Cases and authorities

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant appellant protection visa – Where decision referred to Authority for review – Where appellant's representative supplied Authority with further materials including letter of support from third party which post-dated delegate's decision – Where Authority considered the letter was "new information" but concluded it was not able to be considered under s 473DD – Where Authority assessed new information against criteria in ss 473DD(b)(i) and 473DD(a) but not s 473DD(b)(ii) – Whether s 473DD requires Authority to consider criteria in ss 473DD(b)(i) and 473DD(b)(ii) before considering criterion in s 473DD(a). Words and phrases – "credible personal information", "exceptional circumstances", "fast track reviewable decision", "Immigration Assessment Authority", "mandatory relevant consideration", "new information", "referred applicant". Migration Act 1958 (Cth), Pt 7

Criminal law (Cth) – Terrorism – Membership of terrorist organisation – Where respondent convicted of offence of intentionally being member of terrorist organisation contrary to s 102.3(1) of Criminal Code (Cth) – Where s 102.1 provided "member" of terrorist organisation includes person who has taken steps to become member of organisation – Where respondent detained attempting to travel to Turkey – Where respondent's seized electronic devices contained extremist material produced by and expressing support for Islamic State – Where respondent accessed websites containing practical advice for women travelling to Islamic State-controlled territory – Where expert evidence adduced at trial as to nature, aims and ideology of Islamic State – Where conviction quashed on appeal – Whether Crown required to adduce evidence of process by which Islamic State recruited, inducted and accepted members – Whether trial judge misdirected jury as to physical and mental elements of offence – Whether summing up unbalanced. Words and phrases – "absence of a constitution or rules of membership", "criteria of membership", "elements of the offence", "Islamic State", "member of a terrorist organisation", "membership process", "nature of terrorist organisations", "organisation", "physical and mental elements", "preparatory or anticipatory acts", "proof of membership", "steps to become a member", "terrorism", "terrorist act", "terrorist organisation", "unbalanced summing up". Criminal Code (Cth), ss 100.1, 102.1, 102.3.

CRIMINAL LAW – variation of order of examination and cross-examination - where witness unfavourable to the prosecution - where Prosecutor formed the view the witness was untruthful CRIINAL LAW - evidence - where Prosecutor seeks to cross-examine own witness - subject matters of cross-examination - where relevant count concerning shooting of witness’s house severed from indictment - interlocutory triumphs - where permitting cross-examination would create incurable prejudice

EVIDENCE – admissibility – relevance – hearsay-

COSTS – whether plaintiff should have the costs of preparing evidence not served or tendered COSTS – indemnity costs - effect of contractual indemnity COSTS – interest – whether delay disentitles successful plaintiff to interest on judgment

LAND LAW – leases – agreement for lease – breach – related company of plaintiff enters into contract for sale of premises with defendants – completion of contract for sale conditional upon entry into Agreement for Lease between defendants as landlord and plaintiff as tenant – Agreement to Lease entered into and sale completed – Agreement for Lease requires defendants to undertake Landlord’s Works with practical completion to occur by defined date – whether date varied by agreement – handover of premises to plaintiff to occur to allow plaintiff to perform Tenant’s Works– liquidated damages payable if Landlord’s Works delayed beyond defined date – damages calculated on daily basis until handover occurs – held that handover occurred when plaintiff granted access to commence Tenant’s Works and received set of keys – liquidated damages calculated accordingly CONSUMER LAW – misleading conduct under statute – misleading or deceptive conduct – representations – cross-claimants contend cross-defendant falsely represented that Construction Certificate for development had been approved – representation held to be misleading – cross-claimants did not adduce evidence that had cross-defendant’s conduct not occurred they would have taken a different course and thereby avoided loss – cross-claimants’ claim for damages under Australian Consumer Law fails

LAND LAW – Easements – Modification of easements – Heads of Agreement (“Heads”) record an agreement to settle proceedings after a mediation – Heads provide for the registration of a right of carriageway over certain rural land and the lifting of caveats over that land – several disputes arise between the parties in relation to the performance of the Heads – what is the precise width and configuration of the easement at its southern end – whether the Heads imply the creation of a supplementary easement to permit the completion of the construction of a sealed roadway along the easement – at what point of time should the caveats be removed – what does the Heads require for the easement to be put in registrable form. EQUITY – Equitable remedies – Specific performance – specific performance sought of Heads – whether a further deed is required to give effect to the existing Heads – whether a decree for specific performance of the Heads should be granted and if so, on what terms.

CIVIL PROCEDURE – payment into court – party seeks leave to substitute cash with an unconditional bank guarantee

CIVIL PROCEDURE – subpoenas – issued prior to delivery of evidence – whether have the effect of subverting operation of Practice Note SC Eq 11 – where defendant’s positon is that they should not serve evidence until plaintiff’s case is closed – where neither subpoena recipient has objected to ambit of subpoena – where documents sought in one subpoena not likely to be in possession of defendants

EVIDENCE – relevance – tendency evidence – text messages – evidence relevant – evidence admissible

CRIMINAL LAW - evidence - public interest immunity - informant witness - closure of court - suppression orders - whether witness should be advised of orders - where witness gives misleading evidence in relation to material previously subject of claim for immunity - Commissioner asked to reconsider their position - parties provided with further information

EVIDENCE – where defendants tendered documents in file suggesting receipt of instructions from plaintiff to limit due diligence inquiries on behalf of plaintiff as prospective purchaser – whether email inadmissible as hearsay – relevance of whether subsequent letter sent to or received by plaintiff where no issue related to creation of letter in fact – where file copy capable of supporting inference that limiting instructions received – letter arguably relevant to proof of a fact in issue

CRIMINAL LAW – evidence - opinion evidence - police officer expressing opinion as to meaning of text message sent by accused - whether reference to “toys” was a reference to firearms - matter for jury not expert evidence - opinion not based on police officer’s expertise

CRIMINAL LAW - evidence - hearsay evidence - evidence contained in induced statement of witness - where witness does not adopt the statement - circumstances of making statement - late disclosure of information concerning police contact with witness - “Shanghai surprise” - inapposite description of what occurred - where statement contains words and locations not within the knowledge of the witness - where witness concerned she may be charged if she did not co-operate - reliability of evidence - whether unfair prejudice in allowing the statement to be used for a hearsay purpose

CRIMINAL LAW - evidence - not a very good witness - misunderstanding between counsel - video of identification procedure not led in chief - Prosecutor believed identification not in issue - sought to lead evidence to bolster credibility of witness - unpersuasive application - where misunderstanding apparent in the course of argument - identification evidence important - leave granted

CRIME — Appeal and review — Application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – applicant convicted of a single conspiracy to import offence having multiple importations of a controlled substance – where appeal against conviction dismissed and special leave refused - whether a single conspiracy charge was an abuse of process – whether jury directions were appropriate - applicant raises arguments already raised and dealt with on appeal – no new evidence – application dismissed

CIVIL PROCEDURE – application for leave to appeal from decision dismissing action for defamation summarily – contest as to basis for primary judge’s decision – whether proposed appeal provided the occasion for appellate consideration of the decision in Bleyer v Google Inc – where pleading admittedly deficient – relevance of considerations of proportionality to discretion to grant leave to replead

CRIME - accessory before the fact to murder - trial by judge alone - circumstantial evidence case - where deceased was shot whilst he was asleep in his unit in a security building - where assailants entered the unit by unlocking the front door with a key in their possession - where unsuccessful attempt made by assailants to gain access to deceased’s unit two days prior - where accused asked to repair the front door of the deceased’s unit one week before the killing - whether the accused provided a key and/or information to enable access to the unit where the deceased resided - where accused the only person who could have provided a duplicate key - where accused made admission indicating that he had some involvement in setting up the entry of the assailants - evidence of accused’s knowledge of unsuccessful attempt two days prior - relevance of motive - where no reasonable explanation consistent with the innocence of the accused - accused found guilty

CORPORATIONS — Winding up — Public examination of directors, officers and others — Summons to attend court and be examined — Failure to attend at the examination — Whether an arrest warrant should be issued

SUCCESSION – family provision – claim by adult child for provision out of the deceased’s estate – claimant is one of four adult daughters of deceased – beneficiaries under deceased’s will are other three adult daughters, adult grandson and deceased’s wife – beneficiaries had close relationship with deceased despite difficult and sometimes abusive conduct of deceased – lack of close relationship and lengthy estrangement between deceased and claimant – modest estate – no property designated as notional estate – net assets of claimant and husband greater than estate and significantly greater than the three beneficiaries who put their financial circumstances in issue – not satisfied that adequate provision not made for claimant – summons dismissed

ADMINISTRATIVE LAW – summons for judicial review – whether Racing Appeals Tribunal has jurisdiction to amend particulars of charge – summons dismissed

JUDICIAL REVIEW – Administrative law – decision of State Parole Authority to refuse parole – “terrorism offender” – application and construction of Division 3A of Part 6 of the Crimes (Administration of Sentence) Act 1999 (NSW) – whether Parole Authority misconstrued s 159C(1) – whether Parole Authority had regard to irrelevant material and failed to have regard to relevant material – whether there was jurisdictional error – whether there was error on the face of the record

CIVIL PROCEDURE – payment into court – party seeks leave to substitute cash with an unconditional bank guarantee

JUDICIAL REVIEW – criminal proceedings – review of appeal to District Court – guilty plea entered in Local Court – application to traverse plea on appeal – application for leave to appeal out of time – application dismissed – whether arguable case of jurisdictional error JUDICIAL REVIEW – procedure – time limits –summons filed out of time in Court of Appeal – application to review District Court judgment – applicant legally represented when plea entered – extension of time to appeal to District Court refused – application for judicial review out of time – timely but invalid notice of appeal – public interest in finality – no arguable case of jurisdictional error – Uniform Civil Procedure Rules 2005 (NSW), r 59.10

LAND LAW – strata schemes – by-laws – scope of subject-matter – purposive limits to the power to make by-laws – Strata Schemes Management Act 2015 (NSW), s 136(1) LAND LAW – strata schemes – by-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on keeping animals contravenes provision – Strata Schemes Management Act 2015 (NSW), s 139(1) STATUTORY INTERPRETATION – use of dictionaries – whether three words comprise a composite statutory criterion WORDS AND PHRASES – “harsh, unconscionable or oppressive” – Strata Schemes Management Act 2015 (NSW), s 139(1)

CRIMINAL LAW - Crime Commission examinations - where witnesses advised examinations would not be disclosed - where material relevant to murder trial - whether transcripts should be produced to the court

PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – Whether order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) should be made prohibiting the holding of a public assembly – Object of proposed assembly to draw attention to legislation before the Parliament – Nature of the balancing exercise to be conducted – Identified right of free speech to be balanced against the public health risk posed by the proposed assembly – Other avenues available to the defendant to draw attention to concerns about proposed legislation – Inability of the defendant to force compliance with elements of safety plan – Medical evidence establishing the existence of a significant risk to public health if assembly proceeds – Order made

OCCUPATIONS – legal practitioners – solicitors – conflict of interest – litigation about property joint venture – solicitor acting for trustee of unit trust owning half of property – solicitor also acting for unit-holder making resulting trust and misleading & deceptive conduct claims – conflict of interest CIVIL PROCEDURE – representation of parties – solicitor acting for parties not in the same interest – leave of court – Uniform Civil Procedure Rules 2005 (NSW) r 7.25

EQUITY - Judicial Advice - Application under s 38 of the Powers of Attorney Act 2003 (NSW)

HIGH RISK OFFENDER – application for Extended Supervision Order – committed numerous rapes in 1996 – released in 2015 – supervised since December 2016 – breach of ESO in 2018 – duration of ESO – electronic monitoring

STATUTORY APPEAL – appeal from decision of the Local Court under s 53(3)(b) of the Crimes (Appeal and Review Act 2001 – whether question of law – meaning of “interlocutory order” – nature of test under 126B of the Evidence Act – exclusion of evidence of protected confidences – error conceded

COSTS — Party/Party — Bases of quantification — Whether indemnity costs should be ordered — Whether the plaintiff had engaged in relevant delinquency — Whether case unmeritorious COSTS — Party/Party — Bases of quantification — Whether indemnity costs should be ordered — Where one Calderbank offer and one Offer of Compromise/Calderbank offer made — Whether rejection of Calderbank offer unreasonable — Whether court should “order otherwise” under UCPR 42.15A — Where no reason or explanation provided as to why plaintiff should compromise its claim — Where the plaintiff succeeded on two of three issues but ultimately lost the case

CIVIL PROCEDURE — Pleadings — Striking out

CIVIL PROCEDURE – application to strike out defence – application for default judgment – home loans and purchase of taxi plates – six defendants – multiple securities – first defendant bankrupt – relevant principles

CIVIL PROCEDURE – Discovery – Whether circumstances exceptional under Practice Note SC Eq 11 – Where documents reveal information solely within the knowledge of the party from whom discovery is sought

TORTS — intentional torts — personal injury — historic sexual abuse of children being cared for at a childcare centre — whether assaults occurred TORTS —vicarious liability —volunteers — whether first defendant a volunteer or employee NEGLIGENCE — whether duty to children breached — whether reasonable steps to avoid risk of harm to children could have been taken — compliance with regulatory requirements — whether child protection policy in operation — whether supervision was adequate NEGLIGENCE — whether duty owed to mothers of child plaintiffs –– nature of psychological injuries suffered — whether duty breached — whether causation established EVIDENCE — admissions — whether made with authority and so admissible under s87 of the Evidence Act 1995 EVIDENCE — admissibility — whether child unavailable to give evidence — s63 Evidence Act and Dictionary definition of unavailable EVIDENCE — tendency evidence — admissibility of children’s disclosures and defendant’s admissions — probative value of tendency evidence EVIDENCE — civil standard of proof — nature of the burden of proof under s140 of the Evidence Act EVIDENCE — witness evidence — evidence of children’s disclosures — reliability of evidence where children were not cross-examined

LAND LAW — Leases — Assignment of leasehold interest — Whether effective delivery of deed EQUITY — Remedies — Specific performance — Where damages in lieu appropriate — COVID-19 pandemic — Operation of special COVID-19 regulations

PROCEDURE – Supreme Court procedure – funds in court – order funds to be paid out – proposed second defendant joined to proceedings – orders

LAND LAW – caveats – where prior caveat lapsed - lodgment of caveat claiming same interest as previous caveat - lodgment with leave of court – where leave necessary to preserve interest of mortgagee CIVIL PROCEDURE – default judgment – default in filing defence – where defendant may have arguable defence – where defendant must file a defence CIVIL PROCEDURE – stay of proceedings - pending proceedings in other court - common issues in both proceedings – risk of inconsistent judgments – where proceedings in Federal Circuit Court are further developed

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made – conditions

CRIMINAL LAW – sentence – trial for murder – plea of guilty to manslaughter not accepted by Crown – offender found guilty of manslaughter – use of firearm – unlawful and dangerous act

APPEAL – security for costs – UCPR r 51.50 – special circumstances established – appellant has no assets in Australia to enable satisfaction of judgment but is able to request funds as needed from husband in China

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Actual knowledge — Reading will aloud before execution — Sufficiency of evidence

EVIDENCE — privileges — legal professional privilege — whether documents created for the dominant purpose of obtaining professional legal advice – whether affidavit supporting claim of privilege was admissible – held, affidavit evidence of subjective intention admissible as relevant but not decisive – whether primary judge erred in inspecting documents subject of privilege claim – held, no error in inspecting documents to confirm the number of relevant documents – leave to appeal refused

Proceeds of Crime – restraining orders – no question of principle

SUBPOENA – r 33.4 UCPR – company suing former employee for breach of confidence – subpoena issued to new employer – whether documents sought are relevant – whether fishing – documents sought could possibly throw light on the issues in the case – not necessary to prove that such documents exist or that, with such documents, the plaintiff will succeed at trial.

CIVIL PROCEDURE — application to strike out, stay or cross vest proceedings — jurisdiction — where foreign company pursuing a debt under contract for shipment of goods — where defendant Victorian incorporated company — where consignee New South Wales incorporated company — factors relevant to cross vesting — application dismissed

CRIMINAL LAW - evidence - admission - where police inform witness what they thought happened after the witness made a statement - concern that knowledge may increase her level of confidence under cross-examination - unfair prejudice - probative value - evidence that accused aware of drug debt - drug debt part of motive for killing - where drug debt disputed - probative value high - prejudice incalculable - evidence admissible

CIVIL PROCEDURE – pleadings – application to amend Commercial List Statement – lengthy history of purported amendments – necessity to exclude irrelevant allegations

EQUITY – equitable remedies – relief against penalties – parties enter into Deed of Call Option with defendants as grantor and plaintiff as grantee – plaintiff prohibited by clause 8(a) from causing any caveat to be registered on title of property – clause 8(b) records acknowledgement by parties that cl 8(a) is an essential term and that breach of cl 8(a) entitles defendants to immediately terminate Deed – plaintiff lodges caveat on title of property – defendants terminate deed – plaintiff claims cl 8(b) is unenforceable as a penalty – held that cl 8(b) is not collateral or accessory to cl 8(a) – held that even if cl 8(b) was a secondary stipulation it should not be characterised as a penalty having regard to defendants’ interests in the performance of obligation under cl 8(a) EQUITY – equitable remedies – relief against forfeiture – contract terminated for plaintiff’s breach of an essential term – plaintiff claims relief against forfeiture where defendants have suffered no loss and plaintiff would lose valuable rights if termination allowed to stand – whether relief against forfeiture available – whether plaintiff had proprietary interest in land – conduct of defendants not shown to have contributed to breach – plaintiff’s breach held to be wilful – plaintiff’s claim for relief against forfeiture fails CONTRACTS – waiver – election – whether defendants waived right to terminate for plaintiff’s breach – whether defendants elected to affirm contract – held no waiver by delay, no implied waiver and no waiver in accordance with requirements of contract – plaintiff fails to establish affirmation – defendants’ conduct not inconsistent with the exercise of the right to terminate for breach