Cases and authorities

PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge failed to consider witness’ evidence – where witness’ affidavit read – where witness cross-examined on evidence before primary judge – where witness’ evidence the subject of express analysis by primary judge PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge erred in not taking into account documentary evidence – where documents not in evidence before primary judge – where documents sent by email to primary judge’s chambers in purported answer to notice to produce – importance that evidence be formally tendered PRACTICE AND PROCEDURE – application for leave to appeal – whether party was denied procedure fairness before primary judge – where party did not appear at the hearing – where no evidence that application was made for affidavit of party to be read – where no submissions as to arguments party would have made

CIVIL PROCEDURE – appeal – subpoenas – application to set aside – subpoena seeking evidence of capacity to enter deed – material not put before the primary judge – Court of Appeal unlikely to undertake a trial of evidence not previously considered

WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) – construction of s 38A – where appellant a worker with highest needs –whether arbitrator made finding that appellant able to return to pre-injury employment – whether appellant entitled to compensation under s 38A

EVIDENCE – appeals – findings of fact – whether glaringly improbable or contrary to compelling inferences CONTRACTS – factual causation – subjective determination in the light of all the relevant circumstances

CRIME – criminal appeals – appeal against sentence – persistent sexual abuse of a child – whether sentence manifestly excessive – objective seriousness below mid range – unusual facts – very strong subjective case – notional starting point 8 years imprisonment – sentence of six years with non-parole period of 3 years 6 months – sentence not manifestly excessive

CRIMINAL LAW – appeal against sentence – offender convicted of multiple drug supply offences –sentencing judge inferred from prior conviction that offender had previously used growth hormone – error conceded – whether error sufficient to warrant resentencing – agreement between parties – effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 considered CRIMINAL LAW – appeal against sentence – resentencing – nature of remorse – offender did not testify – limited reliance on self-serving statements to psychologist – need for transparency in accumulation of sentences – appropriateness of aggregate sentence – special circumstances

CRIME — appeals — appeal against sentence – firearms offences committed in 2011 – sentenced for offences related to possession of firearms in 2012 – sentenced for offences of firing of firearm with disregard for safety of others and causing grievous bodily harm offences in 2018 – no error established where submissions on sentence made in respect of delay and principle of totality – judges are not required to approach sentencing in arithmetical fashion – no error established in relation to concurrency and accumulation of offences – offences contain discrete and additional criminality compared to possession of firearm offences – sentence not manifestly excessive – appeal dismissed

CRIMINAL PROCEDURE Admissibility of evidence – exclusion of prejudicial evidence in criminal proceedings – whether evidence of Mr Raneri should be rejected – whether evidence is relevant – whether probative value of evidence outweighed by danger of unfair prejudice to defendant – held evidence excluded.

CIVIL PROCEDURE — Originating process — Amendment — Application to set aside statutory demand — New ground sought to be advanced — Whether precluded by “Graywinter principle” — Where defects not referred to in affidavit but apparent from face of documents annexed — Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393; [2007] NSWSC 1143 applied — Leave to amend granted subject to usual costs order.

CRIMINAL LAW – Juries – Practice and procedure – Where accused charged with doing acts in preparation for, or planning, a terrorist act or acts – Where Crown sought to provide jury with a chronology in the nature of a “road map” of the evidence – Where earlier objection was taken by counsel for the accused on the basis that to provide the jury with the chronology would be prejudicial – Where chronology provided – Where further objection taken to a particular entry in the chronology – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Entry permitted

CHILD WELFARE – adoption – order – whether it is clearly preferable that an adoption order be made CHILD WELFARE – definition of “Aboriginal child” – whether the child is of Aboriginal descent

COSTS – meaning of words “costs in the cause” – when no further relief sought, whether there is a “cause” to determine result of earlier order – as no further orders sought, no warrant to convert previous order that the costs of an application be costs in the cause to an order that the costs be payable by the party which lost the initial application

LAND LAW – property sold by Council under Ch 17 Pt 2 Div 5 of the Local Government Act 1993 (NSW) – net proceeds of sale paid into Court under Div 4 Pt 70 of Supreme Court Rules 1970 and Pt 4 of the Trustee Act 1925 (NSW) – entitlement to net proceeds of sale in Court LAND LAW – whether at time of sale, the Property was owned solely by Lucille Walsh, solely by the estate of the late Jeanette Walsh, or jointly by the estate of Jeanette and Lucille as tenants in common – whether joint tenancy between Jeanette and Lucille had been severed - whether prior to the sale of the Property, Mr Sean Vicary had any interest in the Property as mortgagee

APPEALS – Judicial review – Application for leave to appeal and cross appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Contract for a bathroom renovation – Whether an oral variation is effective despite a clause requiring variations to be in writing – Whether the plaintiff waived her right to insist upon the contractual specifications – Whether the builder breached statutory warranties under the Home Building Act 1989 (NSW) s 18B – Whether rectification is an unreasonable remedy where the plaintiff had agreed to the variations

CORPORATIONS – winding up – application for replacement of liquidators – where incumbent liquidators were appointed a short period ago – where challenge to independence of incumbent liquidators – whether unreasonable for incumbent liquidators not yet to have investigated particular transactions – where solicitors advising incumbent liquidator are a substantial creditor in the winding up and had previously advised the company in liquidation and possibly its directors in respect of matters which would require investigation – where liquidators will retain new solicitors if not removed from office – where plaintiff’s proposed replacement liquidators would be funded with limitations on their ability to conduct the liquidation – whether the incumbent liquidators should be replaced.

CIVIL PROCEDURE – Subpoenas – application to set aside – access to documents sought under notice to produce – two young persons were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal from the plaintiff took place under authority conferred by the Children and Young Persons (Care and Protection) Act 1998 and left the children under the care of the defendants, the Minster and the Department of Family and Community Services – grounds for removal were the plaintiff’s violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for alleged sexual assault on one child – Presidential Children’s Court proceedings confirmed the removal of the two children and ordered they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children’s Court to this Court – plaintiff issues notice to produce – plaintiff abandons any contention on the appeal to this Court that the children should be restored to his care – plaintiff confines his appeal to submissions that an early foster carer of the children (“the first foster carer”) was unsuitable for the future care of the children and the children’s placement planning is inadequate – the first foster carer was since replaced by the defendants with new carers (“the second foster carers”) – the plaintiff does not challenge the continuation of the children’s care by the second foster carer – on the appeal the plaintiff issues a notice to produce for documents concerning the children’s care by the first foster carer – the defendants submit that the documents sought under the notice to produce are no longer relevant to the issues for trial – whether the plaintiff should be given access to the documents produced in accordance with the notice to produce.

COSTS – appeal allowed in part – partial success of both sides – apportionment of costs – impossible to re-exercise costs discretion at first instance – costs at first instance relatively large – remitter to Equity Division

DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters in closing address warranted discharge of jury DEFAMATION – damages – aggravated damages – whether appellable error in failing to order aggravated damages – relevance of plaintiff’s failure to adduce evidence of hurt from newspapers’ publication of jury’s verdict – relevance of identification of award of damages awarded in respect of each of three defendants’ publications DEFAMATION – statutory qualified privilege – reasonableness – whether publisher’s conduct was reasonable – whether determined by judge or jury – meaning of “general law” – whether Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 clearly wrong – whether reasonableness as element of Lange qualified privilege determined by judge or jury – Defamation Act 2005 (NSW), ss 22, 30 considered

BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed

SUCCESSION - Executors and administrators - Proceedings against executors and administrators – Application to remove the executor - Where the father’s Will left 50% to each of his two sons, but the elder son (the Defendant), who was the sole executor, was given discretion under the Will to postpone distribution of the Estate indefinitely; where the younger son (the Plaintiff) sought to have the Defendant removed as executor and made to account for improper management of the Estate finances; where the Plaintiff sought to have the Estate distributed on the basis of the “rule” in Saunders v Vautier – Held: Defendant removed as executor and made to account for improper expenditure, but the rule in Saunders v Vautier does not apply to real property and, in any event, the beneficiaries (being the two brothers) were not in agreement in calling for a distribution of the trust property. SUCCESSION - Family provision and Maintenance - Failure by testator to make sufficient provision for applicant – Where the alleged failure was not the percentage afforded to the applicant under the Will but, rather, the discretion given to the executor to postpone distribution of the Estate indefinitely – Held: applicant entitled to 50% of the Estate pursuant to a family provision order under the Succession Act 2006 (NSW), as well as an ancillary order requiring the Estate properties to be sold and the proceeds distributed.

SUCCESSION – Family Provision – The Plaintiff, an adult child of the deceased, applies for a family provision order under Ch 3 of the Succession Act 2006 (NSW) – The Defendant is also an adult child of the deceased – Deceased left Will – Some provision made for the Plaintiff, and other beneficiaries, with balance left to the Defendant – Relatively modest estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made

CORPORATIONS – winding up – application for termination of winding up – where operation of order for winding up was stayed – where winding up never commenced – where reason for stay has lapsed and company has not led solvency evidence – whether the stay of the operation of the order should be lifted.

PROCEEDS OF CRIME – application for restraining orders – application granted as statutory conditions met

CIVIL PROCEDURE – claim in debt and for breach of contract – notice of motion to amend Defence of Second Defendant – various affirmative defences pleaded in Defence – Second Defendant later made aware of potential further defence to resist claim – consideration of ss.58 and 64(2) Civil Procedure Act – whether proposed amendment is arguable - explanation for delay in bringing amendment application - leave granted – appropriate orders made to retain hearing date

PRACTICE AND PROCEDURE – request for evidence on commission – issue of subpoena proposed to answer request by court in Lima in matrimonial dispute – application granted

APPLICATION FOR PRO BONO ASSISTANCE – application by defendant for pro bono assistance to resist application for judicial review of magistrate’s decision – proceedings involve questions of law – would advance the administration of justice to order the referral – defendant impecunious and in receipt of carer’s pension to look after ailing mother

CIVIL PROCEDURE – application for leave to appeal – Local Court refused application to have judgment set aside – grounds of appeal based on technicalities – extraordinary litigation history – no “sufficient cause” to set aside judgment – leave to appeal refused – interests of justice – s 56 Civil Procedure Act 2005 (NSW)

CRIMINAL LAW – Evidence – Whether evidence relevant – No point of principle

CORPORATIONS – application for rectification of register maintained by ASIC – where register maintained by ASIC evidences change to shareholders and officeholders – where no corporate step undertaken to effect such changes – whether court should order rectification of register maintained by ASIC.

HIGH RISK OFFENDER – Final hearing – whether the defendant should be subject to an Extended Supervision Order or Continuing Detention Order - where the defendant concedes that he poses an unacceptable risk of committing another serious offence if not kept under the supervision of an Extended Supervision Order – where the court has the power to make a Continuing Detention Order - the test for considering whether the court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence in the future if not kept in detention under a Continuing Detention Order – comparative test no longer requires consideration of an Extended Supervision Order – current test requires comparison between risk of defendant in community against risk of defendant in detention – the plaintiff’s evidentiary obligation and duty to assist the court in s56 of the Civil Procedure Act – legal tests for imposing conditions of an Extended Supervision Order or Continuing Detention Order – where the plaintiff has submitted standard or common conditions

CONTRACTS – construction – whether parties to a Deed of Cross Guarantee guaranteed the obligations of entities named in Part 1(3) of the Schedule to the Deed CONTRACTS – rectification – whether the Deed should be rectified by deleting the names of the entities named in Part 1(3) of the Schedule to the Deed – whether clear and convincing evidence of a common intention inconsistent with the words used in the Deed

CIVIL PROCEDURE – Evidence – application by cross-defendant seeking leave to adduce expert evidence concerning authenticity and provenance of certain documents CIVIL PROCEDURE – Pleadings – Particulars – whether cross-claimant must plead the particulars of any fraud or misrepresentation on which he relies pursuant to r 15.3 of the UCPR – whether directions should be made for representative of estate to adduce evidence from first plaintiff and for leave to be granted for cross-examination of first plaintiff or his evidence to be taken by way of a voir dire in advance

PRACTICE AND PROCEDURE — Limitation of actions — Personal injury — Limitation of Actions Act 1958 (Vic) — Whether the cause of action was discoverable by the plaintiff within the meaning of s 27D — Application for extension under s 27L — Court's discretion to extend limitation period — Where the plaintiff was allegedly given incorrect legal advice as to the availability of a public liability claim Accident compensation — Workers compensation — Accident Compensation Act 1985 (Vic) — Whether the plaintiff’s claim is barred by s 134AB — Whether the injury is a “compensable injury” under the Act — Where the plaintiff’s employment is not connected to Victoria pursuant to s 80

HIGH RISK OFFENDER – Final hearing – application by the State for an ESO - whether there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – where the defendant is 19 years of age – where the defendant has professed conversion to Islam whilst in custody –where the defendant has made verbal threats associated with the conduct of ISIS – where the defendant has not committed any serious terrorism offence or committed offences in association with any ideology or religion

SENTENCING — appeal against sentence — co-offenders — disparity between sentences – whether legitimate sense of grievance arising from disparity – assessment of disparity based on objective criteria – consideration of basis upon which co-offenders sentenced – differences in statements of agreed facts and subjective cases between applicant and co-offenders – no justifiable grievance assessed by reference to objective criteria – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced after trial – applicant found guilty of two child sex offences contrary to ss 66A(1) and 61M(2) – two separate complainants – first complainant was the 8 year old sister of the applicant’s then partner – second complainant was the 5 year old daughter of the applicant’s then partner – touching and digital penetration – applicant sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of nine years – whether the s 66A sentence incorporated factual error – where the sentencing judge made erroneous factual finding as to bleeding caused by the offending – finding only one of the considerations taken into account when assessing objective seriousness – whether the sentencing judge erroneously assessed the objective seriousness of the offending – whether the sentencing judge erred in the weight she afforded to the standard non-parole period – whether the sentencing judge erroneously found that the applicant could address his rehabilitation needs in custody – whether the sentencing judge failed to give adequate consideration to the causal role of substance addiction in the offending and the applicant’s disadvantaged background – whether special circumstances should have been found – whether the sentence was manifestly excessive – no statistics or comparative cases were provided to support applicant’s high-level assertion that the sentence was plainly unreasonable and unjust – significant degree of concurrency between two individual sentences – no manifest excess found – appeal dismissed

CRIME – application for leave to appeal against sentence – sexual intercourse with child under 10 – convictions on two counts after trial – very adverse pattern of prior similar offending – whether assessments of objective seriousness erroneous – whether application of totality principle erroneous – whether aggregate head sentence of imprisonment for 30 years with aggregate non-parole period of 22 years 6 months manifestly excessive – appeal dismissed

CRIMINAL LAW - appeals - application for leave to appeal against sentence - applicant convicted after trial of one offence of sexual intercourse without consent - intoxicated complainant assaulted by Uber driver in his car - applicant sentenced to 9 years’ imprisonment with non-parole period of 6 years 4 months - whether the sentencing judge erred in her interpretation of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in dealing with evidence of remorse - where the applicant wrote a letter of apology for the offending - letter provided to the sentencing judge after the sentence hearing - letter was said to demonstrate remorse - where applicant did not give evidence - where sentencing judge concluded that remorse not shown - conclusion open to the sentencing judge - whether the sentence was manifestly excessive - where the applicant did not challenge the sentencing judge’s assessment of objective seriousness - use of comparable cases - sentence not plainly unreasonable or unjust - appeal dismissed

CRIME – appeals – appeal against sentence – manifest inadequacy – whether sentence was open to sentencing judge – where legislature has set significant maximum penalty – where Crown accepts finding of special circumstances correctly made

CORPORATIONS – application to set aside a creditor’s statutory demand – preliminary question – where statutory demand served at address of company’s registered office – where statutory demand did not immediately come to attention of accounts manager – whether statutory demand was filed within time – whether court has jurisdiction to deal with application.

CRIMINAL LAW – Practice and Procedure – Juries – Where communication received from a member of the jury advising that the accused had smiled and given a “thumbs up” signal to the jury upon leaving Court – Question asked by jury member as to whether such behaviour was “normal” – Where the answer to the question posed was “no” – Where that answer may be prejudicial to the right of an accused to a fair trial, notwithstanding the fact that the situation was of the accused’s own making – Application made on behalf of the accused to discharge the jury – Application not opposed by the Crown – Jury discharged

CIVIL PROCEDURE – Pleadings – Striking out

FAMILY LAW – Children – Adoption – contested by natural mother – whether adoption is in best interests of the child – dispensing with consent of natural father under s 67(1) of the Adoption Act 2000 (NSW) – registration of maternal adoption plan under s 50(3) of the Adoption Act 2000 (NSW) – change of child’s name under s 101(1) of the Adoption Act 2000 (NSW) CIVIL PROCEDURE – Hearings – Adjournment – whether to grant adjournment to extend time in which to file evidence – numerous previous extensions

COSTS – gross sum costs order – where proceedings have been stayed – where risk of protracted costs assessment process – where numerous costs orders made against plaintiff in favour of the defendant are outstanding – gross sum costs order made after discounting defendant’s costs

PRACTICE AND PROCEDURE – Application for leave – Whether the plaintiff should be permitted to rely on an expert report – Whether a joint expert causation conclave should be reconvened – Whether the plaintiff can file and serve a further amended statement of claim TORT – Liability – Negligence – Medical negligence – Failure to diagnose – Failure to diagnose a pars defect which developed to compress the spinal cord

CRIME – application for discharge of jury – prejudicial and irrelevant evidence of historical sexual assault adduced in examination in chief – whether prejudice irreparable – application granted

PROCEDURE – notice of motion seeking leave to file a notice of motion and summons – interim orders sought – urgent application in relation to conduct of a suspended solicitor – orders made

CORPORATIONS – winding up – debt subordination – application for declarations in respect of proper construction of convertible note deed and loan agreements – where loan agreements in substantially same form – whether claims of noteholders under note deed subordinated to claims of ordinary creditors – whether claims under loan agreements rank equally with claims of ordinary creditors – whether declarations sought should be made.

CORPORATIONS – separate question – application to set aside a creditor’s statutory demand – where application filed in Family Court registry – where delay in allocation of a return date and providing sealed copies of application – where application purportedly served on defendant without a court seal or return date – whether service was effected – whether basis to remove record of winding up application is established.