Cases and authorities

EVIDENCE — Hearsay — Exceptions — Whether witness statement admissible under s 65(2) of the Evidence Act pursuant to a direction under s 67(4) EVIDENCE — Hearsay — Exceptions — Business record EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence — Whether evidence illegally obtained should be admitted into evidence in exercise of the discretion in s 138(1) of the Evidence Act

CORPORATIONS – Application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending time to bring voidable transactions claims – Where delay sought to first pursue claims through proof of debt process.

Parens patriae – mother seeks return of child – interim care orders made by Children’s Court – Children’s Court proceedings part-heard.

COURTS AND JUDGES — Bias — Apprehended bias – whether a previous decision would cause a reasonable observer to think that the decision maker will not bring a fair mind – application dismissed - no point of principle

JUDGMENTS AND ORDERS — Amending, varying and setting aside — application to set aside cost orders - whether orders were made “irregularly, illegally or against good faith” – Rule 36.15 – meaning of “against good faith” – notice of motion dismissed

TORTS — Private nuisance — Interference with use and enjoyment of land — where, in the course of developing his property, the defendant has caused water to penetrate through to the adjoining property — where, unless remedied, the water ingress will continue — plaintiff established a prima facie case — where cumulative negligence claim not adequately pleaded or proven — nuisance established.

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Review of a certificate of a medical assessor – Failure to respond to a substantial and clearly-articulated argument – Failure to take into account relevant considerations – Failure to provide adequate reasons – Review dismissed

COSTS — Party/Party — Bases of quantification — Indemnity basis — Offers of compromise — Reasonableness of rejecting offers not determinative — Whether exceptional case

ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Procedural fairness – Whether failure to put parties on notice of panel’s intention to consider and potentially rely on results of survey conducted between 1976-1990 in Minnesota a denial of procedural fairness – Jurisdictional error established – Certificates set aside and matters remitted ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Whether panel failed to ask itself the correct legal question posed by s 58(1)(d) – Whether the panel impermissibly treated the absence of contemporaneous medical records of injury and complaint as determinative – Jurisdictional error established – Certificates set aside and matters remitted

CONTRACTS — Formation — Consideration — Whether written agreement intended to discharge and replace earlier oral contract of employment EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Whether plaintiff had a legitimate protectable interest in customer connection — Whether non-solicitation, non-competition, no-dealing and non-encouragement restraints no more than reasonable to protect customer connection

GUARDIANSHIP – Guardianship Act 1987 (NSW) ss 25E, 25G – NSW Trustee and Guardian Act 2009 (NSW) s 41 – Parens patriae jurisdiction – Application for financial management order – Where matter transferred to Supreme Court from NCAT – Whether defendant incapable of managing her affairs – Where defendant said to be under the influence of two of her children – Discussion concerning evidence required

APPEALS – leave – where proceedings summarily dismissed – whether party using employed solicitor is entitled to recover costs – no question of principle – whether declaration sought hypothetical – unchallenged factual findings – whether injustice if leave refused

APPEAL – application for leave to appeal refused – subpoena issued to solicitor only caught documents produced in response to earlier subpoena and already ruled to be the subject of legal professional privilege – applicants had opportunity to seek leave to appeal against earlier decision but did not COSTS – timing of payment of costs – r 42.7 UCPR – unsuccessful attempt by applicants to challenge decision that they abused Court process – costs payable forthwith

Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly. Words and phrases – "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence", "proviso", "real chance of acquittal", "reason to guilt by an impermissible path", "redirection", "standard of proof", "sworn evidence". Criminal Code (Qld), s 668E(1), (1A).

Real property – Torrens system – Where appellants registered proprietors of land – Where appellants obtained planning approval to subdivide land and build two townhouses – Where present certificate of title for land referred to memorandum of encumbrance which prohibited erection of any buildings other than "a dwellinghouse" and prohibited "multiple dwellings" – Where back-cover sheet of memorandum of encumbrance had typed statement indicating that encumbrance formed part of common building scheme – Where neither memorandum of encumbrance nor present certificate of title identified other lots benefited by restrictive covenants in memorandum of encumbrance – Where s 69 of Real Property Act 1886 (SA) provided title to land indefeasible subject to encumbrances and interests "notified" on original certificate of title of such land – Whether appellants were notified of restrictive covenants in memorandum of encumbrance in accordance with s 69. Words and phrases – "cancelled certificate of title", "certificate of title", "common building scheme", "encumbrance", "memorandum of encumbrance", "notice", "notified", "notified on the certificate of title", "prudent conveyancer", "purpose of the Torrens system", "Register Book", "restrictive covenants", "search and inspection", "searches of the Register", "sufficiently notified", "title", "title by registration", "title of the registered proprietor", "Torrens system". Real Property Act 1886 (SA), ss 51B, 69.

CORPORATIONS — Winding up — Statutory demand — Standing to bring winding up application — Where default judgment supporting statutory demand has been set aside — Whether winding up application an abuse of process — Rebutting presumption of insolvency — Whether evidence led adequate to rebut presumption of insolvency on balance of probabilities

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Whether tutor should be removed and declaration made that the plaintiff is capable of giving instructions in the proceedings

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

CRIMINAL LAW - Judge-alone trial - murder - defence of mental illness - mental health professional killed in course of duty by mentally ill person being treated in the community - accused with long history of mental illness - schizophrenia or schizoaffective disorder - medical expert evidence unanimously indicates defence of mental illness available - delusions involving persons including deceased - verdict of not guilty by reason of mental illness - victim impact statements received under s.30L Crimes (Sentencing Procedure) Act 1999 - importance of victim impact statements - order that accused be detained under s.39(1) Mental Health (Forensic Provisions) Act 1990

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Claim by plaintiffs alleging negligence and nuisance — Where defendant relies on Local Government Act 1993 (NSW) s 733 as a complete defence — Whether triable issue as to whether defendant acted in good faith

COSTS – whether unsuccessful claimant for provision out of deceased estate should pay own costs and pay defendant executors’ costs – no question of principle

CRIMINAL LAW – murder – defence of mental illness – judge alone trial – accused with chronic schizophrenia – drug and alcohol use exacerbating illness – not guilty by reason of mental illness

PRACTICE AND PROCEDURE – summary dismissal – whether reasonable cause of action disclosed on pleadings – where claims for relief in pleadings turn on complex questions of statutory construction of provisions in the Aboriginal Land Rights Act 1983 (NSW) – not appropriate to make a determination of the construction and operation of those provisions on a summary dismissal application PRACTICE AND PROCEDURE – summary dismissal – res judicata and Anshun estoppel – where plaintiff’s earlier proceeding which included claims in contract and proprietary estoppel for the enforcement of a lease in respect of certain land was dismissed in orders made by consent – where notation in consent orders reserved issues in relation to the plaintiff’s removal of dwelling, fixtures and fittings in respect of that land – claim by plaintiff in earlier proceeding for damages for value of improvements to that land dismissed on terms that plaintiff is not precluded from commencing fresh proceeding – where plaintiff commences subsequent proceeding claiming relief in proprietary estoppel or restitution for improvements alleged to have been made by the plaintiff to the same land – different causes of action in the earlier proceeding and the subsequent proceeding – whether claims raised in subsequent proceeding are so relevant to earlier proceeding as to make it unreasonable not to have raised them in the earlier proceeding – no res judicata or Anshun estoppel PRACTICE AND PROCEDURE – summary dismissal – abuse of process – ulterior purpose – whether plaintiff’s motive in commencing proceedings in the Supreme Court is to disrupt the hearing of a creditor’s petition in the Federal Circuit Court – not an abuse of process

APPEAL – whether or not decision of primary judge based in part on demeanour findings – significance for standard of appellate review and intervention – where primary judge’s decision was supported by contemporaneous documents – no basis for appellate interference with primary judge’s findings of fact. CONTRACT – contractual interpretation – whether warranties in a multi-party deed were made in favour of all parties to the deed or only one party.

PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Misappropriation of trust monies — Requirements for dishonesty — Irregular deposits of trust monies into office account — Deposits made without solicitor’s knowledge — Whether overdraft in office account constitutes misappropriation PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Attempts to mislead — Requisite element of intention PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Unconditional undertakings — Whether undertaking breached where performance would be unlawful

CORPORATIONS – oppression – formulation of orders – special orders as to liquidators' costs – applicability of post-judgment interest – whether entitlement of successful plaintiff should be secured by charge – whether surplus should be distributed in accordance with shareholders agreement

APPEALS – nature of appeal – nature of appellate review of a decision under s 138 of the Evidence Act – House v The King type judicial restraint EVIDENCE – exclusion of evidence – improperly or illegally obtained evidence – s 138 of the Evidence Act – probative value – reliability – evidence taken at its highest

APPEAL – sentence appeal – where applicant coordinated drug syndicate – whether applicant has a justifiable sense of grievance based on sentence imposed on co-offender – where sentencing judge made no error in relation to parity

CRIMINAL LAW - Judge-alone trial - murder - defence of mental illness - accused kills next door neighbour in knife attack - explosive acts of violence occur without provocation or rational explanation - accused with long history of mental illness - chronic schizophrenia - delusions and persecutory beliefs - expert psychiatric evidence unanimously indicates defence of mental illness available - verdict of not guilty by reason of mental illness - victim impact statements received under s.30L Crimes (Sentencing Procedure) Act 1999 - importance of victim impact statements - order that accused be detained under s.39(1) Mental Health (Forensic Provisions) Act 1990

COSTS – Application for imposition of an easement – Where plaintiff failed on contract and estoppel cases but was granted an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) – Ordinary rule that applicant pays defendant’s costs of proceedings – Whether departure from ordinary rule warranted

CRIMINAL LAW – somnolence - discretionary discharge of individual juror - juror observed sleeping during important evidence for the accused and prosecutor’s address - application by one accused - joined by some, opposed by others - whether situation should be monitored further - whether juror should be examined - sleeping judge case - sleeping juror - discretionary factors - expanded jury of 15 still intact -juror discharged

MAREVA INJUNCTION – suggested breach of 2014 freezing order – parties said to hold $3.6M on trust as consequence – 2016 judgment unpaid – suggested efforts over many years to frustrate judgment – third proceedings listed for hearing – suggested further dissipation of $14M to third parties – multiple changes to trust – not necessary to join third parties to get Mareva – principles at [39]-[48] – serious question to be tried – balance of convenience – trial imminent – Mareva of short duration – no evidence of prejudice.

CORPORATIONS — Capital raising — Shares issued in contravention of ss 707(3) and 727(1) of Corporations Act 2001 (Cth) — Mistake where s 708A(5)(e) exemption not in fact available — Whether to validate issue and subsequent on sales under s 1322(4) of the Corporations Act 2001 (Cth) — Honest mistake — Where no substantial injustice to any persons.

REPRESENTATIVE PROCEEDINGS – appointment of referee to determine causation and quantum of claim sample – 264 claims – whether rules of evidence apply – timing of reference when principal judgment appealed from.

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) to set aside part of Court’s earlier judgment – whether the Court’s reasons for judgment was affected by a misapprehension of fact or law that was not solely attributable to the neglect or default of the party seeking the rehearing – whether the Court determined a material issue without affording procedural fairness to the party seeking the rehearing – application dismissed

PROFESSIONS AND TRADES – lawyers – complaints and discipline – disciplinary application under Legal Profession Act 2004 (NSW) – proceedings commenced in Civil and Administrative Tribunal of New South Wales – Tribunal’s jurisdiction disputed – jurisdiction contingent upon proceedings being commenced in respect of a “complaint” that was “duly made” – Council of the Law Society of New South Wales passed a resolution that a complaint “be made” – whether language of Council’s resolution constituted a “complaint” – whether Council’s resolution met the s 504 requirements of a “complaint” PROFESSIONS AND TRADES – lawyers – complaints and discipline – complaints made prior to commencement of the Uniform Law – transitional application of Legal Profession Act 2004 (NSW)

CIVIL PROCEDURE - service in accordance with Rule 31.10 of the UCPR – defendant seeking order to excuse service of material – whether serving material would significantly reduce its evidentiary weight – held that question should be determined by trial judge – motion dismissed

CIVIL PROCEDURE — Non-party access to documents — Supreme Court Practice Note Gen 2 — Whether exceptional circumstances required to access pleadings and evidence — Purpose of access to inform non-party in relation to separate proceedings — Whether portions of evidence not read may be redacted.

EVIDENCE — Discretions — Civil proceedings — s 192A of the Evidence Act 1995 (NSW) — whether two doctors reports would be admissible at the final hearing — whether, alternatively, the reports were irrelevant or should be rejected under s 135 of the Evidence Act 1995 (NSW) — where the reports are admissible — where the reports are relevant — where sufficient prejudice has not been identified to justify the exercise of the discretion — reports admitted.

COSTS — Party/Party — where there has been long and protracted litigation over many years — where there have been several amendments to the statement of claim — where parties have been joined to the proceedings at different times — where some parties were self-represented — where the plaintiff was made a representative of the deceased estate under r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — where, upon bankruptcy, trustees were appointed for a party — where parties had varying degrees of success between themselves — where several elements of the broader matter were resolved by various Justices of the Supreme Court of New South Wales — where there was associated proceedings in the Federal Court of Australia — where the Court makes bespoke orders as between the parties with reference to the relevant context — costs orders of different types made — final orders made COSTS — Party/Party — Self represented litigant — What costs may be ordered COSTS — Party/Party — Payable out of a fund — Deceased estate — where beneficiary sought an order under r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — where, in the circumstances, the representative of the deceased estate should not be granted indemnity costs out of the estate COSTS — Party/Party — Orders when proceedings involve multiple parties — How parties liable COSTS — Party/Party — Bases of quantification — Factors relevant to the court’s discretion when quantifying costs COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion COSTS — Party/Party — Costs orders in interlocutory proceedings

FAMILY LAW — Property — Procedure — where, after an initial interlocutory judgment, several issues remained outstanding — where the Court sought further information in order to make interim maintenance orders — where the parties raised additional issues not contemplated in the first judgment –– where the effects of the COVID-19 pandemic on the right to terminate a lease considered — other issues raising no points of principle

APPEALS — Appeal from the Appeal Panel of the Civil and Administrative Tribunal – leave to appeal – questions of law LAND LAW — leases and tenancies – where a tenancy agreement was validly terminated – where an order for possession was granted to the defendant - where the plaintiff alleges he had an equitable claim to the property – whether the plaintiff established a claim in equity in defence to the defendant’s claim for possession

CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether to approve explanatory memoranda in respect of the restructuring and schemes – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

CIVIL PROCEDURE — Court of Appeal — appeal from District Court determination of appeal from costs assessment of review panel — no right of appeal from District Court to Supreme Court under District Court Act 1973 (NSW) — no question of principle

TORT – trespass – trespass on two different sites subject to long term leases – one site comprising an undeveloped block of land on which lessee was to construct and operate a private hospital – one site comprising an established car park – inquiry as to damages – initial claim for damages for loss of opportunity to earn profits from hospital site and car park site – damages for mesne profits – user principle – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. TORT – trespass – period of trespass – manner of assessment – where order for possession made but orders stayed – whether trespass continued – whether trespass continued on refusal by High Court of application for special leave to appeal from Court of Appeal decision – whether stay order terminated on refusal of special leave application. DAMAGES – damages for trespass to land – various measures of damages – damages sought by way of mesne profits – history of mesne profits – mesne profits and the user principle – manner of assessment – assessment by reference to market rental of land trespassed upon – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. DAMAGES – taxation – grossing up for taxation of damages for mesne profits – where damages calculated were in effect compensation for a lost commercial opportunity – whether it would have been unjust not to take into account identifiable and quantifiable taxation impacts on damages, in line with fourth principle enunciated in Daniels v Anderson (1995) 37 NSWLR 438; (1995) 118 FLR 248. PROCEDURE – where orders for possession made pending further order – consequence of refusal of special leave application – whether refusal of application for special leave had the effect of lifting stay of orders made by Court of Appeal – whether stay of orders needed to be expressly lifted by Court of Appeal.

CRIME – appeal against conviction – applicant found guilty of murder – whether verdict unreasonable – whether error in directions on causation – whether trial judge erred in admitting admissions influenced by violence or oppression – whether trial judge erred in failing to leave an alternative verdict of manslaughter – appeal allowed on alternative verdict issue and otherwise dismissed – retrial ordered CRIME – sentence appeal – various grounds not considered because conviction appeal allowed

APPEAL – application for leave to appeal against sentence – plea of guilty to one count of persistent sexual abuse of a child contrary to s.66EA Crimes Act 1900 – s.66EA offence comprising 12 separate ingredient offences under s.66C(3) Crimes Act 1900 committed in 2006 and 2007 – sentence of imprisonment for 10 years and 9 months with non-parole period of 7 years – general observations concerning sentencing for s.66EA offences – consideration of factors relevant to sentencing for s.66EA offences – whether sentencing Judge erred in taking into account that the Applicant was in a position of authority over the victim – error not established – whether the sentencing Judge erred in failing to assess the objective seriousness of the s.66EA offence or alternatively failed to consider the nature of the ingredient offences when considering the objective seriousness of the s.66EA offence – error not established – whether sentence manifestly excessive – limited utility of sentencing statistics for s.66EA offences – applicant’s s.66EA offence of considerable objective gravity – harm to victim from offence – held sentence not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed

CRIME – appeals – appeal against sentence – 20 counts comprising 16 counts involving the sexual assault or indecent assault of two children under the age of 14 and 16 and 4 counts involving the use of a child for pornographic purposes or the production of child pornography – whether sentencing judge failed to take into account (properly or at all) mitigating factors – whether sentence breached totality principles – whether sentence manifestly excessive

COSTS – security for costs – relevant factors – delay in making application – stultification – cause of impecuniosity – strength of plaintiff’s case

CORPORATIONS – External administration – Association under the Associations Incorporation Act 2009 (NSW) – Uncertainty whether administrators validly appointed – Where facts indicate potential insolvency – Whether to make order under s 477A of the Corporations Act 2001 (Cth) validating administrators’ appointment and applying provisions of Pt 5.3A, IPSC and Insolvency Practice Rules – Corresponding provisions of repealed Acts under s 68 of the Interpretation Act 1987 (NSW).