Cases and authorities

COURTS AND JUDGES — Apprehended bias — Disqualification — Where application for disqualification dismissed

NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention order ("CDO") – Whether all or any part of Div 105A of Criminal Code invalid because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of Constitution – Whether scheme for preventative detention of terrorist offender capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident of exclusively judicial function of adjudging and punishing criminal guilt – Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism. Words and phrases – "analogy", "apprehended conduct", "Ch III court", "continuing detention order", "exception to the Lim principle", "involuntary detention", "judicial function of adjudging and punishing criminal guilt", "judicial power of the Commonwealth", "less restrictive measure", "non-punitive purpose", "orthodox judicial process", "preventative detention", "protection of the community from harm", "protective punishment", "protective purpose", "punitive purpose", "restriction on liberty", "separation of powers", "serious Part 5.3 offence", "Supreme Court of a State or Territory", "terrorism", "terrorist act", "terrorist offence", "terrorist organisation", "unacceptable risk". Constitution, Ch III. Criminal Code (Cth), Div 105

CRIME — Bail — Detention application

PROCEEDS OF CRIME — pecuniary penalty under s 116 of Proceeds of Crime Act 2002 (Cth) — defendant convicted of obtaining financial advantage by deception by concealment of taxable income contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — benefit derived from offending – whether penalty can be calculated by reference to tax payable on concealed income — determination of penalty does not depend on Court’s assessment of income tax payable by defendant — whether penalty can be imposed without evidence of Commissioner of Taxation’s assessment of income tax payable on assessable income — order made CONSTITUTIONAL LAW — Notices to Attorneys General pursuant to Judiciary Act 1903 (Cth) s 78B — where short notice given and some responses not received — whether court can proceed — where notices misconceived — no adjournment required CONSTITUTIONAL LAW — whether making of pecuniary money order breaches Ch III of the Constitution — whether penalty sought is justiciable — whether abuse of process — no issue of principle CIVIL PROCEDURE — application for referral to pro bono legal panel and stay of proceedings — no issue of principle CIVIL PROCEDURE — motion for leave to issue subpoena to parties’ solicitor — where written instructions given to expert in evidence — where evidence sought relates to legal advice privilege —motion dismissed

CRIME – trial for murder - application to vacate pending resolution of related question of law in the Court of Criminal Appeal

COSTS – Calderbank offers – plaintiffs sought correction of share register – shares of nominal value – defendant makes ‘walk away’ offer on Friday expiring on Monday – plaintiffs live overseas, not fluent in English and unfamiliar with Australian legal processes – rejection of offer not unreasonable – defendants’ evidence served – mediation – defendant offers $200,000 – rejection of third offer unreasonable – no question of principle.

ADMINISTRATIVE LAW – jurisdictional error – constructive failure to exercise jurisdiction – time limit on applications – interpretation of eligibility criteria –where applicant injured due to motor vehicle accident requiring attendant care and medical treatment – where applicant’s eligibility to participate in a scheme in question – where applicant sustained brachial plexus injury not requiring amputation - whether there is a relevant difference between the terms of the 2012 and 2018 Guidelines – where there is an explanation for the delay in making an application – whether a delay in making an application due to the applicant acting in accordance with legal advice relevant to an exercise of discretion to extend time for making an application – whether the Authority provided a ‘full and satisfactory’ explanation for refusing an application for an extension of time – whether the Authority’s exercise of discretion accords with the beneficial purpose of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) or the Lifetime Care and Support Guidelines

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – interim application for extension order – whether order should be made to extend status as a forensic patient – whether matters relied upon by the plaintiff if proved would entitle the plaintiff to an extension order.

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and for examination by Court-appointed experts – Defendant currently serving sentence for index offences – Defendant does not oppose making of orders – dispute as to conditions – orders made

EVIDENCE — Voir dire — Tendency evidence —Tendency notice — Defence failure to serve tendency notice within relevant time — Whether Court should dispense with the notice requirement under s 100(1) of the Evidence Act EVIDENCE — Tendency evidence — Significant probative value — Murder — Evidence of a tendency of the deceased to resort to irrational violence following the consumption of alcohol — Defence application to rely on tendency evidence allowed

COSTS – departure from the general rule – proceedings for appointment of trustees for sale of co-owned property – orders made without a hearing on the merits – whether one party had earlier acted unreasonably in failing to agree to sell property and in failing to accept an offer that would involve a sale of the property – whether unreasonableness is manifest by reference to known circumstances – whether unreasonableness resulted in the incurring of unnecessary costs –– costs of all parties ordered to be paid out of the proceeds of the sale of the property

CIVIL PROCEDURE — Parties — Vexatious litigants — whether litigant has frequently instituted and conducted vexatious proceedings in Australia — established – whether confined orders pressed should be made - evidence and litigant’s conduct of the proceedings establishes that she will continue to pursue the beliefs which resulted in her pursuit of vexatious proceedings if orders sought not made – orders made. CIVIL PROCEDURE — Parties — Vexatious litigants — Stay of proceedings — orders required to shield litigants and to protect Courts — stay granted in respect of specified District Court proceedings.

EQUITY — Co-ownership — Severance of joint tenancy — Severance in equity — where married couple held as joint tenants several shared bank accounts and shares — where the wife predeceased the husband — whether their conduct severed the joint tenancy in the shared bank accounts and shares — where wills were made by the wife and the husband — whether the distribution of assets in those wills indicated an intention that each will would operate in accordance with its terms on the death of either — where the deceased’s will would operate on the deceased's half of the property, such that it would not pass by survivorship — joint tenancy severed in equity.

CONTRACTS –– Formation –– Agreement –– Intention to make concluded bargain –– where alleged draft written contract provided that it would become binding when signed by the parties –– where the draft was not signed by either party –– no contract created –– no point of principle CONTRACTS –– Formation –– Agreement –– where the defendant had not authorised the person who provided the alleged draft written contract to the plaintiff to enter into a contract on the defendant’s behalf –– no contract created –– no point of principle CONTRACTS –– Formation –– Agreement –– where there were a number of different draft contracts and other documents referring to different and inconsistently worded terms of the alleged contract –– no contract created –– no point of principle EQUITY — General principles and maxims — Statute of Frauds — Part performance — whether specific performance of an unsigned agreement should be ordered — where it is alleged that one party has performed their obligations but the other party has not — where the Court holds that there was no agreement made — where, even if there was an agreement, the acts relied upon for part performance are not consistent only with partial performance of the alleged agreement –– no point of principle.

SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — where the plaintiff has numerous and significant ailments — where the plaintiff has no superannuation or fund to preserve him against the vicissitudes of life — where it is alleged that the plaintiff and his former spouse are either in a de facto relationship or a relationship of financial interdependence — where, consequently, it is alleged that there has not been a full and frank disclosure of the former spouse’s financial circumstances — where the Court accepts that the plaintiff and his former spouse do not have a de facto relationship or a relationship of financial interdependence — where there is no basis for the submission that there was some default in the evidence provided that leaves open the possibility that the financial resources available to the plaintiff are significantly greater than acknowledged — where there was a level of estrangement between the deceased and the plaintiff — where legal costs have resulted in a significant diminution of the deceased’s estate — further family provision ordered.

CONTRACTS –– Remedies –– Debt –– where no defence by guarantor and debtor to claims by creditor under written loan agreements CONTRACTS –– Misleading conduct under statute –– misleading or deceptive conduct –– where evidence does not establish such conduct CONTRACTS –– Unconscionable conduct –– where evidence does not establish such conduct CORPORATIONS — Directors and officers — Directors’ duties — where it is alleged that a director has breached his duties — no breaches of duty proved.

APPEALS – application for leave to appeal – no issue of principle, question of public importance or a reasonably clear injustice MENTAL HEALTH – appeals – appeal from dismissal of application to lift Community Treatment Order while plaintiff prepares for hearing challenging order – application dismissed PROCEDURE – litigants in person – unrepresented litigants – importance of adhering to length, content and form requirements for written submissions – no special rules or treatment for litigants in person

HIGH RISK OFFENDERS – convicted NSW terrorism activity offender – unacceptable risk of committing a serious terrorism offence – interim supervision order made – no point of principle

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of decisions of the Medical Assessor and Proper Officer – Denial of procedural fairness – Findings unsupported by evidence – Failure to provide adequate reasons – 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 instances of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Effect of time lapse between some of the instances relied upon and the deceased’s murder – Evidence admitted in part

EVIDENCE – Accused charged with murder – Where Crown sought to tender evidence of a photograph establishing that knife used by the accused to stab the deceased was capable of fitting within the pocket of shorts worn by him at the time of the murder – Where photograph was objected to on the basis that its probative value was substantially outweighed by the danger that it might be misleading or confusing or be unfairly prejudicial – Evidence admitted

Application for interim detention order under Mental Health (Forensic Provisions) Act 1990 (NSW) – whether order should be made to extend status as a forensic patient – whether matters relied upon by the plaintiff if proved would entitle the plaintiff to an extension order.

CRIME — appeal against sentence — dishonestly obtain financial advantage by deception — money laundering — ongoing fraud of employer leading to loss in the millions of dollars — very large sum unaccounted for — aggravating and mitigating features — moral culpability as relevant factor on sentence — whether sentencing judge erred by failing to find offences motivated by gambling — whether error with regard to asserted nexus between mental conditions and offending — onuses of proof on sentence — sentence assertedly manifestly excessive

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — whether the consent of the birth parents ought to be dispensed with –– contact – declaration of parentage –– adoption plans – change of name ––

CIVIL PROCEDURE – Parties – Persons under legal incapacity – Tutors – Application for directions by tutor not to be confused with application by trustee for judicial advice – Anticipatory applications by tutors for directions in relation to potential settlement of proceedings should generally not be made – Civil Procedure Act 2005 (NSW), ss 76(3), 80

CRIMINAL LAW – murder – related offences on s 166 certificate – defence of mental illness – found not guilty of all offences by reason of mental illness

APPEAL – no error of law and no ground raising – mixed law and fact – reagitation of findings of fact – leave to appeal necessary – grounds of appeal without merit – leave refused.

CRIME – appeals – application to set aside judgments and orders – jurisdiction to reconsider appeals

CRIME – appeals – appeal against sentence – onerous conditions of custody – limited evidence as to conditions – High Risk Management Correctional Centre (HRMCC) – whether sentencing judge failed to take conditions of custody into account on sentence

CIVIL PROCEDURE – Discovery – subpoenas – motions to set aside – collateral purpose – applications to set aside – provisions of s 80 of Crime Commission Act preventing compelling production in certain circumstances – details of each schedule – motions generally dismissed.

CIVIL PROCEDURE – interim preservation – continuation of freezing orders – dispute concerning whether property held on trust – distinction between freezing order and injunction to preserve property – injunction to preserve property granted – additional asset preservation order refused

CIVIL PROCEDURE – Parties – Person under legal incapacity – Tutor – The Plaintiff commenced proceedings by tutor – Some evidence that Plaintiff falls within definition of person under a legal incapacity – Defendant does not dispute that Plaintiff requires a tutor – Court satisfied that Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests SUCCESSION – Family Provision – Claim by child of the deceased – The Plaintiff, a now adult child of the deceased, makes a claim for a family provision order under Chapter 3 of Succession Act – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Nature of relationship of the Plaintiff and the deceased – Medical condition of the Plaintiff – Dispute as to nature and value of estate – Little actual estate in New South Wales – Notional estate in New South Wales – Substantial estate and property that may be designated as notional estate outside New South Wales – No dispute that deceased was, at the time of his death, domiciled in New South Wales – Significant competing claim of the sole beneficiary, the Defendant, who is the widow of the deceased – Whether a family provision order should be made for the Plaintiff, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne

COSTS — departure from the general rule – offers of compromise – whether offers comply with UCPR r 20.26 – offers made jointly to plaintiffs bringing separate causes of action – offers held not to comply with UCPR r 20.26 – not unreasonable of either plaintiff to fail to accept offers – indemnity costs not ordered COSTS – where parties have had some success and otherwise failed – overlapping claims – degree of overlap between claims of one plaintiff and cross-claim – whether appropriate to treat those costs as if they were costs of a single proceeding – whether certain issues between first plaintiff and defendant are clearly separable – appropriate to make costs orders based on success on those issues – where neither the second plaintiff nor the defendant should be regarded as the successful party against the other – order that those parties bear their own costs

CORPORATIONS – winding up – unreasonable director-related transaction – where director allowed company’s business to be taken over by new company for nil consideration – whether disposition “for the benefit of” director – Vasudevan v Becon Constructions (Aust) Pty Ltd (2014) 41 VR 445 applied – Corporations Act 2001 (Cth), s 588 FDA CORPORATIONS – directors’ duties – statutory duty to act in good faith and in the best interest of the company and for proper purpose – where director allowed company’s business to be taken over by new company for nil consideration – Corporations Act 2001 (Cth), s 181(1) CORPORATIONS – accessorial liability for involvement in breach of director’s statutory duty – whether person “aided and abetted” or “knowingly concerned in, or party to” contravention – where accountant registered new company and was sole director, secretary and shareholder of new company – Corporations Act 2001 (Cth), s 79 CORPORATIONS – claim for compensation – whether company suffered loss as a result of accessory’s contravention of director’s duty – Corporations Act 2001 (Cth), s 1317H(1)

EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive

CRIME — Appeals — Appeal against sentence —Manifest excess – applicant convicted of numerous blackmail offences - whether the sentencing Judge erred in taking into account charged offences as representative counts – whether the sentencing Judge failed to provide adequate reasons – whether the sentencing Judge failed to assess the criminality of multiple offences individually – whether the sentence was manifestly excessive – appeal dismissed

Administrative law – Apprehended bias – Relief – Jurisdiction of inferior courts – Where first respondent applied for additional mining leases and amendment to existing environmental authority ("applications") – Where appellant and others lodged objections to applications – Where first decision of Land Court of Queensland ("Land Court") recommended that both applications be rejected – Where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – Where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – Where amendment to environmental authority granted by delegate of second respondent – Where Court of Appeal allowed cross-appeal by first respondent and held that recommendations in Land Court's first decision affected by apprehended bias – Whether open to Court of Appeal, after finding that recommendations in Land Court's first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – Whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief. Words and phrases – "administrative decision", "administrative function", "apprehended bias", "binding", "declaration", "discretion to refuse relief", "environmental authority", "error of law", "inferior court", "jurisdictional error", "lacking in legal force", "Land Court", "mining lease", "nullity", "procedural fairness", "qualified order for referral back", "setting aside", "spent", "statutory precondition", "valid". Environmental Protection Act 1994 (Qld), Ch 5. Judicial Review Act 1991 (Qld), s 30. Land Court Act 2000 (Qld). Mineral Resources Act 1989 (Qld), Ch 6.

EVIDENCE – public interest immunity – application for ESO against defendant – whether contents of committee meeting minutes should be disclosed to defendant – committee had recommended to Attorney-General that no ESO be sought – probative value of meeting minutes – risk of injury to public administration – claim for public interest immunity refused

COSTS – Application of indemnity principle as to costs – Whether costs should be ordered on indemnity and gross sum basis.

COSTS – plaintiff’s case failed at every level – whether costs should be on an indemnity basis –whether plaintiff maintained a case that had no reasonable prospects of success

PERSONAL PROPERTY – Assignment of choses in action based upon Deed of Debt – Whether assignment valid if Defendant’s signature on Deed of Debt not proved to be her signature – Evidence of two witnesses of the Plaintiff that Defendant signed Deed of Debt in their presence – Defendant denies having signed Deed of Debt – Two of her witnesses give evidence that the Defendant could not have done so as one, or both, of them were with her on the day the Deed of Debt said to have been signed – Fourth signatory on Deed of Debt not called and each of the other signatories deny knowing him – Also evidence of expert forensic document examiner EVIDENCE – Standard of proof – Whether the Plaintiff has satisfied the Court that the Deed of Debt was signed by the Defendant – Credibility of the lay witnesses – The expert evidence on handwriting regarding simulation of the Defendant’s signature on Deed of Debt – No expert forensic evidence called on behalf of the Plaintiff – Seriousness of allegation – Whether Plaintiff able to discharge burden of proof as to authenticity of Defendant’s signature on Deed of Debt PERSONAL PROPERTY – Assignment of choses in action – Whether Deed of Debt assigned and if so nature of the assignment – Whether Deed of Assignment rectified CONTRACTS – Rectification – Intention – Deeds of rectification – Where rectification of two different Deeds of Assignment purported to give effect to actual intention of the assignor and assignee, respectively, in Deeds of Assignment – Whether sufficient evidence of actual intention of each of the parties to first Deed of Assignment

INTERLOCUTORY PROCEEDINGS – claim under mortgage, guarantee and deed – motion for costs thrown away – motion for variation of orders made by Davies J to meet costs – motion to vary orders of Davies J for enhanced security – motions dismissed

CRIME – sentence appeal – manifest excess – two counts of aggravated sexual assault in one episode – aggregate sentence - offender reckless as to accused’s cognitive impairment – futile to attempt arithmetic as to accumulation and concurrency between indicatives and aggregate sentences – focus must be on whether aggregate reflects totality of criminality – sentence within judge’s discretion given objective seriousness and no discounts – appeal dismissed

CRIMINAL LAW – Sentence – Appeal against sentence – Series of armed robbery offences –Whether sentencing judge erred in not considering the causal effect of the applicant’s schizophrenia on his mental state despite unchallenged medical evidence – Whether sentencing judge erred in applying a rigid mathematical rule that a combined discount for the guilty plea and assistance could not exceed 40% absent exceptional circumstances – Appeal against sentences allowed and sentences quashed – Applicant resentenced

CRIME – appeals – appeal against conviction – unreasonable verdict – murder during home invasion – extended joint criminal enterprise – whether there was insufficient evidence to establish participation in agreement to do home invasion with the foresight of the deliberate infliction of grievous bodily harm

CONTRACTS – construction contract – whether Plaintiff entitled to amount of second progress claim made prior to Defendant’s termination of contract – whether Defendant entitled to recover additional costs of construction works incurred after termination of construction contract with Plaintiff

CIVIL PROCEDURE – stay of proceedings – matter of practice and procedure – whether stay should be granted of Tribunal damages hearing

STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012

HIGH RISK OFFENDER – final hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk –extended supervision order imposed