Cases and authorities

COSTS - principal proceedings involve strata scheme dispute - application by Notice of Motion for interlocutory orders - applicants determine not to press Notice of Motion - abandonment of claim for interlocutory orders - no hearing of Notice of Motion on the merits - relevant considerations on costs application - whether respondent entitled to costs of abandoned Notice of Motion - order for costs made

COSTS – Lump sum or gross costs orders – Whether lump sum costs order should be made – Appropriate discount to costs actually incurred – Where costs previously ordered to be paid forthwith

CIVIL PROCEDURE — Pleadings — Amendment - Form and content of pleading – s 5B of the Civil Liability Act 2002 - whether the proposed Amended Statement of Claim properly pleads the causes of action alleged – whether the amended Statement of Claim articulates the risk of harm – leave to file amended Statement of Claim refused

CRIMINAL LAW - evidence - limits on re-examination - where witness agrees his evidence may be based on hallucination - whether prior consistent statement capable of re-establishing credibility - where jury aware of earlier consistent statement - witness with long history of psychiatric illness - where attack on credibility predictable - where evidence otherwise admissible - whether evidence ought to have been elicited in chief - probative value slight - potential for unfair prejudice - credibility evidence rejected - a sideshow on a sideshow

CRIMINAL LAW - evidence - application to cross-examine own witness - whether evidence unfavourable - whether prior inconsistent statement - whether witness making genuine attempt to give evidence - relevance of psychotic illness suffered by the witness - first growth Bordeaux - domestic shiraz

LANDLORD AND TENANT – retail and commercial tenancies – recovery of unpaid rent – whether plaintiff complied with Retail Leases Act 1994 – whether plaintiff mitigated loss – assessment of damages – judgment for plaintiff

Aboriginal and Torres Strait Islander peoples – Native title – Representative Aboriginal/Torres Strait Islander bodies – Indigenous land use agreements ("ILUAs") – Where s 203BE(1)(b) of Native Title Act 1993 (Cth) confers on representative body function of certifying applications for registration of ILUAs – Where s 203BE(5) prohibits representative body from certifying application for registration of ILUA unless satisfied that all reasonable efforts made to ensure all persons who hold or may hold native title have been identified and authorised making of agreement – Where s 27(1) of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provides that a Land Council may do all things necessary or convenient to be done for or in connection with performance of its functions – Where Northern Land Council ("NLC") a representative body – Where CEO of NLC signed certificate purportedly as delegate of NLC certifying application for registration of ILUA and stating NLC satisfied that identification and authorisation requirements met – Whether certification function conferred by s 203BE(1)(b) capable of delegation by NLC to CEO – Whether CEO can perform certification function conferred by s 203BE(1)(b) as agent of NLC. Words and phrases – "Aboriginal and Torres Strait Islander peoples", "agency", "agent", "authorised", "body corporate", "certification", "certification function", "delegability", "delegable", "delegate", "delegation", "identified", "indigenous land use agreement", "Land Council", "native title", "natural person", "necessary or convenient", "power of delegation", "representative Aboriginal/Torres Strait Islander body", "representative body". Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 27, 28. Acts Interpretation Act 1901 (Cth), ss 34A, 34AB. Native Title Act 1993 (Cth), ss 203BE, 203BK, 203

APPEALS — Jurisdiction of appellate court — Supreme Court — Application to Supreme Court for leave to appeal decision of Supreme Court APPEALS — Procedure — Stay pending appeal

CIVIL PRACTICE – no appearance by plaintiff at final hearing – proceedings dismissed – freezing order dissolved COSTS – offer of compromise – whether defendant should have indemnity costs from date of that offer COSTS – whether gross sum costs order should be made

PRACTICE AND PROCEDURE – Application for leave to tender evidence in the absence of that evidence having been provided to the opposing party as required by the rules – Proceedings brought by the plaintiff against a number of defendants for damages arising from the collapse of a large number of stone slabs – Where histories provided by the plaintiff to medical practitioners were at odds with surveillance footage obtained by one of the defendants – Application for leave to tender the footage in the absence of prior service on the plaintiff – Appropriate to bring the application ex-parte – Consideration of discretionary factors – Order made granting leave

CIVIL PROCEDURE – Harman undertaking – implied undertaking concerning use of documents – where applicants propose to commence proceedings in the Defamation List – applicants seek to rely in those proceedings on document produced on subpoena by a third party in these proceedings – where that document had been adduced in evidence in these proceedings – whether Harman undertaking extends to that document – whether special circumstances exist justifying use in the proposed proceedings

CORPORATIONS – Where the District Court entered default judgment in favour of the plaintiff with an order that damages be assessed – Where the defendant company was deregistered – Whether an order should be made that ASIC reinstate the registration of the defendant company – Where plaintiff was a person aggrieved by the deregistration – Whether an order should be made for the inspection of the books of a company by creditors and contributories – Where the plaintiff was a creditor – Orders made

CONSTITUTIONAL LAW – Commonwealth Constitution – Chapter III – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the Act is constitutionally invalid – involuntary detention of a citizen by the State – preventative detention orders – whether the Act directs the Supreme Court as to the manner of the exercise of its jurisdiction – judicial discretion – whether the Act creates procedural unfairness – whether the Act is inconsistent with the institutional integrity of the Supreme Court as a repository of federal jurisdiction STATUTORY INTERPRETATION – departure from literal meaning - Terrorism (High Risk Offenders) Act 2017 (NSW) s 39(4) – meaning when read in context – meaning having regard to the purpose of the Act STATUTORY INTERPRETATION – legislative purpose – Terrorism (High Risk Offenders) Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between the association or affiliation and the advocacy of terrorist acts or violent extremism

CRIMINAL LAW – Sentencing – Appeal against sentence – Incorrect standard non-parole period referred to in sentencing – Error established – Applicant required to be resentenced – Lesser sentenced warranted in law in the circumstances

CRIMINAL LAW – Sentence – Appeal – Offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – Where applicant was driving a B-double vehicle along a motorway – Applicant took eyes off the road in order to retrieve a drink and removed both hands from the wheel – Vehicle suddenly left the northbound carriageway, crossed a wide median strip and entered the southbound carriageway where it collided with another vehicle killing the passenger and severely injuring the driver – Two drivers behind forced to take evasive action and collided with the trailer of the applicant’s truck after it had come to rest – Where sentencing judge found that this was not a case of momentary inattention – Whether this was a “typical” case of the kind identified in R v Whyte – Whether aggregate sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment was manifestly excessive – Serious offending – Not a typical case attracting the strict application of the guideline – Level of notional accumulation justified having regard to the injuries sustained to the driver – Finding of manifest excess not supported by reference to sentencing outcomes in other cases – Leave to appeal granted – Appeal dismissed

CRIME – Sentence Appeal – Direction on jury’s care with comparison of handwriting – operation of Rule 4 – no error and no miscarriage

CRIME – appeals – extension of time in which applicant may seek leave to appeal – appeal against sentence – dangerous driving occasioning grievous bodily harm – two victims – whether aggregate sentence manifestly excessive – notional accumulation – appeal dismissed

CRIME — appeals — appeal against conviction — miscarriage of justice – summing up – directions to jury – circumstantial case – applicable principles – McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – whether summing up so lacking in balance and unfair as to occasion a miscarriage of justice – three complaints of substance – complaints made out relevant to the two most significant circumstances relied on in the Crown case – unfairness in the manner in which the jury was directed established

CRIME – Sentence Appeal – non-acceptance of uncontested expert evidence re intellectual disability – inappropriate use of statistics and opinion of Crown on sentence range – manifest excess in light of subjective circumstances – appeal upheld.

CRIMINAL LAW – sentence appeal – aggregate sentences – joint criminal enterprise to commit burglaries – parity with sentences of co-offenders – whether applicant had a justifiable sense of grievance – prosecutorial decisions to charge co-offenders differently – whether error for the judge to assess lesser moral culpability for a co-offender who acted as a lookout – differences in subjective circumstances of co-offenders – leave to appeal refused.

APPEAL – application for leave to appeal against sentence – offence of importing a commercial quantity of a border controlled drug – cocaine imported by sea secreted within legitimate cargo – whether sentencing judge erred in the approach to the assessment of the utilitarian value of the plea of guilty – “Xiao error”

CRIME - sentencing - murder - deceased set on fire twice - second time to "finish him off" - upper range of objective seriousness - genuine remorse - discount for early guilty plea and future assistance to authorities

EVIDENCE – opinion evidence – exceptions – expert opinion – objection to part of expert report of forensic psychiatrist – aspect of evidence not based on expert opinion but on “belief” – evidence excluded

PRACTICE AND PROCEDURE - Application to strike out pleadings - Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Abuse of process – Tendency to cause prejudice, embarrassment or delay

CIVIL PROCEDURE – Freezing orders – Where plaintiff engaged defendant to install air conditioner – Where fire ignited and destroyed plaintiff’s home –Whether risk of dissipation established – Where prospect of impending insolvency not alone a reason to grant freezing order – Where no evidence that defendant would take steps to make himself proof against an order to pay judgment against him – Whether plaintiff demonstrated defendant’s lack of probity - Risk of dissipation of assets not established

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – orders

CIVIL PROCEDURE – pleading – alleged apportionable claim – whether adequately pleaded –where defendants seek to identify a class of 710 concurrent wrongdoers without alleging which of the 710 has caused the loss of which the plaintiff complains and without having a basis to assert that any one of the 710 caused the loss of which the plaintiff complains – whether an abuse of process – whether necessary to plead that plaintiff has cause of action against concurrent wrongdoer

CIVIL PROCEDURE – subpoena – application to set aside – where documents sought date from 1997 to 2020 – where production of documents would not necessarily obviate need for physical investigation of site CIVIL PROCEDURE – subpoena – application to set aside – secondary purpose of subpoena to obtain evidence to justify a cross claim

COSTS – proceedings settled save as to costs – no determination following a hearing on the merits – neither party’s conduct in relation to the litigation unreasonable – appropriate that each party bear its own costs of the proceedings

COSTS – general rule that costs follow the event – plaintiff not able to show that some other order should be made as to the whole of the costs COSTS – where defendant did not press its motion seeking stay of proceedings – significant part of written submissions addressed to this question – some other order should be made as to part of the costs

COSTS — Party/Party — Bases of quantification — Indemnity basis — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers COSTS — Party/Party — Payable out of a fund — Deceased estate

CIVIL PROCEDURE – notice to produce – leave sought to produce redacted version of Agreement – whether redacted information relevant

PRACTICE AND PROCEDURE – Application for summary dismissal – Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 – Defective pleadings – No reasonable prospects of success – Where the plaintiff seeks to bring an action in negligence against the Commonwealth of Australia in respect of an unlawfully cancelled visa and subsequent detention

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CORPORATIONS – derivative action – application for grant of leave by former director of company to bring proceedings in name of company under s 237 of the Corporations Act 2001 (Cth)

CRIMINAL PROCEDURE – Manslaughter – Judge Alone Trial Application by accused – Crown opposition – interests of justice - self-defence issue of reasonableness – complicated issues associated with prior acquittal for murder and overturned manslaughter verdicts – incontrovertibility – application granted.

COSTS — Party/Party — Exercise of discretion — Whether discrete and separable issues justifying departure from order that costs follow event

CIVIL PROCEDURE – Pleadings – Fraud – Amendment – Form and Content of Pleadings – Non-compliance with Rules relating to personal injury – lack of specificity in fraud allegation – leave granted to file amendment over objection. LIMITATION OF ACTIONS – Fraud and personal injury – amendment to allege different cause of action – same or similar facts – operation of Civil Procedure Act – leave granted.

CRIMINAL LAW – Offences – Sentence – Appeal – Importation of a commercial quantity of cocaine – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Necessity to consider all relevant circumstances for the purposes of determining the non-parole period not just those circumstances favourable to the offender – Serious offending involving the importation of a substantial quantity of cocaine – Premeditated offending committed for financial gain – Reliance on sentences imposed in other cases of similar offending – Complaint of manifest excess not made out – Appeal dismissed

PROCEEDS OF CRIME – Freezing orders – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining order – whether frozen property was acquired in circumstances that would not arouse a reasonable suspicion that property was proceeds of an offence – whether exclusion order should have been made in relation to the property – where applicant had provided sufficient consideration and did not have actual knowledge that the property constituted proceeds of an offence – significance of failure to cross-examine – whether inferences sought to be drawn available in the absence of cross-examination.

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where respondent employed by the appellant as an accountant – where respondent resigned following bullying and harassment in the workplace – respondent contacted the appellant’s clients – where no covenant not to compete and no restraint of trade – appellant claimed respondent misused client information and contact list – where appellant made overbearing threats of litigation including criminal prosecution – deed of settlement and release entered into – where clause provided that respondent pay ‘agreed fee’ to appellant – whether deed was unjust in the circumstances – Contracts Review Act ss 7 and 9(2) – challenge to discretionary decision to refuse to enforce the deed AMENDMENT – appeal – notice of appeal – whether new ground of appeal should be permitted – late attempt to rely upon constraint in granting relief contained in Contracts Review Act, s 6(2) – amendment refused

CIVIL PROCEDURE — Court of Appeal — Application — Dismissal under UCPR r 51.50 — Compliance with security for costs — Variation of security for costs CIVIL PROCEDURE — Court of Appeal — Review of order of single judge of appeal — Notice to produce — Ambit of documents — Whether oppressive or vexatious

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – no error made out. PRACTICE – representation of children and young persons in judicial review proceedings – common interest with Secretary – nature of appropriate representation in such cases.

CONSTITUTIONAL LAW - State Constitution - extra-territorial operation of legislation - power to provide for - drafting techniques - desirability of providing explicit legislative guidance as to intended territorial reach of laws STATUTORY INTERPRETATION - legal presumptions - presumption of territoriality - Interpretation Act 1987 (NSW) s 12 - applicants were women of Yazidi ethnicity - plaintiffs claimed they were victims of acts of violence perpetrated upon them in Northern Iraq and Syria by a man who had previously lived in New South Wales - Commissioner and NCAT dismissed application for support because acts of violence did not occur in New South Wales - plaintiffs submitted sufficient connection with New South Wales - nature of territorial nexus of Victims Rights and Support Act 2013 (NSW) with New South Wales - consideration of history and construction of s 12 Interpretation Act, extraterritorial legislative capacity, counterparts and precursors to victims compensation schemes - displacement of legal presumptions - appeal dismissed

APPEAL – interlocutory decisions to strike out pleadings and refuse leave to amend pleadings – application for leave to appeal – claim for compensation for loss of access to controlled access road – statutory construction of Pt 4, Div 5 of Roads Act 1993 – entitlement to compensation – access restricted or denied as a result of road “becoming” controlled access road – meaning of phrase “as a result of the road becoming” a controlled access road – whether road becomes controlled access road by the event of the Minister’s order declaring road to be a controlled access road or by a “course of conduct” – assessment of compensation – “market value of land” – whether Pointe Gourde principle applies in assessment of compensation

CRIME - sentence - appeal against sentence - totality principle - import a commercial quantity of methylamphetamine - found guilty on five counts - degree of overlapping criminality - whether sentence crushing on offender- effect of finding special circumstances

JUDGMENTS AND ORDERS - Court of Criminal Appeal - calculation error - correction of order by Court

CRIME - Appeals - Appeal against sentence - Application for leave to appeal - Multiple offences - Aggregate sentences - One count of conspiring with four others to dishonestly cause a loss to the Commonwealth - One count of dealing with money suspected of being proceeds of crime - Denial of procedural fairness - Manifest excess