Cases and authorities

CRIME — Appeals — Appeal against sentence – offences of aggravated sexual assault and indecent assaults against daughter of partner – whether sentencing judge erred in application of the totality principle in imposing aggregate sentence – whether sentence manifestly excessive – difficulties with mathematical analysis of indicative sentences in determining manifest excess – need for careful approach in using comparative cases – no misapplication of principle – aggregate sentence within range of sentences available to reflect the criminality involved – appeal dismissed

CRIMINAL LAW – crimes of dishonesty – discount for assistance – assistance provided very late – police aware of matters subject to assistance – possibility applicant to be called to give evidence – whether 5% discount for future assistance sufficient – discretionary and evaluative judgment – no error established

CIVIL PROCEDURE — Interim preservation — Freezing orders — Requirements to be met before order made

CIVIL PROCEDURE — Interlocutory applications — Standard of satisfaction for the continuation of an interlocutory injunction EMPLOYMENT LAW — The contract of service and rights, duties and liabilities as between employer and employee — Enforceability of post-employment restraints

CRIMINAL LAW – application for review of conviction – s 78 Crimes Appeal and Review Act – whether there is an appearance of doubt as to the applicant’s guilt – trial by judge alone in 1992 – appeal against conviction dismissed in 1993 – application for special leave refused by High Court in 1994 – no compelling new evidence – most matters considered by appeal courts in earlier proceedings – consideration of evidence and flaws in prosecution case – whether election for trial without jury flawed – whether election not to give sworn evidence led to miscarriage – whether trial Judge’s reasons insufficient – where subsequent High Court cases suggest more reasons may be required – where issue considered by both CCA and High Court

CIVIL PROCEDURE – Preliminary discovery – to determine whether to commence proceedings – to identify potential cause of action for breach of warranty or statutory misleading and deceptive conduct

TORT — Negligence — General principles — Personal injury — Greyhound racing — Operating a catching pen gate — Where the plaintiff was struck by a lure Defences — Civil Liability Act 2002 (NSW), ss 5K, 5L — Whether the risk of harm was “obvious” — Whether operating the gate was a “recreational activity” — Whether there was a significant risk of physical harm — ss 60, 61 — Whether the defendant was a volunteer Breach — Whether the defendant failed to take reasonable precautions against the harm

EQUITY- Adoption – Whether a child is an Aboriginal child for the purposes of the Act – Application of the Aboriginal child placement principles – Whether reasonable inquiries were made- When was a child ‘placed for adoption’ – Whether adoption order in best interests and clearly preferable- Where child has consented to own adoption FAMILY LAW – Children – Adoption

CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of “acquiescence” – absence of any real prejudice – appropriate conditions to be imposed on amendment SUCCESSION – grant of probate in common form in respect of a will – application to amend cross-claim to challenge grant on basis of lack of testamentary capacity – no caveat lodged – application to amend made at a time when case ready to be allocated a hearing date – relevant considerations – importance to be placed on ascertainment of true intention of the testator – significance of unique public interest character of probate proceedings – reasonably arguable case that testator lacked testamentary capacity at relevant time – whether application, if granted, doomed to fail – whether challenge to testamentary capacity was an abuse of process in the circumstances – consideration of In re Goode (1890) 11 LR(NSW) (Eq) 281

APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal

APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW). APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.

CORPORATIONS – winding up – application for replacement of liquidator – where replacement of liquidator is by consent – where incumbent liquidator has identified avenues for investigation – where substantial creditor willing to fund only replacement liquidator to undertake investigations – whether replacement of liquidator is in best interests of creditors. CORPORATIONS – winding up – application for approval of entry into funding agreement – whether approval of entry into funding agreement is in best interests of creditors.

CORPORATIONS - application under ss 447C, 447A(1) and 1322(4) of the Corporations Act 2001 (Cth) and s 90-15 of Sch 2 to the Act - whether the plaintiffs were validly appointed as administrators and subsequently liquidators of the defendant company, in circumstances where the sole director who passed the resolution for their appointment was an undischarged bankrupt at the time of the resolution.

SOLICITORS – whether to refer solicitor to Law Society or Legal Services Commissioner

CONTRACT – breach of contract – damages.

COSTS – party/party – proper construction of Heads of Agreement concerning costs – whether agreement to share equally the costs of the referees was subject to agreement as how costs of the proceedings were to be resolved

CRIMINAL LAW – appeal against sentence – aggravated indecent assault on children under 10 years old – whether offences planned – appellate challenge to factual findings of sentencing judge – application of Clarke v R [2015] NSWCCA 232 CRIMINAL LAW – resentencing – breaches of extended supervision order – indecent assaults – assessment of objective seriousness – significance of offender’s propensity to reoffend – availability of extended supervision or detention orders irrelevant

CRIMINAL LAW – subpoena – application to set aside subpoena – application refused in District Court – whether documents caught by subpoena a “report” under child care legislation – where subpoena did not call for report on its face – purpose of legislation – legislation prescriptive – where complainant in historical sexual assault case makes allegation to Family and Community Services – where existence of FACS complaint disclosed to accused in criminal proceedings – where no details of date or substance of complaint disclosed – accused issues subpoena – fairness to the accused – where primary Judge protects confidential information by ordering redaction of documents – where orders accord with purpose of legislation – where accused unaware of contents of document – hypotheticals – prohibition on production of “extract” of report – prohibition on evidence of “any of its contents” – subpoena set aside

Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs Immigration – Refugees – Where plaintiff sought intervention of Minister under s 48B or s 417 of the Migration Act 1958 (Cth) – Where request for intervention finalised without referral to the Minister – Whether Minister could delegate exercise of power under s 48B – Whether departmental officer involved in exercise of non-statutory executive power – Whether denial of procedural fairness. Words and phrases – "finalised without referral", "Ministerial intervention", "non-statutory executive power", "procedural fairness", "request for intervention". High Court Rules 2004 (Cth), r 25.09.1. Migration Act 1958 (Cth), ss 48B, 417.

TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil Liability Act 2002 (NSW), s 13 – whether primary judge adequately engaged with employment history evidence – where plaintiff suffered from pre-existing injuries – whether primary judge adequately engaged with medical evidence to determine extent of exacerbation – whether allowance for future medical expenses was supported by evidence DAMAGES – measure and remoteness of damages in actions for tort – non-economic loss – Civil Liability Act 2002 (NSW), s 16 – whether primary judge erred in assessment of the degree of severity of non-economic loss – significance of pre-existing injuries – whether primary judge’s assessment susceptible to appellate review APPEAL AND NEW TRIAL – new trial on particular grounds – whether retrial should be ordered on the assessment of damages – where reliability of evidence in issue

EQUITY – power of court to approve advantageous dealings – discretionary family trust – proposed distribution of trust income and capital to non-beneficiary – Trustee Act 1925 (NSW), s 81- generality of orders sought – “in the administration or management of the trust” – objectives of the trust – “expedient”

EVIDENCE – application for an order for examination and production of documents under Evidence on Commission Act 1995 (NSW) – where application made in respect of civil proceedings abroad – where criminal proceedings pending in Australia – whether such order should be made.

CONTRACTS – construction and interpretation – share sale agreement – whether the purchaser’s obligation to make deferred payments dependent on seller’s obligation to ensure adjustments made on completion – where parties agreed time was of the essence in relation to the purchaser’s obligation to make the deferred payments – whether parties agreed that the “Date of Completion” was a different date to “Completion” – whether seller no longer bound by restraints and warranties in the agreement EQUITY – equitable remedies – relief against penalties – clause in share sale agreement provided that restraints and warranties made by defendant are void if payment not made within seven days of due date – whether that clause is a penalty and unenforceable EQUITY – equitable remedies – relief against forfeiture – non-proprietary rights in the form of restraints and warranties conferred by agreement – whether purchaser should have relief against forfeiture of those rights

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – fiduciary duty of mortgagee in possession exercising power of sale – whether bank breached its duty to mortgagor during sale of the mortgaged property

Immigration – Refugees – Where plaintiff sought intervention of Minister under s 48B or s 417 of the Migration Act 1958 (Cth) – Where request for intervention finalised without referral to the Minister – Whether arguable basis disclosed for relief sought. Words and phrases – "finalised without referral", "Ministerial intervention", "request for intervention". High Court Rules 2004 (Cth), r 25.09.1. Migration Act 1958 (Cth), ss 48B, 417.

HIGH RISK OFFENDER – serious sex offences – preliminary hearing – interim orders sought – interim detention order made

ADMINISTRATIVE LAW – proper basis for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) – where satisfied that Community Corrections pre-release report contained misleading information – where satisfied that State Parole Authority’s decision to refuse parole based on misleading information gave rise to circumstance of “manifest injustice” – consent orders made

CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – where party liable signed deed imposing obligation to pay money to the plaintiff – where the party failed to sign a consent judgment to be filed in circumstances where payment not made – where payment not made – settlement enforced – s 73 Civil Procedure Act – judgment entered

ADMINISTRATIVE LAW – defendant injured in motor accident – plaintiff applied for further medical assessment of degree of permanent impairment of defendant – proper officer dismissed plaintiff’s application – plaintiff requested that proper officer reconsider decision – proper officer found no reason to reconsider decision – plaintiff sought judicial review of proper officer’s decisions – whether proper officer applied wrong legal test – whether proper officer misconstrued applicable guidelines – whether pre-impairment injury or records of pre-impairment injury must exist “at the time of the accident” – whether proper officer wrongly determined for herself issues properly for expert opinion – whether Court should in any event exercise its discretion to decline to grant relief CIVIL PROCEDURE – plaintiff’s summons filed out of time in respect of proper officer’s first decision but not second decision – whether extension of time should be granted in respect of first decision – where delay explained by exhaustion of remedies below – where second decision inextricably linked to first decision – where defendant accepted there would be no prejudice

DEFAMATION – Publication – Generally – Public Facebook Page – Liability of Media Company Owner of Public Facebook Page for comments by third-party users – probable that defamatory comments would be posted – Public Facebook Page operated for commercial interests of Media Company – Capacity to prevent and control postings – resources required – no assessment performed of likelihood of defamatory comments – Discussion of general test for primary or first publisher – liability of subordinate or secondary publisher – innocent dissemination – separate question asked – Media Company owners of Public Facebook Page held to be primary publisher

ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) - whether the Tribunal erred in failing to afford procedural fairness – whether the Tribunal failed to take into account the general principles in s 4 of the Guardianship Act 1987 (NSW) – whether the Tribunal made a manifestly unreasonable decision – whether the Tribunal placed excessive reliance on matters to the exclusion of all relevant factors – whether the Tribunal ought to have allowed the Daughter to adduce particular medical evidence.

DEFAMATION – assessment of damage – plastic surgeon – continuing malicious vilification – aggravated damages – injunctive relief made permanent – one award for non-economic damages, including aggravated damages – interest – discussion on interest TORT – Injurious falsehood – elements – injunctive relief – malice – permanent injunctive relief granted COSTS – Defamation – indemnity costs awarded

REFERRALS – case management – application for leave to appeal - matter listed for leave only hearing CIVIL PROCEDURE – Court of Appeal – application for stay of orders appointing – stay refused

DAMAGES – non-economic loss – eye injury resulting from hit by tennis ball – whether primary judge erred in assessment of non-economic loss DAMAGES – future economic loss – impairment of earning capacity – extent of evidence required in case of adolescent – State of New South Wales v Moss (2000) 54 NSWLR 536 considered APPEALS – nature of appellate review of an assessment of severity of non-economic loss under s 16 of the Civil Liability Act 2002 (NSW)

CRIMINAL LAW – sentencing – Crown appeal – whether sentence manifestly inadequate – objective seriousness – indicative sentences -- totality – double counting – accumulation – subjective features – Bugmy principles – residual discretion – appeal allowed – resentencing

SUPPRESSION ORDERS – Court Suppression and Non-Publication Orders Act 2010 – interim orders previously made pursuant to s 10 of the Act on limited basis in the absence of properly prepared application and evidence set aside - high risk sex offender – defendant’s application for orders opposed by the Crown – notice of motion dismissed

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

HIGH RISK OFFENDER – application for interim supervision order

CIVIL PROCEDURE – Admissions – Admission of authenticity of documents – whether plaintiff should be permitted to withdraw its admission that documents are authentic

CRIMINAL LAW - Offender pleaded guilty to serious offences against the person and terrorism offence - Offender writes letter to Court after sentencing hearing but before sentence passed - extremist content of letter - Crown application for non-publication order concerning letter - non-publication order made

CIVIL LAW – extended supervision order – assessment of risk – where offender guilty of two extremely violent offences and a number of other offences of violence – where pre-existing supervision order about to expire – breaches of orders – whether conditions counter-productive to rehabilitation – fine balance – recent improvement in attitude – too little too late – recent breaches of order – boundaries CIVIL LAW – high risk offender litigation – surplus of material – repetition of material – dumb and unhelpful – complaints having no impact – parties should co-operate to streamline volume of material

SENTENCING – Mental Health (Forensic Provisions) Act 1990 (NSW) – limiting terms – special hearing conducted before judge alone – limiting terms nominated for manslaughter and robbery armed with an offensive weapon – concurrent limiting terms

CRIMINAL LAW – fitness to stand trial – Presser test – accused charged with murder – intellectual disability – verbal land memory functions impaired – conflict between experts as to fitness – whether accused able to follow trial - whether able to give instructions – where prosecutor accepts open to find accused unfit – foetal alcohol syndrome – abuse and neglect – impact on neurological development – where accused has language skills of 7 year old – inconsistency in test results – whether accused fit to stand trial – he isn’t

PROCEDURE – plaintiff convicted in Local Court – plaintiff appealed to District Court – District Court determined appeal – plaintiff then sought to appeal Local Court decision to Supreme Court – whether second appeal competent – whether “appeal” should be summarily dismissed

CIVIL PROCEDURE – Subpoenas – Notice to Produce – legitimate forensic purpose – whether fishing expedition – whether abuse of process

CIVIL PROCEDURE — Pleadings — Amendment – leave sought to amend statement of claim – whether amendments were for “tidying up” or “special circumstances” existed to allow the amendments CIVIL PROCEDURE – Subpoenas – order for access to documents produced under subpoena – whether the subpoena identified with reasonable particularity the documents sought – whether the subpoena amounted to a fishing expedition or substitute for discovery

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW) TAXES AND DUTIES – interpretation of s 32(2)(a) of the Payroll Tax Act 2007 (NSW) – whether subcontracts were excluded from being relevant contracts – whether supply of services by subcontractors under the subcontract was ancillary to the supply of goods – meaning of “supply” – meaning of “under the contract” – meaning of “ancillary” – whether Smith’s Snackfood Company v Chief Commissioner of State Revenue [2013] NSWCA 470 is distinguishable TAXES AND DUTIES – interpretation of s 32(2)(d)(i) of the Payroll Tax Act 2007 (NSW) – whether subcontracts were excluded from being relevant contracts – whether the supply of services by subcontractors was ancillary to the conveyance of goods by means of a vehicle provided by subcontractors – meaning of “conveyance” – whether Smith’s Snackfood Company v Chief Commissioner of State Revenue [2013] NSWCA 470 is distinguishable TAXES AND DUTIES – penalty tax and interest – interpretation of ss 28, 29, 33 of the Taxation Administration Act 1996 (NSW) – whether the scope of the discretion under s 33 is confined by ss 28 and 29 – whether penalty should be reduced to take into account the parties’ conduct

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW) TAXES AND DUTIES – payroll tax – employment agency contracts – interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “employment agency contract” – whether it is only the “employment agent” closest in the chain of contractual arrangements leading up to the procurement of the services of another person or persons (the service providers) for an end user (the client) on whom liability for payroll tax arises

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – extremist ideology developed while in custody – serious threats of extremist violence against law enforcement officers and others – no evidence of violent extremism in the community – order granted

SENTENCING – manslaughter by substantial impairment – schizophrenia – subjective considerations on sentence – impact of mental illness on objective seriousness and moral culpability – mental illness heightening danger to community – plea of guilty at earliest opportunity – special circumstances