Cases and authorities

PRACTICE AND PROCEDURE – application – payment out of court – no issue of principle PRACTICE AND PROCEDURE – application – suppression and non-publication orders – no issue of principle

CRIMINAL LAW – murder – joint criminal enterprise – self-defence – excessive self-defence – listening devices evidence – objections – relevance – legal professional privilege – unfair prejudice to accused – probative value – competing inferences

APPEALS – leave to appeal – summons seeking leave filed over three months earlier and no steps taken since – no identification of any ground upon which the proposed appeal might succeed – failure without adequate explanation to comply with Court’s directions – summons dismissed for want of prosecution

COSTS – Party/Party – Bases of quantification – Factors relevant to the court’s discretion when quantifying costs

CRIME – appeal and review – judicial review – order of Local Court declaring plaintiff registrable person under Child Protection (Offenders Registration) Act 2000 – order quashed for want of jurisdiction

ASSOCIATIONS AND CLUBS – incorporated associations – meetings – where disputes concerning internal management – where committee resolved to remove several committee members – where committee resolved to expel member of association – whether contraventions of the constitution of the association – whether resolutions invalid – whether appropriate and within power to make declarations by consent – resolutions declared invalid COSTS – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 – where both plaintiffs and defendants made various offers of settlement – where it transpired that the only issue was costs – where no final determination on the merits – no order as to costs

CRIME – murder – defence of mental illness – judge alone special hearing – relapse of schizoaffective disorder during transition between medications – elderly husband stabs wife of 48 years – inability to conceive of wrongfulness – not guilty by reason of mental illness

COSTS — Costs assessment — Gross sum costs order

REPRESENTATIVE ACTION – Queensland floods – damages – determination of separate questions concerning whether certain payments deductible from group members’ damages – payments made under Premier’s Relief Fund not deductible – certain payments under the National Disaster Relief and Recovery Arrangements deductible – others not deductible – assessment of two individual group member claims – damages for physical inconvenience arising from home flooding – calculation of cleaning costs – methodology – treatment of damages recovered from insurance broker for failure to obtain insurance cover.

JUDGMENT AND ORDERS – amending, varying and setting aside – fraud, misrepresentation or suppression of material facts – where the defendant alleges solicitors entered into consent orders contrary to instructions

CIVIL PROCEDURE – leave to amend technology and construction list cross-claim response – where cross-defendants wish to amend to raise new defence to claims they had engaged in misleading or deceptive conduct during the course of a construction project – where new defences seek to rely on alleged misleading representations made to the cross-defendants by the cross-claimants prior to entry into the project contract – where new defences seek to limit damages recoverable by the cross-claimants on their misleading and deceptive conduct claim – whether defences should be struck out as contrary to public policy – whether arguable that parties can agree to limits on their liability under the Australian Consumer Law – leave to amend granted

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — Whether proceedings should be stayed on the basis that they were brought for an illegitimate, improper or collateral purpose — Where proceedings said to have been an attempt to extort money from the defendants — Where plaintiffs offered to resolve the proceedings on terms which included the payment of money by the defendants to the plaintiffs but also stated that if they offer was not accepted they would seek to amend their pleadings to include criminal allegations — Where damages not an available remedy — Where relief sought in further amended statement of claim directed to alleged impugned election and not the alleged improper purpose CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Whether proceedings should be dismissed on the basis they are vexatious

CRIMINAL LAW - murder - release of confidential evidence - reluctant witnesses - incongruous bowing - whether evidence given to Crime Commission should be released to the parties - where witnesses advised the evidence would not be published - eye witness to alleged murder - where witness objects to release of material - where witness failed to provide statement to police - policy reasons against release - stringent legal test - factors relevant to exercise of power

FIDELITY FUND – necessity for pleading – no question of principle

CIVIL PROCEDURE – approval – whether proposed settlement in the best interests of the plaintiff – settlement approved

CIVIL PROCEDURE – defamation – where proceedings commenced out of time – whether limitation period to be extended – whether not reasonable for plaintiff to have commenced proceedings within one year of publication of allegedly defamatory material – where proceedings on foot in Equity division – where plaintiff bound by Harman undertaking

CORPORATIONS — Members’ rights and remedies — Oppression — Family company’s affairs conducted by father with sons as shareholders — History of payments from father’s companies to sons — Whether particular payment characterised as loan — Whether Plaintiffs were excluded from participation in company’s affairs — Whether oppressive for Defendants to file Cross-Claim to recover payment as debt — Whether winding up order appropriate — Whether buyout on basis sought by Plaintiffs appropriate

CIVIL PROCEDURE – Cross-vesting – Application to transfer to Family Court of Australia – Relevant factors – 2 separate proceedings in Supreme Court – possibly of inconsistent findings – relevant factors – avoidance of multiplicity of proceedings – application refused – proceedings in this Court to be heard together and expedited.

COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –order in favour of the plaintiff conditional on payment of defendant’s costs – failed to satisfy condition

CRIMINAL PROCEDURE — Arraignment — Power of Court to arraign accused outside of New South Wales — Evidence (Audio and Audio Visual Links) Act 1998 (NSW) — COVID-19 pandemic special provisions

ADMINISTRATIVE LAW — Error of law on the face of the record — Whether third defendant failed to correctly apply guidelines — Whether third defendant failed to properly explain path of reasoning — Whether fourth defendant erred in finding no error in third defendant’s application of guidelines

COSTS – interlocutory proceedings – application may be made at any time before finalisation of proceedings – jurisdiction of the Court – indemnity costs refused – costs ordered to be paid forthwith

REAL PROPERTY – mortgagee claim for possession of land arising from alleged default under mortgage – contractual arrangement between parties secured by mortgage – where former director of company requested liquidators to continue trading hotel business and provided detailed indemnity to liquidators as part of the contractual arrangement – determination of separate questions – whether liquidator fees are covered or caught by contractual arrangement and whether amount is indemnified – whether any cash surplus owed by the Defendant is covered or caught by contractual arrangement and whether amount is indemnified – where Defendant’s contractual commitments to Plaintiffs are exhaustive and clear under terms of the contractual arrangement – held that liquidator fees and cash surplus are covered or caught by contractual arrangement and that both amounts are capable of being indemnified against – whether there can be an inquiry in Possession List proceedings as to the reasonableness of liquidator fees – held that contractual arrangement involved complete and immediate indemnity so that inquiry cannot take place as part of Possession List proceedings – responses given to separate questions

HIGH RISK OFFENDERS - forensic patient - interim extension order - where defendant subject to a limiting term for an offence of recklessly cause grievous bodily harm - where defendant suffers from chronic and treatment resistant schizophrenia, and substance use disorder - whether patient poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient - where defendant has no insight into his mental condition or its proper treatment - where clear relationship between mental illness and offending - where likelihood of further violent offences if released into community - whether the risk cannot be adequately managed by less restrictive means - where court satisfied that material if proved would justify making an extension order at a final hearing - interim extension order made

CIVIL PROCEDURE — Separate determination of questions —Deed of Release executed between plaintiff and defendant - whether the Deed of Release bars the plaintiff from pursuing his claim – is the defendant entitled to judgment in its favour – no evidence of circumstances that would preclude relevance as the Deed – plaintiff’s claim dismissed

CRIMINAL LAW – murder – trial by judge alone – self-defence – death by single stab wound – whether accused believed it necessary to do what he did – whether reasonable response – role of mental illness in perception of circumstances – not guilty

CONTRACTS - construction - mistake - whether mistake can be corrected by construction - contract for sale of proposed lot defined by reference to sketch plan - vendor obliged to procure subdivision in accordance with sketch plan - sketch plan showed area of 2001m2 - purchaser entitled to rescind if registered plan contained area of 2100m2 or more - whether literal meaning of language created absurdity or inconsistency - whether objective intention self-evident - consideration of relationship between construction and rectification - consideration of the term “rectification”

Family law – Foreign divorce – Property settlements – Spousal maintenance – Res judicata – Where appellant wife and respondent husband married in Dubai in 2007 and lived partly in Australia and partly in United Arab Emirates – Where wife and husband separated in 2013 with wife and child remaining in Australia – Where wife commenced proceedings in Family Court of Australia seeking parenting orders under Family Law Act 1975 (Cth) ("Act") – Where proceedings later amended to also seek orders for spousal maintenance and property settlement under ss 74 and 79 of Act – Where husband commenced divorce proceedings in Personal Status Court of Dubai ("Dubai Court") – Where ruling of Dubai Court granted husband "irrevocable fault-based divorce" and ordered wife to repay amount of advanced dowry and costs – Where husband sought permanent stay of property settlement and spousal maintenance proceedings on basis of res judicata, cause of action estoppel and/or principle in Henderson v Henderson (also known as "Anshun estoppel") – Where primary judge dismissed application for stay – Where Full Court of Family Court permanently stayed property settlement and spousal maintenance proceedings – Whether ruling of Dubai Court had effect of precluding wife from pursuing property settlement and spousal maintenance proceedings against husband in Family Court by reason of res judicata, cause of action estoppel and/or Anshun estoppel. Words and phrases – "advanced dowry", "alimony", "Anshun estoppel", "cause of action", "cause of action estoppel", "claim", "claim estoppel", "divorce", "estoppel", "Henderson extension", "irrevocable fault-based divorce", "issue estoppel", "merger", "permanent stay", "Personal Status Court of Dubai", "Personal Status Law", "preclusion", "property settlement", "res judicata", "spousal maintenance". Family Law Act 1975 (Cth), ss 74, 79.

Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 Minister for Home Affairs v Marie Theresa Arthur as litigation representative for BXD18 Minister for Home Affairs v FRX17 as litigation representative for FRM17 Minister for Home Affairs v DJA18 as litigation representative for DIZ18 Immigration – Regional processing – Statutory bar on legal proceedings – Where s 494AB(1) of Migration Act 1958 (Cth) provided that certain "proceedings against the Commonwealth may not be instituted or continued in any court" – Where those proceedings, listed in s 494AB(1)(a)-(d), were all "proceedings relating to" a particular subject matter – Where proceedings in s 494AB(1)(b) further defined by reference to time period – Where s 494AB(3) provided that nothing in section intended to affect jurisdiction of High Court under s 75(v) of Constitution – Where respondents, while in regional processing country, instituted proceedings in Federal Court of Australia alleging Commonwealth breached duty of care to provide adequate medical treatment on Nauru – Where Commonwealth alleged Federal Court did not have jurisdiction by reason of s 494AB(1)(a), (ca) or (d) – Whether s 494AB(1) limited jurisdiction or barred remedy – Whether respondents' proceedings in Federal Court engaged s 494AB(1). Words and phrases – "bars the remedy", "duty of care", "instituted or continued", "jurisdiction", "medical treatment", "model litigant", "model litigant obligations", "Nauru", "negligence", "plead as a defence", "proceedings against the Commonwealth", "proceedings relating to", "regional processing", "removal", "transitory person", "under". Constitution, ss 75, 77. Migration Act 1958 (Cth), ss 198AB, 198AD, 198AH, 198AHA, 198B, 494AA, 494

BANKING AND FINANCE – GUARANTEE AND INDEMNITY — Australian Securities and Investments Commission Act 2001 (Cth) s 12DA – Whether bank engaged in misleading and deceptive conduct by failing to draw guarantor’s attention to the terms of the parties’ facility agreement that differed from those set out in term sheets sanction letters, or by failing to advise that it required an unqualified, unconditional and irrevocable guarantee – Where terms of guarantee in facility agreement differed from those in terms sheets and sanction letters – Where both sides to negotiations were sophisticated and experienced and representative for the guarantor engaged in drafting of facility agreement – Where terms sheets and sanction letters made clear the facility agreement was to be the source of contractual obligation – Where true and complete copy of the facility agreement was provided to the guarantor for execution – Whether guarantor relied upon representations made by the bank – Where there was an urgent need for funds – Where guarantor’s inattention to terms of guarantee the result of indifference – The bank’s conduct was not misleading or deceptive BANKING AND FINANCE – GUARANTEE AND INDEMNITY — Australian Securities and Investments Commission Act 2001 (Cth) s 12CB – Whether the manner in which the bank obtained and set out to enforce an unqualified, unconditional and irrevocable guarantee constituted unconscionable conduct in all the circumstances – Where both sides to negotiations were sophisticated and experienced and representative for the guarantor engaged in drafting of facility agreement – Where guarantor’s inattention to terms of guarantee the result of indifference – Where guarantor’s decision not to engage lawyers considered to be a choice based on self-confidence – The bank’s conduct unconscionable within the meaning of s 12CB ESTOPPEL — Estoppel by representation — Whether the bank is estopped from denying that the guarantee contained in the parties’ facility agreement was qualified in the manner set out in term sheets and sanction letters —Estoppel not made out CONTRACTS — GUARANTEE AND INDEMNITY — Formation — Variation — Whether the parties’ facility agreement was subsequently varied by way of the provision of a final sanction letter — No variation

COSTS – security for costs – where plaintiff provided limited evidence of its financial position – whether reason to believe plaintiff will be unable to pay defendant’s costs – where defendant delayed bringing application for security – security for future costs ordered COSTS – costs of motions – no issue of principle

LAND LAW – caveats – removal of caveat – removal by order of court – service of application – Real Property Act 1900 (NSW), ss 74MA, 74N

CIVIL PROCEDURE – incapable person – manager seeks possession of unit forming part of protected estate for the purpose of sale – occupant claims entitlement to share of incapable person’s property based on de facto relationship – directions given in protective proceedings for commencement of possession proceedings against occupant

EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Duties — where a trustee received money on trust for two beneficiary children — where the trustee was a self-represented litigant — where an amended summons was sought to be relied on with little notice — where trustee enters into an unauthorised investment — where it is unclear whether the investment was profitable or loss making — where, regardless, the trustee breached their fiduciary duties — where equitable compensation should be ordered — whether simple or compound interest should be ordered — compound interest ordered.

SUCCESSION – Executors and administrators – Proceedings brought against executor alleging maladministration of deceased’s estate – Whether substantive proceeding is hostile litigation – Where substantive proceeding not yet determined and no costs order has been made in favour of the executor – No Beddoe order and no application for pre-emptive costs order sought by executor – Where no consent of beneficiaries sought or given for deduction of executor’s costs – Executor deducting costs and disbursements out of the estate – Plaintiff on behalf of the estate seeks order for repayment of legal costs deducted – Whether the executor, or his solicitor, required to repay to the estate the amounts taken out of the estate for legal costs of the substantive proceedings

CONTRACTS – Breach of Contract – whether repudiatory conduct – breach of essential term going to root of contract and/or depriving non-defaulting party the benefit for which it contracted – parole evidence – Implied Terms not necessary for business efficacy ; not go without saying – alleged repudiation of another contract not repudiatory of current of current contact – different, although related, parties – Remedies on repudiation.

CORPORATIONS – winding up – where two companies in liquidation – where liquidator seeks to recover alleged unfair preferences – Corporations Act 2001 (Cth) s 588FF, s 588FA, s 588FC and s 588FE –determination of separate question of insolvency – whether companies insolvent during relation-back period – Corporations Act 2001 (Cth) s 95A

EQUITY — Trusts and trustees — Court’s supervision of — Appointment of trustees — Vesting of trust property

CRIMINAL PROCEDURE — Suppression and non-publication orders — Appeals pursuant to s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) heard together — Leave to appeal — Grounds — Safety ground under s 8(1)(c) — Whether orders necessary to protect the safety of any person — Calculus of risk approach —— Meaning of "any person" — Meaning of "necessary" — Meaning of "safety" — Risk of self-harm arising from aggravation of pre-existing psychiatric illnesses due to media reporting — Relevance of alternative actions that might be taken in response to risk — Relevance of fairness and accuracy in media reporting

HIGH RISK OFFENDERS – Extended supervision orders – Conditions - serious sex offender – where parties have agreed that an ESO should be made – where a condition concerning search and seizure powers is in dispute – whether departmental officers should be required to inform the defendant of the basis of their ‘reasonable suspicion’

CRIME - sentence – accessory after the fact to murder – recruiting persons to intimidate – plea of guilty to these offences when offender arraigned for murder – where offender organised for the deceased to be intimidated by recruiting the Mr McCloskey – where offender not present at the time of murder and did not foresee murder – where offender participated in the acquisition and ultimate destruction of the getaway vehicle after he learnt of the deceased’s murder –where offender has a criminal history that is neither recent nor serious – reasonable prospects of rehabilitation – low risk of reoffending – where discount awarded for the plea – where no finding of special circumstances SENTENCING — sentencing procedure – victim impact statements – where offender charged with accessory after the fact to murder and recruitment to intimidate – where offences do not involve actual or threatened violence

CRIME - sentence - accessory before the fact to murder - where offender asked by deceased to replace front door and lock to deceased’s apartment - where offender assisted assailants in the procuring of a key to the deceased’s apartment - where offender knew that the deceased was to be shot in the deceased’s apartment - where opportunity arose fortuitously and did not involve extensive planning -where offender took advantage of the trust the deceased had in him to replace the door - where offender had no prior criminal history - where offender convicted of offences subsequent to the index offence - expert evidence of offender’s low intelligence - where offender continued to deny involvement in the offending - lack of remorse - low risk of reoffending - where finding of special circumstances because offender in protection in custody - where standard non-parole period for murder does not apply to charge of accessory before the fact SENTENCING – non-parole period – standard non-parole period – whether applicable for accessory before the fact to murder SENTENCING – accessory before the fact to murder - victim impact statement – whether deceased died as a direct result of the offence – whether should be taken into account in determination of the punishment for the offence

CORPORATIONS — meeting of members — resolutions — resolutions for removal of director —exercise of rights under shareholders’ agreement — interaction between company constitution and shareholders’ agreement — whether company has power to pass resolutions

APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs

RESTITUTION — Quantum meruit – whether necessary to establish “objective standard” or “market rate” for value of work performed – whether invoices prepared by builder capable of being evidence of reasonable remuneration – where unreasonableness of invoices denied by builder – where appeal confined to a question of law

CRIMINAL LAW – conviction appeal – two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent – circumstance of aggravation being “under authority” – conviction after trial by jury – victim school pupil – offender school teacher – whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence – credit and reliability of victim challenged – whether it was open to the jury to be satisfied beyond reasonable doubt that offender was guilty – leave to appeal against conviction granted – appeal against conviction dismissed – CRIMINAL LAW – appeal against sentence - Crown appeal - assessment of objective seriousness - respondent's knowledge of lack of consent - knowledge rather than recklessness - characterisation of objective seriousness as “towards the low end of the range” - whether sentence manifestly inadequate

CRIMINAL LAW – Criminal Appeal Act, s 5F(3) - application for leave to appeal against interlocutory judgment or order – whether the refusal of the trial judge to revoke the appointment of a “children’s champion” or witness intermediary is an interlocutory judgment or order – interpretation of Part 29 of Schedule 2 to the Criminal Procedure Act 1986 – whether clause 89(5) operates as a continuing condition of a witness intermediary’s appointment – whether a witness intermediary can be a witness in the proceedings – meaning of assisted in a “professional capacity” – whether clause 89(5)(b) requires determination of whether a witness intermediary’s impartiality compromised – whether assistance restricted to therapeutic assistance – leave to appeal granted – appeal allowed – appointment of witness intermediary set aside

CRIMINAL LAW – sentence appeal – co-offender – offence of attempting to possess commercial quantity of border controlled substance, namely methamphetamine contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth) – utilitarian value of plea – Xiao error established – applicants’ roles not relevantly different – objective gravity – applicants’ subjective features not strong – applicants resentenced – lesser sentence imposed

FAMILY LAW AND CHILD WELFARE — Children — Adoption — Discharge of adoption orders — Whether orders for adoption should be discharged FAMILY LAW AND CHILD WELFARE — Children — Adoption — Discharge of adoption orders — Whether consequent upon the discharge order the applicant’s name should be changed pursuant to s 93(7)(a) of the Adoption Act 2000 (NSW) and an order made pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) directing the Registry to record the changed name on the applicant’s birth certificate — Where applicant had already changed her name prior to the making of the discharge order FAMILY LAW AND CHILD WELFARE — Children — Adoption — Discharge of adoption orders — Whether a further order should be made pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) that a new birth certificate be issued recording the names of the applicant’s biological mother and father — Where biological father not recorded on original birth certificate — Where DNA and other evidence used to identify biological father

TORTS – personal injuries – two cases – psychiatric injury – public authority – Civil Liability Act 2002 (NSW) – flying as dangerous recreational activity – collision between aircraft and Ferris wheel – no damages allowed for Pilot – damages to occupant of Ferris wheel – joint and several liability