Cases and authorities

CIVIL PROCEDURE — Default judgment — Default in filing defence — (1) Notice of Motion filed by the Plaintiffs seeking summary or default judgment for failure to file a defence within the time prescribed by the UCPR; (2) Notice of Motion filed by the First Defendant approximately 10 months after the Amended Statement of Claim was filed and served seeking leave to file a defence and cross-claim — Held: (1) First Defendant failed to justify its delay in filing its proposed defence and cross-claim; (2) First Defendant’s proposed defence and cross-claim failed to disclose reasonable prospects of success — obiter discussion of penalties; (3) Leave for the First Defendant to file the proposed defence and cross-claim refused; (4) Judgment entered in favour of the Plaintiffs against the First Defendant in the sum of $1,601,340.85.

CHILD WELFARE — Adoption — Best interests —Adoption by single parent — Court to be satisfied that adequate testamentary guardianship arrangements have been made

CIVIL PROCEDURE – pleading – alleged apportionable claim – whether adequately pleaded – where defendant cannot identify particular concurrent wrongdoers but alleges they must be within a closed class of named parties

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 – preliminary hearing – application for interim supervision order – application for court-appointed psychiatrists and/or psychologists – Whether defendant is a convicted NSW terrorism activity offender – Whether evidence would, if proved, justify the grant of an extended supervision order at final hearing – disputed conditions

HIGH RISK OFFENDER – extended supervision order – preliminary hearing – past conviction for manslaughter – convicted of index offences of take and detain, and attempted choke – offence of indecent assault taken into account on a Form 1 - extensive criminal record – defendant has psychotic illness and substance abuse disorder as well as antisocial personality disorder – whether requirements under ss 5B and 5I requiring defendant to be a supervised offender are satisfied – where sentence being served at time of application was not served consecutively with sentence for manslaughter - where defendant not serving a sentence of imprisonment for an offence taken into account on a Form 1 – defendant not a supervised offender – where otherwise an ESO would have been justified – summons dismissed STATUTORY INTERPRETATION – whether defendant was a “supervised offender” under the Crimes (High Risk Offenders) Act 2006 - words and phrases - meaning of “consecutively”

CRIME – SENTENCE – multiple counts of aggravated sexual assault – offender formerly dealt with for victim’s murder – evidence of related serious sexual assaults subsequently discovered – pleas of guilty – multiple offences to be taken into account on sentence - relevance of drug use – question of remorse - extent of discount to be afforded – question of totality

PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

CONTRACT – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where employee asserted that employer’s insistence upon changing the employee’s work location amounted to repudiatory conduct and purported to accept that repudiation. EMPLOYMENT & INDUSTRIAL LAW – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where relevant Award contained mobility of staff clause which provided for employer to move employees around relevant District upon satisfaction of certain conditions – whether location as outlined in letter of offer ousted operation of mobility of staff clause in Award.

APPEALS – leave to appeal – where primary judge summarily dismissed originating process – whether originating process subject to cause of action estoppel

TORTS — negligence — apportionment of responsibility and damages — adjustment to reflect concurrent wrongdoing by entity not party to proceeding COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — where appellant partially successful in appeal involving multiple parties — reduction commensurate with hearing time spent on successful aspects of appeal COSTS — party/party — orders when proceedings involve multiple parties on appeal — allegations of concurrent wrongdoing by respondents — appeal successful against one respondent but not against another — appellant did not pursue concurrent wrongdoing allegations at hearing — whether appellant’s costs in respect of the successful respondent should be ordered against the unsuccessful respondents

CRIMINAL LAW – sentence appeal – supply a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and import a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code (Cth) – pleas of guilty – sentence of 8 years and 9 months with a non-parole period of 6 years – whether sentencing judge took into account lack of prior relevant criminal antecedents and prior good character – whether the sentence imposed for the importation offence was manifestly excessive – grounds of appeal not made out – application for leave to appeal against sentence is dismissed.

CRIMINAL LAW – sentence appeal – sexual offending against three victims taking place over 18 years – whether sentence manifestly excessive. CRIMINAL LAW — Appeal against sentence — Aggravating factor per s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) — Use of Victim Impact Statements — Whether sentence manifestly excessive

CRIMINAL LAW – sentence appeal – accessory after the fact to murder – interference with evidence and assistance provided after the primary offence – whether sentencing judge erred in assessing objective gravity of the offence – whether there had been prior planning and arranging – whether open to sentencing judge to reject evidence called on behalf of the applicant that his experience in custody would be more onerous than that of the general prison population – whether his Honour adequately or at all took into account the effects of the COVID-19 pandemic – whether open to sentencing judge to substantially dismiss the applicant’s subjective case – whether the applicant should have leave to rely upon fresh evidence as to his medical condition – appeal against sentence dismissed.

CRIMINAL LAW – conviction appeals – murder – intimidation – single joint criminal enterprise - where offender directed the contract killing of a former business associate and the intimidation of his wife – history of disputes between the offender and victims – whether Crown proved beyond reasonable doubt events occurred at instigation of the applicant – leave to appeal required for all grounds - whether the jury verdict is unreasonable – whether there is a miscarriage of justice – whether the trial judge erred in admitting evidence – whether the trial judge erred in his directions to the jury in respect of the use of evidence – whether evidence cross-admissible – tendency reasoning - anti-tendency direction – appeal dismissed.

CIVIL PROCEDURE – Default judgment – Unsuccessful application for default judgment

CRIMINAL LAW – criminal assets recovery - restraining orders – ex parte – duty to give reasons – different approaches taken by judges of the Common Law Division – orders made

CRIMINAL LAW – criminal assets recovery – restraining orders – ex parte – orders made – no question of principle

CIVIL PROCEDURE – personal injury proceedings – pleadings – application to file and serve a second further amended statement of claim – application seeking leave to amend pleadings on day 3 of the trial - where proposed amendments include new causes of action – whether amendments prejudicial to defendant – competing considerations of justice between parties and efficiency of judicial administration – application refused

CRIME – proceeds of crime – forfeiture order- extension order sought under s 93 extending period before property forfeited – whether application for extension made without undue delay - application granted

CIVIL PROCEDURE - representative proceedings – shareholder class actions – three proceedings travelling together settled in principle on day 55 of hearing – whether settlement should be approved – where settlement figure modest compared to amounts clamed – where four fifths of settlement figure to be used to meet legal costs and settlement administration expenses – where prospects of success problematic – where ability of defendants meet judgment in doubt

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

CRIMINAL LAW – bail – show cause requirement – combination of circumstances – delay – assessment of strength of prosecution case – family circumstances – possible diagnosis of ADHD in applicant’s son – large surety available – electronic monitoring

APPOINTMENT OF CORPORATE TRUSTEE – whether money paid into Court for plaintiff should now be paid to corporate trustee rather than NSW Trustee & Guardian – where plaintiff argues fees of corporate trustee will be considerably less than those of NSW Trustee & Guardian – where consent has been provided by corporate trustee to act as manager of estate of plaintiff under order and direction of NSW Trustee & Guardian – where comparison of fees and investment is provided – power of court to appoint corporate trustee not in doubt – where known sum available for investment – where need to avoid unnecessary delay in appointment of corporate trustee – where Court proposes that an actuary or similar expert provide a professional opinion on the appropriateness of preferring the corporate trustee

CRIMINAL LAW – prosecution under s 15(4) of the Food Act 2003 (NSW) – notification to restaurant of allergy to sesame seed – customer provided with food containing sesame seed – allergic reaction – death of customer – plea of guilty – sentence hearing – assessment of objective seriousness of offending – aggravating and mitigating features – strong subjective case – fine imposed – defendant to pay costs of prosecutor as agreed or assessed.

ADMINISTRATIVE LAW – procedure – time limits – extension of time – delay caused by obtaining legal advice and obtaining funds ADMINISTRATIVE LAW – judicial review – firearms prohibition order – whether person is a fit and proper person in the public interest to possess a firearm – procedural fairness – plaintiff not informed of or given opportunity to respond to factual matters ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – non-disclosure of material to be relied on by decision-maker – whether information known to applicant – whether use of information reasonably expected – materiality of non-disclosure ADMINISTRATIVE LAW – judicial review – firearms prohibition order – irrelevant considerations – internal reviewer reliance upon uncharged drug offences – failure to address relevant considerations – matters raised by applicant

CRIMINAL LAW – criminal assets recovery - restraining orders – ex parte – orders made – no question of principle

CIVIL PROCEDURE – application for amendment to reasons in Court’s inherent jurisdiction – where reasons extracted the transcript of a recording authorised under the Surveillance Devices Act 2007 (NSW) and tendered in open court – where transcript not subject to a non-publication order or suppression order – whether publication of transcript contrary to s 40 of the Surveillance Devices Act – application dismissed

SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or no order as to costs

PRACTICE AND PROCEDURE – where plaintiff made application that trial judge in medical negligence proceedings should disqualify self because of apprehended bias – where plaintiff argued that the judge’s apprehended bias is based on the fact that the judge’s tipstaff attended a single directions hearing on behalf of defendant 2 years ago – application refused COURT AND JUDGES – apprehended bias – application for recusal – application refused

CIVIL PROCEDURE – pleadings – amendment – application for leave to amend statement of claim – early in proceedings - application granted

PROCEDURE – subpoena – application to set aside subpoena – whether subpoena has a legitimate forensic purpose – no issue of principle

SENTENCING – remarks on sentence – manslaughter – excessive self-defence – where deceased committed home invasion on offender – where deceased assaulted offender then fled – where offender pursued deceased with samurai sword – plea of guilty – vulnerability in custody – excellent prospects of rehabilitation

COSTS — security for costs — costs of appeal where appellants’ lawyers stand to benefit from prosecution of appeal — where prospects of success of appeal questionable — whether security for costs should be ordered, and if so in what amount

CONTRACT - construction - expert valuation - where contract provided that expert determination of current day market value is final and binding save for manifest error - whether errors in valuation principle, application of valuation approaches and factual matters amount to manifest error – manifest error found

CIVIL PROCEDURE – application for leave to reply on expert reports served out of time – proceedings in case management phase – no impending hearing date – reasonable time for defendant to obtain expert evidence in reply – prejudice - consideration of rr 31.28 and 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) – special circumstances – leave granted

SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or no order as to costs

CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — application for leave to appeal from stay — application for stay of orders of primary judge

APPEALS – Leave to appeal – Interlocutory decision disposing of appellant’s claim – Whether error resulting in injustice established – Leave granted TRAFFIC LAW AND TRANSPORT – Traffic law – Motor accident legislation – Time limits – Where leave under (NSW) Motor Accidents Compensation Act 1999, s 109, refused – Whether full and satisfactory explanation given for delay in circumstances where delay attributable to solicitors – Whether total damages likely to be awarded if claim succeeds not less than 25% of maximum amount awardable for non-economic loss – Calculation of future domestic assistance – Appeal allowed – Leave granted COSTS – Wasted costs order – Where solicitors responsible for failure to commence proceedings in time – Direction made that submissions be lodged as to costs and potential under (NSW) Civil Procedure Act 2005, s 99

CRIME — dishonestly obtain financial advantage by deception — plea of guilty entered and agreed facts signed whilst represented — co-accused in joint criminal enterprise acquitted by direction at subsequent trial — application for withdrawal of guilty plea refused — where guilty plea said to be entered for convenience and not genuine consciousness of guilt — asserted defect in Crown case with regard to causation

EVIDENCE – Opinion evidence – Exceptions – Expert opinion

EQUITY – Trusts and trustees – Judicial advice – Whether trustee justified in defending proceedings and filing cross-claim where it will not be the only contradictor

CORPORATIONS – voluntary administration – ATO largest creditor, owed $2.6m – ATO votes against DOCA – DOCA executed – company returns to control of director – company fails to pay tax – 6 default notices issued by deed administrators – ATO issues garnishee notice and enters into 4 payment arrangements – deed administrators seek to terminate DOCA – ATO votes for DOCA to continue – defaults continue – DOCA terminated – ATO then owed $6.9m – ATO received $2m during ‘relation back’ period. CORPORATIONS – unfair preferences – creditor paid by third party – whether creditor received “from the company” within s 588FA(1)(b) Corporations Act 2001 (Cth) – case law review at [9]-[39] – Cant v Mad Brothers Earthmoving Pty Ltd (in liq) [2020] VSCA 198 not plainly wrong – summary of factors for third party payments at [40] – evidentiary challenges for liquidators at [41]. CORPORATIONS – voidable transactions – whether payments made “by, or under the authority of the administrator of the deed” within s 588FE(2B)(d)(i) Corporations Act – Commissioner of Taxation v Yeo as Liquidator of Ready Kit Cabinets Pty Ltd (in liq) [2020] FCAFC 199 followed.

COSTS – interlocutory costs – order for payment of lump sum on account of costs liability – proceedings stayed until payment made

CIVIL LAW – procedure – leave to commence proceedings – when plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – symptoms consistent with allegations – Latin – not generally spoken in New South Wales

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where triable factual and legal questions CIVIL PROCEDURE – application for determination of separate question – where time for judicial review expired – whether an extension of time should be determined prior to final hearing CIVIL PROCEDURE – claim seeking judicial review of decisions by local council to impound and sell stock – application to amend amended summons – application granted on condition of compliance with UCPR, r 59.4

MOTOR ACCIDENTS COMPENSATION ACT – statutory construction – fault caused by owner in use or operation – scope of legislation NEGLIGENCE – contributory negligence – apportionment

CRIME – SENTENCE – sentence after trial – trial for murder – verdict returned to manslaughter on the basis of substantial impairment – multiple disorders including autism and an intellectual disability – crime of extreme violence – use of multiple weapons – innumerable injuries inflicted – decapitation of deceased – crime committed in deceased’s home in the presence of a young child – offer to plead to manslaughter before trial rejected by the Crown – question of extent of discount to acknowledge offered plea

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

ESTOPPEL – Proprietary estoppel – Encouragement – Detrimental reliance SUCCESSION – Executors and administrators – Proceedings against executors and administrators SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3

CIVIL PROCEDURE – service – deemed or informal service – electronic service - course of correspondence between parties by email to solicitors – Notice to Admit Facts sent by email with 14 days to reply – where solicitor for defendant was unaware of email until after 14 day period – application to set aside – whether consent given to serve court documents by email – where no actual or inferred consent given – where parts of Notice to Admit Facts otherwise amounts to an abuse of process – Notice to Admit Facts set aside