Cases and authorities

CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge failed to consider the applicant’s diagnosis of PTSD according to sentencing principles – Where no psychiatric evidence as to the applicant’s mental condition and no evidence of causal connection with offending – Whether sentencing judge failed to give adequate reasons as to consideration of the applicant’s PTSD – Departure on appeal from case put at first instance – Appeal dismissed

CRIME – appeal against conviction – release application pending determination of appeal

CIVIL PROCEDURE — Implied undertakings — Release from

TORTS – further amended statement of claim – malicious prosecution – the identity of prosecutor – reasonable and probable cause – malice – false imprisonment – damages – orders

CIVIL PROCEDURE – application to transfer matter to District Court – whether matter could have been properly brought in the District Court – proximity to Supreme Court hearing date – transfer refused.

SETTLEMENT – approval of settlement – plaintiff under legal disability – where plaintiff a joint proprietor of the family home with her husband subject to a substantial mortgage – where tutor seeks order for payment from settlement of monies sufficient to discharge the mortgage – where husband providing care for plaintiff in substitution for commercial assistance contemplated by the settlement amount - whether Court has power to make such an order – where decision properly a matter for trustee

CIVIL LIABILITY – medical negligence – where infant plaintiff allegedly contracted tuberculosis meningitis in Vietnam while travelling with her parents – where defendant consulted by her parents before the trip about what vaccinations she should receive – whether defendant should have given or arranged for the plaintiff to receive the Bacille Calmette-Guérin vaccination – where infant plaintiff’s parents relied on defendant’s medical advice – whether defendant breached duty in failing to vaccinate plaintiff in the circumstances – whether defendant acted in manner accepted by peer professional opinion as competent professional practice – whether plaintiff continues to suffer medical and physical issues – whether proposed settlement in best interests of infant plaintiff

ESTOPPEL — Anshun estoppel — decisions to which applicable — two proceedings — submitting appearance entered in earlier claim — submitting appearance invited by beneficiaries of earlier proceeding — whether failure to complain rendered subsequent proceedings an abuse of process ESTOPPEL — res judicata — issue estoppel — earlier proceeding concerning errant fiduciary — numerous judgments and findings — fiduciary misappropriated partnership monies — earlier proceeding did not result in grant of relief to claimant in new proceeding — findings about knowledge misappropriations relevant — ambit of matters estopped from being denied in new proceedings EQUITY — defences — laches and acquiescence — Knowledge of ability to bring claim — circumstances rendering delay unconscionable for account of profits EQUITY — defences — statutes of limitation — application by analogy — whether analogous application unconscionable in the circumstances RESTITUTION — restitution for wrongdoing — equity — constructive trust — account of profits — allowances for errant fiduciary’s efforts — calculation of accounts with mathematical exactitude impossible — nature of benefit obtained by occupation of premises acquired with misappropriated funds — adjustments where beneficiaries received estate distributions comprising misappropriated funds

JUDGMENTS AND ORDERS – second application to set aside previous judgment of Court refusing leave to appeal – as with first application, no basis for reopening established

Immigration – Visas – Application for protection visa – Procedural fairness – Where delegate of Minister rejected first respondent's application for protection visa – Where Administrative Appeals Tribunal affirmed delegate's decision – Where first respondent sought judicial review of that decision in Federal Circuit Court – Where first respondent unrepresented before Circuit Court and obtained assistance of interpreter – Where Circuit Court dismissed application for judicial review and delivered ex tempore judgment – Where Circuit Court orders were translated to first respondent but ex tempore reasons were not – Where written reasons delivered by Circuit Court after first respondent filed notice of appeal in Federal Court of Australia – Where Federal Court held that failure of Circuit Court to have ex tempore reasons for judgment translated resulted in denial of procedural fairness – Whether Federal Court erred in holding that Circuit Court denied first respondent procedural fairness – Whether Federal Court erred in holding that setting aside Circuit Court's judgment necessary to provide first respondent with practical justice. Words and phrases – "assistance of an interpreter", "ex tempore reasons", "failure to translate", "judicial function", "operative reasons", "oral reasons", "practical injustice", "practical unfairness", "procedural fairness", "written reasons". Federal Circuit Court of Australia Act 1999 (Cth), ss 5, 42, 57, 74, 75. Federal Circuit Court Rules 2001 (Cth), rr 15.27, 16.01, 16.02. KIEFEL CJ. I agree with Steward J. KEANE J. I agree with Steward J. GORDON J. I agree with Steward J. EDELMAN J. I agree with Steward

CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – where defence sought the exclusion of evidence based on unreliability – evidence of EFIMS records and statement of detective as to where certain items were found – held, reliability is a matter for the jury – evidence admissible

CRIMINAL LAW – bail – conditions – ten-year-old boy – curfew – application for variation by deletion of curfew condition – where no evidence of offences committed at night – purpose of bail conditions – limitations on same – social engineering – paternalism – condition deleted

BUILDING AND CONSTRUCTION – Proceedings settled by Deed of Settlement entitling plaintiff to judgment against the first defendant in the event that the defendant did not carry out certain remedial building works, in particular in relation to fire safety – Deed included an undertaking by the first defendant to pay legal costs in three fixed instalments – Where first defendant breached the Deed – Plaintiff accordingly entitled to judgment

COSTS – indemnity basis – no issue of principle

PRACTICE AND PROCEDURE – separate question – whether order should be made that liability be determined in advance of quantum – where significant cost and delay involved in quantum question – whether bright line between liability and quantum issues – consideration of possible appellate complications

CONTRACTS – construction and interpretation of contracts – terms of loan approval provided for payment of all fees, costs and outlays payable herein if loan not drawn down within 30 days – proposed loan did not proceed – whether fees payable included establishment fee referred to in another section of loan approval CONTRACTS – consideration – lack of consideration – illusory contracts – loan approval – lender given “absolute” discretion to decide whether valuation is satisfactory to it – lender subject to implied obligations including to honestly consider valuation – promises made by lender held not to be illusory MORTGAGES AND SECURITIES – charge – creation of charge – loan approval provides for charge over all property – whether charge is valid when it does not refer to specific property – charge claimed over identifiable property – equitable charge held to be validly created

CIVIL PROCEDURE – where plaintiff seeks order extending time for service of her liability evidence – where complicated surgery causes serious adverse consequences for plaintiff – where defendants deny liability – where defendants claim what occurred to plaintiff was materialisation of inherent risk of medical procedure and plaintiff conversely argues the defendants failed to take account of her anatomical idiosyncrasies when approaching the surgery – whether it would be just and reasonable to permit plaintiff at a relatively late stage to rely on expert report where it allegedly does not reflect current pleadings as set out in amended statement of claim and may result in disadvantage to defendants – where considerations of the dictates of justice pursuant to s 58 of the Civil Procedure Act and the overriding purpose of a just, quick and cheap resolution of the real issues in the proceedings permit the plaintiff to rely on expert evidence at a late stage – where there remains over four months until the hearing where matters can be explored – defendants not required to bear costs connected with disruption caused by plaintiff’s application

CRIME – bail – release application - application for bail following hearing for an 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 – applicant subject to an Interim Supervision Order – ISO breached – Crown opposes bail – breach of ISO is a show cause offence – whether applicant shows cause as to why his continued detention is not justified – where objective seriousness is at the low end – where applicant will remain supervised under the ISO and ESO – applicant shows cause – bail concerns – whether risk that applicant will commit a further serious offence – where risk is reduced as applicant’s schizophrenia and personality problems are stabilised – where risks are manageable with supervision through ESO – conditional bail granted

APPEALS – appellate review of factual findings – appellate review of credit findings – interaction between contemporaneous documents and witness testimony – whether an adverse credit finding on one aspect of a witness’ evidence requires that his or her evidence should be rejected on all issues CORPORATIONS – directors’ duties – whether two directors breached their duties in relation to the sale of shares in a subsidiary of the company of which they were directors – whether transfer of shares in subsidiary company in 2012 transferred the beneficial ownership of those shares in all the circumstances of the case – whether shares transferred for nil consideration – whether sale of shares in subsidiary company in 2013 was at a gross undervalue CORPORATIONS – minutes of board meetings – disputed version of minutes – competing versions of minutes does not mean that one version is necessarily false – when party alleging false minutes did not challenge director who signed minutes with that allegation EQUITY – sham transfer of shares – whether beneficial interest in shares passed on registration of share transfer in circumstances where consideration for transfer of shares not paid – whether transfer of shares for nil consideration was a gift – where no intention on the part of directors to give away company property – where plausible explanation supported by context negated any suggestion that shares were intended to be given away TRUSTS – resulting trusts – whether presumption of a resulting trust over property transferred for nil consideration does not apply to personalty or shares

COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer”

ADMINISTRATIVE LAW - Health Care Complaints Commission - decision not to take further steps to progress complaint against psychiatrist - decision reviewed and confirmed by Commission - primary judge dismissed summons seeking judicial review - whether judicial review available - whether any judicially reviewable error disclosed by decisions - leave refused

CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether Murray direction required in respect of complainant’s evidence CRIME – Appeals – trial by judge alone – adequacy of reasons

PROCEDURE – subpoena – application to set aside – whether subpoena issued for any legitimate forensic purpose – documents sought by subpoena already produced under a statutory notice – assertion that statutory notice invalid and documents produced under it unlawfully obtained – subpoena issuer’s knowledge of existence of subpoenaed documents came through sources other than statutory notice – no reason why a party should not seek to overcome inadequacies, for the purposes of proof, of documents already in its possession PROCEDURE – subpoena – application to limit scope – whether abuse of process to seek production of documents relating to days not the subject of criminal charges – arguable relevance to specific days the subject of charges, as tendency or coincidence evidence, to negative any defence and/or to sentencing

CRIME – Appeals – Appeal against sentence – Aggravated break and enter and steal – Whether sentencing judge erred in failing to take into account the extent and severity of the applicant’s mental conditions – Whether sentencing judge erred in failing to determine whether and to what extent the applicant’s mental conditions reduced his moral culpability for his offending behaviour

CRIME – Appeals – Appeal against conviction – Corporations Act 2001 (Cth) s 184(2) – Dishonest use of position as director to gain benefit through transfers of funds and issuing of shares – Verdicts of guilty on all twenty-four counts – Whether trial judge misdirected jury as to elements of the offence – Alleged conflation of physical and mental elements – Whether jury required to be directed to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him – Appeal against conviction dismissed CRIME – Appeals – Appeal against sentence – Ten year sentence – Whether totality of criminal behaviour wrongly considered before individual sentences for each offence – Whether sentences should have been wholly concurrent – Whether inconsistency of co-offender’s sentence gives rise to justifiable sense of grievance – Whether trial judge erred in finding that lack of remorse prevented any prospects of rehabilitation – Appeal against sentence allowed – Sentence quashed and applicant resentenced to aggregate term of nine years and six months

CRIMINAL LAW – appeal – appeal against conviction – historical child sexual offences – trial by judge alone – where applicant a teacher in school attended by complainants – position of trust – unrepresented applicant – where applicant convicted on a majority of counts on the indictment – whether verdicts unreasonable – whether evidence unfairly admitted – whether applicant incompetently represented by counsel at trial – where applicant’s principal contention was that trial judge failed to conclude that complainants had motive to lie CRIMINAL LAW – appeal – appeal against sentence – where applicant raises manifest excess as a ground without identifying legal error – where applicant’s principal argument asserting manifest excess was that he was wrongly convicted

CRIMINAL PROCEDURE – Indictment – murder and manslaughter on indictment – manslaughter as alternative – application by accused that guilty plea to manslaughter be dealt with by judge and not put to jury – Crown consent to course – available but inconvenient – different practice in Victoria – Court acceded to application – issues of autrefois can be avoided.

NEGLIGENCE – duty of care – particular relationships – duty owed by workers compensation insurer to injured worker – no duty owed - workers compensation - proper forum

ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission as to whether appeal to Appeal Panel should be allowed to proceed – where delegate determined several of the plaintiff’s proposed grounds of appeal to the Appeal Panel on a final and conclusory basis – where error of law conceded – decision quashed

JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted

ADMINISTRATIVE LAW – Industrial Relations Commission – procedural fairness – privative provision – jurisdictional error – limit of effect of privative provision – preliminary hearing – re-opening of proceedings available in the Industrial Relations Commission – no denial of procedural fairness – parties on notice of issue – decision otherwise not amenable to certiorari – Summons dismissed

COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed

CIVIL PROCEDURE — court administration — court powers — recall of prior reasons in proceedings — circumstances — observations made per incuriam — court not yet functus officio — final orders yet to be made — whether power to recall based upon UCPR r 36.17 CONTRACTS — remedies — damages — assessment — quantum dependent on prior loan agreements — whether evidence capable of establishing terms of such loan agreements CORPORATIONS — formation — pre-registration contracts — requirements of Corporations Act 2001 (Cth), s 131 — whether evidence established that “a person” purported to enter a contract on behalf of or for the benefit of a company prior to registration — whether conduct of company shareholders or director capable of ratifying purported agreements after registration

COSTS – security for costs – relevant factors – nature of the plaintiff – where statement of claim has been amended to substitute the plaintiff in the proceedings

CRIME — Confiscations — Restraining order — Property proceeds of an indictable offence

PRACTICE AND PROCEDURE – claim for damages for personal injury – application to amend statement of particulars – application granted

PRACTICE AND PROCEDURE – injunctions – urgent after-hours application for interlocutory mandatory injunction compelling insurer to issue trade credit insurance policy – whether serious question to be tried that insurer obliged to renew policy – whether balance of convenience favoured interlocutory relief – where serious consequences for plaintiffs if policies not renewed – where insurer not re-insured in relation to any renewal of policy – where delay in bringing matter to Court INSURANCE – trade credit insurance – where insurer gave notice of intention not to review policy – where policy expired at midnight – whether insurer obliged to renew policy

SUCCESSION — Burial rights — Where second defendant directed body to be received by first defendant — Where interim injunction sought by plaintiff and granted ex parte — Where second defendant does not object to the relief sought by the plaintiff – Where third defendant hospital refuses to release without court order

PRACTICE AND PROCEDURE – validity of wills – suspicious circumstances rule – undue influence alleged – suspicious circumstances, allegation of undue influence in the execution of the two 2017 wills - application to file second cross claim raising issues of equitable undue influence and have all issues tried together – overlapping issues – consideration of operation of undue influence in probate and equity - whether leave to file the second cross-claim should be granted or whether the second cross-claim should be determined separately.

AGENCY – whether implied actual authority to enter building contract – where builder did not sign contract – where numerous documents signed in name of builder – whether builder authorised nephew to enter into contract on his behalf – no authority found from the circumstances BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – whether defects part of lot property or common property CONSUMER LAW – misleading or deceptive conduct – causation or reliance – where home warranty insurance issued due to misleading representations made by insurance broker – whether representations sufficiently causative of loss to Owners Corporation EVIDENCE – tendency evidence – conduct – whether evidence of builder performing favours for friends characterised as tendency evidence of conduct regarding commercial development

JUDGMENTS AND ORDERS – Court of Appeal – Stay of District Court costs orders – Where stay would halt costs assessment process – Where restitution available for costs incurred during assessment process – Where process well-advanced – Stay refused JUDGMENTS AND ORDERS – Court of Appeal – Stay of anticipated costs assessment award – Where enforcement likely to cause considerable inconvenience and financial stress – Where risk of non-recoverability resolved by undertaking – Where no evidence of hardship – Stay granted

JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below produced at extremely late stage – Where interests of justice require exploration of evidence before taking irrevocable step of ejectment – Stay granted CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Referral made to allow for legal assistance in exploration of fresh evidence JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where stay also sought by husband of applicant producing fresh evidence – Where husband unable to demonstrate any entitlement to remain in possession – Stay refused

CIVIL PROCEDURE – Court of Appeal – Notice of motion – Interpretation of orders staying proceedings – Reasonable use of a motor vehicle and caravan – Where declaratory, not injunctive, relief sought – Where use was for service, repair, and camping – Motion dismissed

CRIMINAL LAW – sentencing hearing – manslaughter – substantial impairment – offender killed parents – mental condition of offender including suicidal ideation – application by media for access to exhibits – relevant discretionary factors – risk of harm to surviving family members from publication of contents of exhibits – caution required given suicidal content of material – application for access declined

CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused

PRACTICE AND PROCEDURE – discovery – discovery by categories – further and better discovery

EVIDENCE – Exclusion of evidence – Accused charged with murder – No issue that the accused stabbed the deceased causing his death – Sole issue of self-defence and/or defence of his father – Where the Crown sought to adduce evidence of conversations between the accused and his father in which the accused gave an account of what had occurred – Where that account was inconsistent with and formed no part of the Crown case – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence excluded

HIGH RISK OFFENDERS — extended supervision orders — serious sex offender — where order not opposed — conditions — relevance of conditions to risk — term of

REPRESENTATIVE ACTION – Queensland Floods – quantum issues – recovery of damage to fixtures and chattels – measure of damages – clean‑up costs – reasonable commercial cost of cleaning or cost of labour of individuals who undertook clean‑up? – Powercor Australia Pty Ltd v Thomas considered Held: commercial cost is appropriate measure – ASSESSMENT – individual group member – farm enterprise – losses to farming business – inconvenience – subsidised interest on loan

HIGH RISK OFFENDER – continuing detention order sought by plaintiff refused – extended supervision order of 18 months imposed – extended supervision order not opposed by defendant – position of defendant communicated to plaintiff before final hearing – question of costs in those circumstances