Cases and authorities

HIGH RISK OFFENDERS - terrorism intelligence application by the Attorney General – whether statutory requirements under s.59A(1) and (2) of the Terrorism (High Risk Offenders) Act 2017 have been met – meaning of “terrorism intelligence” – whether particular information is “terrorism intelligence” – statutory requirements met – terrorism intelligence application allowed - associated orders made under s.59C(2)

CIVIL PROCEDURE – application for a general non-publication order under s 8(1) Court Suppression and Non-publication Orders Act 2010 (NSW) – applicant convicted high risk sex offender – released into the community on parole 7 years ago – upon expiry of parole an extended supervision order was made for 5 years – subsequent application for a further ESO was made and dismissed – interim non-publication orders pending the determination of the present motion – whether general non-publication order was necessary to protect the safety of any person – no recent matters which might be thought to threaten the safety of the applicant – whether it was otherwise necessary in the public interest for general order to be made – whether unwanted media attention could impede the applicant’s ongoing rehabilitation and reintegration into the community – high threshold of “necessary” not met – orders would be of little utility given other related and publicly available judgments – whether a limited non-publication order should be made – where the publication of the defendant’s work and residence would significantly impair his rehabilitation – where a limited non-publication order would only marginally infringe upon any interest in open justice – limited non-publication order necessary in the public interest – limited order made for a period of 12 months

ADMINISTRATIVE LAW – judicial review – victim’s compensation claim – primary victim of domestic violence – claim for “severely disabling” psychological disorder – challenge to rejection by delegate – whether the delegate attributed incorrect meaning to “severely disabling” ADMINISTRATIVE LAW – judicial review – expert psychologists designated by Director – assessment of disability by designated expert – whether delegate obliged to follow expert’s assessment absent countervailing evidence – whether delegate’s rejection of assessment manifestly unreasonable APPEAL – leave to appeal – precondition of grant – small amount at stake in individual case – relevance to large number of claims – whether matter of principle or public interest – error identified without setting aside judgment below

PLANNING AND ENVIRONMENTAL LAW – Land and Environment Court – jurisdiction – condition of consent provided that music festival must not proceed if Commissioner of Police advised it was unsafe – whether Class 1 appeal lay from Commissioner’s decision – whether decision concerned an aspect of development required to be carried out to the satisfaction of consent authority or any other person – comparison of (former) s 97 and current s 8.7 of Environmental Planning and Assessment Act 1979 (NSW) – decision did not fall within s 8.7

Representative Proceedings - Civil Procedure Act 2005 (NSW) s 173 - Settlement - Court Approval

CIVIL PROCEDURE — Parties — Joinder — Of defendant — Family provision proceedings — Joinder of applicant as second defendant allowed subject to conditions to ensure that hearing dates are not prejudiced and the matter proceeds efficiently

COSTS – appropriate order when notices of motion resolved by consent – whether order that costs in the cause ought be made or order that the costs be the plaintiff’s costs in the cause ought be made – applications part of usual course of litigation – no disentitling or unreasonable conduct – appropriate order is that costs be costs in the cause – question of relevance of cap in Law Society of New South Wales Scheme – not necessary to decide

CORPORATIONS — Winding up — Application by voluntary administrator to adjourn winding up proceedings — Opposed by petitioning creditor — Short adjournment sought until after second meeting of creditors — Where proposed Deed of Company Arrangement — Whether in interests of creditors — Significant transactions said to be voidable in liquidation — Weighing interests of related party and independent creditors — Adjournment application refused — Company wound up in insolvency.

HIGH RISK OFFENDER – serious sex offender – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – interim supervision order sought – whether matters, if proved, would satisfy Court to high degree of probability that defendant poses unacceptable risk of committing another serious offence – most offences committed when defendant was a child – last offence committed almost seven years ago – history of compliance with supervision requirements – well-validated utility of risk of recidivism instruments – acknowledgement of limitations of instruments in assessment of actual risk – proposed orders not justified

CRIMINAL LAW – trial by judge alone – killing of 5 year old boy by his father – defence of mental illness

SUCCESSION – wills, probate and administration - construction and effect of testamentary dispositions - construction of a homemade will

CONTRACTS – joint venture agreement for construction of outlet shopping centre – where joint venture partners signed Exclusive Leasing Agency Agreement with commercial real-estate agency – where agreement was to identify appropriate tenants and refer them to the JV partners for approval – where shopping centre only 55% let at opening – where joint venture partners defaulted on their loans and joint venture failed – whether real-estate agency failed to introduce tenants – whether real-estate agency breached implied term of care, skill and diligence – whether failure to implement any or any adequate leasing strategy – whether breach caused damage – no breach established – whether even if breaches established there was causation – where quantum of economic loss not properly explained NEGLIGENCE – scope of duty – whether co-extensive – claim that shopping centre would be 90% leased at opening with high-end outlet retailers – whether real estate agency had duty to provide specific outcome – whether failure to take precautions – whether factual causation established in any event

CIVIL PROCEDURE – subpoenas – where appellant suffered ill health and unable to instruct solicitors – where appeal filed out of time – where respondent issues subpoenas to test appellant’s evidence – whether documents subject of subpoenas sufficiently relevant to determination of issue – whether subpoenas oppressive

CRIME – Appeals – Appeal against convictions – sexual assault – multiple complainants – tendency evidence – whether error by judge in not severing counts of indictment – whether judge failed to identify the fact in issue – whether tendency evidence lead to establish identity of offender – cross-admissibility of complainant’s evidence – whether evidence was capable of proving appellant’s sexual interest had significant probative value – whether common features of sexual offending – whether location of offending relevant to establish tendency – whether probative value outweighed danger of bolstering identification evidence – whether danger of impermissible co-incidence reasoning – whether directions could reduce prejudicial effect – whether error in judge’s directions to jury – erroneous use of metaphor – whether final direction overcame erroneous metaphor – failure by counsel to seek re-direction – rule 4 – whether potential injustice – photo board identification – whether photo array suggested person in police custody – whether probative value of evidence was outweighed by danger of prejudice – whether error in not discharging jury – whether judge erred in not properly considering issues relevant to the application to discharge pursuant to s 53C(1)(a) Jury Act – whether error in moving to a majority verdict – whether error in failing to give Black direction

CRIMINAL LAW – appeal – leave to appeal against sentence – whether insufficient disparity – whether disparity evokes justifiable sense of grievance – whether sentence was manifestly excessive – leave to appeal granted – appeal allowed – applicant resentenced

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to four offences of robbery in company and one offence of police pursuit – further offence of steal motor vehicle taken into account on sentence – offending all occurred in the course of one criminal enterprise – robbery in company perpetrated against a number of complainants who all lived at the same premises – degree of violence involved in the robbery offences – use of weapons – several of the offences committed in the presence of minors – after the robberies the applicant and co-offenders stole the vehicle of one of the complainants and fled the premises – police pursuit ensued – where the applicant had served time in custody for other offences whilst refused bail for index offences – backdating of sentences - whether the sentencing judge erred in his assessment of the time spent by the applicant in custody solely referable to the index offences – whether the sentencing judge erred in his application of the Bugmy principles – whether the sentencing judge erred in his assessment of the applicant’s criminal antecedents – need for re-sentence – no lesser sentence warranted – adjustment to commencement date for sentence

CRIMINAL LAW – appeals – appeal against conviction – judge alone trial – applicant found guilty of two offences of sexual intercourse without consent and one offence of use an offensive weapon with intent to commit an indictable offence – applicant acquitted on other two counts – same complainant for all charges – applicant and complainant in a dysfunctional and abusive relationship – the two sexual intercourse offences for which the applicant was convicted occurred on the same night – early complaint to friends – offensive weapon offence committed on later occasion – early complaint to neighbour – whether the verdicts of guilty for the first three offences was unreasonable in light of the nature and quality of the evidence and the verdicts of not guilty for the other two offences – whether the complainant’s evidence was reliable – where inconsistencies in complainant’s evidence considered at length by the trial judge – acquittal on final two counts heavily informed by the lack of corroboration – verdict not unreasonable. EVIDENCE – hearsay – warnings – failure to give hearsay warning – where trial counsel did not seek the direction now complained of – applicant failed to identify and formulate the direction said to have been required at trial – r 4 Criminal Appeal Rules – leave not granted to advance this ground of appeal

MAREVA injunctions – principles – discretion – no foundation for relief

CONTRACTS — Remedies — Liquidated damages – where plaintiff Contractor claims indemnity for liquidated damages from second defendant for first defendant’s failure to complete work per contractual timetable – where first defendant sub-contractor and second defendant director of first defendant and guarantor of its contractual obligations – where by list response second defendant asserted he had not signed the contract as guarantor but no further evidence led to rebut inference from apparently regular signature on contract. CONTRACTS — Remedies — Damages — Termination – where Contractor claims indemnity for damages by reason of first defendant’ failure to complete works – where second defendant is guarantor of first defendant’s contractual obligations. CIVIL PROCEDURE — Appearance — No appearance by second defendant guarantor.

EVIDENCE – witness deceased – statement made by witness 30 to 38 hours after observing van in suburban street – whether made “shortly after” asserted fact – whether representations as to age and characteristics of female were made in circumstances that make it highly probable that the representation is reliable.

CONTRACTS – Termination – Consequences of termination – Where the plaintiff seeks return of two bank guarantees given to the defendant pursuant to a contract related to a building project since abandoned – Where, on the plaintiff’s case, the contract between the parties had been validly terminated for insolvency and, although the contract did not explicitly require return of the bank guarantees, the defendant can demonstrate no right to retain them – Defendant disputes that the contract was validly terminated due to the plaintiff’s alleged non-compliance with notice provisions – Where, in any case, the contract has clearly been frustrated and cannot be performed due to the land having been sold, with the consequence that the bank guarantees should be returned.

CIVIL PROCEDURE — Stay of proceedings — Pending appeal – application for stay of judgment pending appeal – where by appeal cross-claimant will seek orders under the Family Law Act 1975 (Cth), s 79A, entitling her to the whole of the family property and attributing the whole of the relevant debt to her husband – whether refusal of a stay and consequent sale of property would render cross-claimant’s right of appeal nugatory – whether cross-claimant would suffer prejudice if stay refused by requirement to vacate family home – whether cross-claimant would nevertheless be required to vacate property as costs judgment of principal proceedings was not subject of the appeal - where cross-claimant’s legal costs appears funded by family members but no evidence adduced of resources to satisfy costs judgment of principal proceedings – prospects of success of appeal - whether cross-claimant likely to establish entitlement to whole of property where she adduced no further evidence or explanation for her husband’s prior paying down of mortgage instead of satisfying debt to creditors – discretionary factors.

JURISIDICTION – Supreme Court has no jurisdiction to grant a stay where there is no challenge in proceedings commenced in this Court to the underlying decision sought to be stayed – stay application to be made to Civil and Administrative Tribunal

CRIMINAL LAW – Practice and Procedure – Juries – Member of the jury failing to follow the evidence – Where member of the jury fell asleep following an absence due to illness – Risk of substantial miscarriage of justice – Juror discharged – Whether trial should continue with jury of 11 persons – Ordered that the trial continue

CIVIL PROCEDURE – parties – addition of defendant – possession proceedings - where defendant was former trustee of discretionary trust – where additional defendant is new trustee

LANDLORD AND TENANT— whether landlord’s refusal to produce trust deed justifies tenant’s non-payment of rent — whether tax invoices issued by landlord invalid where no trust deed given to tenant — whether Tribunal at first instance lacked jurisdiction due to pending Supreme Court proceedings — no issue of general importance — application for leave to appeal dismissed

CRIME – Appeals – Appeal against sentence – two armed robberies – report by sentencing judge to the Court of Criminal Appeal – circumstances where report may be made – report not considered by the Court – whether judge erred in taking into account Form 1 offences when assessing the objective seriousness of principal offences – whether error in taking into account multiple victims and series of criminal acts – whether error in taking into account threat of violence – whether error in application of principle of totality – Re-sentence – consideration of guideline judgment in R v Henry – consideration of whether applicant’s mental health reduced moral culpability for offences – whether applicant remorseful – applicant serving balance of parole – indicative sentences – aggregate sentence imposed – commencement date of aggregate sentence

COSTS – Party/Party – Court’s discretion – Where the plaintiff succeeded on some submissions but not on others – Where the Court awards costs to the plaintiff with respect to the successful portion of the proceedings. COSTS – Party/Party – Exceptions to general rule that costs follow the event – Where the defendant is removed as the executor of a deceased estate on account of his conduct as executor. COSTS – Party/Party – Payable out of a fund – Deceased estate – Where the plaintiff and defendant are the only beneficiaries of a deceased estate – Where an order that the estate pay both parties costs is otiose because, in effect, both parties would be paying 50% – Held: each party to bear their own costs in relation to that portion of the proceedings.

CORPORATIONS — Winding up — Approval of remuneration — Where liquidator appointed as receiver of trust assets — Remuneration in respect of liquidation approved by creditors — Application to approve remuneration in respect of administration of trust assets — Where work apportioned between liquidation and receivership — Time-based approach reasonable having regard to value of assets — Remuneration approved.

HIGH RISK OFFENDER - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrist and psychologist - Defendant currently subject to three-year extended supervision order imposed in 2012 - 2012 order suspended on occasions between 2012 and 2017 as a result of sentences of imprisonment - Defendant demonstrating reasonable compliance since February 2018 - construction and operation of ss. 5B, 7(4) and 10A of the Crimes (High Risk Offenders) Act 2006 - whether orders should be made after preliminary hearing - orders made

CIVIL PROCEDURE — Originating process — Liquidated claim – where a retail business supplying barbeque equipment and outdoor appliances went into liquidation – whether title to stock held by the company had passed to customers – whether the liquidator was justified in charging a levy to customers and suppliers for the expenses incurred in identifying, preserving and distributing the stock

HIGH RISK OFFENDER – final hearing – application for extended supervision order – interim supervision order previously made – whether unacceptable risk of committing another serious violent or sexual offence – drug use primary risk factor – 12 month extended supervision order imposed with conditions

DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO “benchmarks” for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks – whether benchmarks capable of sustaining damages calculated by primary judge – whether nominal damages should be awarded or the matter remitted TRIAL – procedural fairness – court invited appellant’s counsel to attend to make further submissions on damages after judgment reserved – no response from counsel – invitation repeated by court – appellant’s counsel supplied written submission opposing further hearing – court proceeded to assess damages against appellant without further hearing – whether course adopted by court procedurally unfair

TORTS — negligence — apportionment of responsibility and damages — primary judge held that appellant vicariously liable for injury and breached duty of care owed to respondent — primary judge found no negligence on part of worker’s employer — whether primary judge erred in finding worker’s employer not in breach of duty and liable in damages to respondent such as to entitle appellant to contribution from employer — whether primary judge erred in assessment of non-economic loss by applying a 10% reduction to percentage of most extreme case to reflect for contingency — whether primary judge’s assessment as to past economic loss supported by evidence — whether primary judge’s estimation of working life of 60 years and application of 20 per cent buffer for vicissitudes sufficient to account for fact that surgery brought about by negligence would have been necessary at some point in future in any event

CRIME – Fraud – Conspired dishonestly to obtain financial advantage by deception – $1 million advance from Commonwealth Bank of Australia for purpose of acquiring shares in company – Applicant used advance to repay personal debt - s 192E Crimes Act 1900 (NSW). CRIME – False information – Supply misleading information as director to the Australian Securities Exchange – Two false or misleading announcements - ss 1309 and 1311 Corporations Act 2001 (Cth). CRIME – Falsification of books – Relating to the affairs of company – ss 1307 and 1311 Corporations Act 2001 (Cth). CRIME – Appeals – Appeal against conviction – Conspiracy – Verdict on duplicitous basis – Directions given to jury – suggested three alternative agreements which might prove conspiracy - Gave rise to latent duplicity or latent ambiguity – No miscarriage of justice – Applicant did not lose a real chance of acquittal. CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of State offence with Commonwealth offences – “Out of the same set of circumstances” – s 29 Criminal Procedure Act 1986 (NSW). CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of substantive offences to conspiracy count in same indictment – Open to the Crown to charge applicant with conspiracy – Crown did not obtain any forensic advantage. CRIME – Appeals – Appeal against conviction – Falsification of books – Falsification of company minutes – Falsification of correspondence between solicitor and company – Falsification of correspondence between bank and company - Documents are “books” of the company - s 1307 Corporations Act 2001 (Cth). CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Tender and use of exhibit – Two volumes of documents – Extended evidence of applicant during trial – No realistic prospect of prejudice – Limited duplication of documents that related to prior conviction – Applicant elected to give evidence – Detailed and thorough evidence-in-chief and cross-examination – No unfairness to applicant. CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Applicant not denied a fair trial – Applicant not deprived of a fair chance of acquittal. CRIME – Appeals – Appeal against sentence – Manifest excess – Overall sentence not manifestly excessive – Reasonable exercise of discretion of sentencing judge. CORPORATIONS – Meaning of “books of the company” considered – s 1307 Corporations Act 2001 (Cth)

CRIME — appeals — appeal against sentence – sentenced for ongoing drug supply, drug supply, and proceeds of crime offences – whether primary judge failed to give any weight to remorse – no error established no submission made and where evidence of remorse relevant to s 21A(3)(i) not self-evident on the materials – whether primary judge imposed a manifestly excessive aggregate sentence – potential disadvantage on appeal where ground asserting manifest excess particularised in sub-grounds asserting patent error – no error in primary judge’s assessment of objective seriousness where no submissions made below against such finding – no error in parity between the indicative sentences imposed for the supply offences – no error in aggregate sentence having regard to totality of criminality and the applicant’s subjective case

CRIME – appeal against conviction – supply of prohibited drugs – unrepresented accused at trial – pleas of not guilty not personally entered by accused on arraignment before the jury panel – whether trial a nullity as a result – whether trial so unfair as to constitute a miscarriage of justice – both grounds dismissed

EQUITY – Trusts and trustees – Judicial advice – Dispute between executor and beneficiaries

RESIDENTIAL TENANCIES – claim for possession – whether residents in possession pursuant to lease or licence – where notice of termination purportedly given – where residents in occupation of property for several months after notice of termination purportedly given – writ of possession granted

ADMINISTRATIVE LAW – application for interim relief – no utility in grant of interim relief where plaintiff has not availed himself of right of review on merits – court has no jurisdiction to relax progression rule

BAIL – show cause – whether unacceptable risk - whether Crown’s bail concerns can be mitigated by appropriate conditions

CIVIL PROCEDURE – Summary judgment – application for interim payment under s 82 of the Civil Procedure Act 2005 (NSW)

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed PROCEDURE – appeal against summary dismissal of summons – plaintiff required to show cause why proceedings should not be dismissed – obligations of the Court to self-represented plaintiff – whether plaintiff had arguable case – appropriate orders on appeal

CRIMINAL LAW – stay of proceedings – temporary stay – applicant charged with sexual intercourse without consent – main issue at trial consent – ambulance officer made note concerning complainant’s history “ANXIETY, DEPRESSION - OFF MEDICATION FOR 4/12 SINCE -> AUSTRALIA” – complainant resident of United Kingdom – applicant sought stay pending prosecution making inquiries of complainant’s mental health and obtaining records of diagnosis and treatment – stay refused by primary judge – consideration of nature of duty of disclosure – consideration of circumstances when duty extended to duty to make inquiries – nature of evidentiary onus upon applicant for a stay – no obligation to make inquiries in present case – appeal dismissed

COSTS – security for costs – relevant factors – plaintiff not ordinarily resident in Australia – strength of plaintiff’s case and delay – security ordered in tranches

CHARITIES AND NOT-FOR-PROFITS – charitable gifts and trusts in a will – cy-près scheme – failure of object – where one of the charitable institutions the object of the deceased’s testamentary bounty ceased operating prior to the deceased’s death – where all active parties agree that the trust property should be applied cy-près – whether the deceased’s will displaces the statutory presumption of a general charitable intention – presumption maintained – trust property applied cy-près

COSTS - Party/Party - Bases of quantification - Factors relevant to the court’s discretion when quantifying costs – Whether gross sum costs order should be made where successful plaintiff was liable to defendant under several interlocutory costs orders – Civil Procedure Act 2005 (NSW), s 98(4)(b) COSTS - Party/Party - Exceptions to general rule that costs follow the event - Offers of compromise/Calderbank offers – Plaintiff succeeds on basis not pleaded at the time defendant rejected Calderbank offer – Plaintiff’s application for indemnity costs from date of Calderbank offer rejected COSTS - Party/Party - General rule that costs follow the event - Proceedings discontinued or dismissed – Plaintiff (in effect cross-claimant) to pay defendant’s costs on the indemnity basis where claim not pressed after Court declines to deal with claim on the papers DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Assessment of mesne profits for trespass by landlord against tenant where rights included 103 year lease to build and operate car park and private hospital – Damages assessed as at date cause of action arose PROCEDURE - Judgments and orders - In general – Whether leave to reopen argument should be granted – Whether argument said to have been overlooked had been put TORTS - Trespass - Trespass to land and rights of real property – Measure of damages – Trespass by landlord against tenant - Assessment of mesne profits where rights included 103 year lease to build and operate car park and private hospital – Damages assessed as at date cause of action arose

BAIL – where applicant charged with indecent assault and sexual assault – where applicant originally granted bail following arrest but placed in custody after breach of bail condition – whether applicant constitutes a bail concern – whether Crown’s bail concerns can be mitigated by appropriate conditions

COSTS – party/party – assessment of responsibility for listing of competing notices of motion ultimately not pressed – where mortgagee entered into possession of property not left vacant – application made pursuant to Uncollected Goods Act 1995 (NSW), s 9 – where consent orders endorsed – whether costs to be awarded on indemnity or ordinary basis – costs awarded on the ordinary basis

CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process – subpoenas issued for the production of documents from National Australia Bank Ltd and Australian and New Zealand Banking Group Ltd – whether a legitimate forensic purpose for production – whether merely a fishing expedition – whether the issuing of the subpoena subverts the operation of Practice Note SC Eq 11 CIVIL PROCEDURE — Notice to produce — seeking categories of documents – whether too broad – whether documents requested specified with sufficient particularity