Cases and authorities

CONTRACTS – Interpretation – management agreement – objective determination of parties’ intention – mercantile agency – ownership of property purchased from nominated business account operated by agent in accordance with agreement – separate question unable to be answered because rights may depend on the nature and effect of termination about which no party adduced satisfactory evidence - preliminary question not answered.

GAMING AND WAGERING – public lottery – plaintiff claiming to have entered winning numbers but unable to produce ticket – substantial unclaimed prize from 1997 MISLEADING AND DECEPTIVE CONDUCT – where plaintiff claimed to have presented winning ticket –cause of action for misleading and deceptive conduct accrued on ticket being rejected and discarded – statute barred by limitation period in s 82 of Trade Practices Act and s 68 of Fair Trading Act – damage not proven – judgment for defendants

DEFAMATION – defamatory matter – where material published in local newspaper and on the internet – where defendant admitted majority of pleaded imputations conveyed – remaining imputations found to have been conveyed – plaintiffs defamed – judgment for plaintiffs DEFAMATION – defences – defence of justification not established DEFAMATION – remedies – permanent injunction – aggravated damages

Common Law – Administrative Law – termination of plaintiff from PhD program conducted by defendant – appeal to Student Appeal Board of defendant dismissed – many asserted grounds for judicial review – misconception as to nature of primary appeal – statement of claim dismissed

COSTS — Costs assessment — Determination — Power to disallow certain costs — Whether legal costs claimed are fair and reasonable — Entitlement to a specified gross sum instead of assessed costs

CRIME — confiscations — forfeiture order — proceeds of indictable offence or instrument of serious offence

CIVIL PROCEDURE – hearings – family provision – separate hearing application – prejudice to parties – whether a separate hearing could potentially save time and cost – overlap of evidence limited SUCCESSION – family provision – claim by de facto partner – proceedings not commenced within time –whether sufficient cause shown to extent time – estate fully administered – lack of documents and fading memories – reliance on deed of family arrangement – prejudice to defendant

COSTS — Appeals — whether Court should make order as to costs of the proceedings below where no order was made by the primary judge – where on appeal the Court was not informed of the reason for not making an order as to costs at the time of the principal judgment – cost should follow the event – no issue of principle

SENTENCING — appeals — appeal against sentence — misapplication of principle — whether sentencing judge failed to assess objective seriousness — whether sentencing judge erred in determining starting point for sequences 6 and 7 — whether sentencing judge erred in failing to give full effect to historical sentencing practices — historical child sexual assault offences — indecent assault — carnal knowledge — construction and application of s 25AA Crimes (Sentencing Procedure) Act 1999 — consideration of interaction between s 25AA and s 6(3) Criminal Appeal Act 1912 — grounds of appeal not made out — appeal dismissed

CRIME – bail – release application – show cause offence – import commercial quantity of a border controlled drug offences – proceeds of crime offences – application for bail refused

CONTRACTS – Breach of contract – Forms of breach – Non-performance – Where, in the Torok case, plaintiff contracted with first defendant to build a floating home – Defendant failed to complete project within the contracted period and refused to deliver the uncompleted floating home to the plaintiff without further payment beyond the contract price – Where, in the Gauci case, the plaintiff contracted with the second defendant (being the first defendant’s company) to build a floating home and second defendant failed to complete the project; plaintiff sued for return of her deposit – Held: in the Gauci case, during the hearing the second defendant consented to judgment against it in the amount of the deposit plus interest. In the Torok case, the Court made a declaration that the plaintiff is the legal owner of the floating home and is entitled to possession and control of it. CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Rule in Hadley v Baxendale – Where, in the Torok case, plaintiff sued for damages for rental income that he would have earnt from leasing out the floating home, a bank loan and additional labour/repairs on the floating home that the plaintiff had to pay for as a result of the first defendant’s non-performance, as well as insurance and mooring fees – Held: plaintiff entitled to damages for lost rental income, as defendant knew this was what the plaintiff intended to do with the floating home when completed; plaintiff also entitled to damages for additional labour/repair costs, etc., and for the amount of the bank loan and interest paid on that loan; however, plaintiff not entitled to damages for cost of insurance and mooring fees because plaintiff would have had to pay those costs in order to rent out the floating home.

CIVIL PROCEDURE – Pleadings – Leave sought to file proposed amended pleading – Abuse of process – No reasonable cause of action – Tendency to cause prejudice, embarrassment or delay – Where proposed pleading embarrassing and disclosed no reasonable cause of action – Leave to file proposed amended pleading refused CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings –Abuse of process – No reasonable cause of action disclosed – Where demands made for payment in settlement of matter before proceedings commenced – Where plaintiff unlikely ever to be able to plead a reasonable cause of action – Where defendant required to incur expense in defending proceedings – Proceedings dismissed CIVIL PROCEDURE – Inherent power – Abuse of process – Whether orders prohibiting plaintiff from commencing new proceedings dealing with same subject matter without leave appropriate – Whether commencement of new proceedings should be conditional on payment of costs of earlier proceedings – Orders not made

CRIMINAL LAW – Practice and procedure – Juries – Illness of juror giving rise to a possible absence of one week – Whether juror should be discharged – Accused’s third trial – COVID-19 pandemic – Whether trial should continue with a jury of 10 – Where the trial was in its final stage – Where the jury had already deliberated for six full days – Juror discharged – Order to proceed with a jury of 10.

CIVIL PROCEDURE – Debt recovery – Quantum of debt determined JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable

SUCCESSION – Will construction – Residuary clause in Will of deceased provides for gift to brother unless “[he] has already died or does not survive me or dies before attaining a vested interest” and then to her niece – Meaning of “before attaining a vested interest”

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — subpoena issued for production of criminal records of prosecution witnesses — subpoena set aside — whether legitimate forensic purpose behind subpoena

ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Failure to give adequate reasons for decision – Assessment of whole person impairment under Motor Accidents Compensation Act 1999 (NSW) – Reasons Inadequate – Certificate set aside

CIVIL PROCEDURE — Hearings — Adjournment – immediately prior to commencement of hearing CIVIL PROCEDURE — Pleadings — Amendment — whether plaintiff permitted to recast case at late stage

CORPORATIONS – liquidators – whether defendant liquidator personally liable for costs – whether liquidator entitled to pay costs from assets of company in liquidation – principles at [3]-[20] – liquidator provoked the litigation – liquidator’s actions infused with self-interest – adversarial stance – wholly failed –liquidator’s conduct unreasonable – unjust for creditors including plaintiff to bear liquidator’s costs via remaining assets of company in liquidation

TAXES AND DUTIES – land tax – s 10AA(3)(b) of the Land Tax Management Act 1956 (NSW) - exemption for land used for primary production – whether land was used for primary production – whether the dominant use of the land was for the maintenance of horses for the purpose of selling them or their natural increase or bodily produce

Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to whole of evidence – Where prosecution case wholly dependent upon acceptance of truthfulness and reliability of complainant's account – Where jury assessed complainant's evidence as credible and reliable – Where witnesses gave unchallenged evidence of specific recollections, practices and routines inconsistent with acceptance of complainant's account ("unchallenged inconsistent evidence") – Where Court of Appeal required to take into account forensic disadvantage experienced by applicant – Whether prosecution negatived reasonable possibility that applicant did not commit offences – Whether Court of Appeal required applicant to establish offending impossible to raise reasonable doubt – Whether unchallenged inconsistent evidence required jury, acting rationally, to have entertained doubt as to applicant's guilt. Criminal practice – Appeal – Video evidence – Where evidence of complainant and other witnesses recorded – Where Court of Appeal viewed recorded witness testimony – Whether proper discharge of appellate court's function necessitated review of recorded witness testimony. Words and phrases – "beyond reasonable doubt", "compounding improbabilities", "credibility and reliability", "function of the appellate court", "function of the jury", "impossibility", "improbability of events", "invariable practice", "jury's advantage in seeing and hearing the witnesses", "negatived the reasonable possibility", "opportunity witnesses", "realistic opportunity for the offending to have occurred", "religious ritual", "routines and practices", "significant forensic disadvantage", "significant possibility that an innocent person has been convicted", "solid obstacles to conviction", "standard and burden of proof", "unchallenged evidence", "uncorroborated", "video-recordings of the witnesses at trial". Crimes Act 1958 (Vic), ss 45(1), 47(1). Criminal Procedure Act 2009 (Vic), ss 276(1)(a), 378, 379(b)(i). Judiciary Act 1903 (Cth), s 37. Jury Directions Act 2015 (Vic), ss 4A, 39.

CORPORATIONS — Winding up — Approval of remuneration — Where liquidator appointed as receiver of trust assets — Receivers obtained directions regarding priority of $8.5 million proceeds of crime order — Receiver deals with ATO regarding estimated tax debt of $7-$13 million — No tax returns for 10 years — Claim by criminal solicitors for $1.573 million — Family members lodge proofs of debt totalling $11.5 million — Not straightforward — Lack of assistance — Lack of records — Remuneration approved in amount sought

FAMILY LAW — Adoption — Recognition of foreign adoption under s 116 of the Adoption Act 2000 (NSW) — Declaration under s 117 of the Adoption Act 2000 (NSW) — Application for a consent dispense order under s 67(1)(d) of the Adoption Act 2000 (NSW) — Application to dispense with requirement to give notice of application to the Child’s natural parents under s 88(4) of the Adoption Act 2000 (NSW).

CIVIL PROCEDURE – subpoenas – undertaking in relation to documents produced – whether leave should be granted to use documents in another court – personal injury proceedings seeking damages for sexual abuse by plaintiff’s father – father convicted of multiple offences – defendant’s criminal record produced under subpoena by NSW Police - Mareva injunction sought in the United Kingdom to prevent dissipation of proceeds of pending sale of defendant’s property – where a need for defendant’s criminal record to be placed before court in the United Kingdom – leave granted to use criminal record in Mareva injunction proceedings

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – Application for dismissal – Whether no reasonable cause of action because proceedings are statute barred – Whether proceedings are an abuse of process – Where the plaintiff has already been compensated for damages in a class action – Application dismissed

JUDGMENTS AND ORDERS — Court of Appeal – whether order requiring vacant possession be stayed pending the resolution of appeal proceedings – COVID-19 pandemic – no issue of principle

COSTS — Party/Party — Court’s discretion — primary judge’s assessment of a party’s commercial interests — whether primary judge erred in determining a party achieved a substantial victory.

CRIME – appeals – appeal against conviction – fresh evidence – where neither applicant nor co-conspirator gave evidence at trial – where co-conspirator gave evidence at sentence that he only claimed to be preparing to carry out a terrorist attack to manipulate applicant into marrying him – whether evidence given by co-conspirator at sentence was fresh evidence – whether fresh evidence gave rise to miscarriage of justice EVIDENCE – privileges – immunity – immunity in crime for conspiracy between husband and wife – where applicant and co-conspirator were married during timeframe of conspiracy – whether at the time immediately prior to the introduction of the Criminal Code Act 1995 (Cth) the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife – whether the Criminal Code, s 11.5, inconsistent with any common law immunity

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Whether executor is justified in entering into a settlement of claims against the estate — Whether executor should be indemnified out of the estate

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Trustee’s ability to allow claim or to compromise proceeding —

CIVIL PROCEDURE — ex parte interlocutory injunctions — orders made for a short period until inter partes hearing

CIVIL – leave application – leave to apply out of time – Supreme Court Costs Assessment Scheme – assessment of legal costs – costs agreement – costs of the summons – unrepresented plaintiff – question of costs to be determined on the papers – question of disadvantage in responding to costs application – grant of leave to plaintiff – rights in relation to legal costs – reasonable conduct of defendant – unreasonable delay of plaintiff - Court discretion to award costs – exceptional delay without satisfactory explanation

CIVIL PROCEDURE –Proceedings brought by person under legal incapacity – Settlement of proceedings – Court Approval – No points of principle

PROCEDURE — Subpoena for production of documents — Where connecting phrase “relating to” used — Whether subpoena should be set aside

HIGH RISK OFFENDERS — preliminary hearing — application for interim supervision order and order for examination by court-appointed psychiatrists or psychologists — where orders opposed by defendant — conditions — test for imposition

CRIMINAL LAW – sentencing – murder and manslaughter – senseless killing over drug debt – a little bit of money – sentencing after trial – two offenders convicted of murder – three offenders convicted of manslaughter – assessment of objective criminality – parity – where joint criminal enterprise escalated at the scene – where one offender produced a knife and used it – others unaware that knife would be used – offender employed varying degrees of violence – one behaving like a chook with its head cut off – motive for offence – love triangle unlikely explanation – relevant considerations on sentence

CRIME - sentence - murder - where offender intended to rob victim at his own home – where victim stabbed to death in the course of the robbery - where offence committed over thirty years ago - where offender discovered following findings from a recent review of DNA evidence retained from crime scene - issue of delay – need to sentence according to prevailing sentence practices at the time of the offence – aggravating factors of planning, use of a weapon, committed in home of victim, committed for financial gain - offender with a lengthy criminal record - no remorse shown - poor prospects of rehabilitation – concerns for reoffending – older offender - offender in poor health – special circumstances

CIVIL PROCEDURE - service outside Australia - proceedings in which permitted - application to dismiss proceedings - rule 11.6 UCPR – where prescribed notice not served on defendants – whether this Court was an inappropriate forum - whether proceedings have insufficient prospects of success to warrant putting the defendants to the time, expense and delay of defending the claim – whether test under r 11.6 was the same as the test under General Steel Industries Inc v Commissioner for Railways (NSW) -claims under ss 18 and 21 of the Australian Consumer Law – representations alleged to have been made in the United Arab Emirates concerning an employment contract in that place – where representations allegedly made by family members of the plaintiff on behalf of UAE company - whether representations were misleading and deceptive – whether defendants engaged in unconscionable conduct - all claims had poor prospects of success - proceedings dismissed PRIVATE INTERNATIONAL LAW - jurisdiction - non-exercise of jurisdiction - forum non conveniens - connecting factors – juridical advantage - claims under ss 18 and 21 of the Australian Consumer Law – where no corresponding rights in foreign jurisdiction – where representations made to plaintiff in Australia – where damage suffered in Australia – local court was not an inappropriate forum

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 23.4 – Application for medical examination of plaintiff and plaintiff’s biological mother – Whether to order blood or buccal sample for medical testing – Where plaintiff’s condition may have been caused by genetic factors instead of or in addition to defendant’s negligence

CRIMINAL LAW – Crown appeal against sentence – attempt to pervert course of justice – offender pleaded guilty to making false statement to police – statement gave alibi to friend being investigated for sexual assault – offender sentenced on agreed facts – whether sentencing judge erred in failing to find that offender instigated idea of a false statement – whether error in assessment of objective seriousness – whether sentencing judge failed to have regard to full extent of offender's criminality – whether sentence manifestly inadequate – appeal dismissed

CRIME – appeal against sentence – Commonwealth offence – conspiracy to import drugs - failure to take into account the utilitarian value of the plea of guilty – re-sentencing required – parity principle and its application – relative role in conspiracy – sentence below quashed and new sentence imposed.

CRIMINAL LAW – sexual offences alleged against multiple accused – confusion as to basis of liability – principal in the second degree – joint criminal enterprise – where earlier decision of the Court quashed a co-accused’s conviction – no challenge to earlier decision – concession by Director of Public Prosecutions – multiple offences – appeal upheld in relation to convictions on some counts – convictions on other counts confirmed – aggregate sentence quashed – matter remitted to District Court for re-sentencing

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – whether Crown’s duty of disclosure breached – appellant charged with counts of sexual intercourse with person over 10 and under 14 – appellant’s mobile phone seized pursuant to warrant – Crown brief referred to download of information from mobile phone being available – Crown case statement referred to text message sent by accused to complainant – appellant did not seek access to download – Crown disclosed witness shortly before trial – no objection or application for adjournment – Crown identified witness from downloaded information – whether duty of disclosure extended to fact that Crown had identified witness from downloaded information – nature of duty of disclosure considered – whether verdicts otherwise unreasonable – appeal dismissed

HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists

CIVIL PROCEDURE — Interlocutory applications in the Duty List — Where prior orders of the Court require the applicant to seek leave before filing a notice of motion returnable in the Duty List– Where the applicant has made numerous failed applications for leave and a further application is made based upon the occurrence of the coronavirus pandemic

CONTRACTS — Remedies — Damages — Damages after specific performance — claim for additional damages — whether actions of defendant was caused ascertainable loss or damage

CRIMINAL LAW – Practice and procedure – Juries – Self-represented accused – Request by jury for copies of final addresses of the Crown and the accused – Whether request should be met – Where the accused made inflammatory and scandalous submissions to the jury in the course of his address – Where the accused made submissions unsupported by the evidence – Whether the accused’s address should be redacted before being provided to the jury

APPEAL - further evidence - special grounds - whether further evidence relevant to appeal confined to question of law - whether further evidence not obtainable with reasonable diligence - Supreme Court Act 1970 (NSW), s 75A(8) WORKERS COMPENSATION - appeal from Workers Compensation Commission constituted by President - appeal confined to question of law - whether President erred in disregarding evidence of psychiatrist - distinction between identifying meaning of expert report and evaluating evidence - whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment - definition of injury in (former) s 4(b)(ii) of Workers Compensation Act 1987 (NSW), considered

BAIL – appeal in Court of Criminal Appeal – juvenile offender – non-parole period to expire before or not long after appeal hearing – pandemic is extra risk of incarceration – discussion of meaning of special or exceptional.

COURT – application to transfer oppression suit from Corporations List to Family Court – s. 1337H Corporations Act 2001 (Cth) – principles at [22]-[31] – whether in the interests of justice – parties same in both proceedings – proceedings equally advanced – a third proceedings not proposed to be transferred – oppression suit likely to be determined first – overlap in issues – risk of inconsistent findings– Family Court has jurisdiction to determine all issues while this Court does not – any benefit by early determination of oppression suit simplifying issues in Family Court outweighed by additional costs and dislocation of multiple proceedings – capital gains tax exemptions for Family Court orders – proceedings transferred