Cases and authorities

WORKERS COMPENSATION – coal miners – whether employment was a contributing factor to aggravation, acceleration, exacerbation or deterioration of a disease – where worker suffered from a degenerative condition of osteoarthritis to his right knee – whether primary judge erred in point of law in finding work injury – Workers Compensation Act 1987 (NSW), s 4(b)(ii)

CONTRACT – contractual construction – whether promise in Binding Heads of Agreement (HOA) to enter into Business Sale Agreements was subject to a condition precedent, namely the approval of the Purchaser’s Board – whether consideration for HOA illusory – whether condition precedent permitted Purchaser’s Board to withhold approval capriciously – whether primary judge’s construction accorded with commercial common sense – whether primary judge erred in ordering specific performance of HOA.

CRIME – appeals – leave to appeal against convictions – extension of time – delay caused by risk to safety of applicant while in custody CRIME – child sex offences – sexual intercourse with child under 10 by digital penetration – sexual intercourse with child between 10 and 14 years – indecent assaults CRIME – appeals – appeal against conviction – conviction on 14 charges, acquittal on 3 charges – whether verdicts inconsistent – whether dismissal of particular charges affected credibility of complainant – whether basis for jury to distinguish between reliability of evidence on different charges – whether verdicts unreasonable and unsupported on the evidence CRIME – appeals – application for leave to appeal against sentence – applicant’s age and ill-health – conditions of imprisonment – whether taken into account by sentencing judge – seriousness of offending – multiple offences against step-daughter – victim aged between 8 and 13 years – whether aggregate sentence manifestly excessive

CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than the large commercial quantity of methylamphetamine – whether failure to afford procedural fairness – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether marked disparity with sentence imposed on co-offender A – whether error in not referring to applicant’s evidence – re-sentence considered

CRIME – appeal against conviction – applicant convicted of child sex offences – ground of appeal challenges aspects of summing up to jury – statements by trial Judge concerning evidence of children – whether statements made exceeded permissible comment in accordance with RGM v R [2012] NSWCCA 89 and McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – held that cumulative effect of statements gave rise to miscarriage of justice – appeal allowed – convictions quashed – new trial ordered

CRIME — Appeals — Appeal against conviction — whether verdicts were inconsistent or otherwise unreasonable – where both complainants alleged certain offences occurred in a garage at a time when the garage had not yet been constructed – where both complainants allege that certain offences occurred at a family home in 1974 or 1975 but they did not live at the premises until 1976 – where the applicant was acquitted on these counts – whether the jury’s doubts in respect of those counts were attributable only to doubts about the complainants’ credibility – held, the verdicts were not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in failing to exclude the whole of one complainant’s evidence on the basis of hypnosis or EMDR therapy – where the complainant denied having hypnosis therapy – where EMDR therapy was undertaken after giving a statement to police but before trial and was not video recorded – where there was no indication that the complainant’s evidence changed following EMDR therapy – held, the trial judge’s finding with respect to hypnosis was a finding of fact in respect of which no error was demonstrated – held, the trial judge did not err in failing to exclude the evidence under s 137 on the basis of the EMDR therapy CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in admitting evidence of complaints made to friends, partners and relatives in the decades following the alleged offences – meaning of “fresh in the memory” under s 66(2) of the Evidence Act – where traumatic events are likely to remain fresh in the memory for many years after the events – where complaints were made in similar terms many times over the relevant period – held, no error in admitting complaint evidence under s 66(2)

PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Time limited legislative scheme – Forensic prejudice to one of the parties – Affidavit rejected

CONTRACTS – formation – offer to settle workers’ compensation claim – offer contained a specified deemed date of injury – purported acceptance specifying a different deemed date of injury – no contract CONTRACTS – mistake – offer based on error in calculation of whole person impairment – equitable relief – Taylor v Johnson – Harvey v Phillips

ADMINISTRATIVE LAW — Jurisdictional error — claim under Motor Accidents Compensation Act 1999 (NSW) – review of medical assessor’s certificate – where formal measurement of range of movement varied between clinicians – where insurer submitted surveillance reports asserting non-clinical activities inconsistent with formal examination – where assessor did not address a clearly, articulated argument or give reasons concerning the issue – certificate set aside and matter remitted for reassessment

MENTAL HEALTH – final hearing – application for extension of status as a forensic patient – defendant does not oppose making of order – consideration of statutory factors – forensic status extension order made for two years

PROCEDURE – summary dismissal – COSTS – application for security of costs – no solicitor retained – application refused – costs in the cause

CORPORATIONS – winding up – statutory demand based on default judgment – no application to set aside demand – application to appoint liquidator – default judgment then set aside – no leave under s 459S – whether abuse of process – case law review and principles at [7]-[15] – no abuse of process. SOLVENCY – defendant woefully insolvent – defendant supported by secured creditors – whether defendant thereby solvent – presumption of insolvency not displaced – no issues of principle.

CRIMINAL LAW – murder – defence of mental illness – stabbing by accused of his wife – history of mental illness – delusional beliefs that she had been unfaithful and promiscuous

CIVIL PROCEDURE – interim preservation – plaintiff claims trust over assets including real property held by natural person and companies owned by her – both natural person and companies alleged to be trustees – prima facie case – balance of convenience – delay – interlocutory injunction granted against natural person dealing with assets held by her, including company shares, but refused against companies – limited interlocutory injunction granted against exercise of powers as trustee

LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – re-categorisation by Council of farmland to mining land – relevance of impact of ongoing drought on cattle grazing – hiatus in activity on land different to abandonment – activity in rating years required to be considered in its context including what occurred previously on the land and what intended to occur after LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – easement burdening rateable land for benefit of adjacent mine – very small land area subject to easement and cattle grazing rights interrupted only to “trifling extent” – limited significance of easement to determination of dominant use of land LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – relevance of source of requirement to use land for a particular purpose – reason for existence relevant but not determinative – use of land as Aboriginal Cultural Heritage Offset and Habitat Enhancement Offset areas the antithesis of mining – offset areas not used “for a coal mine” under s 517 Local Government Act – consideration of Peabody Pastoral Holdings 211 LGERA 337

LEGAL PRACTITIONERS – Court’s inherent jurisdiction to supervise and discipline legal practitioners – application for removal of barrister’s name from the roll of Australian lawyers maintained by the Supreme Court of New South Wales – where barrister practised principally in New South Wales for six years holding a practising certificate from Queensland – whether representations to the Queensland Bar Association as to the barrister’s principal place of practice were made dishonestly – whether barrister a fit and proper person to remain on the Supreme Court roll CONSTITUTIONAL LAW – challenge by barrister to validity of certain provisions governing the legal profession in Tasmania and Queensland – where disciplinary proceedings against the barrister did not involve any allegation of breach of any of the impugned provisions – whether there is any “matter” arising under the Constitution in respect of the impugned provisions CONSTITUTIONAL LAW – challenge to validity of certain provisions governing the legal profession in New South Wales or their application to the barrister – whether impugned provisions have any extra‑territorial effect – whether s 117 of the Constitution operates to render the impugned provisions inapplicable to the barrister – whether impugned provisions invalid as contrary to s 92 of the Constitution – whether impugned provisions inconsistent with various provisions of the Judiciary Act 1903 (Cth) – whether impugned provisions inconsistent with Chapter III of the Constitution as compromising the institutional integrity of Federal and State Courts

LAND LAW – contract for sale of land – deposit – penalty doctrine – purchaser agreed to pay $205,500 (being 10% of price) by instalments as deposit – purchaser paid $80,000 soon after exchange – remaining $125,500 was payable “on or before settlement” or upon “default” – purchaser failed to complete contract – vendor terminates and seeks to recover the $80,000 paid and also the unpaid $125,500 – held that the initial $80,000 was a deposit to which the principles concerning penalties do not apply – held that the $125,000 was not truly a deposit because it was not payable at a time when it would be an earnest of performance – held that the obligation to pay the $125,000 “on or before settlement” or upon “default” is penal – amount held to be extravagant and disproportionate to the interest of the vendor sought to be protected – vendor held entitled to recover the $80,000 but not the $125,500 CONTRACTS – unfair contracts – Contracts Review Act 1980 (NSW) – contract for the sale of land – agreement made after negotiation of terms – purchaser claimed that she had been exhausted and “gave in” to vendor’s agent – whether contract should be set aside as being unjust – no material inequality of bargaining power – purchaser could protect her own interests – held that purchaser entered into contract with an adequate appreciation of its main terms – held that contract did not operate in an unconscionable, harsh or oppressive manner – held that contract should not be set aside

LIMITATION OF ACTIONS – Application for extension of time under Limitation Act 1969 (NSW) s 60C – Factors considered under s 60E – Whether plaintiff is under a disability under s 52 – Where the plaintiff has provided no evidence to substantiate his claim – Application dismissed

CORPORATIONS — Winding up — where entity in liquidation/receivership is a corporate trustee – remuneration of liquidator — remuneration of receiver and manager – reasonableness of remuneration – whether applicant as liquidator/ receiver has established entitlement to and reasonableness of remuneration – remuneration and costs to be paid out of the assets of the trust to which the applicant has been appointed

LAND LAW – mortgages – possession of land – unregistered second mortgage – claim for possession - where mortgagor subsequently bankrupt – whether s 58 Bankruptcy Act precluded order for possession

LAND LAW – Torrens title – the register – correction of the register – where land transferred and caveat lodged pursuant to a fraudulent scheme – declaration of constructive trust – orders to remove caveat and restore title – Real Property Act 1900 (NSW), ss 74MA, 138 CIVIL PROCEDURE – settlement of dispute – satisfaction of Court to make proposed consent orders disposing of proceedings

CRIMINAL LAW – release application – bail after sentence on indictment – bail pending appeal – special or exceptional circumstances – appeal against conviction – where pleas of guilty entered on indictment – relevant considerations – assessment of prospects of appeal – escape lawful custody – defence of necessity – whether unacceptable risk

ADMINISTRATIVE LAW – judicial review – inquiry into criminal convictions – challenge to opinion that no reasonable doubt attended the convictions – whether opinion arbitrary, capricious or irrational – whether relevant material disregarded ADMINISTRATIVE LAW – procedural fairness – improperly rejecting evidence – test of relevance for purposes of inquiry – failure to consider submissions – failure to consider good character evidence – failing to reopen inquiry CRIMINAL LAW – post-appeal review – petition to Governor – doubt or question as to person’s guilt – judicial officer appointed to conduct inquiry – legal test to be applied by judicial officer – “reasonable doubt as to guilt of convicted person” – Crimes (Appeal and Review) Act 2001 (NSW), s 82(2)(a) JUDICIAL REVIEW – justiciability – challenge to opinion of judicial officer holding inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – whether exercise of prerogative of mercy – whether decisions of intermediate courts of appeal should be followed – whether procedure under Criminal Code (Qld), s 672A, distinguishable

GAMING AND WAGERING – Public lottery – Applicant claiming to have entered winning numbers but unable to produce ticket – Substantial unclaimed prize from 1997 – Appeal from dismissal of claims – Appeal dismissed as incompetent CIVIL PROCEDURE – Pro bono referral – Where applicant impecunious and of limited capacity to conduct litigation – Where previous pro bono assistance provided on multiple occasions – Where complaints made to Legal Services Commissioner regarding previous legal representatives – Where absence of apparent merit to claims – Referral refused CIVIL PROCEDURE – Hearings – Suppression and non-publication – Where orders not appropriate at interlocutory stage – No orders made APPEALS – Procedure – Time limits – Extension of time to appeal – Where appeal initially discontinued without satisfactory explanation – Where substance of appeal has no merit – Application refused

CRIME — Appeals — Appeal against sentence — Alleged miscarriage of sentence proceedings — Incompetence of counsel — Denial of procedural fairness — Manifest excess

Adjournment – no question of principle

PRACTICE AND PROCEDURE – application to withdraw admissions – admission in List Response that plaintiff owners corporation was entitled to benefit of statutory warranties – further admissions that defendant entered into a contract with the builder of the strata development and that the builder entered into contracts with contractors on behalf of defendant – application to withdraw admissions made on first day of a 5 day hearing – where admissions said to have been made as a result of an error by counsel then briefed and by present solicitor – where withdrawal of admissions would cause plaintiff to seek to investigate further facts hitherto admitted and result in vacation of hearing dates

LOCAL COURT APPEAL – stay – no question of principle

COSTS – settlement offers – whether non-acceptance of settlement offers made by the fourth defendant warrants ordering indemnity costs against the unsuccessful plaintiff HELD – indemnity costs not warranted because it was not unreasonable for the plaintiff not to accept the offers – no issue of principle

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

APPEAL — Appeal from Local Court — Contract dispute — Questions of fact — Whether agreement document was original or copy — Terms of agreement — Findings were perverse or illogical — Whether mistaken findings of fact reveal basic misunderstanding of the case — Questions of law — Whether Magistrate reversed onus of proof — Appeal dismissed

COSTS – Indemnity basis – whether sufficient element of compromise contained in offer

STATUTORY INTERPRETATION – meaning of “option to purchase” and “option granted for the purchase” in Division 9 of Part 4 of Conveyancing Act 1919 (NSW) – whether “option to purchase” includes put options – held that “option to purchase” should be construed as an option in the nature of a call option that gives holder or grantee the right to purchase property – “option granted for the purchase” has no wider meaning – statutory expressions given ordinary and natural meanings LAND LAW – options – deeds of put and call option in respect of fourteen strata scheme lots – vendors granted call options to purchaser – purchaser granted put options to vendors – purchaser paid call option fee being 10% of the respective purchase prices – call option fee to be credited as deposit if any option is exercised – call options not exercised by purchaser – put options exercised by vendors – contracts for sale of land deemed to be entered into – purchaser subsequently rescinded contracts for sale relying upon statutory cooling off period – purchaser forfeits 0.25% of the respective purchase prices – whether purchaser is entitled to refund of call option fees less forfeited amount – where call option fees treated as deposits – held that the purchaser is entitled to refund of call option fees less 0.25% of the respective purchase prices – Conveyancing Act 1919 (NSW), s 66V

CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act 2001 for inquiry into three convictions for murder – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal and made two previous applications for a Part 7 inquiry – whether jury should have had reasonable doubt as to guilt – no special facts or special circumstances justifying further action – Court declines to consider or deal with the application

APPEAL – application for leave to appeal – applicant subject to vexatious proceedings order – whether leave required to file summons seeking leave to challenge order – appeal heard – whether leave required to file notice of motion seeking to vary orders CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings – whether leave required to file application to appeal vexatious proceedings order – whether leave required to file notice of motion seeking to vary orders made on appeal JUDGMENT AND ORDERS – orders entered – application to vary orders – notice of motion not filed within 14-day period specified by rules – power to extend time – Uniform Civil Procedure Rules 2005 (NSW), r 36.16

CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether fact that some offences occurred in New Zealand with lower maximum penalties should have been taken into account by sentencing judge – whether adequate allowance made for prospects of rehabilitation – error in applying plea of guilty discount to aggregate sentence – sentence appeal allowed – need to re-sentence.

LEASES AND TENANCIES — Rent and outgoings — Recovery of rent and arrears GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — where directors of tenant company signed a lease as guarantors of the tenant’s obligations under the lease EQUITY — Equitable remedies — Injunctions — injunction to remove property, rubbish and debris from common areas — injunction restraining placement of property, rubbish or debris in common areas

SUMMARY JUDGMENT - application for summary dismissal under Uniform Civil Procedure Rules 2005, r 13.4 - solicitors act for clients on retainer between October 2016 and July 2017 – after the termination of the retainer a dispute arises between the solicitors and the former clients about quantum of fees charged by the solicitors for their legal services – the former clients engage new solicitors to conduct the costs dispute – a settlement deed is reached in December 2018 compromising the costs dispute – clients commence the present proceedings in November 2019 seeking relief to set aside the settlement deed – the clients allege in these proceedings that the settlement deed was procured by the former solicitors, in breach of their fiduciary duty, whilst the former clients were in a relationship of undue influence with the former solicitors, or as result of the former solicitors’ unconscionable conduct and economic duress – the former solicitors bring a Cross-Claim seeking judgment and interest due under the settlement deed – the former solicitors seek summary dismissal of the plaintiff’s claim and seek summary judgment on the Cross-Claim.

CIVIL PROCEDURE — Notices to produce — Application to set aside — Abuse of process COSTS — Party/Party — Indemnity costs

CONTRACT – Exclusive jurisdiction clause in favour of Singapore in an employment contract between the plaintiff and the first defendant – Post-employment restraint covenant – The plaintiff and first defendant later executed a further agreement relating to an overseas employment assignment under the original employment contract and requiring the first defendant to execute a Deed Poll containing a further post-employment restraint covenant – The plaintiff gave notice of resignation and plans to commence employment with the second defendant, one of the plaintiff’s competitors – Plaintiff seeks to enforce Deed Poll restraint covenant in this Court – First defendant has commenced proceedings in Singapore for a negative declaration that he is not bound by the restraint – First defendant seeks a stay of these proceedings in this Court – Plaintiff seeks an injunction restraining the first defendant from moving the Singapore for an injunction to restrain the proceedings in this Court – HELD – The proceedings in this Court should be stayed because they are covered by the exclusive jurisdiction clause and there are not strong reasons why it should not be enforced – The plaintiff’s claim for an anti-anti-suit injunction is to be dismissed

CIVIL PROCEDURE — Cross-vesting — Jurisdiction of the Supreme Court under the Privacy Act 1988 (Cth) — Expedition — Separate determination of questions MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) — Non-publication order OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates

CORPORATIONS – unregistered managed investment scheme – winding up – application for directions as to distribution of funds deposited by particular category of investors

PRACTICE AND PROCEDURE – application for review of decision of registrar – whether proceedings ought to be transferred from the District Court of New South Wales to the Supreme Court of New South Wales – whether the claim for damages is likely to exceed jurisdictional limit of the District Court

CONTRACTS – whether there was an immediately binding agreement reached at mediation – intention of the parties - subsequent conduct of parties – relevance of history of previous dealings

JUDGMENTS AND ORDERS – amending, varying and setting aside – for irregularity – UCPR 36.15 – where costs orders made against defendants – where judgment pursuant to costs assessment sought to be set aside on basis that the plaintiffs were not referred to in their capacity as executors – whether plaintiffs must be described in their representative capacity – UCPR 6.18 – where no irregularity in the entry of judgment – application dismissed

CIVIL PROCEDURE – parties – proper party – whether the Authority of the Insurers’ Guarantee Fund a proper party to the proceedings STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – deregistered company – where legislation providing power to reinstate company repealed – Companies (New South Wales) Code (NSW), s 459(6) – whether court has power to reinstate company STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – Corporations (New South Wales) Act 1990 (NSW), s 85 – whether section of its own force can render applicable repealed co-operative scheme law – where section is not a deeming provision STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – accrued statutory rights – Interpretation Act 1987 (NSW), s 30(1)(c) – nature of the rights – Companies (New South Wales) Code 1981 (NSW), s 459(6) – right to seek reinstatement – more than mere locus standi – where person aggrieved – where interests affected by the exercise of the right STATUTORY INTERPRETATION – literal meaning – natural and ordinary meaning – Workers Compensation Act 1987 (NSW), s 236 – entitlement to payment WORKERS COMPENSATION – insurance – Insurers’ Guarantee Fund – liability – Workers Compensation Act 1987 (NSW), s 236(2) – whether plaintiff entitled to proceed directly against the Authority – Workers’ Compensation Act 1926 (NSW), s 18(3) – precondition to liability

SENTENCING — Relevant factors on sentence — Co-offenders — Parity

CRIME – appeal – miscarriage of justice – misstatement of prosecution case by trial judge – whether misstatement was significant in a material respect CRIME – violent offences – wound with intent to cause grievous bodily harm – glassing with empty bottle – second possible offender present – whether prosecution had excluded possibility that other person responsible for attack

CRIME - appeals - appeal against conviction and sentence - applicant found guilty of four offences contrary to ss 61M(2) and 66A - two separate complainants both grandnieces of the applicant aged 7 and 12 - indecent assaults and digital penetration - whether the trial judge erred in directing the jury that evidence of complaint was independent of what two complainants said in court - whether trial judge erred in admitting a statement on sentence containing hearsay - where the statement impugned applicant’s character but was not tendered for that purpose - where applicant did not raise good character - whether the sentence was manifestly excessive - appeal dismissed