Cases and authorities

CRIMINAL LAW – appeal against interlocutory judgment – double jeopardy – principle of incontrovertibility – subsequent prosecution for perjury would not controvert acquittal at earlier trial at which applicant allegedly perjured himself – stay refused

CRIME — appeals — appeal against conviction – whether prosecutor made error of fact by inviting jury to treat evidence of complainant differently due to intellectual disability – whether trial judge made error of fact in finding that the complainant and witnesses had cognitive impairment and directing jury that it could form own opinions about intellectual capacity – no technical medical evidence of intellectual disability – trial run on acceptance of complainant’s lower intellectual capacity – rule 4 Criminal Appeal Rules applies – leave refused CRIME – appeals – appeal against sentence – whether error of fact – taking into account that complainant was cognitively impaired and vulnerable person – no technical medical evidence of intellectual disability – whether error of law – denial of procedural fairness in taking into account complainant’s cognitive impairment – open to judge to describe complainant as having an intellectual disability – applicant’s counsel agreed with proposed sentence – leave refused

CRIMINAL LAW – sentencing – Commonwealth Criminal Code – acts in preparation of foreign incursion offence – life imprisonment – young offender with schizophrenia – radical Islamism – offender planned to travel to Syria to fight with Islamic State – whether “entrapment” a mitigating feature – where offender took advice from undercover officer – offender not an unwary innocent – offender unable to organise own airfare – offender “radicalised” before involvement of undercover officer – offender’s mother gravely ill with multiple sclerosis – offender’s dilemma – where jury rejects defence of mental impairment – where offender’s psychiatric condition played significant role in commission of offence – reduction in moral culpability – impact on weight to be given to deterrence – where telephone intercepts establish offender’s interest in radical Islam – US government “the hope for humanity” – observation self-evidently facetious CRIMINAL LAW – sentencing – sentencing options – rehabilitation – where operation of statute would result in very short period of supervision – where offender in need of long term supervision – appropriateness of non-custodial sentence – where offender already served 2 years on remand

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

PROCEDURE – notice of motion – order seeking funds held in Court as security for costs be paid to solicitors for the defendant with no order as to costs – orders made

CIVIL PROCEDURE — Representative proceedings — Settlement — Court approval

CRIMINAL LAW – procedure – restraining orders sought – ex-parte – orders made

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CRIMINAL LAW – variation of restraining orders – consent orders made

CRIMINAL LAW – special hearing – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

COSTS – indemnity costs – whether first offer of settlement effective as a Calderbank offer – whether unreasonable to not accept – indemnity costs awarded from date of second offer DECLARATIONS – form of declaration proposed – whether consistent with findings in principal judgment

EQUITY — Trusts and trustees — Unit trusts – where claims that payments not authorised by trust largely resolved by parties’ concessions – whether judgment ought be entered on gross or net basis in accordance with terms of Trust deed – where judgment sought by reference to income figures disclosed in accounts and entered accordingly. COSTS — Party/Party — Offers of compromise/Calderbank offers – where plaintiff succeeded in one aspect of claim but otherwise comprehensively failed – where successive offers of compromise made and refused – whether plaintiff ought to pay defendant’s costs following expiration of first offer.

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule — Where proceedings commenced and carried on against company identified by incorrect name but correct ACN — Where error identified by liquidator after winding up order made — Evidence referred to correct company — No confusion as to identity of defendant — Amendment to orders made.

CRIMINAL LAW – sentence – murder – conviction at trial – stabbing – spontaneous - intent to inflict grievous bodily harm

COSTS – security for costs – relevant factors – first plaintiff resides in California – second and third plaintiffs are incorporated in British Columbia – security already provided in an amount exceeding likely cost of enforcing a costs order in those jurisdictions – application made after matter set down for trial – plaintiffs appear to have good prospects of success

TORT - Negligence – Medical negligence – Liability – Where the plaintiff’s arm was dislocated by a horse bite – Whether the defendants failed to order imaging to identify a rotator cuff injury – Whether the defendants failed to refer the plaintiff to an orthopaedic specialist – Whether the defendants failed to advise the plaintiff as to proper care for her shoulder – Contributory negligence – Whether the plaintiff exacerbated her injury by performing farm work against medical advice Damages – Personal injury – Assessment of quantum – Economic loss – Costs of past and future care – Costs of caring for animals – Whether the defendants are liable for the cost of maintaining the plaintiff’s unprofitable business

HIGH RISK OFFENDER – application for extended supervision order – final hearing – serious sex offences and offences of a sexual nature – statutory preconditions for order are satisfied – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision – consideration of independent expert evidence – defendant sentenced for further breaches of child protection orders after preliminary hearing – three year extended supervision order imposed with conditions

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – threats of extreme violence against police and other officers – limited history of actual violent offending – potential political or ideological elements but extent unclear – orders for examination made – orders restricting access to the file without prior leave of the Court made

CIVIL PROCEDURE – search warrants – where the first search warrant was declared invalid – where the application for a second search warrant relied on information obtained under first search warrant – conduct of the officer in issuing the second search warrant - whether there was a failure to consider that the search warrant was for items over which there were claims for privilege - whether there was inappropriate conduct during the execution of the second search warrant – blanket privilege claims - whether handwritten notes by the plaintiff give rise to an obligation of confidence – whether personal data stored on Strava app is confidential information

CIVIL PROCEDURE – subpoenas – costs – cost of compliance – application by third party to recover its costs incurred in complying with subpoena issued by defendants – r 33.11 UCPR – applicant had previously acted for the plaintiff in a commercial transaction with the defendant that preceded the present proceedings – several subpoenas issued – first subpoena defective – large volume of documents required review – significant delay caused by defendant’s solicitors – defendant’s solicitors failed to agree to a reasonable request for adjournment of subpoenas – defendant’s solicitors failed to negotiate with the applicant as to the amount of costs to be paid – r 42.33 UCPR – applicant sought fixed sum costs – applicant entitled to reasonable costs and fixed sum costs deemed reasonable CIVIL PROCEDURE – appearance – where defendant is a company – where a director of the defendant signed a letter of authority authorising a third party to appear on defendant’s behalf – third party was not a director nor an officer of the company – r 7.1 UCPR – rule dispensed with to avoid further delay

CRIMINAL LAW – sentencing – child sexual assault – amendment of statute to increase statutory age of victim from 10 and 16 years – sentencing Judge not made aware of amendment – indictment not correctly pleaded – Judge adopts error in indictment – impact on assessment of objective criminality – error established – whether victim vulnerable by virtue of age – all children caught by provision necessarily vulnerable – not an aggravating circumstance – exercising sentencing discretion afresh – applicant re-sentenced

CRIME – conviction appeal – where permanent stay of proceedings denied by trial judge – where appellant accused of historical child sexual offences – where complainant made allegations shortly after the offending – where appellant interviewed by police and cross-examined at committal proceedings – where complainant chose not to proceed with prosecution but later reactivated complaints – where contemporaneous material lost – whether trial judge erred in dismissing application for stay CRIME – conviction appeal – mixed verdicts – whether convictions on two counts unreasonable and not supported by evidence

SENTENCING – appeal – Director’s appeal against inadequacy of sentence – dangerous driving causing death – manifest inadequacy – high range objective seriousness – finding of special circumstances – relevance of hardship to family – discretion to intervene

CRIMINAL LAW — appeal against conviction — application for leave —conviction for recklessly causing grievous bodily harm and failing to provide child with necessities of life — medical and biomedical evidence of the cause of injuries — whether verdict unreasonable or cannot be supported having regard to evidence CRIMINAL LAW — appeal against conviction — whether verdict unreasonable in light of acquittal on count of intentionally causing grievous bodily harm — whether modified circumstantial evidence direction should have been provided CRIMINAL LAW — appeal against sentence — whether error in assessing objective criminality —precise mechanism of injury unknown

CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant’s role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant

EQUITABLE CHARGE – imposed to secure repayment of indebtedness – principles applicable – flexible

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made PROCEDURE – suppression and non-publication – order sought pursuant to s 7 and s 8 of the Court Suppression and Non-Publication Act 2010 (NSW) – order made and to remain in place for 14 days from today's date

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

SUCCESSION – where the Deceased died intestate and no administrator has been sought – whether priority to take administration under the Probate and Administration Act 1898 (NSW) determines the question of release of remains. HEALTH LAW – burial and cremation - whether the mother of the Deceased is entitled, as against the de facto partner of the Deceased, to the body of the Deceased for the purposes of making burial arrangements – whether the mother of the Deceased is entitled, as against the de facto partner of the Deceased, to bury the Deceased at Armidale as opposed to Kempsey. FAMILY LAW – de facto relationship – whether the Second Defendant was in a de facto relationship with the Deceased at the date of his death within the meaning of s 21C of the Interpretation Act 1987 (NSW) – whether the Second Defendant was therefore senior next of kin under s 6A of the Coroners Act 2009 (NSW).

CIVIL PROCEDURE – summary judgment application – plaintiffs are the registered proprietors of a hotel in Katoomba – plaintiffs claim that the defendants were their tenants – plaintiffs seek summary judgment for rent said to be owing to them by the defendants – whether the defendants have an arguable defence to the plaintiff’s claim – whether the first and second defendants were in occupation of the hotel – where the first and second defendants claimed that the third defendant company ran the hotel business – first defendant is the sole director of the third defendant company – where company incorporated months after first and second defendants went into occupation - no evidence that the plaintiffs agreed to the company running the business or occupying the hotel – pleading in defence untenable – whether a tenancy existed between the plaintiffs and defendants – where the defendants accepted in oral submissions that they were tenants – no doubt as to occupation by the defendants – tenancy found to exist – whether there was a failure to pay rent – where the defendants did not dispute that the rent was unpaid but alleged that the plaintiffs had agreed at various times to forego rent – no evidence adduced by the defendants of such agreements – the existence of any such agreement was denied by the plaintiffs – defence in this regard untenable – no arguable defence to the claim – summary judgment given

PROCEDURE – judgments and orders – amending, varying and setting aside – application for gross sum costs order and payment from a fund – application made out of time with unexplained delay

LEAVE TO APPEAL – interlocutory decision to refuse amendment – amendment sought leave to advance claim for misleading and deceptive conduct – proceedings dismissed after trial based on fraudulent misrepresentation only – no challenge to final judgment – issue estoppels flowing from final judgment – leave refused

WORKERS’ COMPENSATION – whether the Worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (NSW) – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy President failed to apply ss 122 and 326 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the Deputy President failed to apply s 122(6) as to the effect of the “conclusive evidence” of a medical panel certificate

CRIMINAL LAW – juror to be absent from trial for a week without permission of the Court – juror attending family funeral overseas - both Crown and Accused seek discharge of juror with trial to continue with jury of 11 - discharge of absent juror under s.53B(d) Jury Act 1977 - order that trial continue with jury of 11 persons

EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence – where plaintiff is a corporation – where one of the plaintiff’s directors seeks to give evidence about what he would have done if the defendants had not been negligent – whether witness’ statement offends s 5D(3) of the Civil Liability Act – whether s 5D(3) should be limited to the evidence of natural persons – whether witness’ evidence is relevant

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW) – forensic patient – application for interim extension order – preliminary hearing – index offences aggravated assault with intent to rob with wounding or grievous bodily harm and assaults occasioning actual bodily harm – order for examinations made – interim extension order made for a period of three months

TAXES AND DUTIES – landholder duty – review of Duties Notice of Assessment by the Chief Commissioner of State Revenue – s 27(3)(a) of the Taxation Administration Act 1996 (NSW) – whether the plaintiff or a person acting on its behalf took reasonable care to comply with the Taxation Administration Act 1996 (NSW) and the Duties Act 1997 (NSW) TAXES AND DUTIES – landholder duty – ss 26(1) and 28(1) of the Taxation Administration Act 1996 (NSW) – whether before the defendant informed the plaintiff that an investigation relating to the plaintiff was to be carried out, the plaintiff disclosed to the defendant in writing sufficient information to determine the nature and extent of the tax default TAXES AND DUTIES – landholder duty – ss 25 and 33 of the Taxation Administration Act 1996 (NSW) – whether interest and/or premium interest should be remitted in full or in part – whether any penalty tax should be remitted in full or in part

RESTRICTED PREMISES ACT 1943 – application for declaration – suspicion on reasonable grounds – effect of reputed criminals living on premises – whether declaration would effectively prevent defendant from residing in residential premises

NEGLIGENCE – work injury – breach of duty of care – causation – contributory negligence – industrial accident – sheet metal cut to length machine – external contractor engaged to repair electrical component(s) of machine NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B –risk of harm – precautions – foreseeability – failure to establish negligence on the part of the contractor – employee plaintiff arguably assisting external contractor – extent of assistance in issue – where external contractor left a tool bag on sheet metal in machine – where employee sought to retrieve tool bag from machine after unexpected movement NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5D – whether contractor’s breach of duty was a necessary condition of the harm NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5F obvious risk NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5O – professional negligence – whether fault finding and repair consistent with competent professional practice NEGLIGENCE – employer – failure to take reasonable care – contributory negligence

BUILDING AND CONSTRUCTION – adjudication – whether determination of adjudicator void – jurisdiction of adjudicator – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether there was a construction contract – whether there was a construction contract under which there was an undertaking to carry out construction work or to supply related goods and services

SENTENCING – appeal against sentence – fresh or new evidence – whether a miscarriage of justice resulted from the absence of psychiatric evidence in the sentencing proceedings – no miscarriage of justice SENTENCING – appeal against sentence – multiple offences – attempt to rob whilst being armed with a replica firearm – whether indicative sentence manifestly excessive – ground misconceived – no appeal against indicative sentence – aggregate sentence not manifestly excessive SENTENCING – appeal against sentence – whether sentencing judge failed to take into account applicant’s background of deprivation – no failure to consider applicant’s background – leave granted to amend the application for leave to appeal to include this ground – appeal on this ground rejected

CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – whether trial judge obliged to give Shepherd direction regarding identification of vehicle on CCTV footage – identification of car not an indispensable intermediate step CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – directions not in accordance with Bench Book – no deficiency identified CRIME – appeals – appeal against conviction – alleged unreasonable verdict – verdicts open to jury – appeal dismissed CRIME – appeal against sentence – question of parity – co-offender’s appeal against sentence not finally determined – leave to appeal refused

CRIMINAL LAW – sentence appeal – two counts of perjury and one of threatening witness to withhold evidence – House v The King error in assessment of objective seriousness of Count 1 – need to re-sentence – need to take into account physical and mental health of applicant – need to reduce indicative sentence for Count 1 – need to reduce aggregate sentence.

CRIME — appeals — appeal against sentence – offences of sexual intercourse without consent with threatened and malicious infliction of actual bodily harm – offences committed in January 2002 – offender not sentenced until 2018 – offender sentenced for similar offences committed in February 2001 and February 2002 – whether sentencing judge needs to consider likely head sentence if offender sentenced for all three offences at one time – artificial consideration where earlier sentences had expired – failure to give reasons in relation to totality, remorse, rehabilitation prospects and unlikelihood of re-offending – consideration of relevance of delay and totality in resentencing exercise – no lesser sentence warranted

COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed – where party bringing application delayed in filing pleading – where party withdrew application for appointment of special purpose liquidator – where proceedings were dismissed by consent – whether the applicant should pay the respondent’s costs COSTS – application for costs on an indemnity basis – where delay caused by party by filing a pleading late – where proceedings have not been unreasonably conducted – whether indemnity costs should be ordered. COSTS – application for costs on an indemnity basis – where offer of compromise purportedly made – whether offer was capable of constituting an offer for the purposes of r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). COSTS – application for costs on an indemnity basis – where Calderbank offer made –where offer was complex and introduced uncertainties – whether it was unreasonable to not accept offer.

CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987 – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Queensland – no point of principle – consent orders made – costs

LANDLORD AND TENANT – notice of motion – ex parte application for stay of possession order made by New South Wales Civil and Administrative Tribunal pending appeal – short stay granted

HIGHWAYS – creation of – public roads – dedication at common law prior to 1920 – unsealed dirt road connecting several residential properties in the Burragorang State Conservation Area – where the land on which the dirt road runs is Crown land – whether evidence including Crown Plans showed an intention to dedicate land as a public road – whether evidence of use showed that land had been dedicated by the Crown as a public road – effect of the Crown Lands Alienation Act 1861 (NSW) – evidence not sufficient to establish that land became a public road at common law prior to 1920 TORTS – private nuisance – claim by the plaintiffs against the State as occupier of a dirt road on land situated in the Burragorang State Conservation Area – where the dirt road maintained as a fire trail – whether the State’s management of the dirt road amounts to an unreasonable interference with the plaintiffs’ ability to access their land – State’s management of road not shown to be unreasonable

LAND LAW – co-ownership – statutory trust for sale – claim by the plaintiff under Conveyancing Act 1919 (NSW) s 66G(1) – where plaintiff is an “incumbrancer” within the definition of “co-owner” in s 66F(1) as the registered proprietor of a mortgage over the interest of the first defendant – appointment of trustees refused in circumstances where the mortgage is required to be discharged pursuant to the first defendant’s cross-claim CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – cross-claim by the first defendant to set aside contracts which include a deed of acknowledgement, loan agreement and mortgage – plaintiff and first defendant are son and mother respectively – plaintiff outlaid various amounts of money for the benefit of the first defendant over several years – where no binding agreement whereby first defendant obliged to repay monies to plaintiff – where the plaintiff sought to “confirm” legal relationship with the first defendant by entering into the contracts – contracts improvident from the first defendant’s perspective – where first defendant entered into the contracts as a result of undue emotional pressure applied by the plaintiff – contracts held to be unjust