Cases and authorities

LIMITATION OF ACTIONS – Personal Injury – workplace injury – s 151D of Workers’ Compensation Act 1987 – whether significant forensic disadvantage – plaintiff is exception to general rule and should be granted leave.

CRIME – appeal and review – appeal by prosecutor against evidentiary ruling by Local Court in summary proceedings – not “an interlocutory order” – ruling not amenable to a grant of leave to appeal EVIDENCE – improperly or unlawfully obtained – record of interview conducted following arrest – whether magistrate failed to apply correct onus of proof in determining whether arrest was unlawful – whether magistrate then erred in excluding interview pursuant to s 138 Evidence Act 1995 (NSW) – jurisdictional error established – order to exclude evidence set aside ADMINISTRATIVE LAW – where magistrate erred with respect to onus of proving that evidence was unlawfully obtained – magistrate proceeded to exercise discretionary judgment to exclude – jurisdictional error

HIGH RISK OFFENDERS – preliminary hearing – whether matters alleged would if proved justify an ESO – whether offender poses an unacceptable risk of committing a serious terrorism offence

CIVIL PROCEDURE – Discovery – General Discovery – application of principles of election, waiver and estoppel on account of previous deliberate non-pursuit of orders – principles do not apply – Categories of documents – delay – quick, cheap and just – discovery ordered in amended terms.

WORKERS COMPENSATION — Limitation period — Extension of time — Workers Compensation Act 1987 (NSW), s 151D(2) — Where the plaintiff did not make an application until after he was retrenched — Leave granted

CRIME – appeal – sentencing - drug offences - supply commercial quantity of a prohibited drug – further count of participating in a criminal group on a Form 1 SENTENCING – appeal against sentence – severity - whether sentence was manifestly excessive – whether sentencing judge misused statistics – whether judge diminished the applicant’s favourable subjective circumstances – where sentencing judge found special circumstances arising out of psychiatric report and family circumstances – where applicant’s role was mostly that of a runner but occasionally more high-ranking – where supply well above commercial quantity and highly lucrative – sentence not manifestly excessive – whether parity with co-offenders – where each offender charged with different offences depending on amount of drugs they supplied – where applicant had a number of prior serious offences and gaol time on his record – no justifiable sense of grievance – appeal dismissed

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse with a child under 10 years of age – extensive medical evidence – post-mortem findings – judge alone trial – onus of proof – adequacy of reasons – interpretation of certain injuries – unreasonable verdict

CRIMINAL LAW – sentence appeal – nine counts comprising two indecent assaults, one sexual intercourse without consent, two cause person to take intoxicating substance, four produce child abuse material – sentence of imprisonment for 20 years with a non-parole period of 15 years – whether denial of procedural fairness – whether applicant’s late plea of guilty treated as an aggravating factor – whether sentence imposed manifestly excessive – sentence manifestly excessive – applicant re-sentenced.

CRIMINAL LAW - appeals - sentencing - historical offences - indecent assaults of a male and attempted buggery SENTENCING - appeal against sentence - severity - applicant a young person at time of offending - where victim six years younger - where offending endured for a number of years and involved different forms of activity - some offences opportunistic and others involving planning - whether sentencing judge erred by assessing objective seriousness of four offences on a collective basis - whether sentencing judge failed to take into account the sentencing options under the Child Welfare Act 1939 (NSW) - whether sentencing judge erred in finding that the offending resulted in substantial injury - whether sentence manifestly excessive - appeal allowed

PROCEDURE – Payment into court – Discretion approving payment out of court – Payment out of court in accordance with proposed consent orders.

LAND LAW — Caveats — Removal of caveat — Withdrawal of caveat by caveator — where there are uncertainties involved in determining the effect of the relevant agreements — where, noting the probable indefeasibility of a registered mortgage, a sufficiently serious question to be tried has not been established — where, in the circumstances, the balance of convenience is in favour of an unconditional order for the withdrawal of the caveat LAND LAW — Caveats — Caveatable interest —where mortgage duty was not paid in respect of the relevant agreements or the caveat — where the failure to attend to the requirements of s 227 of the Duties Act 1997 (NSW) means that the caveat should be withdrawn

SUCCESSION — Family provision — Claim by adult child — Whether adequate and proper provision made for the plaintiff and, if not, the nature and quantum of the provision to be made — where applicant and deceased estranged through no fault of the applicant — where testator has failed to make sufficient provision for the applicant — order for further provision made

CIVIL PROCEDURE – parties – commencement of proceedings without naming defendant – proceedings for possession of land – where plaintiff was registered proprietor – where land occupied by squatters – order made under r 6.1A UCPR JUDGMENTS AND ORDERS – default judgment – where no defendant named – where judgment in rem sought – Rules dispensed with

DAMAGES — Quantification of damages to which the plaintiffs or defendant would be entitled — Variation of earlier judgment — Reformulation of quantum after reopening of case granted to read and tender additional evidence on damages

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Adult daughter’s share in estate of mother reduced by duly executed codicil — Whether testatrix comprehended effect of codicil SUCCESSION — Contested probate — Undue influence — Whether matters pleaded amounted to coercive undue influence — Whether mind of testatrix overborne by conduct of beneficiaries

COSTS — party/party — appeals — general rule that costs follow the event applied

CRIME – Appeals – appeal against conviction – sexual assault offences – applicant convicted of one count and acquitted of two counts – whether jury verdict was unreasonable or unsupportable having regard to the evidence – open to the jury to be satisfied of guilt beyond reasonable doubt.

CIVIL PROCEDURE – default judgment – default in filing defence – difficulty in answering pleadings CIVIL PROCEDURE – summary disposal – dismissal of proceedings - pleadings – striking out – whether claim is statute barred – whether plaintiff’s disability suspended limitation period – adjournment for plaintiff to obtain expert evidence

CIVIL PROCEDURE — Summary disposal — Default judgment for plaintiff — Assessment of damages

CIVIL PROCEDURE — Probate and administration of estates — Contentious proceedings CIVIL PROCEDURE — Interlocutory applications — where application to set aside notice to produce and notice of motion — where notice to produce and notices of motion imprecise, misconceived and otherwise incompetent

CORPORATIONS — Voluntary administration - Winding up — Remuneration — Whether voluntary administrator and liquidator for corporate trustee may charge remuneration and expenses against trust property — Where voluntary administrator’s and liquidator’s remuneration and disbursements for investigation, care and preservation of trust property

CIVIL PROCEDURE – hearings – duty list – frequent interlocutory applications invoking parens patriae jurisdiction – application for leave to file further such application – no basis for urgent interlocutory application to duty judge – application for leave refused CIVIL PROCEDURE – jurisdiction – inherent jurisdiction – abuse of process – procedural regulation of unwarranted applications – application for leave to file allegedly “urgent” interlocutory application refused

APPEALS – leave – extension of time – appeal from Workers Compensation Commission refusing substantial extension of time to appeal from arbitrator’s decision – requirement of “exceptional circumstances” in order to grant extension – Deputy President found exceptional circumstances not established – Deputy President considered appeal not fairly arguable – no basis for grant of leave to bring a further appeal made out

HEALTH – health practitioner – refusal to order reinstatement of applicant as a psychologist – Health Practitioner Regulation National Law s 163B – whether NCAT could take into account applicant’s spent convictions – Criminal Records Act ss 12, 16(1)

CIVIL PROCEDURE – hearings – procedural fairness – judge preferring evidence of one expert over another – earlier role of expert addressed during proceedings – basis of preference based on earlier role – no unfairness ENVIRONMENT AND PLANNING – consent – conditions – construction – transfer of land to Council – public purpose – importation of valuation principles from the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) JURISDICTION – Land and Environment Court – valuation of land – no compulsory acquisition – proceedings transferred from Equity Division – conferral of jurisdiction on transferee court – Civil Procedure Act 2005 (NSW), s 149B, 149E – Class 4 jurisdiction exercised – Land and Environment Court Act 1979 (NSW), s 20(1(cj) JUDGMENTS AND ORDERS – reasons – duty to give reasons – failure to give reasons – constructive failure to exercise jurisdiction distinguished VALUATION – methods of valuation – “before and after” method – developed land on alluvial floodplain – whether alternative hypothetical developments the most financially advantageous use of land – proposed alternative development subject to natural features of the land and associated constraints on use – whether alternative development would have received approval VALUATION – valuation of land – principles – whether detention and management of upstream water flows by downstream land owner a “public purpose” to be disregarded in a valuation exercise

CRIMINAL LAW – conviction appeals – gangland violence – gun violence – Brothers for Life (BFL) – spate of shootings directed at rival chapter of BFL – wanton lawlessness – hit list – series of attempted murders – shooting in or near people’s homes and public places – multiple victims – principles applying to joint criminal enterprise and extended joint criminal enterprise – whether evidence of involvement in such enterprises sufficient to establish liability – Crown case dependent on evidence of “roll over” witnesses – conviction appeals dismissed except for three counts. CRIMINAL LAW – sentence appeals – applicants sentenced for range of serious offences arising from gangland violence – Farhad Qaumi and Mumtaz Qaumi also sentenced for murder – cold blooded contract killing – aggregate sentence imposed for each applicant – sentencing Judge took into account incorrect standard non-parole periods for some counts – error capable of affecting aggregate sentence for each applicant – whether disparity between the indicative sentences for Farhad Qaumi and Mumtaz Qaumi and that nominated for a co-offender for murder offence – reasonable explanations for different indicative sentences for murder offence – no foundation for legitimate grievance arising from differences between indicative sentences – whether sentencing Judge erred in assessment of objective seriousness of some counts – error not established – where Farhad Qaumi (one count) and Mumtaz Qaumi (two counts) acquitted on appeal on some counts – necessary to re-consider aggregate sentence for each applicant – lesser aggregate sentences for Farhad Qaumi and Mumtaz Qaumi warranted to reflect acquittal on some counts – Farhad Qaumi and Mumtaz Qaumi re-sentenced – lesser sentence for Jamil Qaumi not warranted – sentence appeal of Jamil Qaumi dismissed.

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – denial of procedural fairness – manifest excess – objective seriousness – re-sentence. CRIME – Appeals – Particular offences – Driving offences – Sentencing – Driving occasioning death or grievous bodily harm – Guideline judgment for sentencing – Crimes Act 1900 s 52A. CRIME – Guideline judgment for sentencing – whether or not guideline judgment is followed is a matter of substance – failure by sentencing judge to formally refer to guideline judgment is a relevant but not determinative consideration. CRIME – Re-sentencing – power to re-sentence enlivened where sentencing judge’s discretion has miscarried – an appellate court’s determination of appropriate sentence is, exceptional cases apart, based on material before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct– whether the present proceedings constituted an “exceptional case” – relevance of sentencing judge’s findings of fact for the purpose of re-sentencing – where factual findings infected by a lack of procedural fairness. CRIME – Procedural fairness – where sentencing judge departed from the Agreed Facts without notice to the parties – where factual finding was adverse to the Applicant – requirement of notice to parties. CRIME – Comparative sentences – appropriateness of taking into account comparative sentences where cases share common or similar features – FL v R [2020] NSWCCA 114 considered.

HIGH RISK OFFENDERS – Interim Supervision Orders – Test for imposition – previously subject to Extended Supervision Orders – no opposition by defendant – Interim Suppression Order granted.

COSTS — Party/Party — Orders when proceedings involve multiple parties — First Plaintiff was the only active plaintiff — Other plaintiffs were shareholders joined as interested parties — Bases of quantification — Indemnity basis — Whether proceeding was hopeless — Calderbank offer — Whether unreasonable not to accept offer — Where offer contained complex arrangement including terms going beyond issues in proceedings

OCCUPATIONS ─ Legal practitioners ─ Disciplinary proceedings ─ Removal of practitioner’s name from the roll

NEGLIGENCE – motor vehicle accident – passenger falling from moving taxi – central factual contest as to whether she was engaged in joint criminal enterprise of attempted armed robbery of the driver – where appellant conceded that it was open to find she had possession of a knife but denied using it and denied any robbery – whether evidence supports the finding that the appellant did attempt to rob the driver with the knife – prohibition on awarding damages by operation of s 54 of the Civil Liability Act 2002 (NSW)

PRACTICE AND PROCEDURE – Order for substituted service – No point of principle

DEFAMATION – justification – honest opinion – effect of contextual imputations – other findings on character – re-publication by national broadcaster of interview in which neighbour defames plaintiff – neighbourhood dispute – re-publication liability – aggravated damages

CIVIL PROCEDURE – Court of Appeal – Leave to appeal – Where issue sought to be raised on appeal was not appropriately identified at trial – Not demonstrated that the primary judge fell into error rising above merely arguable – Leave refused

CORPORATIONS – Aboriginal corporation – implied actual authority – where CEO of corporation not director – where CEO instructed solicitor to accept offer of new lease – where Board of Aboriginal corporation had not in fact accepted offer of new lease – where Board had not delegated authority to CEO to bind it to new lease – whether CEO had implied actual authority to bind Aboriginal corporation CORPORATIONS – Aboriginal corporation – ostensible authority – whether CEO held out by Aboriginal corporation as having authority to accept offer of new lease – distinction between agent’s authority to communicate Board’s decision and authority to make decision – whether CEO had ostensible authority to bind Aboriginal corporation

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – No error which goes beyond merely arguable – No issue of principle or question of public importance – Leave refused

CRIME – Appeals – Appeal against aggregate sentence – aggravated break, enter and commit serious indictable offence (sexual intercourse without consent) and two other counts – whether error in assessing objective criminality of count 1 – whether indicative sentence for count 1 manifestly excessive – limitations of sentencing statistics – whether aggregate sentence manifestly excessive.

CONTRACTS — Breach of contract — Consequences of breach – the Plaintiff entered into contract to loan $6M to the borrower (“YIC”) for the purchase of a commercial property, a loan which was arranged through the Defendants – the Plaintiff alleged that the First Defendant, who was retained by the Plaintiff to act on its behalf in the transaction (being of a type with which the Plaintiff was, to the knowledge of the Defendants, entirely unfamiliar), breached its obligations under contract – HELD: the First Defendant was retained by the Plaintiff notwithstanding that the First Defendant was also retained by YIC – the First Defendant breached the express and implied terms of the contract which led the Plaintiff to advance the monies to YIC, and which included a term that the First Defendant would endeavour to ensure that the Plaintiff obtained the same protection that a bank would obtain. CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — representations that the property was worth $20M and that the Plaintiff could not go wrong in lending $6M – failing to pass on to the Plaintiff a copy of the sale contract which showed the purchase price as $4.5M – failing to warn the Plaintiff that YIC had no established means of meeting the interest payments and the repayment of the loan without sale of the property – failing to disclose that there was no reasonable basis to rely on the valuation obtained and that it was imprudent to rely on the valuation – whether advice constitutes misleading or deceptive conduct by silence – the Plaintiff (i.e. the lender) and YIC (i.e. the borrower) were both clients of the Second Defendant – HELD: the First Defendant, through the Second Defendant, engaged in misleading and deceptive conduct which led the Plaintiff to advance monies to the borrower. EQUITY — Unconscionable conduct — Special disability or disadvantage — Other party’s knowledge – HELD: the First Defendant, through the Second Defendant, engaged in unconscionable conduct by taking advantage of the Plaintiff’s lack of experience and by failing to pass on material matter known to the Second Defendant and making statements implying loan was a prudent investment – the unconscionable conduct was a material factor in the Plaintiff proceeding with the loan. CIVIL PROCEDURE — Hearings — Adjournment – Defendants made an application to vacate the hearing on the basis it was to be conducted via AVL due to Covid-19 restrictions – HELD: application to vacate hearing refused, consideration being given to various factors: see [14]. EVIDENCE — Opinion evidence — Exceptions — Expert opinion – admissibility of evidence of banking practices contained in the expert report relied on by the Plaintiff – the expert has many years’ of relevant experience and gave evidence of industry practice – HELD: the expert’s report based on extensive experience of practice in the relevant area is admissible evidence of banking practice and should be received. AGENCY — Liability of agent — For negligence and breach of duty — Solicitor and client – obligations of a solicitor retained to draft security documents – HELD: the solicitor’s retainer was very limited. There was no negligence established and, in any event, the just and equitable apportionment of liability between a negligent solicitor and a defendant who deliberately withheld information and acted as the Defendants had done would require the entire liability to be borne by the Defendants. CONTRACTS — Remedies — Damages – where case of alternative use of money is advanced – Plaintiff advanced evidence (including expert reports) that the money would have been invested into commercial real estate in the Penrith or proximate region – Defendants did not object to the expert reports – whether loss of use of money claim is available where no specific purchase was in contemplation at time of impugned transaction– if loss of use of money claim is available, whether the Plaintiff could recover both interest under s 100 of the Civil Procedure Act 2005 (NSW) and the profit that would have been made on real estate that the Plaintiff would have invested in if it had not loaned the monies – HELD: Plaintiff established the money would have been invested in real estate in the Penrith or proximate region and the likely return from such investment – the Court allowed 20% for vicissitudes – question raised as to whether Plaintiff is entitled to both loss of use of money claim (real estate investment) and s 100 interest – held the Plaintiff was not entitled to both – the damages issue referred to above was identical in relation to the misleading and deceptive conduct claim and unconscionable conduct claim.

CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – Permitting chemotherapy for child where parents decline to consent

ASSOCIATIONS AND CLUBS – no constitution when incorporated – default constitution Schedule 1 of Association Incorporations Regulations 1999 (NSW) – new constitution lodged – no authority to lodge – removed from Register ASSOCIATIONS AND CLUBS – community association – meeting to elect executive body – two competing fractions – election and nomination process did not adhere to default constitution – non-adherence arguably gave rise to more than procedural irregularities – agreed group of persons to act as receivers appointed to conduct election

CIVIL PROCEDURE – Court of Appeal – stay of orders – application for stay of orders requiring payment of costs thrown away on the occasion of a late adjournment application and security for the costs of the appeal – stay sought pending resolution of application in the United Kingdom to vary freezing order – where respondent consents to the variation of the order to the extent necessary to permit the appellant to comply with the orders sought to be stayed – stay sought pending the end of crisis measures in Kazakhstan to address the COVID-19 coronavirus pandemic CIVIL PROCEDURE – Court of Appeal – notice to produce – where served by appellant when the prosecution of the appeal is stayed – where served on a party who objects to the jurisdiction of the Court – whether respondent has submitted to the Court’s jurisdiction or waived his right to object to jurisdiction by seeking costs, security for costs and an order relieving him of the obligation to comply with the notice to produce

CRIME — Appeals — Appeal against conviction — Where applicant found guilty of murder by jury — Where defence counsel withdrew before closing — Where new defence counsel made submission in closing that was not put to relevant prosecution witness — Where trial judge told counsel this approach was not open — Whether trial judge erred in restricting defence counsel’s submission CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Whether trial judge failed to raise a hypothesis consistent with innocence during summing up — Where defence counsel did not request trial judge to alter or add direction to summing up — Whether leave to appeal ought be granted

CRIME — Appeals — Interlocutory appeal — Sexual assault communications privilege — Where court below purported to grant leave for accused to issue subpoena for documents containing protected confidences — Where Crown and accused accepted order should not have been made as relevant provisions not complied with — Subpoena set aside

CRIME – appeals – sentence appeal – several counts of robbery in company – whether sentencing judge failed to consider utilitarian value of plea of guilty – error in calculation established – appeal granted – sentence adjusted

CRIMINAL LAW – Appeal – Sentence – Firearms offences – Knowingly take part in supply of a pistol to a person not authorised to possess such a firearm – Possess a prohibited weapon – Whether sentencing judge failed to properly consider an Intensive Correction Order as an alternative to full-time custody – Where sentencing judge took into account all relevant matters – No error established – Whether sentencing judge failed to apply the principles of parity in sentencing – Where sentencing judge properly took into account different degrees of criminality of the applicant and the co-offenders – No justifiable sense of grievance arising from sentences imposed upon co-offenders – No need to consider manifest excess – Appeal dismissed CRIMINAL LAW – Practice and procedure – Consideration of the imposition of an Intensive Correction Order – Three step process to be applied in determining whether such an order is appropriate – Where sentencing judge took those steps and had regard to all relevant matters in considering how sentence should be served – No error established

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

CRIME – appeals – appeal against conviction – miscarriage of justice – whether the absence of new evidence led to a miscarriage of justice – whether Crown has an obligation to call all expert witnesses available CRIME – appeals – appeal against conviction – whether the decision for a joint trial and the multiplicity of charges resulted in a miscarriage of justice – whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdict CRIME – appeals – appeal against conviction – application for discharge of jury – alleged juror bullying – whether the trial judge erred in refusing to discharge the jury CRIME – appeals – appeal against conviction – admissibility of tendency evidence CRIME – appeals – appeal against conviction – unreasonable verdict – whether the jury must have been left with a reasonable doubt – advantage enjoyed by the jury – whether the available evidence was capable of meeting the submissions – reliability of complainant CRIME – appeals – appeal against sentence – manifest excess – gravity of offending – where the facts lay on the spectrum of least serious instances of offence to worst category – range of possible sentences that could be imposed CRIME – appeals – appeal against sentence – evidence of good character – whether the sentencing judge erred in not giving weight to prior good character – good character taken into account but given no weight CRIME – appeals – appeal against sentence – whether error by the sentencing judge – consideration of non-exculpatory duress – treatment of prospects of rehabilitation – consideration of applicant’s mental health – treatment of victim impact statements