Cases and authorities

CRIMINAL LAW – sentence appeal – robbery in company – parity with sentence of co-offender – subjective circumstances – whether applicant had a justifiable sense of grievance – relevance of co-offenders brain injury – co-offender sentenced for multiple offences

CRIME — Appeals — Appeal against sentence — By Crown against inadequacy – where the offender was involved in a significant importation of a commercial quantity of a border controlled drug (cocaine) - whether the sentence imposed on the offender was manifestly inadequate by reference to sentences imposed on co-offenders by a different sentencing judge – the role of the principle of parity in a Crown appeal – appeal dismissed

Patents – Infringement – Where printer ink cartridges embodied inventions claimed in two patents – Where used cartridges acquired by third party and modified for re-use – Where modified cartridges imported into Australia for sale to public – Where patentee alleged infringement of patent rights – Where s 13(1) of Patents Act 1990 (Cth) provides patentee has exclusive rights to exploit invention – Where "exploit" includes make, hire, sell or otherwise dispose of product and to use it – Whether modifications to cartridges constituted impermissible "making" of new product – Whether doctrine that patentee's exclusive rights with respect to product are exhausted on first sale ("exhaustion doctrine") should be accepted – Whether doctrine that implied licence arises on sale of patented goods to purchaser ("implied licence doctrine") should continue to be applied. Words and phrases – "conditions as to use", "embodying the claimed invention", "essential features", "exclusive statutory rights", "exhaustion doctrine", "exhaustion of rights", "exploit", "implied licence", "implied licence doctrine", "infringement", "invention", "make, hire, sell or otherwise dispose of", "make, use, exercise, and vend", "making", "manufacture", "modifications", "monopoly", "monopoly rights", "patent", "patent rights", "personal property", "product", "repair", "re-use", "single use", "use". Patents Act 1903 (Cth), s 62. Patents Act 1990 (Cth), ss 2A, 13, 135, 144, Sch 1.

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Possession CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence save as to amount claimed

COSTS – Party/party – Bases of quantification – Whether costs orders to be partly satisfied by funds held in Court

Civil procedure - Surplus funds from mortgagee sale paid into Court - Contest between costs judgment debtor beneficially entitled to funds and costs judgment creditor - Court’s jurisdiction - UCPR Pt 55 r 11

ADMINISTRATIVE LAW — Error of law on the face of the record — Whether third defendant erred in failing to comply with guidelines issued under the Motor Accidents Compensation Act 1999 (NSW) ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Unreasonableness — Whether third defendant acted legally unreasonably in assessing the plaintiff’s whole person impairment by use of an analogy ADMINISTRATIVE LAW — Procedural fairness — Whether third defendant failed to afford procedural fairness in re-examining the plaintiff ADMINISTRATIVE LAW — Procedural fairness — Whether third defendant was improperly constituted during plaintiff’s re-examination — Whether all members of a Review Panel must conduct a re-examination ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Whether third defendant erred by failing to consider particular prior medical opinions

HIGH RISK OFFENDER – final hearing – application for a continuing detention order – offences of violence – completion of the Violent Offenders Treatment Program in custody – whether the defendant poses an unacceptable risk of committing a serious violence offence – extended supervision order granted for 18 months

COSTS - party/party – judgment for possession and for the amount owing under a loan agreement and mortgage – where defendant’s claims of fraud and conspiracy were dismissed by trial judge and later by Court of Appeal – where plaintiffs sought judgment for amount owing in District Court unnecessarily - where costs arising from separate proceedings excluded from costs order COSTS - party/party - orders against non-parties - personal costs orders against lawyers of unsuccessful party – claims of fraud and conspiracy by unsuccessful defendant/cross-claimant - indemnity costs sought pursuant to Schedule 2 of the Legal Profession Uniform Law and s 99 of the Civil Procedure Act - whether the legal services were provided without a reasonable belief by the solicitors that the claims had reasonable prospects of success – where there were no provable facts to support the claims – where trial judge and Court of Appeal made earlier findings dismissing claims – where solicitors failed to rebut the presumption that they were bound by the findings in the principal judgments – whether solicitors breached their professional ethical duties in pursuing claims – where the making of allegations of dishonesty and criminality increases the onus to make out the case – where no basis for the claims made –where this amounts to the serious misconduct of the solicitors – where solicitor to indemnify for costs incurred COSTS - party/party - self represented litigant - where litigant is entitled to out-of-pocket expenses as would have constituted disbursements if they had been legally represented

LAND LAW – whether title to property acquired by fraud – deregistration of company under the 1981 Companies (New South Wales) Code – whether property of deregistered company vested in ASIC – effect of deeming provisions in s 459(6) of the Companies Code LIMITATION OF ACTIONS – operation of bar – any right to set aside transfer statute barred by virtue of s 27 or s 51 of the Limitation Act 1969 (NSW)

CIVIL PROCEDURE – interlocutory application – injunction against president of incorporated association purporting to enter into or give effect to written agreements on its behalf – risk of harm to association – delay – application refused

COSTS — Party/Party — whether an order for costs should be made in relation to discontinued or dismissed proceedings where no hearing on merits

CRIME – appeal and review – appeal from Local Court to Supreme Court – by person convicted or sentenced - with leave on a ground involving a mixed question of fact and law – as of right on a question of law alone CRIME – appeal from Local Court to Supreme Court – competence – where question of meaning of “conviction” – where question is one of fact – where magistrate’s conduct was consistent with conviction CRIME – appeals – appeal against conviction – where plaintiff obtained refund for goods obtained from David Jones by using a false receipt – where magistrate conflated test of dishonesty and deception – where no evidence of financial advantage – where claim of right raised on the evidence and not appropriately dealt with by the magistrate

COSTS — Party/Party — Orders against non-parties — Personal costs orders sought against liquidator of first plaintiff — Where liquidator failed to communicate with defendants’ solicitors for seven months — Where defendants incurred costs of motion to dismiss proceedings in part for want of due despatch — Bases of quantification — Indemnity basis CIVIL PROCEDURE — Pleadings — Particulars — Where defendant seeks particulars of part of first plaintiff’s claim — Seriousness of allegations — Requirement to provide all necessary particulars CIVIL PROCEDURE — Discovery — Where plaintiffs seek general discovery — Notices to produce not issued for documents plaintiffs seek — Claim not adequately particularised — Evidence not yet served

BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1999 should be quashed – the mining exception in the Act – whether contract between the parties was a construction contract – whether work called for by contract was for tunnelling or boring or the constructing of underground words for the purpose of extraction of minerals – whether any work called for under the contract was construction work BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1989 should be quashed – reference dates – whether payment claim served before a reference date arose – whether there was an available reference date

HIGH RISK OFFENDER – final hearing – application for extended supervision order – relevant statutory factors – risk of defendant committing another serious offence – expert evidence – effect of supervision – external motivations for the defendant – whether statutory criteria satisfied

CRIME — Bail — Preparation for trial — Long period on remand — Protection of administration of justice — Need to ensure applicant can have fair trial CRIME — Bail — Bail concerns — Risk of failure to appear — Risk that applicant might flee the jurisdiction

HIGH RISK OFFENDER – where Defendant does not oppose making of extended supervision order (‘ESO’) – Defendant has significant history of committing serious sex offences against boys under the age of 16 – Defendant diagnosed with paedophilia and hebephilia – Defendant subject to continuing detention orders and ESOs since 2007 – Defendant breached conditions of orders on many occasions – whether Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under an ESO – consideration of factors under s.9(2) and (3) Crimes (High Risk Offenders) Act 2006 – unanimous opinions of expert witnesses provide cogent foundation for the making of an ESO – ESO made for a period of three years subject to conditions

CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Offender arrested in possession of knives and camouflage clothing – Steps taken by offender in an effort to conceal the knives – Where offending motivated by an adherence to extremist ideology – Where the commission of a terrorist act was imminent at the time of the offender’s arrest – Necessity to impose a sentence which would denounce the offending and protect the community – Necessity for general deterrence CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Where offender 16 years of age at the time of the offending – Serious offending – Adult like behaviour – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending CRIMINAL LAW – Practice and procedure – Where self-represented offender waived his right to be present at sentence hearing – Determination that the hearing should proceed – Principles to be applied CRIMINAL LAW – Practice and procedure – Amicus Curiae – Where offender’s father sought to appear for the offender on sentence – Where the offender did not wish his father to appear – Principles governing leave to a person to appear as Amicus Curiae

APPEALS – leave to appeal – application for leave – relief sought inappropriate on an interlocutory appeal in the absence of necessary and proper parties CIVIL PROCEDURE – parties – necessary and proper – where third-party lessees of premises not joined to proceedings for relief against forfeiture brought by earlier lessees EQUITY – equitable remedies – declarations – whether capable of being made on interlocutory basis REAL PROPERTY – landlord and tenant – agreements for lease – breach – Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) – where tenants in arrears before the relevant “prescribed period” – leave to appeal refused in circumstances where all necessary and proper parties not joined in proceedings

STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages. TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.

TORTS – detinue and conversion – property comprising four commercial trucks with trailers – claim for possession by financier – operating company in liquidation – vehicles disappeared – vehicles discovered in secluded location – whether defendant had possession, control or dominion of vehicles APPEALS – challenge to findings of fact – credibility of witnesses – basis for interfering with adverse credibility findings – admissions against interest – use of aerial photography to locate vehicles – all vehicles together – defendant’s admission of control of one vehicle – defendant’s offer to deliver all five vehicles for a fee or purchase vehicles

ENVIRONMENT AND PLANNING – words and phrases – whether primary judge erred in finding identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 (NSW) being land identified by State Environmental Planning Policy (Coastal Management) 2018 (NSW) as “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” or adjoining such land not a jurisdictional fact ENVIRONMENT AND PLANNING – words and phrases – whether the “proximity area” in the Coastal Wetlands and Littoral Rainforests Area Map corresponds in meaning to “adjoining” land in s 6(1) of the Coastal Management Act – whether proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of both the Environmental Planning and Assessment Act and the Coastal Management Act ENVIRONMENT AND PLANNING – words and phrases – Governor’s power is to make an environmental planning instrument – whether Governor must have regard to, approve or do anything at all in relation to making the Coastal Wetlands and Littoral Rainforests Area Map

CRIME – SENTENCE – child sexual assault offences – offences committed by step-father against step-son – applicant of former good character – single ground of appeal – whether there was error in treatment of evidence of good character

CRIMINAL LAW – sentence appeal – Senior Australian Border Force officer – aiding and abetting the importation of tobacco products with the intention of defrauding the revenue – acceptance of a bribe – co-offender’s sentence reduced on appeal – whether erroneous sentence of co-offender overturned on appeal can give rise to justifiable sense of grievance – parity – proportionality – whether applicant had a justifiable sense of grievance – re-sentence – whether reduction in non-parole period would produce a manifestly inadequate sentence.

APPEALS – jury verdict – conviction appeal – where applicant convicted of one count of sexual intercourse without consent and one count of assault but acquitted on one count of sexual intercourse without consent – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence

CIVIL PROCEDURE — Payment out of Court

CRIMINAL PROCEDURE – application by accused to discharge jury – where comment made about accused by witness while giving evidence – whether prejudice to accused – whether direction to jury sufficient to cure potential prejudice

CRIMINAL PROCEDURE – evidence – where Crown application to lead evidence of an alleged admission – where conversation not recorded – where police offices not wearing body cameras – where Crown bears onus of establishing reasonable excuse for lack of recording – where onus not discharged – where application for admission into evidence rejected – whether Court should refuse to admit evidence of an alleged admission as being unfair to the accused – whether circumstances in which representation given make it unlikely to be a fabrication or highly probable that it is reliable

HIGH RISK OFFENDER – preliminary proceedings – application for interim supervision order – current custody expired – question of jurisdiction of the Court to impose interim supervision order – construction of s 10A of Crimes (High Risk Offenders) Act – requirement to construe provision consistently across Part 2 – question of conditions to be imposed – orders made

APPEAL – appeal from Local Court – interlocutory decision – whether error in the exercise of discretion by refusing an adjournment application – whether error in failure to extend procedure fairness – adequacy of reasons – delay – prejudice – general principles – appeal brought out of time – extension of time refused – costs

CRIME — Sentencing — Manslaughter — Stabbing — Following jury trial for murder — Where multiple partial defences left to the jury — Early guilty plea to manslaughter — Special circumstances

EQUITY — Trusts and trustees — Judicial advice — Matters about which advice can be given — interpretation of s 63 of the Trustee Act 1925 (NSW) — where the subject of the question is the liability of the trustee for breach of trust, when the potential basis for that liability is a matter of the management or administration of the trust property — where there can be no implication that excludes such a question from the ambit of the power of the Court — judicial advice given.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CIVIL PROCEDURE — Production of documents – application seeking access to documents in the custody of the court – r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) – where documents are for the purpose of applying for an order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) – whether documents should be produced where they may disclose material objected to by a respondent

EQUITY — Undue influence — Relationships giving rise to presumption of undue influence — Actual undue influence — Relevant factors — Unconscionable conduct — Special disability or disadvantage SUCCESSION — Family provision — Claim by adult child — Notional estate — Whether order designating property as notional estate should be made

CIVIL PROCEDURE — mother and daughter owned property as tenants in common – daughter paid deposit – both contributed to property – both benefitted from funds raised on refinancing – property sold – dispute over proceeds – mother returned to Australia due to COVID-19 and without funds – mother wishes to return to Singapore to work. INTERIM DISTRIBUTION – r 25.5 UCPR – no surplus if daughter succeeds in toto – rule does not apply. INTERLOCUTORY INJUNCTIONS – mandatory interlocutory injunction – mother seeks 10% of sale proceeds for accommodation and return to Singapore for work – balance of convenience favours mother –mother likely to repay in interests of continuing relationship with daughter – payment limited to $12,000 to enable mother to support herself.

CRIMINAL LAW – parole – decision of State Parole Authority to refuse parole – whether plaintiff denied procedural fairness – the plaintiff's application for release on parole under s 160 of the Crimes (Administration of Sentences) Act 1999 remitted to the State Parole Authority for decision according to law

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts – application to transfer matter from the District Court to the Supreme Court to allow for foreign service under Part 11 of the Uniform Civil Procedure Rules – transfer would promote resolution of matter in just, quick and cheap manner – transfer ordered

JUDGMENTS AND ORDERS — Amending, varying and setting aside – previous orders made facilitating examination in compliance with orders of a foreign court – timeline imposed by foreign court unable to be complied with under current orders – orders varied – no point of principle

CRIMINAL LAW – Proceeds of crime – Restraining orders – Application for orders for allowance out of restrained company bank account – where applicant court-appointed liquidator – where forfeiture orders on foot – where criminal proceedings on foot STATUTORY CONSTRUCTION – Whether liquidation costs, remuneration and disbursements enliven Court’s discretion pursuant to Proceeds of Crime Act 2002 (Cth), ss 24(1)(c) and 24(1)(d) – intersection of Commonwealth statutes – whether lacuna exists between Corporations Act 2001 (Cth) and Proceeds of Crime Act

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) s 31– application for variation of supervision orders – where the defendant breached the conditions imposed – reimposition of electronic monitoring subject to ongoing review

LAND LAW - possession of land – claim by registered proprietor against occupier – where occupier defends claim on the basis of being the de facto partner of the plaintiff – where the defendant later makes claim in the Federal Circuit Court seeking property orders arising out of de facto relationship – whether such a claim provides a defence to a claim for possession – whether such a claim amounts to a caveatable interest COSTS – party/party – general rule that costs follow the event – proceedings settled with no agreement as to costs – whether costs order should be made – where no arguable defence disclosed

CRIMINAL LAW – sentence – conviction of murder after judge-alone trial – guilty plea to manslaughter on arraignment – deceased stabbed several times in frenzy – self-induced intoxication – intention to kill – spontaneous – offender entirely amnesic of the offence – criminal history featuring serious violence – deprived upbringing – addiction and substance abuse – special circumstances established

CIVIL PROCEDURE - review of Registrar’s decision under Uniform Civil Procedure Rules (UCPR) r 49.19 - claim for executors’ commission – Registrar awards commission under Probate and Administration Act 1898, s 86 – beneficiaries allege maladministration of the estate by the executors, disentitling the executors from any award of commission – beneficiaries contend the Registrar’s decision should be overturned.

CRIME – Manslaughter – Self-defence – whether reasonable response – judge alone trial – accused acquitted

COSTS – whether costs to be ordered in relation to argument regarding application to vary costs order

CRIMINAL LAW – sentence appeal – whether sentencing judge erred when proceeding on the basis of incorrect maximum penalty for an offence taken into account on a Form 1 – whether error capable of having a material impact on aggregate sentence CRIMINAL LAW – sentence appeal – commencement date being date of expiration of term of revoked ICO – whether sentence imposed for primary offending should be made partly concurrent with time spent in custody because of revocation of ICO – no error in the circumstances CRIMINAL LAW – sentence appeal – whether special circumstances – application of statutory ratio to effective sentence – minor divergences from statutory ratio – no error in setting non-parole period

CRIME – appeals – appeal against conviction – conviction obtained following trial by judge-alone CRIME – appeals – appeal against conviction – manslaughter conviction – whether conviction unreasonable or unsupported by the evidence – time of death – whether established beyond reasonable doubt that deceased was alive when the applicant drove him away from others – Criminal Appeals Act 1912 (NSW), s 6(1) CRIME – manslaughter – gross negligence – death caused by acute multi-drug toxicity – oxycodone and benzodiazepine consumption – death occurred following voluntary assumption of duty of care – deprivation of chance of survival whilst the deceased was helpless – state of mind of applicant in assuming his care – Crimes Act 1900 (NSW), s 18(1)(b)

CRIME – appeal – appeal against sentence –extension of time in which to appeal CRIME – appeal – appeal against sentence – where sentencing Judge excluded utilitarian value of applicant’s plea of guilty – where Xiao error established – where lesser sentence warranted – where applicant re-sentenced