Cases and authorities

CRIME —appeal against sentence— sexual offences — indecent assault — circumstances of aggravation – applicant pleaded guilty to three counts of indecent assault of a person under 16 years – three victims - relevant factors on sentence — multiple offences — accumulation, concurrency and totality– whether consideration of indicative sentences indicates error in the aggregate sentence - application of the principle of totality to aggregate sentence – manifest excess – objective seriousness – leave to appeal granted – appeal dismissed

CRIMINAL LAW – sentence – appeal against sentence – guilty plea to manslaughter – applicant sentenced on basis of agreed facts concerning applicant’s involvement in gunfight – no error in failing to give sufficient weight to remorse – no error in failing to find special circumstances – sentencing judge accepted offender had provided assistance by explaining his involvement in the gunfight but declined to discount sentence – reasons did not comply with Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – offender resentenced

HIGH RISK OFFENDER – Extended Supervision Order – applicant convicted of manslaughter committed while suffering schizophrenic illness –applicant committed further offences whilst on parole including destroying or damaging property and assault offences – where applicant breached Interim Supervision Order and was returned to custody – likelihood of further breaches - whether repeated breaches of ISO/ESO is likely to increase risk of further offending - where applicant also suffers from a mild intellectual disability – where defendant opposes ESO – where high degree of probability that defendant poses an unacceptable risk if not subject to an ESO – conditions – whether conditions should be expressed in simple English - ESO to be made for a period of three years

COSTS – Trusts and trustees – Where Plaintiffs did not know whether they were beneficiaries or discretionary objects, or whether they were within a class of beneficiaries or discretionary objects, or whether they had an interest in the property subject to trusts – Court found that Plaintiffs entitled to access to some documents relating to different trusts created during the lifetime of their parents – Basis of quantification of costs - Whether costs of application for disclosure of documents, calculated on the indemnity basis, should be paid – Question raised as to which Defendants should pay the costs – No dispute that at least fifth Defendant and seventh Defendant should pay costs, and that there should be no indemnity provided from the trust property respectively

COSTS – Security for costs – Relevant factors – Whether plaintiff cross-defendant to be treated as the real defendant – whether “oppression” a basis to resist security even if respondent fails to establish that an order for security will stultify the claim

CRIMINAL PROCEDURE — application to exclude evidence – expert opinion under s 79 Evidence Act 1995 (NSW) – facts on which opinion is based – whether opinion within area of specialised knowledge – held, evidence inadmissible

CIVIL PROCEDURE – Service of originating process – where service of process is said to be defective pursuant to the Uniform Civil Procedure Rules 2005 – where service failed to include a notice under the Service and Execution of Process Act 1992 (Cth) – the Court grants leave to serve originating process.

SUCCESSION – Probate and administration – Informal document being a draft Will – Dispensing with requirements for execution of the draft Will pursuant to Succession Act 2006 (NSW) s 8 – No dispute that the draft Will is a document, that it purported to state the testamentary intentions of the deceased, and that it had not been executed in accordance with Part 2 of the Succession Act – Sole question whether the Court is satisfied that the deceased intended the draft Will to form his will – The deceased aware of need to sign draft Will – Evidence does not permit a finding that the deceased intended that the draft Will would form his Will

CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW) — Unjust terms considered — Matters under Contracts Review Act 1980 (NSW), s 9(2) CONTRACTS — undue influence — presumed undue influence — Parent and child — overlapping application at equity and under Contracts Review Act 1980 (NSW)

LANDLORD AND TENANT - residential tenancy agreement - long term occupation of land in unadministered deceased estate - whether appellant entered into residential tenancy agreement with uncle who was in residence and entitled to 5/9 of estate - whether residential tenancy agreement can be with “estate” of deceased - whether appellant entered into residential tenancy agreement, 8 years later, with newly appointed administrator of deceased estate - no error in primary judge’s finding that no residential tenancy agreement entered into - appeal dismissed

CRIMINAL LAW – urgent appeal against decision to discharge jury – where Prosecutor raises tendency and coincidence reasoning in closing address – where notice requirements not complied with – prejudice to accused – where trial Judge invites application to dispense with notice requirements – where application opposed – decision to discharge jury without application by either party – whether Prosecutor should be permitted to improve its case in subsequent trial – whether appropriate to discharge jury – relevant considerations – where accused opposes discharge – “simple solution” for Prosecutor to withdraw submission and Judge to provide “anti-tendency” directions – decision to discharge unreasonable and plainly unjust – decision based on extraneous and irrelevant considerations – order to discharge jury vacated

Immigration – Cancellation of protection visa – Notice of cancellation – Where delegate of Minister cancelled respondent's visa under s 501(3A) of Migration Act 1958 (Cth) – Where pursuant to duties in s 501CA(3) letter from delegate and enclosures sent explaining decision to cancel respondent's visa and opportunity to make representations about revoking decision – Where letter and enclosures given to respondent by corrective services officer – Where letter incorrectly stated date on which respondent taken to have received notice – Whether Minister complied with duty to "give" written notice and particulars and "invite" representations under s 501CA(3) – Whether capacity of respondent to understand written notice, particulars, and invitation relevant to whether duties in s 501CA(3) were performed – Whether Minister or delegate required personally to perform duties in s 501CA(3) – Whether Minister failed to invite representations as letter did not specify period within which to make representations in accordance with Migration Regulations 1994 (Cth). Words and phrases – "capacity to understand", "deliver", "give", "in the way that the Minister considers appropriate in the circumstances", "incapacity", "invite", "method of delivery", "notice", "ordinary meaning", "personally to perform", "requesting formally", "service", "substantive content", "within the period and in the manner ascertained in accordance with the regulations". Migration Act 1958 (Cth), ss 496, 497, 501(3A), 501CA(3). Migration Regulations 1994 (Cth), regs 2.52, 2.55.

Taxation – Administration – Goods and services tax – Taxable supply – Running Balance Accounts ("RBA") – Commissioner's obligation to pay interest – Where Commissioner lacked statutory authority to amend taxpayer's GST return – Where net amount in GST return calculated in error – Where Commissioner purported to amend taxpayer's GST return and credited taxpayer's RBA – Whether mistaken balance in an RBA is efficacious in law to constitute an RBA surplus within meaning of Pt IIB of Taxation Administration Act 1953 (Cth) – Whether Commissioner obliged to pay interest under Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth). Words and phrases – "administration", "allocation", "amounts due to the Commonwealth under taxation laws", "erroneous balances", "goods and services tax", "interest", "RBA", "RBA deficit debt", "RBA surplus", "refund", "running balance account", "taxation administration". A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 17-5, 17-15, 33-5, 35-5, Pt 2-1 of Ch 2. Taxation Administration Act 1953 (Cth), ss 8AAZA, 8AAZC(1), 8AAZD(1), 8AAZH, 8AAZI, 8AAZL(1), 8AAZLF; Sch 1, ss 105-5, 105-20, 105-100. Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth), s 12

Practice and procedure – Representative action – Stay – Where five open class representative actions commenced against same defendant in relation to same controversy – Where considerable overlap between claims made in proceedings – Where representative plaintiff in four proceedings filed notice of motion in Supreme Court of New South Wales seeking orders that each other proceeding be permanently stayed – Whether Supreme Court's power to grant stay is confined by rule or presumption that representative proceeding issued first in time is to be preferred – Whether litigation funding arrangements can be relevant consideration under s 67 of Civil Procedure Act 2005 (NSW) – Whether Supreme Court erred in considering litigation funding arrangements. Words and phrases – "abuse of process", "auction process", "certification and carriage motion procedures", "class actions", "competing funding proposals, costs estimates and net hypothetical return to members", "competing representative proceedings", "conflicts of interest", "contradictor", "duplicative proceedings", "equitable principles concerning test actions", "first-in-time rule or presumption", "funding model", "litigation funding arrangements", "multifactorial approach", "multiplicity", "one size fits all", "power to grant a stay", "prima facie vexatious and oppressive", "representative proceedings", "special referee". Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 67, Pt 10.

CONTRACTS – formation – intention to make binding agreement – whether agreement merely preliminary – deed provided regime for parties to value property and exchange and settle contracts for the sale of land – whether deed constituted a binding agreement – held that deed was immediately binding on the parties EQUITABLE REMEDIES – specific performance – deed containing agreed procedure to facilitate transfer of an interest in property – parties failed to take steps to commence agreed procedure – plaintiff held to have failed to carry out essential obligations under agreement – plaintiff was not shown to be at all relevant times ready, willing and able to perform his obligations – orders for specific performance refused

CIVIL PROCEDURE – referral to Registrar for Pro Bono Panel for legal assistance – financial hardship – prior referrals for Pro Bono assistance in preceding two years – special reasons for further referral for Pro Bono assistance – complex pleadings requiring assistance and/or advice as to whether there are valid causes of action available to plaintiff

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

CORPORATIONS – winding up – statutory demand – application to set aside statutory demand – whether there is a genuine dispute as to the existence of the debt to which the demand relates – whether the debt is a judgment debt – whether a genuine dispute arises from the statutory demand describing the debt as owing to a creditor in its capacity as trustee

COSTS – proceedings dismissed without hearing on the merits – application for defendant to pay the plaintiff’s costs on an ordinary or indemnity basis – application dismissed – no question of principle

COSTS – interlocutory application costs to be paid on an ordinary basis – no issue of principle

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Claim by defendant alleging frivolous or vexations proceedings CIVIL PROCEDURE — Pleadings — Striking out — Claim by defendant COSTS — Party/Party — General rule that costs follow the event — Application of the rule

COSTS – Costs assessment – Late application to review certificate – Legal Profession Uniform Law Application Act 2014 (NSW) s 83(1) – Application to Manager, Costs Assessment to extend time – Whether plaintiff was denied procedural fairness – Whether Manager failed to take into account relevant considerations – Review dismissed

EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instance of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Evidence admitted in part

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient

TRANSFER OF PROCEEDINGS – whether proceedings should be transferred to District Court – where parties accept doing so would reflect the appropriate and proper operation of s 146(1) of Civil Procedure Act 1995 – where there is insufficient material to indicate precisely or generally what is or may be the likely quantum of damages – where there is agreement among parties that damages will not exceed jurisdiction of District Court – costs of applications shall be costs in proceedings of District Court

COURTS – jurisdiction – criminal jurisdiction of Children’s Court – where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence – powers of the Children’s Court to deal with criminal charges against a young person APPEALS – appeal from refusal by Children’s Court of application to have proceedings heard by a female magistrate – whether amenable to appeal to the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW)

CRIMINAL LAW – Sentence – Appeal against sentence –Whether aggregate sentence manifestly excessive – Aggregate sentence not manifestly excessive in the circumstances CRIMINAL LAW – Sentence – Appeal against sentence – Parity – Whether applicant had justifiable sense of grievance by reason of marked disparity between the differences in length and mode of service of the sentences imposed upon him and his co-offender – Where applicant and co-offender were only co-offenders for one count among a collection of other offences – Objective and subjective features relevant to the applicant were different from those of the co-offender – No justifiable sense of grievance – Appeal dismissed

CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sentencing judge erred in assessment of objective seriousness of offence – Whether sentencing judge erred by giving inadequate discount for guilty plea – Whether applicant’s legal representation in sentencing court incompetent – Drug offences – Manufacture prohibited drug – Large commercial quantity – Supply prohibited drug – Deemed supply – Possess prohibited drug precursor

CRIME — Appeals — Appeal against conviction — Directions to jury — accused’s right to silence — post offence conduct — consciousness of guilt — witnesses not called in the Crown case — hearsay evidence — victim’s motive to lie — Unreasonable verdicts CRIME — Appeals — Appeal against sentence

CIVIL PROCEDURE – Hearings – Adjournment – Short adjournment ordered to allow self-represented plaintiff to obtain legal advice

CIVIL PROCEDURE – pleadings – several opportunities to re-plead – self-represented litigants – pro bono legal assistance terminated by plaintiffs - proceedings dismissed for want of due despatch and abuse of process

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

APPEAL – Local Court – Leave to appeal – Mixed questions of law and fact – Proper construction of an indemnity clause – Proper construction of deeds of release – Estoppel by representation – Abuse of process – Failure to provide sufficient reasons – Set off – Leave granted in part – Appeal dismissed

SENTENCE – objective seriousness – aggravating factors – subjective features – substance abuse disorder – social disadvantage – age of offender – remorse – rehabilitation – criminal history – deterrence – special circumstances

CRIME – murder – trial by judge alone – single issue at trial – question of self-defence – accused a drug user – no objective basis for fear of deceased – question of drug induced paranoia – whether asserted fear of deceased genuine - relevance of conduct of accused after death of deceased - whether Crown negatived self-defence

CIVIL PROCEDURE – professional negligence – directions for service of evidence

HIGH RISK OFFENDER – extended supervision order preliminary hearing – serious sex offender – where defendant has extensive criminal record – where defendant had sexual assault and indecent assault convictions – where defendant has a psychotic illness – where defendant’s risk assessment is well above average – interim supervision order granted – nature of conditions of ISO to be imposed

EQUITY — Breach of confidence — Concurrent confidentiality obligation in contract EQUITY — Breach of confidence — Necessary quality of confidence — Employment EQUITY — Breach of confidence — Necessary quality of confidence — Material in public domain COMMERCE — Restraint of trade — Particular cases — Protection of business connections COMMERCE — Restraint of trade — Particular cases — Protection of staff connections COMMERCE — Restraint of trade — Validity and reasonableness

COSTS — party/party — court’s discretion — costs fixed on gross sum basis

CONTRACTS – formation – agreement – loan to incorporated association by founder and office-bearer – loan initially unsecured but shown in later financial statement as secured – whether evidence sufficient to infer agreement by association to grant security ESTOPPEL – promissory estoppel – whether financial statement a representation by association – reliance – detriment – statute of frauds LIMITATION OF ACTIONS – debt – extension of limitation period by confirmation – acknowledgement in financial statement – extension operates from date specified in statement not date of adoption

CRIME – Sentence – Intensive Corrections Order – application by Corrective Services New South Wales to remove home detention – unforeseen hardship – home detention condition removed

CIVIL PROCEDURE – suppression and non-publication – orders – earlier orders made and due to expire - further orders sought on the basis of defendant’s psychiatric illness – s 8(1)(c) Court Suppression and Non-publication Orders Act - solicitor who defrauded clients of money – where solicitor was convicted of five counts contrary to s 192E Crimes Act 1900 (NSW) and imprisoned – where media articles published without naming solicitor because of earlier orders – where solicitor suffers from Bipolar I Disorder – where risk of self-harm - where orders are necessary to protect defendant’s safety – length of orders – whether orders are reasonably necessary to operate until the end of defendant’s sentence – where media interest in case following defendant’s release from custody likely to be minimal – orders made until 18 months following defendant’s release from custody on parole

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of importing a commercial quantity of a border controlled drug and one count of importing a marketable quantity of a border controlled drug – Where sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Error established – Where plea was entered at the first available opportunity – Where additional discount applied to reflect the applicant’s assistance to the authorities – Genuine remorse and good prospects of rehabilitation – Where applicant’s conditions of custody rendered more onerous as a consequence of an incident in custody which was no fault of the applicant – Applicant resentenced

CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding –whether sentencing judge made findings inconsistent with agreed facts – where Crown conceded error – appeal allowed – applicant sentenced afresh

ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Jurisdictional error – Review of the decision of a proper officer – Whether the proper officer acted in excess of the “gatekeeper” role under s 63(3) – Whether the decision was made according to law – Where the decision was not irrational, illogical and not based on findings or inferences of fact supported by logical grounds – Review dismissed

CIVIL PROCEDURE – pleadings – amendment – former statement of claim struck out – application for leave to re-plead – foreshadowed advocate’s immunity defence – plaintiffs allege solicitor’s conduct fraudulent – re-pleading permitted

COSTS — Party/Party — Bases of quantification — Indemnity basis

COSTS — Party/Party — Bases of quantification — Indemnity basis

CONSUMER LAW – FINANCIAL SERVICES – Australian Securities and Investments Commission Act 2001 ss 12DA(1), 12GF – Corporations Act 2001 ss 79, 917E – claim for damages for misleading or deceptive conduct by the first, second and third defendants consisting of misrepresentations allegedly made in connection with the issue of unsecured redeemable promissory notes issued by the first defendant that the notes were secured, would be repayable after 3 months and the plaintiff could have early repayment if he wanted it – claim that the fourth defendant was a person involved in the contravention because he had actual knowledge of the falsity of the representations and intentionally participated in the misleading or deceptive conduct HELD – that misrepresentations not established or established to be misleading or deceptive – that allegations against fourth defendant not made out HELD – no damages established because the plaintiff did not show that he would not have invested in the notes otherwise and that it is more probable than not that he would have anyway HELD – plaintiff did not establish quantum of his loss PRACTICE AND PROCEDURE – observations on the proper pleading of misleading or deceptive conduct – application to reopen to lead further evidence and to amend to claim different relief – application declined

APPEAL – application for leave refused – costs ordered – application to vary order – offer of compromise – indemnity costs sought COSTS – indemnity costs – offer of compromise – whether offer open for reasonable period – whether offer involved compromise – default entitlement – power to order otherwise – onus on applicant to establish reasons for different costs order – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A