND PROCEDURE — summons – summary dismissal – whether no reasonable cause of action is disclosed – plaintiff seeking judicial review of Prothonotary’s decision to decline fee relief application – where alleged error relates to events subsequent to relevant decision – where plaintiff alleged that judicial review proceedings were a monetary claim – whether denial of procedural fairness – whether State’s notice of motion “illegal” – summons dismissed

CRIMINAL LAW – Jury trial – Sick juror – Application to discharge juror – Lost days – Whether further delays would occur – Application refused

CRIMINAL PROCEDURE — Application for suppression and non-publication orders — Grounds — Whether the order is necessary to prevent prejudice to the proper administration of justice — Administration of justice includes the public interest in open justice and the right of an accused person to a fair trial by an impartial jury — Whether accused person is prejudiced by being identified in publicity relating to the plea of the Company or the statement of agreed facts signed by the Company and the Crown for the sentence proceedings of the Company CRIMINAL LAW — Attribution by Company of its acts and intention to individuals who are co-accused — Prejudicial effect on individuals if Company’s plea is published — Particular prejudice arising from statement of agreed facts between the Company and the Crown on co-accused referred to in statement

EQUITY – interlocutory injunctions – application to restrain members’ meeting of unit trustee and other proposed actions of trustee – whether serious question to be tried as to validity of share and unit transfers, removal of director of trustee and replacement of trustee – whether balance of convenience in favour of imposition of restraints –serious questions to be tried established but claims not strong – risk of losing commercially favourable refinance – questions about adequacy of undertaking as to damages – interlocutory injunctions refused

CRIMINAL LAW – sentencing following pleas of guilty – murder and wound with intent to cause grievous bodily harm – gravity of offences – whether sentence of life imprisonment should be imposed for murder – relevance of mental condition of Offender on sentence – life sentence not appropriate – very substantial aggregate term of imprisonment warranted – aggregate sentence of imprisonment for 44 years with non-parole period of 33 years

CRIME – appeals – appeal against sentence – resentence – penalties – Intensive Correction Orders – construction of s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether court permitted first to form an intention to make an ICO and then to select a sentence in order to satisfy s 68 – construction of s 66 of the Crimes (Sentencing Procedure) Act – whether court must positively conclude that an ICO is more likely to address the offender’s risk of reoffending than would serving a sentence of full time custody – effect of ss 70 and 71 of the Crimes (Sentencing Procedure) Act – whether an ICO can be made where a sentence is fixed to commence at an earlier time than the date on which it is imposed

CRIME – sentence – murder – objective seriousness of offending – judge alone trial – offender pleaded guilty to manslaughter – offender claimed self-defence – found guilty of murder – question of remorse – relevance of drug use – where offender mutilated body

SUCCESSION – family provision – claim by second husband – disparity of assets on marriage – couple agreed to leave assets to their respective children – re-executed Wills on marriage to that effect – maintained separate finances – husband lived in wife’s property and paid half market rent and household expenses – wife diagnosed with melanoma – 10 year battle with disease – daughter and husband support wife in medical treatment – wife pays medical expenses and carers – daughter and husband provide some care – husband presses wife to change Will – wife makes Will leaving husband less than requested – marriage sours – husband makes Will leaving everything to his child – separation likely save for wife’s terminal illness – wife insists husband is “not my carer” – after wife’s death, husband retires and changes lifestyle – no evidence his assets insufficient – provision made adequate in the circumstances – no primacy ‘in fact’ – no issue of principle.

APPEALS – Leave to appeal – From Local Court – From committal proceedings – Where parties in agreement that magistrate erred in setting aside subpoena – Where documents have been produced to applicant – Where no practical utility in granting relief – Whether need to correct manifest error – Where not clear that subpoena had legitimate forensic purpose in context of committal proceedings – Where not clear whether Supreme Court able to grant relief sought – Leave refused STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a) – Whether setting aside subpoena within the meaning of “order” – Meaning of “any person” – Meaning of “against” – Meaning of “in relation to the person” – Use of extrinsic materials – Explanatory note and second reading speech CRIMINAL PROCEDURE – Committal proceedings – Whether legitimate forensic purpose in issuing subpoena in committal proceedings under new legislative scheme where no facility for defendant to adduce evidence APPEALS – Leave to appeal – Remedies – Scope of Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) – Whether orders for production to Supreme Court available APPEALS – Leave to appeal – Remedies – Alternative relief sought – Certiorari refused for discretionary reasons mirroring reasons for refusing leave to appeal – Declaration refused on basis that such relief would be an advisory opinion APPEALS – Procedure – Time limits – Extension of time – Where not opposed – Extension granted

APPEALS – application for leave – amount in issue less than threshold of $100,000 – where dismissal of defamation proceedings involving two matters complained of – where no issue of principle or question of general importance – whether applicant demonstrated an injustice which is more than merely arguable – where likely costs of any appeal disproportionate to the small amount in issue

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner – adequacy of reasons EVIDENCE – standard of proof – civil cases – application of principles in Briginshaw v Briginshaw APPEALS – leave to appeal – on factual findings – whether appropriate to depart from a demeanour-based credit finding

CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — appeal from stay —whether primary judge made any legal or factual error

SUCCESSION – family provision – claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – whether primary judge did not make an order for provision in the applicant’s favour by reason of disentitling conduct – no question of principle

CRIME – Appeal against conviction – Procedural fairness – Duties of trial judge EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Application of s244(1) of the Work Health and Safety Act 2011 (NSW)

CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence of sexual misconduct of applicant specific to particular charges or merely generalised assertions of misconduct – need for close examination of complainant’s evidence on each count – frequent use of word “would” in parts of evidence – specific recollection of acts occurring on a particular occasion in other parts of evidence – convictions on some counts quashed and verdicts of acquittal entered on those counts CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence lacked sufficient quality and consistency to permit its acceptance by jury – no clear support for one count – conviction quashed and verdict of acquittal entered on that count CRIME – appeals – successful appeal against convictions on ground of unreasonable verdicts – convictions quashed – whether appropriate to enter verdicts of acquittal or order new trial – Crown should not be permitted to attempt to obtain convictions at further trial by improving its case – absence of special circumstances – verdicts of acquittal entered

Police – Search warrants – Validity of warrants – Validity of orders – Where officers of Australian Federal Police ("AFP") searched premises in reliance on warrants – Where officers of AFP seized material they believed relevant to offences against s 92.3(1) and (2) of Criminal Code (Cth) – Where officers examined and copied data from electronic devices at searched premises – Where plaintiff compelled to provide passcodes to devices pursuant to orders under s 3LA of Crimes Act 1914 (Cth) – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Whether warrants identified the substance of offences against s 92.3(1) of Criminal Code with sufficient precision. Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Where plaintiff accepted various sub-paragraphs of s 92.3(1)(b), (c) and (d) capable of severance under s 15A of Acts Interpretation Act 1901 (Cth) – Whether appropriate to proceed to determine constitutional validity of s 92.3(1) of Criminal Code or construction of "covert". Words and phrases – "covert", "foreign government principal", "foreign influence", "foreign interference", "foreign principal", "implied freedom of political communication", "necessary to decide", "premature interpretation of statutes", "prudential considerations", "read down", "search warrants", "severable", "severance", "substance of the offences", "sufficient precision", "unnecessary and inappropriate to answer". Acts Interpretation Act 1901 (Cth), s 15A. Crimes Act 1914 (Cth), ss 3C(1), 3E, 3LA. Criminal Code (Cth), ss 90.1, 90.2, 90.3, 92.3.

ADMINISTRATIVE LAW – Reviewability – Justiciability – Subject matter of power or decision – Prosecutorial decision CRIMINAL PROCEDURE – Private prosecutions – Power of Director of Public Prosecutions to take over and withdraw a private prosecution – Application of s 9 Director of Public Prosecutions Act 1986 (NSW)

ASSOCIATIONS AND CLUBS – jurisdiction of courts – intervention in internal decisions – appointment of receiver and manager to convene annual general meeting for committee elections – where irregularities as to administrator’s appointment – whether administrator or some other person should be appointed as receiver and manager

LAND LAW – application to extend caveat – no issues of principle.

CIVIL PROCEDURE – summary disposal – plaintiff claims title by adverse possession over parcels of land said to be owned by the Crown – parcels of land vested in local Council as public roads – plaintiff’s claim against second defendant State of New South Wales bound to fail – proceedings summarily dismissed against second defendant

EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether trustee can exercise power to exclude

ADMINISTRATIVE LAW – judicial review – decision of principal claims assessor under Motor Accidents Compensation Act 1999 (NSW) not to refer claim for assessment – whether extant claim – whether existence of claim a jurisdictional fact or fact to be determined by claims assessor TORTS – negligence – motor vehicle accident – claim deemed to have been withdrawn – reinstatement refused – whether deemed withdrawal prevented further pursuit of claim – whether claimant could re-lodge claim

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

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — party seeking restoration of parental responsibility of children pursuant to the parens patriae jurisdiction — no exceptional circumstances arising to invoke jurisdiction CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — seeking same potential outcome in multiple courts

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise compliant with Uniform Civil Procedure Rules 2005 (NSW), r 20.26 — No reason to depart from consequence provided for by Uniform Civil Procedure Rules 2005 (NSW), r 42.14 — Public interest in early and efficient disposal of proceedings COSTS — Cross-claim — Whether first defendant ought bear costs of second defendant — Order made

HIGH RISK OFFENDERS – Extended supervision order – Serious sex offender – Conditions – Relevance of conditions to risk profile

APPEALS – procedure – informal urgent application for injunction pending appeal – applicant applied to stop trail running event in the Blue Mountains from proceeding the next day – primary judge dealt thoroughly with circumstances of proposed event and carefully weighed matters going to the balance of convenience – applicant did not show any reason for a different view to be taken than that taken by the primary judge

CRIME – SENTENCING – serious sexual assaults – victim detained at knife point – stabbed – repeatedly sexually assaulted – offender mentally ill – irrelevance of Form 1 offences to assessment of objective seriousness of substantive counts – error established – other alleged errors only considered to the extent they affect re-exercise of sentencing discretion – no lesser sentence warranted in law – appeal dismissed

CRIME – Appeals – Appeal against sentence – Assault occasioning actual bodily harm – Where charge laid before commencement of early appropriate guilty plea scheme – Whether early appropriate guilty plea scheme applied – Whether sentencing judge erred in failing to apply sentencing discount

BUILDING AND CONSTRUCTION – whether payment claims under Building and Construction Industry Security of Payment Act 1999 served on 3 or 4 February 2021 – whether service was effected on 3 February by delivering personally or by lodging during normal office hours or in accordance with construction contract – meaning of delivering personally – meaning of lodging at ordinary place of business – whether service effected in the manner provided under the construction contract – whether provision in construction contract that delivery after 4pm taken to be effected the following day void by reason of s 34 of the Act – whether principal entitled to specific performance of obligation to produce steel and shop drawings

CONSENT ORDERS – whether question of defendant’s liability should be decided separately from question of damages – whether hearing date should be vacated – where there is difficulty obtaining suitable expert with sufficient knowledge of rare condition – payment of defendant’s costs

CIVIL PROCEDURE — Disclosure — Classes or categories of documents

COSTS – Calderbank letters – Offers to Contribute – multiple defendants – real compromise – unreasonable not to accept – indemnity costs ordered JUDGMENT and ORDERS – amendment – mistake as to identity of cross-defendant – inconsistent documents – orders not manifesting Court’s intention – amendment effected

MANSLAUGHTER BY CRIMINAL NEGLIGENCE – whether it is possible or appropriate to formulate direction to jury on alternative verdict of manslaughter by criminal negligence – whether accused owed duty of care to deceased – whether scope and content of hypothetical duty of accused is ascertainable

CHILD WELFARE — Care proceedings — Contact order

COSTS – proceedings discontinued – discontinuing party pays costs unless otherwise ordered – whether appropriate to otherwise order – plaintiffs justified in commencing proceedings and almost certain to obtain some relief – defendants not generally unreasonable in defending proceedings – plaintiffs achieved practical success as defendants took steps to remedy the plaintiffs’ complaints – defendants’ change of position not entirely a capitulation but if effected earlier some costs would have been avoided – appropriate to order that defendants pay one half of plaintiffs’ costs

CONTRACTS – construction – agreement for sale of hotel property and business – vendor obliged to carry on business in usual manner until completion of contract – public health orders made in response to COVID-19 pandemic limited ability to operate business – whether vendor in breach of obligation to carry on business in usual manner – obligation construed as not requiring the carrying on of business in any manner contrary to law – vendor held not to be in breach CONTRACTS – discharge by frustration – agreement for sale of hotel property and business – vendor obliged to carry on business in usual manner until completion of contract – public health orders in response to COVID-19 pandemic limited ability to operate business – actual performance of obligation departed from that which the parties contemplated would occur – whether contract frustrated – essential purpose of contract was for sale and transfer of particular assets for agreed price – vendor’s obligation to carry on business until completion designed to further this essential purpose – no warranties given as to future performance of business – unexpected events did not give rise to such a fundamentally different situation that it would not be just to hold the parties bound to the terms of the contract – held that contract not frustrated CONTRACTS – damages – assessment – date for assessment of damages – vendor terminated contract for purchaser’s breach – damages for loss of bargain – held that damages should be assessed as at date the bargain was lost – no justification to assess damages at later time – avoided loss principle – whether vendor obtained compensating advantage by retaining assets the subject of sale – not established that retention of assets is attributable to a decision made in consequence of the purchaser’s breach – mitigation of damage principles not engaged

JUDGMENT and ORDERS – pre-judgment interest - Workers Compensation Act 1987 (NSW), s 151M – statutory pre-conditions – no reasonable offer in writing – pre-judgment interest ordered

APPEALS – from Local Court – appeal as of right on question of law and by leave on mixed law and fact – no appeal on question of fact – no evidence ground is question of law – no evidence relates to conclusion of fact not each evidentiary fact – appeal dismissed

CORPORATIONS — Winding up — Voidable transactions – Whether factual basis for claims established.

APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed