Cases and authorities

CIVIL PROCEDURE – Court of Appeal – application to vacate hearing

COMMISSIONS OF INQUIRY – Royal Commission into Institutional Responses to Child Sexual Abuse – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence COURTS AND JUDGES – Apprehended bias – Application for recusal – where primary judge said to have raised voice towards counsel – where judge apologised for raising voice – whether outcome of hearing could bear on allegation of apprehended bias DEFAMATION – Defamatory matter – Capacity to convey pleaded imputations – whether imputations carried to the ordinary reasonable reader DEFAMATION – Defences – Fair report – Matter of public interest – Royal Commissions – whether publications were substantially accurate DEFAMATION – Defences – Justification – Truth EVIDENCE – Documentary evidence – Royal Commissions – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence

HEALTH – Administration of public health system – Legal proceedings by and against authorities – Where directives to health districts provide for procuring of guarantees of liability of Medicare ineligible patients – Whether directives repugnant to other provisions of Health Services Act 1997 (NSW) as providing for representations inconsistent with their effect – Whether utility in determining separate questions concerning validity of directives

EVIDENCE — admissions — criminal proceedings — lies told by the accused to police and hospital staff — whether identified lies can be used for consciousness of guilt — whether the lies are intractably neutral — context surrounding when the accused told the lies — accused charged with murder — self-defence raised by the accused

EQUITY – trust and trustees – judicial advice – family provision claim – extension of time granted – settlement approved

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Transfer to Supreme Court of the Australian Capital Territory

SUCCESSION – family provision – claim by adult child for provision out of the deceased’s estate – claimant is one of eight surviving adult children of deceased – deceased’s last will provided a pecuniary legacy to the claimant and five of the other adult children with the residue of the estate given to the defendant executor and another adult child – common ground that burden of any provision in favour of claimant would fall on residuary beneficiaries – claimant and residuary beneficiaries each had a close and loving relationship with the deceased – residuary beneficiaries closely involved in caring for deceased as she aged – where claimant found to be in a long-standing close relationship with another person in which they depend on each other for mutual financial support – where claimant’s debts exceed his total assets and expenditure exceeds income but no evidence of financial position of the other person in the relationship – where claimant and other person in the relationship gave false evidence that the claimant was indebted to the other person – not satisfied that adequate provision has not been made in the deceased’s will for the claimant’s proper maintenance, education and advancement in life – summons dismissed

PRACTICE AND PROCEDURE – Application to strike out pleadings – Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Whether the Court lacks jurisdiction to declare contracts unfair or void under section 106 of the Industrial Relation Act – Application dismissed

CIVIL PROCEDURE — Suppression and non-publication – s 8(1) of the Court Suppression and Non-publication Orders Act 2010 – whether providing a statement during police investigation makes an individual a ‘witness’ under s 8(1)(d) – whether non-publication is necessary to protect psychological safety under s 8(1)(c)

CRIMINAL LAW – sentence appeal – offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW) – a single ground of appeal to the effect that the sentencing judge erred in failing to make an assessment of the offender’s moral culpability having regard to his deprived background – offender’s deprived background set out in detail by judge – full weight given to offender’s deprived background by reducing effect of general deterrence – a failure to attach the label “moral culpability” to any specific finding did not reveal error – appeal dismissed.

CRIMINAL LAW – sentence appeal – attempt specially aggravated break and enter with intent to commit a serious indictable offence (in company and armed with a dangerous weapon) contrary to s 113(3) of the Crimes Act 1900 (NSW) – maximum penalty of 20 years imprisonment – joint criminal enterprise involving three offenders – applicant sentenced to imprisonment for 4 years with a non-parole period of 3 years – whether sentencing judge erred in refusing to make a finding of special circumstances – whether sentencing judge properly took into account that this was the applicant’s first custodial sentence – whether applicant had legitimate sense of grievance by reason of the sentence imposed on his co-offenders – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – sentence appeal – assault occasioning actual bodily harm in company – applicant already in custody for other offences – fixed term of imprisonment of 6 months imposed – whether proper discount for plea of guilty awarded – whether sentencing judge entitled to impose a fixed term sentence – whether sentence imposed was unreasonable and plainly unjust – appeal dismissed.

CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed.

CRIMINAL LAW – appeal – Land and Environment Court – whether summonses bad for duplicity – appeal upheld

CIVIL PROCEDURE – notice to produce – notice seeks documents not shown on this application to have relevance to issues in proceedings

SUCCESSION — Probate and administration — where the Plaintiffs in the Probate Proceedings propound a 2014 informal will to supersede a valid 1991 will of the deceased and the First Defendant propounds a 2013 informal will. The First Defendant is also the Plaintiff in a separate proceedings (“the Trust Proceedings”) in which she asserts a claim to the entire Estate. CIVIL PROCEDURE — Parties — Removal of parties – Joinder of parties – Notices of Motion relating to (1) withdrawal of the First Plaintiff who is a solicitor (who has acted for the Second Plaintiff as well as for other potential beneficiaries) and who is not a beneficiary under either will; (2) joinder of four potential beneficiaries resident in Poland (“the Four Polish Beneficiaries”); (3) whether the Four Polish Beneficiaries should be required to provide security and in what form; and (4) who should be the defendant(s) in the Trust Proceedings. Held: (1) the First Plaintiff be removed, but subject to the same liabilities and entitled to same rights with respect to the costs of the proceedings: [94]; (2) the Four Polish Beneficiaries be joined as cross defendants to the Probate Proceedings: [94]; (3) on the First Defendant’s claim in the Probate Proceedings the Four Polish Beneficiaries are entitled to a share in the residue of the Estate. Any amount due to the Four Polish Beneficiaries from the Estate to be subject to a charge in favour of the First Defendant reflecting costs incurred by the First Defendant in the event that the Four Polish Beneficiaries are held liable to the Plaintiff for costs. The First Defendant in the Probate Proceedings/ Plaintiff in the Trust Proceedings cannot rely on the Trust Proceedings to require security from the Four Polish Beneficiaries: see [93]; (4) Charles Emmanuel Morgan – Interim Administrator of the Estate to be removed as Defendant in the Trust Proceedings and the Second Plaintiff in the Probate Proceedings and the Four Polish Beneficiaries to be made defendants in the Trust Proceedings. Order that the proceedings should continue in the absence of a representative of the Estate: [95]. SUCCESSION — Contested probate —Notice of Motion relating to the ability of the Second Plaintiff and the Four Polish Beneficiaries to raise issues in respect of the 2013 Will. Held: the Second Plaintiff and the Four Polish Beneficiaries are entitled to file a cross claim in the draft form sought by the Second Plaintiff: [83] and [86]. CIVIL PROCEDURE — Pleadings — Amendment – By way of Notice of Motion Second Plaintiff sought to file Further Amended Statement of Claim which seeks alternative declaratory relief. Held: Second Plaintiff granted leave to file a Further Amended Statement of Claim: [94].

MONIES PAID INTO COURT – council sold unit for unpaid rates – owner missing – net proceeds of sale paid into court – PAYMENT OUT – owners corporation and purchaser claim monies – agreement to distribute monies pari passu – r 41.3 UCPR – r 55.11 UCPR – owners corporation’s recovery expenses disproportionate – purchaser paid in full and balance to owners corporation. STRATA SCHEMES – expenditure on legal services –obligations of strata managing agent and owners’ corporation lawyers to supervise legal expenditure – owners’ corporation entitled to recover reasonable expenses – s86(2A) Strata Schemes Management Act.

CRIMINAL LAW – evidence - telephone records - whether particular number should be included in the schedule - circumstantial evidence - speculation - unfair prejudice - evidence admissible

CORPORATIONS — Meeting of members — Resolutions — Resolutions for removal of directors — Resolutions for appointment of new directors — Resolutions proposed by shareholders under ss 203D and s 249D — Where constitution provides mechanism to appoint new directors only at AGM — Where constitution excludes replaceable rules — Whether implied power to appoint directors outside of AGM CORPORATIONS — Meeting of members — Resolutions — Where notice of meeting provides for replacement of six of seven directors — Whether altering motion to removing but not replacing these directors would require new notice of meeting

LEGAL PROFESSION – duty of candour – undefended hearing – principles at [83], [91] – no breach of duty – trial judge not misled. SET ASIDE JUDGMENT – building contract –problems getting occupation certificate – damages sought from builder including loss of rent – first defendant appeared in person on occasion – 12 directions hearings – no appearance at final hearing – aware of hearing – unsatisfactory medical certificate – inadequate explanation – experienced litigant – access to legal advice – writ of execution registered against first defendant’s property – property sold and judgment sum paid into court – application to set aside judgment, being 18 months after judgment. JUDGMENT IRREGULARLY OBTAINED – r 36.15 UCPR – principles at [3]-[7] – whether admissions arising from failure to file defence provided basis for judgment – imperfect pleading against multiple defendants – admissions by first defendant founded judgment against him – whether damages awarded outside pleaded case – damages sought notified to first defendant in schedule of damages – no misconduct or dishonourable conduct by plaintiff –failure to accord procedure fairness no basis to set aside judgment (nor such unfairness here). JUDGMENT IN ABSENCE OF PARTY – r 36.16 UCPR – principles at [8]-[12] – inadequate explanation for failure to attend – significant delay in bringing application – inadequate explanation for delay – little proffered to reduce hardship of judgment creditor – second defendant now deregistered – plaintiff took large discount in its claim before trial judge in order to finalise proceedings and only the judgment amount secured – offers in respect of plaintiff’s legal costs parsimonious – arguable defence – not unjust to let judgment stand.

ADMINISTRATIVE LAW – Judicial review of administrative decisions – Review of decision of Commissioner of Police – Removal order under s 181D of the Police Act 1900 (NSW) – Whether s 213 of the Police Act 1900 (NSW) precluded making of removal order – Whether error of law on the face of the record or jurisdictional error– No error established ADMINISTRATIVE LAW – Judicial review of administrative decisions – Review of decision of Industrial Relations Commission – Rejection by IRC of review application in relation to removal order under s 181D of the Police Act 1900 (NSW) – Review of refusal of leave to appeal from IRC decision by Full Bench – Whether police officer acting in the course of his duties when engaging in the conduct that led to his removal – Whether jurisdictional error by IRC or Full Bench – No jurisdictional error established

COSTS – judicial review of decision by Magistrate to refuse an application for costs in a criminal matter – whether jurisdictional error or error on the face of the record

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – adjudication – judicial review – whether adjudicator failed to perform statutory function and denied plaintiff procedural fairness by failing to consider payment schedule and adjudication response submissions – whether adjudicator failed to form a view as to what was properly payable on the merits of the defendant’s claim – whether adjudicator misconstrued s 20(2B) of the Act – error in failing to form a view as to what was properly payable found in respect of one variation

CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – rr 36.16 and 49.19 of the UCPR – Registrar’s decision to dismiss the applicant’s notice of motion and order costs for the ex-third respondent – whether the applicant’s notice of motion had been transformed into a summons – whether the ex-third respondent’s appearance at the hearing before the Registrar was necessary CIVIL PROCEDURE - Miscellaneous procedural matters - Vexatious litigants and proceedings – where applicant has been declared a vexatious litigant – where proceedings on foot were not subject to Vexatious Proceedings Act 2008 (NSW) orders – where applicant’s notice of motion in proceedings on foot was dismissed – where applicant filed a summons substantively different from previous notice of motion – summons taken to be dismissed where the applicant has not complied with leave requirements under the Vexatious Proceedings Act 2008 (NSW)

APPEAL – application for stay of primary judgment – part of judgment unchallenged – partial stay ordered

COSTS — Costs assessment — Determination – Gross sum costs order – Conflict between assessment of costs undertaken by solicitor of party entitled to costs and expert costs consultant – $36,000 in dispute – Where no objection taken to solicitor’s affidavit evidence, and he was not cross-examined – Where some arguments raised on appeal relate to unchallenged orders not the subject of appeal

EVIDENCE - documentary evidence - tender of documents – phone summary

EVIDENCE — credibility evidence — prior consistent statement — Crown application to adduce evidence of prior consistent statements of witness to a shooting — accused charged with murder — self-defence raised — statements made to police — whether s 108(3) of the Evidence Act is engaged — question of whether leave should be granted — statements are not prior consistent statements — leave refused

Parens patriae – hospital seeks authority for surgery on baby – parents give consent before hearing – whether Court should make declarations authorising surgery – nature of jurisdiction at [3]-[10] – where parents now consent, no need for Court to exercise parens patriae jurisdiction – importance of parents continuing to make these difficult decisions.

CIVIL PROCEDURE – pre-judgment interest – breach of executor’s duties – executor paid preliminary distributions to some only of the beneficiaries – whether interest on make-up payments to be calculated at legacy or general statutory rates COSTS – party/party – administration of estate – executor’s claim for indemnity and for repayment of preliminary distributions

COSTS — Security for costs — Effect — Dismissal — Order dismissing proceedings stayed pending determination of special leave application

CIVIL PROCEDURE — Parties — Joinder — Whether entity that is not seeking relief in the proceedings should be joined as plaintiff — Where Second and Third Plaintiffs and that entity foreshadow future amendment to the pleading. CIVIL PROCEDURE — Orders for production of documents — Whether consent orders require production of documents not related to issues currently pleaded — Where documents sought for Second and Third Plaintiffs to advance foreshadowed amendment to pleading. EQUITY — Equitable remedies — Injunctions at general law — Injunctions under s 1324 of the Corporations Act 2001 (Cth) — Prima facie case — Balance of convenience — Enjoining borrowing or encumbrances of company without specified notice to third plaintiff — Where third plaintiff who seeks interlocutory relief has no existing right to notice of company’s proposed borrowings.

PUBLIC ASSEMBLY — Summary Offences Act 1988 (NSW) — Whether order pursuant to s 25(1) should be made prohibiting the holding of a public assembly — Balancing exercise between competing public interests CONSTITUTIONAL LAW — Judiciary Act 1903 (Cth) — Notice of constitutional matter — Severance of matters

CONTRACTS — Formation — Where each plaintiff alleges a contract was concluded with the defendant incorporating certain terms of an Enterprise Agreement entitling them to private use of a motor vehicle — Where defendant denies such a contract — Whether requisite intention to create legal relations — Whether consideration flowed from the plaintiffs CONTRACTS — Parties — Privity — Agency — Where defendant claims that any alleged contract must have formed between defendant and plaintiffs' union — Whether union acted as a principal or agent for the plaintiffs EMPLOYMENT AND INDUSTRIAL LAW — Contract — Unfair contracts — Where plaintiffs' contracts of employment said to be unfair because certain terms not incorporated despite defendant's representation to the contrary — Position of other employees performing same work CONTRACTS — Formation — Promissory estoppel — Controversy as to application of doctrine in New South Wales — Where defendant gave an assurance to plaintiffs of a continuing entitlement to a motor vehicle — Where defendants later sought to withdraw that entitlement — Where plaintiffs claim they did not seek alternative employment in reliance on the assurance — Whether defendant is estopped from departing from its assurance

CRIMINAL LAW – murder – trial by judge alone – plea of not guilty to murder but guilty to manslaughter – accused relied upon partial defence of substantial impairment – fatal domestic violence stabbing – accused subject to AVO – intention to kill – accused suffered from brain damage caused by chronic alcohol abuse – accused suffered from mood disorder – acceptance of some impairment of capacity to understand events and capacity to control oneself – failure to establish either impairment substantial – contingent consideration of whether impairment was so substantial as to warrant reduction in liability from murder to manslaughter – discussion of community standards with regard to fatal domestic violence – verdict of guilty of murder returned

CRIMINAL LAW – murder – accused killing his father – defence of mental illness

PRACTICE AND PROCEDURE – supervisory jurisdiction – application to review inquiry under Pt 7 of Crimes (Appeal and Review) Act 2001 – inquiry conducted by former judicial officer – proceedings commenced in Common Law Division – amending legislation assigning matter to Court of Appeal – power to order removal – discretionary considerations – application of Pt 6 of Civil Procedure Act 2005 STATUTORY INTERPRETATION – amending legislation – retrospective operation – whether interference with accrued rights – whether procedural

COSTS – party/party – leave to appeal – where applicants filed submitting appearances – whether applicants responsible for error of consent authority – whether failure by the primary judge to take into account considerations relevant to the costs discretion

CIVIL PROCEDURE – debt recovery – loans – dispute arising over two undocumented loans between friends – whether primary judge erred in finding that the appellant authorised the appellant’s now-estranged husband to jointly borrow from respondents JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – whether primary judge erred in finding that the appellant not liable to pay interest on loan at rate of 48% per annum

CRIME – appeals – appeal against conviction – child sexual assault offences – asserted inconsistencies in evidence of Crown witnesses – whether the verdicts were unreasonable – whether there was a miscarriage of justice

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("IAA") – Review by IAA under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection ("Minister") refused to grant appellant temporary protection visa – Where delegate accepted appellant's account as plausible, but found appellant did not hold well-founded fear of persecution based on country information – Where delegate's decision referred to IAA for review – Where IAA affirmed delegate's decision – Where IAA departed from delegate's assessment of appellant's credibility – Where under s 473DB IAA generally required to review fast track reviewable decision by considering review material, and without accepting new information or interviewing applicant – Where under s 473DC IAA may get new information not before Minister and that IAA considers may be relevant, including by inviting applicant to interview – Where under s 473DD IAA must not consider new information unless satisfied there are exceptional circumstances, and that new information was not and could not have been before Minister or is credible personal information – Whether legally unreasonable for IAA to depart from delegate's assessment of appellant's credibility without inviting appellant to interview – Whether appellant's demeanour "new information" within meaning of s 473DC – Whether failure to invite appellant to interview was material to IAA's decision. Words and phrases – "credibility", "de novo review", "demeanour", "fast track reviewable decision", "Immigration Assessment Authority", "informational gap", "interview", "legal unreasonableness", "material", "materiality", "new information", "review material", "temporary protection visa". Migration Act 1958 (Cth), Pt 7AA, ss 473DB, 473DC, 473

Family law – Property settlements – Where respondent husband made gift to appellant wife of ten per cent interest in residential dwelling ("the property") – Where respondent subsequently signed transfer of land giving appellant further 40 per cent interest in the property – Where parties registered as joint tenants then executed deed of gift providing for payment to appellant's siblings if appellant predeceased respondent while they remained joint tenants – Where parties subsequently married then separated after 23 days – Where each party sought orders under s 79(1) of Family Law Act 1975 (Cth) altering interests in property of marriage ("property settlement orders") – Where appellant did not appear at trial so matter proceeded as undefended hearing – Whether primary judge failed to take existing legal and equitable interests of parties into account for purposes of s 79(1) of Family Law Act – Whether primary judge's approach to deed of gift amounted to failure to take material consideration into account – Whether open to primary judge to determine that making of property settlement orders was just and equitable – Whether open to primary judge to assess that appellant made ten per cent financial contribution to acquisition of the property – Whether Full Court of the Family Court of Australia erred in refusing to exercise discretion conferred by s 93A(2) of Family Law Act to receive further evidence on appeal. Words and phrases – "affirmation", "deed of gift", "demands of justice", "duress", "finality", "financial contribution", "further evidence on appeal", "joint tenants", "just and equitable", "malpractice", "pressure", "property settlement order", "ratification", "unconscionable conduct", "undue influence", "voidable". Family Law Act 1975 (Cth), ss 75(2), 79, 93A(2), 94(1). Family Law Rules 2004 (Cth), rr 1.04, 1.08.

EVIDENCE – s 32 application to revive memory abandoned – s 38 application to cross examine witness – not unfavourable – possibly prior inconsistent statement – evidence given in context of patchy memory of conversation – first recounted almost 18 months after conversation occurred EVIDENCE – s 192 discretion

EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period

ADMINISTRATIVE LAW – natural justice – urgent need for orders to protect public – permanent orders affect burden of proof – need to preserve right of plaintiff to prepare and present material while still protecting the public.

ADMINISTRATIVE LAW – natural justice – urgent need for orders to protect public – permanent orders affect burden of proof – need to preserve right of plaintiff to prepare and present material while still protecting the public.

EVIDENCE — witness evidence — unfavourable witnesses — s 38(1)(a) of the Evidence Act (NSW) 1995 – Circumscribed leave given

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of a decision of a medical assessor – Failure to apply the correct approach to causation

PRACTICE AND PROCEDURE – Pleadings –Application for leave to further amend statement of claim – Where proceedings had a long history of previous applications – Where further amended statement of claim did not properly plead a cause of action – Where further amended statement of claim was embarrassing – Where there was no explanation for delay in bringing the application – Application refused

CRIME – appeals – appeal against conviction – attempted specially aggravated break and enter with intent to commit serious indictable offence – where circumstances of special aggravation were that offenders were armed with a dangerous weapon – Crimes Act 1900 s 113(3) - whether conviction should be quashed because of defect in the indictment in that it did not refer to the offence being committed in circumstances of aggravation – where circumstances of aggravation were being armed with an offensive weapon - where alleged failure to identify an element of the offence – where element was necessarily implied in the pleading of another element – where the defect was cured by the jury’s verdict – whether trial judge misdirected the jury as to the elements of the offence by reason of the form of the indictment - where no miscarriage of justice CRIME – appeals – appeal against sentence - whether sentencing judge erred by making findings contrary to jury’s verdict – where jury not satisfied offenders were in possession of an imitation firearm – where sentencing judge took into account a circumstance of aggravation not mentioned in indictment - where no breach of the De Simoni principle - appeal dismissed