Cases and authorities

CRIME – conviction appeal – where applicant consented to joint trial when advised otherwise by counsel – where Crown witness gave damaging answers in response to questions regarding use of prohibited weapons – where defence counsel disclosed fact of the applicant’s previous incarceration during cross-examination of Crown witness – whether incompetence of counsel led to miscarriage of justice CRIME – sentence appeal – whether sentence manifestly excessive

CRIME – Appeals – Appeal against sentence – numerous sexual offences committed against a child – whether sentencing judge erred in using “Form 1 offences” in determining objective seriousness – whether sentencing judge erred in relying on Veen (No 2) – failure to include parole period in backdating of sentence – totality principle – error established – approach to exercise of discretion to re-sentence – whether more or less severe sentence is warranted in law – whether Court should specify longer sentence that would have been imposed – discretion to re‑sentence exercised – same length of sentence imposed but new commencement date

CRIME – appeals – Crown appeal against sentence – where respondent guilty of sexual intercourse with child under 10 in circumstances of aggravation – victim of offending was 11-month-old infant daughter of the respondent’s partner – where victim suffered internal injury to her rectum – sentencing judge not satisfied that offending was sexually motivated – sentenced to 4 years and 6 months with non-parole period of 3 years – where sentence largely concurrent with manslaughter sentence involving same child – whether sentence manifestly inadequate – objective seriousness of the offending – application of the totality principle – exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – consideration of factors relevant to the exercise of the discretion – expiration of the non-parole period imposed by the sentencing judge – respondent resentenced

CRIMINAL LAW – appeal against sentence – plea of guilty to offence of cultivate commercial quantity of cannabis – where applicant made admissions to police upon arrest and walked them through grow operation whereas co-offender did not – whether sentencing judge failed to take into account applicant’s admissions

CRIMINAL LAW – appeal against sentence – series of sexual assaults against granddaughter – whether failure to make finding of special circumstances disclosed error – whether sentence manifestly excessive – comparison with other sentences – appeal allowed and applicant resentenced

CIVIL PROCEDURE – notices to produce – leave to issue – where parties have issued numerous notices to produce – where numerous notices to produce not justified or too wide – whether an order requiring leave of court to issue subpoenas should be made. CIVIL PROCEDURE – notices to produce – where subpoenas are in broad terms – where issue of subpoenas not justified – whether legitimate forensic purpose in issue of subpoenas – whether subpoenas, or parts thereof, should be set aside. CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where application corollary to amendment of pleading – where court has previously granted leave to bring derivative proceedings – whether leave under s 237 of the Corporations Act 2001 (Cth) should be granted.

CORPORATIONS LAW – claim by liquidators against director for insolvent trading – D&O policy responded to claim – director entered into personal insolvency agreement – liquidators agreed only to enforce judgment against proceeds of insurance policy – whether insurer should be joined to proceedings pursuant to Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – whether any evidence of dispute between insurer and insured director – whether improved prospects of obtaining a costs order against insurer foreign to discretion to join – application refused – Opes Prime Stockbroking Ltd (in liq) v Stevens [2014] NSWSC 659 and DSHE Holdings v Abboud [2017] NSWSC 579, followed COSTS – whether unsuccessful liquidators should pay costs of separately represented insurer and insured – general principle that unsuccessful party not ordered to pay two sets of costs where no possibility of conflict between successful separately represented parties – liquidators ordered to pay one set of costs – Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 applied

CRIMINAL PROCEDURE – trial of five accused persons for conspiracy to import border controlled drugs – three separate conspiracies alleged – application for separate trial by one accused – applicant indicted for a single conspiracy – whether evidence against one accused significantly different to, and weaker than that against co-accused – admissibility of evidence post-dating end of alleged involvement in conspiracy – question of prejudice to accused in joint trial – evidence to prove conspiracy – co-conspirators’ rule – question of cost and convenience of separate trials – application granted

CIVIL PROCEDURE – Parties – Joinder – Application to be joined as defendant

SUCCESSION — Family provision and maintenance — Children seeking orders pursuant to s 59 of the Succession Act 2006 (NSW) for further provision for their proper maintenance, education or advancement in life out of the estate or notional estate of the deceased — Will operated so as to transfer the whole of the estate to the widow of the deceased — In circumstances where the substantial component of the deceased’s notional estate was derived from the widow’s own contributions — Summons dismissed, taking into account all relevant circumstances including as outlined by ss 59 and 60 of the Succession Act 2006 (NSW)

SUCCESSION – family provision – approval of settlement in circumstances where Defendant is a person under a legal incapacity – approval also sought of inter vivos release made by Plaintiff in respect of his right to make an application for a family provision order in respect of the Defendant’s estate upon her death, in proceedings where order for provision sought in respect of deceased father’s estate – Section 95 Succession Act 2006 (NSW) – extent of circumstances considered on approval of inter vivos release – whether inter vivos release made should be approved by Court – whether matter to be dealt with in Chambers or in Court – amended release then made by the Plaintiff which amended release approved

PRACTICE AND PROCEDURE – Application for stay of proceedings – Where plaintiff commenced proceedings in this Court for negligence arising out of surgical procedures conducted by the defendant in France – Where there was a previous determination that this Court was not an inappropriate forum – Where the defendant commenced proceedings in France subsequent to that determination – Where proceedings now pending in both jurisdictions – Whether the proceedings in this Court should be stayed pending the determination of the proceedings in France – Where the relevant discretionary factors leading to the previous determination remained essentially the same – Where cause of action arose in 2011 and proceedings were commenced in 2015 – Where proceedings listed for hearing in a short time – Application for a stay of proceedings dismissed

PROCEDURE – writ of possession – stay of execution – where default judgment obtained by mortgagee – where application for vacation and stay of execution dismissed by registrar in common law division – where motion to set aside registrar’s decision dismissed by Supreme Court Judge – no arguable grounds of appeal – no question of principle

LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed

CORPORATIONS - Winding up - Termination of winding up order - Solvency - control of company returned to the director

PROCEDURE – Civil – Motion to stay and/or set aside default judgment and execution of a writ of possession – principles – “common law rights” – single judge does not render the Court any less effective in the exercise of the jurisdiction of the Court – motion dismissed

CORPORATIONS — Winding up — Conduct of liquidation — Costs, charges and expenses — Orders made by the Court for various classes of assets to share costs of recovering further assets — Where this regime impracticable because of illiquidity of one class of assets — Liquidators wish to retreat to interim regime to progress liquidation — Where ultimate effect unchanged — Orders appropriate but for failure to serve all interested parties — Orders for service made.

CORPORATIONS — Winding up — Statutory demand — Genuine dispute — Where Loan and Convertible Note Agreement provided for conversion of notes into shares by certain date or for loan amount to be repaid — Where later variations entered into but never completed — Where plaintiff proposed further variations — Plaintiff and associated entities acted unilaterally in terms of proposed further variations — No acceptance of offers by defendant — Whether defendant estopped from denying the existence of variations — No estoppel arises — No genuine dispute that loan monies repayable — Application dismissed.

LAND LAW – easements – substantial interference with rights under easements – where plaintiff and defendant are lot owners in a strata scheme – where right of footway in favour of lot owners exists over part of the defendant’s car park space – where right of footway provides access to gas and water meters – where car park space protected by lockable garage door which can be opened by an electronic remote control device – where defendant provided such device to the plaintiff – where plaintiff returned such device – whether lockable garage door is a real substantial interference with plaintiff’s entitlement to use right of footway – no substantial interference established

CIVIL PROCEDURE – summary dismissal of proceedings– where only declaratory relief sought – no standing – no extant controversy between any parties capable of being resolved by declarations sought – proceedings dismissed

CIVIL PROCEDURE – parties – vexatious litigants – where application brought by private individual under s 8(4)(d) Vexatious Proceedings Act 2008 (NSW) – whether proceedings in question vexatious within s 6 – where prior application regarding same litigant pursued on narrow grounds – protective jurisdiction conferred by Act – court not confined by applying party’s particulars of vexatiousness – numerous groundless and repetitive applications – proceedings “frequently instituted or conducted” – vexatious proceedings order made CRIME – public justice offences – perjury – application by private party to prosecute plaintiff for perjury pursuant to Crimes Act 1900 (NSW), s 338(1)(c) – where party proposed to be prosecuted was opposing party in civil proceedings – discretionary considerations WORDS AND PHRASES – “frequently instituted or conducted” per s 8(1)(a) Vexatious Proceedings Act 2008 (NSW)

CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Application for adjournment refused – Solicitor withdrew – Applicant has insufficient funds to prosecute appeal – Dismiss application for leave to appeal.

CRIMINAL PROCEDURE – Appeals – Sentence Appeal - Adjournment – Notice of motion to vacate the hearing date and adjourn application filed two days before hearing – Applicant has insufficient funds to fund appeal – Counsel withdrawn – Unexplained withdrawal of funds from unnamed people – Application for adjournment causes difficulty and injustice – Application refused.

EQUITY – Equitable remedies – Injunctions – Plaintiff suffers from chronic treatment resistant schizophrenia – Mental Health Review Tribunal authorised the Plaintiff to undergo a course of electroconvulsive therapy – Plaintiff has undergone 3 of 12 authorised therapy sessions – Plaintiff, by her father, complained that she should not have to undergo the further treatment – Plaintiff, by her father obtained a short term ex parte injunction to suspend the therapy – No appeal against the decision of the Mental Health Review Tribunal lodged – Whether the injunction should be extended or whether the therapy should be allowed to continue in accordance with the decision of the Mental Health Review Tribunal

EVIDENCE — Privileges — Client legal privilege — Legal advice – plaintiffs seek access to documents and parts of documents over which the first and second defendants claim client legal privilege – first and second defendants resist disclosure of the documents and parts of the documents – first and second defendants have waived privilege over some documents containing legal advice to promote their defence to a claim for breach of confidence – whether privilege has been waived in respect of remaining parts of those documents and over other related documents, where privilege is claimed – application of Evidence Act, s 122 – HELD: wider waiver of the documents has occurred – extent of waiver of the documents in question

COSTS – specified gross sum instead of assessed costs – Civil Procedure Act, s 98(4)(c) – plaintiffs and second defendant are each partially successful in contested proceedings in relation to the ownership in equity of a domestic residence held in the name of the first defendant – the first defendant dies in the course of the proceedings – costs orders made that the defendants pay part of the plaintiff’s costs – the residence is sold – the sale proceeds are available to be administered by Court order – the first defendant’s case conducted by her attorneys and by a tutor – the proceeds of sale are the only likely source of funds to pay the parties’ costs – no costs assessment has taken place – whether a specified gross sum order should be made instead of an award of assessed costs – if so, what is the appropriate amount of such a specified gross sum, in respect of the first defendant’s costs, her tutor’s and attorneys’ costs and the plaintiff’s costs – history of jurisdiction to make specified gross sum orders instead of assessed costs discussed – whether the plaintiff’s costs should be deducted from the fund before it is distributed to the plaintiff and the first defendant.

PROFESSIONS AND TRADES – lawyers – application for readmission to practice following decision to remove name from Roll – whether plaintiff is a “fit and proper person” to be admitted to the Australian legal profession

INSURANCE – civil liability insurance policy – indemnity in respect of claims made against insured – whether single or multiple retentions applicable – Federal Court representative proceeding against insured – whether single or multiple claims against insured – effect of aggregation/disaggregation of claims clause – whether multiple claims arose out of a series of related wrongful acts

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings - application to proceed with a notice of motion in absence of a cross-claimant - application for summary disposal of a cross-claim

APPEAL – appeal from the Local Court to the Supreme Court – error of law – magistrate did not allow prosecutor proper opportunity to be heard – error conceded by defendant – appeal allowed – consent orders made

EVIDENCE – statements of accused’s cousin recounting conversation with accused – whether conversation is evidence of accused planning the alleged kidnapping or whether propensity evidence – evidence of conversation admitted

CIVIL PROCEDURE – application to transfer appeal proceedings to Full Court of Family Court –proceedings involving a matter arising from an order made under the Family Law Act 1975 (Cth) – no power for the Court to transfer proceedings to the Family Court as the hearing had not commenced – proceedings dismissed COSTS – appellant commenced proceedings in the incorrect court – respondent consented to transfer of proceedings on terms – both parties aware that the appeal not competent – no objection to competency – costs in accordance with terms of consent orders – costs to abide outcome of the appeal in the Family Court

CRIME – Appeals – Appeal against sentence – stealing motor vehicle and aggravated break and enter – applicant pleaded guilty whereas co-offender was found guilty after jury trial – parity – whether disparity in sentences explained by differences in subjective cases – whether justifiable sense of grievance – whether reduction in sentence would produce an erroneously lenient sentence – whether co-offender’s sentence manifestly inadequate – consideration of head sentence and non-parole period – re-sentence

CRIMINAL LAW – appeal – appeal against conviction – applicant found guilty of offences under Commonwealth Criminal Code of importing border controlled drugs – large quantity of methamphetamine imported into Australia by sea glued to insides of kayaks – applicant involved in obtaining possession of kayaks from freight forwarder – extended definition of import – physical elements of offences satisfied – fault elements of offences – prosecution required to establish applicant intended to import a substance, and knew or was reckless as to the substance being a border controlled drug – whether jury was misdirected – written directions distinguished fault elements – lengthy oral directions conflated the two – overall effect apt to instruct jury that sufficient to find that applicant was reckless as to all elements – primary judge in fact sentenced on that basis – proviso inapplicable – appropriate case for extension of time and grant of leave pursuant to r 4 Criminal Appeal Rules – convictions quashed and retrial ordered – Commonwealth Criminal Code, ss 5.2, 5.4, 11.1, 307.1, 307.3, 307.5

MORTGAGES AND SECURITIES – application by occupier to set aside writ of possession – registered mortgage takes priority over registered lease – no basis for application CIVIL PROCEDURE – service – whether effected – affidavit of service evidence service was effected

EQUITY – Trusts and trustees – Constructive and resulting trusts – Family and domestic relationships – Where a de facto husband advanced the full purchase price for a house of which the de facto wife became the sole registered proprietor; whether the de facto wife held the property on trust for the de facto husband – Held: there was no trust, as the de facto husband intended to, and did, make a gift of the property to the de facto wife (although the transaction was set aside on other grounds). EQUITY – Undue Influence – Unconscionable conduct – Special disability or disadvantage ­– Where the Plaintiff is a lonely, elderly man and the Defendant is a much younger woman; where parties are in a de facto relationship; where the Plaintiff spoke of committing suicide if the Defendant would not enter into, and remain in, a relationship with him; where the Plaintiff sold his house and, at the Defendant’s behest, used the proceeds to buy another house which she became the sole registered proprietor of; where the Plaintiff did not receive independent legal advice about the transaction – Held: transaction set aside on grounds of undue influence and, alternatively, unconscionable conduct. Plaintiff thereby entitled to a 50% interest in the property (50% being all that he seeks). FAMILY LAW – De facto relationship – Jurisdiction – Effect of cross-vesting legislation – Where proceedings initially commenced under inoperable State legislation then re-pleaded under the Family Law Act 1975 (Cth), with leave granted to file out of time; consideration of whether the Supreme Court of NSW can hear a de facto financial cause; where one party denies the existence of the de facto relationship; where neither party wishes the matter to be transferred to the Family Court or Federal Circuit Court – Held: the Supreme Court has jurisdiction under cross-vesting legislation to hear a de facto financial cause and that the matter should not be transferred. FAMILY LAW – Property – Financial agreements – s 90UB agreement – Where the property the subject of the agreement was owned wholly by one partner; where the property the subject of the agreement has been sold and the proceeds used to buy another house in which the couple lived; where the agreement is set aside due to being “impracticable” pursuant to s 90UM. FAMILY LAW – Property – De facto relationship – Adjustment of property interests – Where the relationship lasted for 7-8 years; where the Plaintiff contributed the only major asset of the relationship with minimal contributions from the Defendant; where the Plaintiff made a gift of his entire interest in the property to the Defendant early in the relationship so that she became the sole registered proprietor; where the Plaintiff seeks an order pursuant to s 90SM for only 50% of the property, despite arguably being entitled to a greater share – Held: Plaintiff owns a 50% share of the property, to be distributed to him following sale by trustees.

COSTS – indemnity basis – gross sum costs – orders CIVIL PROCEDURE – defendant barred from defending – application for leave to be heard as to costs – issue as to appearance of defendant – right to appear CIVIL PROCEDURE – extant interim freezing order – directions

EVIDENCE – tendency evidence – criminal proceedings - admissibility of tendency evidence in a murder trial - whether the evidence was indeed tendency evidence - where the evidence said to evince a tendency only pointed to one prior instance of similar conduct - evidence did not amount to tendency evidence and application rejected EVIDENCE - context evidence – criminal proceedings - admissibility of context evidence in a murder trial - - where the trial is to be conducted by judge alone – whether accused prejudiced in the context of a judge-alone trial - real issue was whether the context evidence had probative value – evidence not necessary to explain any aspect of the present offending - application to lead the evidence as context evidence rejected EVIDENCE - evidence of judgments and convictions - s 91 Evidence Act - where the Crown sought to use findings of fact from an earlier judgment to prove the existence of a fact in the present trial - impermissible use of evidence

PRACTICE AND PROCEDURE – application for pro bono legal assistance – where issues and role of parties in dispute clarified at hearing – whether proceedings should be summarily dismissed – whether pleadings should be struck out – pleadings difficult to understand – pleadings struck out – application for pro bono legal assistance granted

ADMINISTRATIVE LAW – appeal from Civil and Administrative Tribunal – whether decision made by validly constituted tribunal – four-member tribunal was constituted for the purposes of the hearing – whether principal member could separately and simultaneously constitute herself as the tribunal to decide legal questions – single member of a multi-person tribunal which has already been constituted not authorised to constitute himself or herself as the tribunal on unstated informal basis or to make a decision unilaterally without recourse to the balance of the tribunal – decision void COSTS – whether successful plaintiff ought pay defendant’s costs of proceedings – defendant invited to file submitting appearance – defendant not neutral contradictor – costs follow the event COSTS – suitors’ fund – application for suitors’ fund certificate – appropriate to grant certificate where defendant did not contribute to error made by tribunal

CRIMINAL LAW - sentence - Offender pleaded guilty to four offences committed in 2015 and 2016 - committing acts in preparation for or planning terrorist acts being attacks on Australian law enforcement officers in support of Islamic State (s.101.6(1)) Criminal Code (Cth)) - intentionally delivering letter threatening to kill Commissioner of Corrective Services NSW (s.31 Crimes Act 1900 (NSW)) - wounding a fellow inmate with intent to murder (s.27 Crimes Act 1900 (NSW)) - causing grievous bodily harm to the same inmate with intent to cause grievous bodily harm (s.33(1)(b) Crimes Act 1900(NSW)) - assessment of objective seriousness of offences - Offender 19 years old at time of offences - entrenched views in support of violent jihad - views repeated in letter to Court in April 2019 - absence of contrition - importance of denunciation, protection of community and specific and general deterrence - sentencing for offences committed in correctional centre - issues of accumulation and totality - total effective sentence of 34 years’ imprisonment with a non-parole period of 29 years

CRIMINAL LAW – case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5BA – where only route of appeal against sentence and conviction in Local Court is in Land and Environment Court – where appeal to District Court dismissed on jurisdictional grounds – whether summons seeking appeal in Land and Environment Court filed out of time should be dismissed – stated case defective

CRIMINAL LAW – stated case from District Court on question of law – where appeal dismissed against conviction of driving heavy vehicle not complying with loading requirements – whether extension of time should be granted – limitations of stated case procedure – inappropriate to answer question of mixed fact and law – whether primary judge misdirected himself at law as to the meaning of a defined term

CRIME – application for leave to appeal against conviction – where indictment contained 7 counts alleging sexual offences (sexual intercourse without consent and indecent assault) – where verdicts of guilty returned after trial by jury in relation to counts 2-6 – where applicant acquitted of counts 1 and 7 – whether verdicts are inconsistent – whether verdicts of guilty are generally unreasonable or unable to be supported – discussion of the evidence given at trial – analysis of points of rational differentiation between acquittal counts and conviction counts – verdicts not irreconcilable – application of M v The Queen (1994) 181 CLR 487 – verdicts not generally unreasonable or unable to be supported – leave to appeal granted and appeal dismissed

APPEAL AND REVIEW – question of law stated under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – offence of using land as a waste facility without lawful authority – whether prosecutor permitted to make second s 5AE request in substantially different form to first request – meaning of “waste” – whether recycled materials deposited on land in stockpiles met definition of waste – whether stockpiling of materials on land a scheduled activity – whether depositing waste on land was the scheduled activity of waste disposal by application to land – whether temporary stockpiling of waste on land was the scheduled activity of waste storage – meaning of “asbestos waste” – whether waste contained asbestos – application of exemption granted under regulations – effect of exemptions that activity a non-scheduled activity – statutory exception to onus of proof – defendants bore onus of proving lawful authority – defendants bore onus of proving exemptions apply – no lawful authority pursuant to development consent or other approval – whether continuing offence proven – whether offences time barred – errors of law established – proceedings remitted to Land and Environment Court for determination in accordance with the answers given to the submitted questions WORDS AND PHRASES – “waste” – “waste facility” – “waste disposal by application to land” – “waste storage” – “asbestos waste” – “without lawful authority”

CRIMINAL LAW – sentencing – robbery in company – application of Henry criteria – causing actual bodily harm – wholly concurrent sentences – imprisonment to be served by intensive correction order CRIMINAL LAW – sentencing – appeal against inadequacy of sentence – misapprehension of facts – failure to give effect to expressed intent to accumulate sentences – misapplication of principle in The Queen v De Simoni – manifest inadequacy CRIMINAL LAW – sentencing – intensive correction order – community safety as paramount consideration – extent to which additional purposes of sentencing affect determination – consideration of statements in R v Pullen WORDS AND PHRASES – “adequately punished” – “community safety” – “paramount consideration”

CRIME – appeals – appeal against conviction – jury verdict of guilty for offence of sexual intercourse with a child, and acquittal for three similar counts – whether conviction is unreasonable – whether it was not open to jury to be satisfied beyond reasonable doubt of guilt of applicant – review of evidence at trial – complainant aged 5-6 at time of alleged offending and aged 7 at trial – inconsistencies between contemporaneous police interview and cross-examination of complainant – young age and nature of child’s memory relevant to jury’s assessment of evidence – well open on evidence for jury to be satisfied beyond reasonable doubt of guilt – whether jury should have had a doubt about guilt because of acquittal on other counts – logical reasons for jury to have had reasonable doubt about other counts – appeal dismissed

CRIMINAL LAW – Appeals – objective seriousness – principle of proportionality – whether sentencing judge erred in the assessment of the objective gravity of the offences – whether sentence manifestly excessive – sentencing for standard non-parole period offences SENTENCING – Absence of an aggravating factor does not diminish gravity of offence – requirement of an assessment based on the facts of each case – no hierarchy of sexual offences according to type of penetration or sexual connection – each offence compounded by eventual abandonment of complainant – whether aggregate sentence imposed by trial judge too severe – whether sentence imposed was unreasonable or plainly unjust – held sentence within bounds of sentencing discretion – held the appeal should be dismissed.

EQUITY – interim injunction – balance of convenience – no issue of principle