Cases and authorities

ADMINISTRATIVE LAW — remedies — prohibition and certiorari — certiorari — where delegate and committee decisions the subject of application for judicial review were superseded by decisions of the Legal Profession Admission Board — whether relief in nature of certiorari available ADMINISTRATIVE LAW — ground of review other than procedural fairness — irrelevant and relevant considerations — findings of fact — whether decision makers made wrong assumption as to facts ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended — whether alleged brevity of reasons provided can found an apprehension of bias or lack of impartiality ADMINISTRATIVE LAW — procedural fairness — what proper exercise of procedural fairness required of decision makers ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record

CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Silence – Remedies – Measure of damages – Australian Consumer Law, sections 18 and 236(1).

CIVIL – PROCEDURE – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of New South Wales – whether the claim for damages is likely to exceed jurisdictional limit of the District Court – discussion of test and its application – transfer ordered

PRACTICE AND PROCEDURE – appeal – application for leave to appeal – interlocutory orders – parens patriae jurisdiction – repeated applications by parent – conditions of listing of further applications in Equity Division – further listing refused – interlocutory relief sought in nature of final relief

PRACTICE AND PROCEDURE – stay of judgment pending appeal – capacity of appellant to pay debt –net worth in illiquid form – liquidation of personal assets during COVID-19 pandemic – short delay pending hearing of appeal – creditor a US citizen – stay of buy-out orders – conditions of stay

CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73

APPEAL – grounds – order of consideration – bias – effect on trial – need to address first BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4) REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3) COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5) PRACTICE AND PROCEDURE – open justice – holding “informal directions hearings” in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried

JUDICIAL REVIEW – application for judicial review of District Court decision resentencing applicant on an appeal from the Local Court – whether unreasonable for District Court to have taken into account specific deterrence – Minister for Immigration and Citizenship v Li – whether District Court failed to consider alternatives to custodial sentence and whether sentence of imprisonment should be served by way of an ICO

APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant’s mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings favourable to applicant - error established - other sentencing decisions dissimilar to applicant’s case in significant respects - other sentencing decisions did not identify sentencing range - principles to be applied in use of other sentencing decisions on sentence - resentencing of applicant under s.6(3) Criminal Appeal Act 1912 (NSW) - objective gravity of offences - harm done to child victims of cybersex offences - offences involved real victims and not police officer posing as a child - applicant manipulated, threatened and humiliated victims - troubled and immature 18-year old offender - applicant’s moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order

CORPORATIONS - voluntary administration - application by administrators for leave to deal with secured property – where secured party neither consents nor opposes leave being granted – where secured party’s interests are protected by amounts held exceeding value of secured property – where proceeds of sale are to be held pending determination of dispute between secured party and deed administrator.

CIVIL PROCEDURE – Pleadings – Striking out – Where plaintiff company sued former employee (first defendant) alleging that he took the plaintiff’s confidential information and gave it to his new employer, a rival group of companies (second to fourth defendants) – The present hearing concerned the plaintiff’s motion to strike out the defendants’ defences on grounds that the first defendant allegedly deleted the confidential information (held on USB sticks) which he is said to have taken from the plaintiff, thereby causing impairment to the case the plaintiff aims to prove – Where the corporate defendants, upon being told by the plaintiff of its allegations against the first defendant, took steps that included: immediately suspending the first defendant and specifically instructing him to preserve all documents he may have taken from the plaintiff and not delete any of them, and, a week or so later, the corporate defendants terminated his employment and redeployed another of their employees (with whom the first defendant had had contact) to an unrelated part of the business – Held: the plaintiff’s strike out motion was rejected and the defendants’ defences should not be struck out because, in relation to the corporate defendants, they should not, in all the circumstances, be deprived of the opportunity to contend that they are not to be held responsible for the first defendant’s conduct and, further, in relation to all defendants, because it was not established on the evidence that the first defendant succeeded in permanently deleting any of the documents on his USBs (or that if he had permanently deleted some, that the plaintiff could not reproduce those documents in some way), and therefore the plaintiff had not established that its case was impaired by the first defendant’s actions.

PROCEDURE — Application for leave to file Amended Statement of Claim — Adequacy of particulars — Whether Defendants would suffer prejudice.

CONTEMPT — criminal contempt — breach of orders — application for discharge from contempt — evidence of change in circumstances — application granted — applicant to be released from correctional centre

CIVIL PROCEDURE – pleadings – amendment – hearing date imminent – case proposed to be substantially expanded – inadequate justification and explanation CIVIL PROCEDURE – pleadings – relevance – no apparent relevance – to be set aside

CONTRACTS – CONTRACT FOR SALE OF LAND – deposit – where contract provided for payment of deposit by cheque – where agent by email directed vendors to pay deposit by EFT to its trust account – where fraudster send subsequent email to vendors directing payment to a different account – deposit evidently lost – whether agent acting as vendor’s agent for this purpose – whether relevant authority conferred on agent by term on the agency agreement

LAND LAW – possession of land – mortgages – default – whether defence discloses any defence to the claim– dispute concerning the amount payable – where plaintiff seeks possession of land not monetary judgment – where money is owed on the loan agreement notwithstanding – where no defence to claim – summary judgment entered CIVIL PROCEDURE – service – whether effected – where registered office not attended – where business runs own risk of not receiving notice

CRIME – Appeal against conviction – cruelty to animal contrary to s 530 of the Crimes Act – construction of s 530 and, in particular, s 530(2) – “pest animals”, “extermination” to be given ordinary meaning – animal killed and treated cruelly was one of two (2) pest animals – appellant exterminating pest animal – conviction quashed APPEAL – appeal from Local Court – question of law alone – error to give ordinary words a technical means and thereby extend the reach of criminal offence – error is error of law alone

CORPORATIONS — Winding up — Liquidators — Appointment — Where current liquidator’s registration expired and cannot be contacted — Whether s 90-15 of the Insolvency Practice Schedule (Corporations) permits Court to appoint another as liquidator or additional liquidator

CRIME – Appeals – Appeal against sentence – Whether unnecessary to make a finding of special circumstances – Manifest excess – Whether aggregate sentence imposed was unreasonable or plainly unjust – Gravity of offending

LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility — Funds advanced by mortgagee pursuant to registered mortgage procured by alleged fraudster purportedly on behalf of mortgagor company — Mortgaged property sold — Which of innocent mortgagee and innocent mortgagor entitled to proceeds

CIVIL PROCEDURE — professional negligence —separate determination of questions — application for an order for the assessment of the quantum of loss to be undertaken separately to all other issues in proceedings — application dismissed — risk of contrary findings where issues already determined are the subject of consideration at future proceedings

CONTRACTS – construction – interpretation – joint venture deed – subsequent deed conditional on rescission of existing deed – delivery in escrow – whether subsequent deed came into force – whether termination under subsequent deed valid CONTRACTS – construction – interpretation – joint venture deed – termination conditional on non-occurrence of event by certain date – inconsistency – omission of words by construction under Fitzgerald v Masters principle EQUITY – fiduciary duties – fiduciary relationships – parties to joint venture – breach of obligations – director of company party to joint venture – whether director liable as accessory to the company’s breach of fiduciary obligation

PRACTICE AND PROCEDURE — application to vacate hearing date — application granted

CIVIL PROCEDURE — subpoenas — application to set aside — abuse of process — objection to production — legal professional privilege — documents sought under subpoena covered by legal professional privilege — documents sought subject to a previous finding of legal professional privilege

Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant requiring legal practitioners to undergo criminal records enquiry as part of the approval process to visit high risk restricted inmates – Whether decision unlawful – Whether decision unreasonable – Whether decision infringed or removed the right of a high risk inmate to choose a legal practitioner Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant to deny the plaintiff access to AVL facilities for the purposes of conferring with his legal representative – Where the defendant took into account the fact that conversations over AVL could not be monitored – Where defendant also took into account the security risk which would arise if the plaintiff were granted access – Whether defendant’s decision was unreasonable Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to the practice of the defendant to permit limited monitoring of calls between the plaintiff and his legal representative – Whether such a practice unlawful – Whether such a practice amounted to an impermissible intrusion into legal professional privilege Statutory interpretation – Prison legislation – General principles applicable to the interpretation of such legislation – General reluctance of Courts to interfere in matters of prison administration – Necessity to recognise the difficulty of the task of managing prisons – General recognition of Parliament’s intention to give those responsible for the management of prisons a broad discretion commensurate with their task Human Rights Law – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Where defendant required that communications to which the plaintiff was party during visits in custody be in English – Where plaintiff asserted a right to be able to speak Arabic – Whether the right to freedom of expression encompassed a right of the plaintiff to be able to speak in the language of his choice – Whether provisions of the regulations pursuant to which the defendant acted in requiring that conversations be conducted in English were invalid constitutionally or otherwise Words and phrases – “in English” – “based on”

HIGH RISK OFFENDER – serious sex offender – application for continuing detention order– availability of program in custody – safety of community – repeated incarcerations – history of failure to comply with supervision – circumstances of disadvantage – risk of future violent and sexual offending

CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar’s decision CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11 CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency

PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment

CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – interlocutory order made to facilitate settlement at proposed mediation – registration of group members – group members who did not register barred from receiving any settlement amount – order that group members barred from bringing subsequent proceedings against defendant – power to make order CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – registration of group members – group members who did not register barred from receiving any settlement and from bringing subsequent proceedings against defendant – whether discretion to make order miscarried

CRIMINAL LAW — particular offences — drug offences — supply prohibited drug — indictable quantity — traffickable quantity — possession of prohibited drug SENTENCING — appeal against sentence — severity — whether sentence manifestly excessive — whether sentencing judge erred by failing to take into account a legislative amendment that allowed the offence to be dealt with summarily — grounds not made out SENTENCING — relevant factors on sentence — multiple offences — totality — whether sentencing judge erred by failing to properly apply the totality principle — ground not made out

CRIMINAL LAW – sentence appeal – exposing children to drug manufacturing process – applicant rented basement to manufacturer – family lived upstairs – possession of firearms – whether sentencing judge erred in finding drug offence affected objective seriousness of firearms offences – where applicant played no role in drug manufacture – objective seriousness of firearms offence – relevant considerations – applicant re-sentenced

CRIMINAL LAW – appeal against conviction – child sexual assault offences - appellant convicted of one count and acquitted of two counts – whether verdicts inconsistent – whether Markuleski direction should have been given in conjunction with a Black direction – whether conviction unreasonable and not supported by the evidence CRIMINAL LAW – sentence appeal – sexual intercourse with child under 10 years - Crown appeal against asserted inadequacy of sentence – community based sentence imposed – importance of statutory guideposts – principles to be applied in sentencing for a s 66A Crimes Act offence – non-custodial sentence manifestly inadequate – question of re-sentence – discretion not to intervene – relevance of respondent’s advanced age and respiratory ill-health – COVID-19 pandemic – discretion exercised

COSTS – Party/Party – Court’s discretion – Where the second/third defendants, having been found liable to the plaintiff, sought to vary the usual order that costs follow the event, so that they would only need to pay 80 per cent of the plaintiff’s costs (on the ordinary basis) – Where the basis for seeking such an order was that the plaintiff abandoned and/or failed on some of its claims at, or shortly before, the hearing – Held: the Court allowed the second/third defendants to offset their costs in relation to an expert report they had obtained to meet a claim which the plaintiff abandoned and a percentage of counsels’ fees relating to that claim, but the Court otherwise declined to vary the usual order that costs follow the event. Furthermore, the second/third defendants were ordered to pay only 75 per cent of the plaintiff’s costs (on the ordinary basis) of this application for costs, because the second/third defendants succeeded in relation to the costs of the expert report and a portion of counsels’ fees.

CRIME – proceeds of crime – extension of time to comply with orders under s 39(1) of Proceeds of Crime Act 2002 (Cth) – concern at tardiness and lack of good faith – lesser extension granted

PRACTICE AND PROCEDURE – Whether to grant leave to file an amended statement of claim – Explanation for delay – Prejudice – Limitation period

PRACTICE AND PROCEDURE – subpoenas – unrepresented litigants – application for leave to issue three subpoenas pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.3 – whether subpoenas sought to be issued have a legitimate forensic purpose or not otherwise liable to be set aside – leave granted to issue two subpoenas – leave refused to issue third subpoena

CORPORATIONS – Corporations Act 2001 (Cth), Sch 2, ss 60-10, 60-12 – determination of remuneration of liquidators and administrators.

NEGLIGENCE ­– LIABILITY – injury to contractor in a coal mine – position of contractor analogous to that of an employee – plaintiff suffered high pressure fluid injury to hand – credit difficulties confronting plaintiff – analysis of evidence – whether plaintiff established that an unknown person found a leak in a hydraulic hose and ignored it – whether plaintiff’s version of facts established on balance – whether plaintiff’s injury reasonably foreseeable – problems with plaintiff’s evidence – whether an unknown person intervened to repair hydraulic fitting – whether plaintiff failed to establish how accident occurred – consequences of failure by plaintiff to establish how accident occurred – whether plaintiff successful in establishing a failure to guard – error in plaintiff’s hindsight approach to that question – application of Civil Liability Act 2002 – failure of plaintiff to establish liability – verdict for defendant.

EVIDENCE - expert evidence - trial judge rejected expert report as beyond witness’ expertise and not disclosing reasoning process - Evidence Act 1995 (NSW), s 79 - no error established NEGLIGENCE - personal injury - plaintiff’s horse fell while warming up before competing in equestrian events – plaintiff’s horse “spooked” by noise made by children near warm-up area - whether plaintiff participating in dangerous recreational activity - whether plaintiff’s harm resulted from materialisation of obvious risk - appropriate level of generality or particularity of “obvious risk of harm” and “dangerous recreational activity” - Civil Liability Act 2002 (NSW), ss 5F, 5K and 5L considered - whether plaintiff had established a reasonable person in defendant’s position would have taken precaution of stationing marshals in warm-up area - significance of risk warning signed by plaintiff as a precaution - Civil Liability Act s 5B(1)(c) considered - appeal dismissed

APPEAL – application for leave to appeal – appeal from summary dismissal of amended claim – where original claim alleging republications subject to defences of absolute privilege – where amended claim alleging only original publication time barred – whether summary dismissal on the basis of amended pleading involved error or was procedurally unfair – leave refused

PRACTICE AND PROCEDURE – search orders – access regime – certain computers and devices seized in executing a search order – where limited, supervised access to those computers and devices granted to the first and fifth defendants in the proceeding by previous orders of the Court – where first defendant filed a motion seeking orders to vary the existing access regime – motion partially resolved by consent – orders made in terms consented to and granting fifth defendant first access before the first defendant for the purpose of maintaining confidentiality in material that is privileged or personal to the fifth defendant and unrelated to the proceedings.

CONTRACTS — Terms — Classification of terms – where evidence required to demonstrate claim of interest in agreement COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – where an extraneous term is required in the Calderbank offer – where not unreasonable for a party to reject that offer

COSTS – Probate and administration of the deceased estate – Deceased died in 2018 – Deceased left a will appointing his two sons as executors and trustees of his estate – Somewhat acrimonious relationship between the two sons – Contentious proceedings commenced – Contest between two sons as to who should be appointed as the executor of deceased’s estate – Each sought, by way of principal relief, his appointment only – Ultimately agreed that an independent solicitor should be appointed to administer the estate and orders were made for that appointment – No adjudication on the merits of the claims by each - Sole issue left for determination is how the costs of the proceedings should be determined

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – One of the Defendants is also an adult child of the deceased whilst the other is an adult grandchild of the deceased – Will of the deceased made some provision (one-quarter of the estate) for the Plaintiff – Estate of reasonable value – Provision also had been made for Plaintiff during lifetime of the deceased – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made – Summons dismissed

ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review.

APPEALS – notice of motion seeking to reverse result of application for leave to appeal – impermissible attempt to re-argue application

OFFER of Compromise – Application to wi thdraw offer during period open for acceptance – Application granted.

PROCEEDS OF CRIME – forfeiture orders – no question of principle

CIVIL PROCEDURE — Interim preservation — Freezing orders — In aid of costs order COSTS — Party/Party — Orders against non-parties — Whether exceptional circumstances exist to make personal costs order against director of unsuccessful corporate plaintiff