Cases and authorities

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where surveillance report sought to be relied on as additional relevant information before Appeal Panel — where report was commissioned after medical assessment certificate issued — whether Appeal Panel erred in rejecting the report ADMINISTRATIVE LAW — Hearing rule — Hearing — Oral or written hearing — whether Appeal Panel must address submission seeking oral hearing before determining any ground of appeal

CONTRACTS — Remedies — Damages — Assessment — Re-opening case — Assessment of damages upon further evidence adduced by parties — Delay to development project caused by breach — Whether plaintiff entitled to claim full period of delay for purposes of determining damages based on evidence — Calculation of land taxes incurred over period CORPORATIONS — Formation — Pre-registration contracts — Whether evidence established that “a person” purported to enter a contract on behalf of or for the benefit of a company prior to registration — Whether conduct of company shareholders and director capable of ratifying purported agreements after registration — Requirements of Corporations Act 2001 (Cth), s 131

CIVIL PROCEDURE — Dismissal of proceedings for ongoing non-compliance with court orders and directions – Whether non-compliance with discovery orders over substantial period warrants dismissal of proceedings – effect of late remediation of non-compliance. CIVIL PROCEDURE — Discovery – Non-compliance with discovery orders – Ongoing non-compliance with orders to produce financial documents held in electronic form – late remediation of non-compliance. COSTS – Bases of quantification – Whether indemnity costs are appropriate – Whether costs should be payable forthwith – Whether gross sum costs order appropriate

DISCOVERY – relevance to fact in issue – focus on pleadings – facts in affidavits may not be a fact in issue in the proceedings – discovery not ordered on matters going to credibility – [2]-[3], [58] EVIDENCE — Privilege — joint privilege – ex-wife said to agree to waive privilege – husband did not agree – privilege not waived – [34] EVIDENCE — Privilege — Client legal privilege — Whether issue waiver — earlier retainer of solicitor before drafting of documents in issue – plaintiff pleaded special disadvantage including lack of legal advice, ignorance of rights in relation to business and incapacity due to substance abuse – inconsistent and unfair to maintain privilege – privilege waived – [36]-[38], [43] PROCEDURE – Notice to produce – rule 21.10(1)(a) Uniform Civil Procedure Rules 2005 (NSW) – implicitly assumes relevance of document referred to in pleading or affidavit – where production opposed, Court must consider whether relevant to fact in issue – production of laptop, hard drive, mobile phones, cloned hard drive and email password refused – [57]-[60] SUBPOENA – application for leave to issue subpoena in New Zealand – material may be obtained by other means with less expenses – unnecessary to trouble proposed recipient with subpoena – leave refused – [69]-[75]

SUCCESSION – Probate and administration – Rectification of wills – Where Will does not carry out the testator’s intentions because the will does not give effect to the testator’s instructions – Claim for rectification of Will under s 27 of the Succession Act 2006 (NSW) – Principles relevant to rectification –Where instructions for the Will given by deceased to his solicitor – Whether the Will does not give effect to the deceased’s instructions

CIVIL PROCEDURE — application for appointment of expert — judicial review proceedings — applicant refused legal aid — enquiry under Crimes (Appeal and Review) Act 2001 (NSW) — conviction for sexual intercourse without consent — applicant alleges tampering with court transcript — metadata — nature of judicial review — costs

REPRESENTATIVE PROCEEDING – CIVIL PROCEDURE – multiplicity of proceedings – whether representative proceeding ought to be effectively stayed pending appeal from decision staying duplicative proceeding CIVIL PROCEDURE — Stay of proceedings — where orders sought an effective stay pending appeal

CRIMINAL PROCEDURE – mental health – fitness hearing – where report of forensic psychologist tendered – where plaintiff believes charges to be politically motivated – where plaintiff found fit to be tried – where plaintiff found fit to instruct counsel

PARTNERSHIPS AND JOINT VENTURES — Partnerships — Terms of partnership agreement — Partnership agreement not in writing – Dissolution of partnership – Winding up partnership business – Sale of partnership assets – Entitlements to capital and profits.

INSURANCE – a corporate financial planner and holder of an Australian financial securities licence issued under the Corporations Act 2001, gave financial advice to the plaintiffs, who are four separate groups of its clients – based on this financial advice the plaintiffs advanced funds into a series of recommended investments, which failed as a result of the global financial crisis – the licenced entity was deregistered and its principal made bankrupt – the plaintiffs sued the licenced entity’s professional indemnity insurers pursuant to Corporations Act, s 601AG on the basis that the deregistered entity had a liability to the plaintiffs and that the professional indemnity insurance policies covered that liability immediately before its deregistration – whether the deregistered licenced entity had a liability to the plaintiffs at the time it was deregistered – whether the deregistered entity’s insurance policy with the defendants covered any liability that the deregistered entity had to the plaintiffs – whether exclusion clauses in the insurance contract excluded the defendants’ liability to the plaintiffs.

CRIMINAL LAW – application to extend time for leave to appeal – proposed sentencing appeal – utilitarian value of plea – Xiao error – lack of merits of proposed appeal – length of delay – explanation for delay – application to extend time refused

APPEAL – sentence – child sex offences – applicant sexually abused his daughter – 17 offences over nine-year period – aggregate sentence of imprisonment of 14 years with a non-parole period of 10 years and six months – conceded error in specification of standard non-parole periods – Court to exercise sentencing discretion to determine whether lesser sentence warranted – objective gravity of offences – victim aged between five and 15 years during period of offending – lesser sentence not warranted – appeal dismissed

CRIME – Sentence Appeal – application of discount for plea to aggregate sentence and not to indicative sentences – failure to specify non-parole period for each sentence having a Standard Non-Parole Period – manifest excess

CRIME - Proceeds of Crime – Variation and vacation of orders under the Proceeds of Crime Act 2002 (Cth)

COSTS — party/party — exceptions to general rule that costs follow the event — alleged misconduct of a party

EQUITY — RESTRAINT OF TRADE — Employment – interlocutory injunction application against former director and regional manager - where confidentiality agreement included post-employment non-solicitation restraint - whether employee was employed by the plaintiff - whether serious question to be tried as to reasonableness of the restraint and whether employee is a party to the agreement – balance of convenience – discretionary factors – delay – injunction refused

LAND LAW — Co-ownership — whether order to pay occupation rent ought to be set aside – where the trustee was not the registered proprietor at the time the demand for occupation rent was made – effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner – order not set aside

APPEAL – application for leave to appeal – proposed appeal from order dismissing summons for judicial review – decision of the Legal Services Commissioner not to conduct an internal review of a decision of the Law Society to close a complaint against a solicitor –power to conduct a review at the “absolute discretion” of the Commissioner – no arguable error identified in primary judge’s decision to dismiss the summons

COSTS — Party/Party — Bases of quantification —Whether party represented by its own in-house lawyers entitled to recover costs after abolition of Chorley exception EQUITY — Equitable remedies — Declaration — Whether issue hypothetical

TAXES AND DUTIES – Duties Act 1997 (NSW) s 63 – will of mother divided residuary estate equally between three siblings who were also executors – executors agreed to appropriate one of four properties in residuary estate to plaintiff – where value of that property exceeded one third of the then value of estate – whether such appropriation was in or towards satisfaction of plaintiff’s entitlement under the will – whether the beneficiaries thereby agreed to vary the trusts in the will

CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — where proceedings commenced by wife against husband in Family Court of Australia — where money claims subsequently commenced by third party family members in Supreme Court on the basis of documented loan agreements — whether in the interests of justice to transfer money claims to Family Court of Australia – application for transfer refused

CIVIL PROCEDURE — Interim preservation — Freezing orders

COSTS — procedure and discretion — funds paid into court as security for costs — significant interest accrued — application pursuant to the UCPR for funds to be paid out — no entitlement to the funds paid into court — application dismissed.

ADMINISTRATIVE LAW – judicial review – whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar – whether Delegate’s decision contained jurisdictional error – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations – whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion. WORKERS COMPENSATION – Workers Compensation Guidelines – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment – whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion.

CORPORATIONS – winding up – leave to appeal from decision setting aside a statutory demand – Corporations Act 2001 (Cth) s 459G – where offsetting claim to retention monies founded on contractor’s acceptance of owner’s repudiation of construction contract – whether affidavit “supported” the s 459G application – whether necessary for supporting affidavit to contain the legal basis of the claim – challenge to primary judge’s factual finding that affidavit supported the s459G application – whether injustice demonstrated

ADOPTION – “Aboriginal child” - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW) - sufficient to show child was descended from people who lived in Australia before British colonisation - Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved APPEAL - leave - procedural fairness - applicant alleged submissions supplied after hearing not considered by primary judge - significance of failure to apply to primary judge and delay - whether proper outcome could be reached without a rehearing - leave refused

ENVIRONMENT AND PLANNING — Offences — Prosecutions — whether commencement of criminal proceedings time barred LIMITATION OF ACTIONS — Operation of bar — National Parks and Wildlife Act 1974 (NSW) s 190(1) — whether distinct limitation periods can be relied on in the alternative — whether prosecutor must elect which limitation period is relied on

CRIMINAL LAW – Appeal against conviction – where evidence of de facto relationship between prosecution witness and applicant – where prosecution witness completes evidence before the jury without being made aware of a right to object under s 18 of the Evidence Act – where judge raises s 18 the next day and recalls the witness – voir dire conducted – where witness says she would have objected if informed of the right to object – where judge determines the evidence was admissible – procedural unfairness to the witness – whether error could be corrected retrospectively – whether judge made the witness aware of the effect of s 18 on the voir dire – application of proviso – whether substantial miscarriage of justice by wrongful admission of evidence – forensic choice of counsel – whether different result would have been reached if s 18 raised when witness gave evidence before the jury – no procedural unfairness to applicant – whether Court of Criminal Appeal satisfied that the guilt of the applicant had been proved to the criminal standard. SENTENCING – whether sentence manifestly excessive – no challenge to assessment of objective seriousness of offences or to the applicant’s subjective case.

CRIME – appeals – appeal against sentence – whether appropriate adjustment made to non-parole period following finding of special circumstances – discretionary – adjustment as specifically intended – no error CRIME – appeals – appeal against sentence – aggregate sentence – offences of sexual and physical violence and dishonesty – whether manifestly excessive – indicative sentences not excessive – totality principle properly applied – aggregate sentence not unreasonable or plainly unjust STATUTORY INTERPRETATION – s 22(1) of Crimes (Sentencing Procedure Act 1999 – imposing a lesser penalty than would otherwise have been imposed for plea of guilty – sentence assessed in summary jurisdiction under Ch 3 Pt 3 Div 7 of Criminal Procedure Act 1986 – jurisdictional limit under s 268 of Criminal Procedure Act – whether starting point before discount may exceed jurisdictional limit

CRIME – Sentence – application for leave to appeal against asserted excessiveness of sentence – possession of counterfeit money – utility of sentencing statistics based on small sample – utility of decided cases in determining whether sentence is manifestly excessive

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Whether sentence manifestly inadequate – Residual discretion CRIME – Drug offences – Aiding and abetting commission of an offence by another person, namely importing border controlled drug – Commercial quantity of methamphetamine – 166 kilograms of pure methamphetamine – Respondent a “facilitator” who used inside knowledge of DHL Global Forwarding Ltd operations

CRIME – accessory after the fact to a serious indictable offence – trial judge instructed jury that it was sufficient for the Crown to prove only one of the three acts of assistance alleged – whether a specific unanimity direction was required – different jurors may have taken different paths to their conclusions of guilt – substantial miscarriage of justice CRIME – alleged lies relied on by Crown as both evidence of consciousness of guilt and as constituting assistance of the principal offender – no inconsistency – Edwards directions properly given – r 4 Criminal Appeal Rules CRIME – unreasonable verdict – open to the jury to convict on the evidence before it SENTENCING – aggregate sentence quashed – whether court can resentence applicant in respect of other offences covered by the aggregate sentence and of which the applicant was properly convicted – ICO may effectively be backdated – s 7(1) Criminal Appeal Act

APPEAL – where charges found to be duplicitous – where leave sought to amend charges to nominate particular working days as separate counts of breach APPEAL – whether failure to take into account relevant consideration – whether denial of procedural fairness ENVIRONMENT AND PLANNING – consent – where alleged breach of terms of development consent

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 31.24 – Conference between expert witnesses – Whether to direct that there be a single or separate joint liability conclaves split by expertise

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) s 92 – Whether the claims assessor failed to respond to the insurer’s substantial and clearly articulated arguments – Whether the claims assessor failed to set out lawful reasons

ADMINISTRATIVE LAW – Judicial review – Review of the decisions of a Local Court Magistrate and District Court Registrar – Civil and Administrative Tribunal Act 2013 (NSW) s 34B – Whether the Magistrate improperly granted leave to bring substituted proceedings in the Local Court – Whether the Registrar improperly dismissed a request that he disqualify himself for apprehended bias

LAND LAW – conveyancing – contract for sale – off-the-plan purchase – purchase of home unit and carspace – where home unit constructed as an adaptable unit and carspace marked with symbol for disabled persons access – purchaser rescinds contract under rule in Flight v Booth – whether presence of symbol means that owner would not have exclusive use of carspace or gave rise to risk of unauthorised use – held that owner would have exclusive right to possess and enjoy carspace – held that owner would have right to remove or conceal the symbol – purchaser not entitled to rescind contract – contract remains on foot – no warrant for deposit to be returned to purchaser MISLEADING OR DECEPTIVE CONDUCT – off-the-plan purchase of home unit and carspace – purchaser not informed that unit would be constructed as an adaptable unit and that carspace would be marked with symbol for disabled persons access – not shown that at time of contract vendor had that intention – no false or misleading representations made by vendor – conduct of vendor not misleading or deceptive or likely to mislead or deceive

EQUITY – subrogation – lender advances money on basis that it would receive registered mortgage over property – part of money advanced used to pay out existing registered mortgage over property – due to irregularities in transaction lender unable to have its mortgage registered – lender claims entitlement to be subrogated to existing mortgage – whether unconscionable for mortgagor to deny lender’s claim to have the existing mortgage kept alive for its benefit – claim not defeated by fact that there were no dealings between lender and mortgagor – any negligence on the part of lender not relevant where lender fails to obtained bargained for security – not necessary to show that mortgagor was guilty of any wrongdoing or misconduct – no arguable defence shown – appropriate case for summary judgment against mortgagor – Uniform Civil Procedure Rules 2005 (NSW), r 13.1

APPEAL – appeal from Local Court – appeal from costs – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – review decision – continued application of the Legal Profession Act 2004 (NSW) – costs order in Local Court – saving and transitional provisions of the Legal Profession Uniform Law Application Act – jurisdiction of Court – cost assessment and review appeal decision – whether amended summons brought out of time – application to extend time – refusal to extend time

PROCEDURE – leave to bring proceedings under section 444E(3) Corporations Act – leave sought by liquidators –principles at [6]-[7] – leave granted PROCEDURE – application under section 445D Corporations Act to terminate deed of company arrangement (DOCA) – whether liquidator an “interested person” under section 445D(2)(c) – principles at [85] – liquidator was an “interested person” CORPORATIONS – defendant companies subject to DOCAs executed in 2014 – appointment of voluntary liquidator in 2019 – whether appointment of liquidator valid – sections 440A(1), 444E, 446A and 446AA Corporations Act – transition to deemed creditors’ voluntary winding up – can appoint voluntary liquidator while DOCA on foot – principles at [42]-[52] CORPORATIONS – construction of a DOCA – principles at [65]-[74] – statutory construction appropriate – poses problems given DOCAs often poorly drafted – DOCA provided company must not appoint liquidator during period of the deed – resolving inconsistency – relevant clause should be construed as subject to the Corporations Act – right to appoint liquidator under Pt 5.5 remained but exercise of that right was an event giving rise to consequences specified in the DOCA – appointment of voluntary liquidator valid and effective CORPORATIONS – TRUSTS – deed of company arrangement – need to act impartially between creditors – requirements for DOCA to establish a trust – principles at [96]-[107] – creditors’ trusts – principles at [108]-[112] – DOCAs did not create a trust – DOCAs should be terminated and funds remitted to liquidators

PRACTICE AND PROCEDURE – freezing orders – no issue of principle

COSTS – party party – general rule that costs follow the event – costs of unsuccessful costs application – no issue of principle

APPEAL — contracts — misleading or deceptive conduct — pre-contractual statements and representations — where one party enters into contract relying on certain representations made that presales condition would be removed CIVIL PROCEDURE — cross-claims — against third party CORPORATIONS — agency — type of agent — finance broker — liability of agent — for representations — where representations made by director of sub-agent of party to contract — where representations relied on — where party to contract bound by conduct of its agent

TORTS – negligence – medicine –whether plaintiff provided valid consent to medical treatment – valid consent proven – judgment for the defendant.

CRIMINAL LAW – appeal against sentence – applicant re-sentenced to aggregate sentence of imprisonment to be served by way of intensive correction order – where terms of orders required correction – variation of orders – Criminal Appeal Rules(NSW) r 50C(3) – orders varied

CIVIL PROCEDURE – subpoenas – whether lawyer/client privilege applies to documents – whether second defendant entitled to costs of his motion for access and inspection – limited access granted

CORPORATIONS – external administration – application to approve the remuneration of court appointed receivers for work already performed –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time-charged basis.

CIVIL PROCEDURE — pleadings — amendment — late application for amendment

ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses. CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement. CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses. CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration.

BUILDING AND CONSTRUCTION – adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – whether jurisdictional error – whether Adjudicator failed to consider the contract