Cases and authorities

COSTS — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers —Orders when proceedings involve multiple parties — Bullock and Sanderson orders

CONTRACTS – Formation – Evidence relevant to whether parties entered into agreements – Where agreements partly written and partly oral CONTRACTS – Construction – Identification of terms – Where agreements partly written and partly oral –Reliance on contemporaneous documentation

COSTS – security for costs – relevant factors – cross-claim of applicant – stultification of proceedings – strength of respondent’s claim – quantum and form of order

COSTS — Security for costs — Quantum and form

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings COSTS — Solicitor/Client — Recovery — Restrictions on recovery

CRIMINAL APPEAL – prosecution appeal against sentence – home invasion – specially aggravated break and enter – attempted robbery of drug dealer – gun-fight in suburban street – very grave offence – manifest inadequacy – whether error in assessment of objective criminality – where trial Judge makes global finding in relation to co-offenders – failure to make clear finding in respondent’s case – whether Judge erred in assessment of respondent’s role – sheep who was led – where respondent concedes sentence manifestly inadequate – powerful subjective case – deprivation and dysfunctional family life – whether concession should be accepted – residual discretion

SENTENCING — Appeal against sentence — Severity — whether sentence manifestly excessive SENTENCING — Appeal against sentence — Failure to take into account a relevant consideration — whether sentencing judge failed to consider applicant’s youth — whether sentencing judge failed to consider that police initiated the offending CRIME — Appeals — Appeal against sentence — Re-sentence

EVIDENCE – client legal privilege – claims for legal professional privilege by prosecuting and investigative bodies – relationship between the CDPP and persons within her office – whether relationship is sufficiently “independent” for privilege to exist over communications – Held: privilege claim upheld CRIMINAL LAW – whether privilege lost under s 125(1) of Evidence Act – whether disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth) to AFP and CDPP unlawful – whether within exception for performance of officer’s duties - s 16(2A) of Income Tax Assessment Act 1936 (Cth) – whether s 3E of Taxation Administration Act 1953 (Cth) limits operation of s 16(2A) – whether arguable construction of statute raises a “fact in issue” in the substantive proceedings within meaning of s 125(1) of Evidence Act – whether communications in “furtherance” of offence – Held: disclosures authorised by s 16(2A) EVIDENCE – client legal privilege – whether continuation of prosecution and opposition to accused’s motion to stay proceeding is inconsistent with the maintenance of privilege in documents that fall within the prosecutorial duty of disclosure – whether results in an imputed waiver of privilege – relationship between the prosecutorial duty of disclosure and waiver or privilege – Held: no waiver of privilege – R v Bunting (2002) 84 SASR 278 not followed

CRIMINAL LAW – appeal against sentence – child sexual assault – offender suffered from serious mental illnesses – sentencing judge failed to reduce role of general deterrence despite joint submission from Crown and defence – sentencing judge found aggravating factor of substantial harm – whether victim impact statement sufficient to establish substantial harm over and above harm inherent in offence – appeal allowed and offender resentenced

CRIME — appeals — appeal against sentence – sexual offences by grandfather against two granddaughters –whether sentencing judge took into account applicant’s medical condition - whether sentencing judge provided adequate reasons – whether sentence was manifestly excessive - aggravating factors – abuse of position of trust or authority in relation to victim - where being “under authority” was an element of some but not all of offences - vulnerability of victim - where aggravating factors may have been double counted – no lesser sentence warranted

CRIME — drug offences — Commonwealth offences — import border controlled precursor — pseudoephedrine SENTENCING — appeal against sentence — sentence contrary to law — whether sentencing judge mistook facts by finding the applicant imported a larger amount of precursor — ground made out — applicant resentenced SENTENCING — relevant factors on sentence — factual basis for sentence — amount of precursor drug imported — finding inconsistent with agreed facts on sentence

APPEAL – sentence appeal – where Form 1 offences taken into account contrary to legislative requirements – re-sentence – where offences objectively serious – where genuine remorse demonstrated – where good albeit guarded prospects of rehabilitation – where assistance does not entitle applicant to discount – where lesser aggregate sentence not warranted

CIVIL PROCEDURE – Pleadings – strike-out – no reasonable cause of action – leave to amend pleadings – conditional on payment of costs CIVIL PROCEDURE – separate determination of questions – questions of facts and law – application refused

HIGH RISK OFFENDER – final order for ESO made – issues as to Conditions to apply – duration of ESO – electronic monitoring – search and seizure – treating practitioner’s conveyance of information to DSO, only in some circumstances

COSTS – where plaintiff obtained costs order against defendants – application for non-party costs order –defendants now in administration – whether costs order should be made against sole director of and ultimate shareholder of defendants and against another company of which that director was also a director and which had provided financial assistance to defendants – whether costs order should also be made against holding company of defendants COSTS – whether application for non-party costs order was an application to vary the earlier costs order – where that application neither foreshadowed nor made within 14 days of earlier costs order – whether claim precluded by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – whether s 14 of the Civil Procedure Act 2005 (NSW) available to allow claim

CIVIL PROCEDURE —transfer of proceedings from Dust Diseases Tribunal to Supreme Court of NSW — transfer of proceedings from Supreme Court of NSW to Supreme Court of Queensland – Cross-vesting — Relevant factors

DEFAMATION – defamatory matter – pleaded imputations not conveyed – plaintiff not defamed DEFAMATION – defences – statutory defence of qualified privilege – facts determined on contingent and hypothetical basis – whether matter of public interest – whether media organisation’s conduct in publishing was reasonable – defence of contextual truth – whether plaintiff’s imputations would cause further harm notwithstanding the truth of contextual imputations – defence of honest opinion

LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted LAND LAW — Co-ownership — Statutory trust for sale – whether share of property held on trust for other co-owner – whether arguable defence to an application under s 66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale

CORPORATIONS – Winding up – Termination – solvency clearly demonstrated – commercial morality – relevant factors – inadequate explanation of breaches – no suggestion that changes will be made – failure of director to cooperate with liquidator – suggestion of medical issues – history of non-payment to creditors – not appropriate to terminate winding up – opportunity to present different arrangements for management of company including another director

EVIDENCE — privileges — public interest immunity — applicant produced documents pursuant to order under Crimes (High Risk Offenders) Act 2006 (NSW) s 25 — objection to disclosure of redacted material in documents — protection of police sources and informants — balancing of public interests

CRIMINAL LAW – Practice and Procedure – Offences – Contempt – Self-represented accused –Where accused failed to answer questions put by the Crown in cross-examination – Direction to Registrar to commence proceedings for contempt CRIMINAL LAW – Practice and Procedure – Self-represented accused – Whether appropriate to exercise the discretion in favour of allowing the Crown Prosecutor to make a closing address to the jury – Factors bearing upon the exercise of discretion

CIVIL PROCEDURE — hearings — adjournment — s 57 of the Legal Aid Commission Act 1979 (NSW) — whether special circumstances exist

CORPORATIONS – winding up – director withdrew registered office after service of statutory demand – by default, registered office became address of director – plaintiff knew director no longer at that address – director finally located by private investigator – Court’s exercise of discretion under section 467(3)(b) of the Corporations Act 2001 (Cth) – principles at [11]-[13]

Substituted service – director gives non-existent address to ASIC – non-existent address a variation on his parents’ address – service on parents likely to come to his attention

REAL PROPERTY – farm debt – possession of land –default under farm mortgage – judgment for debt – calculation of debt – leave to issue writ of possession – cross-claim dismissed – costs – orders ADMINISTRATIVE LAW – judicial review – application dismissed – costs – orders

CIVIL PROCEDURE – notices to produce – application to set aside – whether too wide – no issue of principle – notices to produce set aside

FAMILY LAW – Children – Adoption – Whether adoption or parental responsibility orders in best interests of children

PROCEDURE – Application to amend List Statement – Where substantial delay in seeking amendment – Where no real explanation for the delay – Whether no prejudice arises from delay – Question whether limitation period for cause of action with damages as essential component has expired – Question whether claim as sought to be made satisfies Civil Procedure Act 2005, s 65(2)(c) – Question whether Court should otherwise order under s 65(3) – Questions not to be decided on an interlocutory basis.

COSTS — Party/Party or indemnity basis — General rule that costs follow the event — Whether costs should be ordered on an indemnity basis — Whether costs should be paid forthwith CIVIL PROCEDURE — Referral to mediation of the Court’s own motion

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether award empowers employer to dismiss firefighters during an intrastate multiday deployment – whether firefighters entitled to overtime payment for entirety of intrastate multiday deployments

CRIME – appeals – appeal against sentence – manifest excess – fraud found in upper end of mid-range objective seriousness – eight years of maximum ten is excessive starting point – no room left for offences above mid-range but below worst case – re-sentenced with six year starting point

COSTS — Party/Party — Court’s discretion — where each party to bear own costs

CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts –Self-represented accused – Where accused sought to tender evidence of a large volume of documentary material found on an electronic device seized by police – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time – Evidence excluded

Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.

COSTS – Order for payment of professional costs under s213 Criminal Procedure Act 1986 (NSW) PROCEDURAL FAIRNESS – Primary judge decided the amount of the plaintiff’s “just and reasonable costs” on bases which they were not given an opportunity to address – Common ground that this constituted a denial of procedural fairness JUDICIAL REVIEW – Primary judge’s decision resting on matters of which the plaintiffs were given no notice or opportunity to address involved a denial of procedural fairness amounting to jurisdictional error

COSTS – Exception to general rule that costs follow the event — Offer of compromise/Calderbank offer — Whether the second defendant’s offers were genuine offers of compromise

HIGH RISK OFFENDER – application for Interim Supervision Order – index offence is murder in a domestic violence context – allegations of fact – if proved, warrant Extended Supervision Order – order agreed or not opposed – limited number of conditions contested – determination of appropriate conditions.

SENTENCE – CRIMINAL LAW - sentence after trial - offenders found not guilty of murder but guilty of manslaughter - victim stabbed to death - joint criminal enterprise between offenders to cause harm to victim falling short of grievous bodily harm - inability to find beyond reasonable doubt which offender killed the victim - assessment of culpability of each Offender - different levels of culpability found - significant difference in subjective circumstances of offenders - discount for offers to plead guilty to manslaughter - sentences of imprisonment imposed

TORTS — interference with goods — conversion — elements — where defendant hid and refused to deliver vehicles until payment was made to him — whether demand was made for return of the vehicles — damages TORTS — interference with goods — detinue — elements — damages MORTGAGES AND SECURITIES — liens — specific liens — artificer’s or repairer’s lien

CIVIL PROCEDURE – pleadings – leave to amend commercial list response to plead proportionate liability defence – whether delay adequately explained – whether risk of prejudice to plaintiff being statute barred from suing concurrent wrongdoer

CRIMINAL PROCEDURE - Stay of proceedings - inherent power to prevent abuse of process - appeal from decision of Children’s Court where stay refused - case involving assault of police officers by a minor - where officers on sick report at time of hearing - where adjournment refused - where prosecutor withdrew charges - withdrawn charges later relayed when officers available to give evidence - whether an abuse of process - whether withdrawal and relaying of charges was designed to circumvent refusal of adjournment - importance of fair trial for the plaintiff - where prosecutor’s withdrawal of charges found to be bon fide by the Magistrate - where public confidence in administration of justice not eroded APPEAL - from Children’s Court - by leave - where necessary to show question of law involved - where prerogative relief also sought – whether Magistrate asked the right question - no error of law - summons dismissed

CRIMINAL LAW – appeal against conviction – delay in bringing appeal – financial disadvantage – whether party to whom disadvantage flowed needs to be established beyond reasonable doubt – where credit card owner named in Court Attendance Notice – whether particular needs to be established – issue at first instance – whether accused was authorised to use the card – deception – whether prosecution required to call merchants to prove they were deceived – circumstantial case – inference that merchants deceived open on the evidence – no merit in conviction appeal – leave to extend time refused CRIMINAL LAW – application to annul conviction – where applicant present at original hearing – where Minister referred annulment application to Local Court – application of wrong test – interests of justice – no requirement to establish exceptional circumstances CRIMINAL LAW – annulment application – mental health legislation – where applicant seeks disposition under s 32 – purpose of legislation – whether purpose solely diversionary – criminal liability and mental illness – power to discharge unconditionally – power exercisable where mental illness present at the time of the offence and hearing – where applicant self-represented – where mental health issues not known or raised – Catch 22 – whether annulment “redundant” – where a bond already expired – delay CRIMINAL LAW – annulment application – where matter referred to court by Minister – whether Minister’s opinion to be taken into account by Local Court exercising jurisdiction – Minister’s opinion irrelevant

COSTS – discretion as to variation of costs order – Calderbank letter

DEFAMATION – appeals – publication – Facebook – where defamatory posts made on public Facebook page styled “Narri Leaks” – evidence of publication – whether evidence outside particularised case – proof of extent of publication – whether respondent’s wife was acting on behalf of respondent in downloading the posts – whether answers to interrogatories evidence of proof of extent of publication – whether appropriate to draw Jones v Dunkel inference where defendant did not give evidence DEFAMATION – appeals – imputations – whether error in finding three imputations were conveyed by fifth matter complained of DEFAMATION – appeals – defences – common law qualified privilege – where posts made on public Facebook page – whether excessive publication – where posts downloaded by people outside Narrabri Shire – whether privileged occasion – whether error in rejecting defence of common law qualified privilege DEFAMATION – appeals – defences – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – where finding that publication was unreasonable – whether presumption of honesty – significance of failure to contact plaintiff prior to publication DEFAMATION – application for leave to appeal – publication – secondary participant in publication –whether endorsement of defamatory statements – Facebook comments – whether question of principle or of public importance involved – where small amount in issue – whether injustice if refusal of leave

CRIMINAL LAW - appeal against sentence - five offences involving violence committed in a short period following sustained drinking - one count of intimidation intending to cause fear or physical or mental harm, two counts of reckless wounding, one count of common assault, one count of destroy or damage property - two men wounded, two women fearful for their safety, one woman assaulted by drink poured on her - aggregate sentence of 4 years with non-parole period of 2 years 8 months after 25% reduction for guilty plea - supplementary submissions made after decision reserved and without leave - propriety of making such submissions - whether sentencing judge erred in failing to consider that the injuries to the men amounted to “woundings in technical sense” - whether error in failing to consider medical reports, in circumstances where sentencing judge was not directed to those reports - whether unreasonable weight given to photographs of injuries to men - nature of care involved in use of photographic evidence - whether error in assessment of objective seriousness - relevance of fact that the charges could have proceeded summarily - submissions and evidence adduced which departed from agreed facts - significance of agreed facts - whether submissions based on “provocation” misunderstood by sentencing judge - whether character references unreasonably devalued by sentencing judge - significance of psychologist’s report purporting to diagnose psychiatric conditions - whether sentence manifestly excessive - significance and purpose of aggregate sentence - role of totality when offending was single course of conduct - appeal allowed and applicant resentenced

CIVIL PROCEDURE — Court administration — Sittings and vacations — Application to vacate — Video link evidence— Covid-19 — Other discretionary considerations

CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings

PRACTICE AND PROCEDURE – vexatious proceedings orders – whether procedures required by the Vexatious Proceedings Act 2008 (NSW) followed

COSTS – where judgment entered in favour of plaintiff in a substantial amount – gross sum costs order made in favour of plaintiff – plaintiff sought to enforce judgment and order – plaintiff obtained freezing order – defendant ultimately paid amount specified in freezing order into court – interlocutory applications and related proceedings thereby resolved without determination on the merits – whether plaintiff should have its costs of those applications