Cases and authorities

CRIME – appeal against sentence – supply of a large commercial quantity of a prohibited drug – sentencing judge informed of incorrect quantity of bromo – whether error in having regard to uncharged conduct – whether error in finding applicant was making a profit – re-sentence – assessment of objective seriousness of drug supply offences – mental health – whether amelioration of general deterrence warranted

CRIME – conviction appeal – where respondent convicted of break and enter, and assault – where abusive Facebook messages exchanged – whether trial judge erred in ruling Facebook message capable of constituting an admission by applicant of involvement CRIME – conviction appeal – where case turned on jury’s assessment of the honesty and reliability of complainant’s evidence – where jury had to resolve inconsistencies and uncertainties in complainant’s evidence in light of other evidence – where application for a Murray direction abandoned at trial – whether features of evidence made a Murray direction necessary to avoid perceptible risk of miscarriage of justice – whether verdict unreasonable or cannot be supported having regard to the evidence CRIME – sentencing appeal – where respondent sentenced to head sentence of 7 years – where respondent spent time in pre-trial custody for these offences and unrelated drug offence – whether sentence manifestly excessive – whether trial judge erred in failing to credit applicant’s pre-trial custody

CRIMINAL LAW – Crown appeal against sentence – supply large commercial quantity methylamphetamine – limited role of delivery man – plea of guilty in Local Court – powerful subjective features – whether ICO manifestly inadequate – slip with regard to failure to impose sentence for related offence on certificate – length of ICO beyond statutory jurisdiction as a result – whether that error could on its own lead to success of Crown appeal – Crown appeal upheld – respondent sentenced to period of full-time imprisonment

CRIME — Bail — Appeal bail – Risk of non-appearance – no question of principle

Criminal Law – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance arising from the sentence imposed on co-offender – Where there were differentiating factors which justified the sentences which were imposed – No unjustified disparity Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – Whether sentencing judge erred in not indicating that two of the sentences should be wholly concurrent – No general rule that determines whether sentences should be imposed concurrently or cumulatively – Issues of concurrence or cumulation to be determined by principles of totality and by a consideration of whether the sentence for one offence can comprehend and reflect the criminality of another Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – No fixed principle that where an offender is sentenced for supplying prohibited drugs and dealing in the proceeds of crime wholly concurrent sentences must be imposed in each and every case – Observations as to the difficulty faced by an appellate court when it is asked to analyse issues of concurrence and accumulation in cases where an aggregate sentence is imposed – Ultimate question is whether the aggregate sentence imposed reflects the overall criminality of the offender

CRIMINAL PROCEDURE – suppression and non-publication orders – application for suppression orders and pseudonym orders – where no application made by any party to close the Court or for suppression orders or pseudonym orders at hearing – where application for suppression orders and pseudonym orders made approximately one month after the judgment was published on the internet – whether order sought is futile or ineffective CRIMINAL PROCEDURE – suppression and non-publication orders – whether order necessary to protect the safety of any person – where appellant fears for his safety and his family’s safety CRIMINAL PROCEDURE – suppression and non-publication orders – whether order necessary to prevent prejudice to the proper administration of justice – whether it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice – whether the continuing availability of the judgment is detrimental to the administration of justice by discouraging co-operation with the authorities – where order sought that there be no publication of information which tends to reveal assistance to law enforcement authorities CRIMINAL PROCEDURE – suppression and non-publication orders – test of necessity – calculus of risk approach

CIVIL PROCEDURE — jurisdiction — transfers to and from other courts — District and Local Courts – whether District Court had jurisdiction to hear proceedings for recovery of deposits under contracts for sale of land – whether title to land in question – District Court Act 1973 (NSW) s 48 COSTS – whether costs should be awarded other than on the ordinary basis – proceedings for the recovery of deposits under contracts for sale of land – amount claimed under $500,000 - r 42.34 Uniform Civil Procedure Rules 2005 (NSW) - where the unsuccessful defendant submitted that the proceedings should have been commenced in the District Court and that therefore no costs order should be made – jurisdiction of the District Court – s 44(1) District Court Act – whether the proceedings should have been commenced and maintained in the Supreme Court –– where the defendant offered no objection to the proceedings being commenced and maintained in the Supreme Court nor sought to have the proceedings transferred – where ultimately the proceedings would need to have been transferred to the Supreme Court given its exclusive jurisdiction to hear a defence subsequently raised by the defendant – costs ordered on the ordinary basis JUDGMENTS AND ORDERS — interest — award of on judgment — recoverability – s 100 Civil Procedure Act 2005 (NSW) – where vendor agreed at time of contract that no interest would be payable on any deposit – any such entitlement waived upon breach of contract – interest awarded

CIVIL PROCEDURE – Freezing order r 25.1 – prevention of frustration or inhibition of the court’s process – prima facie case that defendants have misappropriated assets – admission of extensive fraudulent dishonesty – access to accounts for living expenses

COSTS – Party/Party — Exceptions to general rule that costs follow the event – contested probate litigation – whether the deceased the cause of the litigation – whether prosecution of proceedings reasonable – no order as to costs.

TRADE AND COMMERCE – Australian Consumer Law – whether the defendants breached ss 18, 29, 36 of the ACL – whether the defendants breached s 16 of the Electricity (Consumer Safety) Act 2004 (NSW) – quantum of a pecuniary penalty to be imposed – imposition of a period of disqualification from managing corporations

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B – identification of risk of harm – professional negligence – solicitors – whether solicitors’ failure to commence proceedings before mediation exposed plaintiff to risk of harm – failure of plaintiff to identify risk of harm – no risk of harm – breach of duty – Civil Liability Act s 5D – causation NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5B – risk of harm – precautions – professional negligence – solicitors – whether solicitors negligent in formulating orders following mediation – whether solicitors ought to have included an order stipulating time for payment and for interest to accrue in case of non-payment – whether such an order was a precaution a reasonable person in defendants’ position would have taken – whether failure to include such an order caused plaintiff’s economic loss – failure of plaintiff to establish breach in formulation of orders – failure of plaintiff to establish causation NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5 O – professional negligence – McKenna v Hunter & New England Local Health District [2013] NSWCA 476 – no evidence of particular practice NEGLIGENCE – advocates’ immunity – whether immunity attaches to advice on settlement of litigation – whether settlement of proceedings under Family Provision Act 1952 (NSW) requires judicial determination

CIVIL PROCEDURE – medical negligence – infant plaintiff – settlement approval – whether proposed settlement in the best interest of the plaintiff

CIVIL PROCEDURE – Adjournment – factors to consider – complexity of case – estimated length of trial – plaintiff self-represented – prospect of proper legal representation being engaged – conditions include – lump-sum costs order – requirement that plaintiff pay the defendant’s costs as a condition of granting adjournment

FAMILY LAW — Children — Pseudonym order

CRIMINAL LAW – Evidence – Accused charged with the commission of a terrorist act - Where Crown sought to tender evidence of a photograph of the victim wearing a particular t-shirt - Where evidence that the motif on that t-shirt resulted in the victim of the attack being targeted by the accused – Photograph of t-shirt already in evidence – Whether evidence relevant – Evidence admitted

CRIMINAL LAW – Proceeds of crime – s 99 when can the Commonwealth begin dealing with forfeited property – onus on persons with interest in property to exclude from operation of Act – effect of conviction appeal – s 99 does not permit appeal process to proceed at rate determined by interested person – period fixed by s 99 ends if appeal lapses under court rules – no appeal presently on foot pursuant to statutory requirements – interim injunction dismissed CIVIL PROCEDURE – Interlocutory application – injunction restraining second defendant – jurisdiction to grant is discretionary – requirement of prima facie case – court to weigh up injury to plaintiff and injury to defendant – dismissed

COSTS – party/party – bases of quantification – costs sought on indemnity basis – where plaintiff successful in enforcing a compromise – where contended Calderbank offer not accepted – no significant element of compromise – no basis for departing from usual order that costs be paid on ordinary basis

CRIMINAL LAW – application for a directed verdict of acquittal – whether jury need to be satisfied of all seven acts nominated in the indictment – submission that there is no evidence of one of those acts – whether individual acts are particulars of conduct alleged – directions to the jury – unanimity – jury must be unanimous in relation to the same act or acts – offence of doing acts preparatory to foreign incursion offence – fault evidence – prosecution not required to prove an intention to carry out acts of terrorism in Syria – order of deliberation – whether mental impairment should be considered before the fault element – jury free to undertake its task in order of its choice – consciousness of guilt – lies – where alleged lies also part of accused’s defence to charges – circularity in reasoning process – limited use prosecutor may make of statements to police – entrapment – where defence counsel opens on undercover officer encouraging accused to commit acts – unnecessary to direct jury – unnecessary complications

CRIMINAL LAW – Law Enforcement Powers Responsibility Act – section 219 – property delivered to persons who appear lawfully entitled – Court satisfied on the balance of probabilities that defendants entitled to claimed interest in high performance vehicle – discretionary powers of Court in determining application – complex estate – orders made for payment of amount representative of defendants interest – payment to be made to accountants and held on trust

CRIMINAL LAW – Section 52, crimes appeal and review Act – appeal to Supreme Court – right conferred on person convicted or sentenced in Local Court – appeal ground must involve question of law – learned magistrate erred in law by failing to give reasons for conviction and sentence – conviction and sentence quashed – matter remitted to local court CRIMINAL LAW – Local Court – crimes sentencing procedure Act – section 10 – practice and procedure –absence of the defendant

CRIMINAL LAW – Section 52, crimes appeal and review Act – Appeal to Supreme Court – person convicted or sentenced in Local Court has right to appeal to Supreme Court – ground must involve question of law – magistrate erred because reasons did not adhere to legal standard – conviction and sentence quashed – matter remitted to Local Court CRIMINAL LAW – Local Court – crimes sentencing procedure Act – section 10 – practice and procedure –absence of the defendant

BAIL – show cause – whether unacceptable risks – bail granted - conditions imposed

HIGH RISK OFFENDER – application for continuing detention order or, in the alternative, an extended supervision order – whether conditions proposed by the plaintiff were beyond power – ESO imposed with conditions

CRIMINAL LAW – Evidence – Accused charged with committing a terrorist act - Where Crown sought to tender a news article found on accused’s computer documenting sentence proceedings in the United States of a person found guilty of committing a terrorist act – Probative value low – Danger of unfair prejudice substantial – Evidence excluded

CRIMINAL LAW – Evidence – Accused charged with committing a terrorist act - Where Crown sought to tender publications found on the accused’s computer and phone – Whether probative value of the evidence was substantially outweighed by the danger that it might be misleading or confusing or cause an undue waste of time – Evidence admitted

CRIMINAL LAW – Evidence – Accused charged with commission of a terrorist act – Where Crown sought to tender evidence of footage of September 11 attacks found on the accused’s computer – Assessment of probative value – Whether probative value outweighed by the danger of unfair prejudice

SUCCESSION – FAMILY PROVISION – COSTS – following principal judgment in which a family provision order was made – Offer of Compromise served some months prior to the hearing – Plaintiff failed to obtain order more favourable than offer made – Nature and value of the estate of the deceased unclear, and not determined, until hearing – Whether overall justice of the case warrants exercise of the Court’s discretion to “otherwise order”

CRIMINAL LAW – indictment – amendment – application made at the end of trial – offence of engaging in conduct preparatory to foreign incursion offence – complications of Criminal Code – fault element not specified – recklessness pleaded in original indictment – prize for providing written submission on recklessness that made sense – prize not claimed – amended to plead intention – no objection by accused – no injustice or prejudice

EQUITY – joint venture – taking of accounts between joint venturers

CIVIL PROCEDURE – hearings – adjournment – where defendants self-represented – defendants are husband and wife - wife appearing for husband who is medically incapacitated – whether husband has need for wife as 24 hour per day carer – insufficient evidence in that regard - relevance of procedural history of proceedings – repeated failures of defendants to comply with orders of the court – proceedings commenced four years ago – adjournment refused

CIVIL PROCEDURE — Jurisdiction – Threshold issue of existence of jurisdiction – s 17 and Third Schedule Supreme Court Act NSW (1970) does not preclude supervisory jurisdiction – Plaintiff alleges prosecution of criminal charges in District Court is an abuse of process – Declaratory relief sought to stay criminal trial – Interest in “avoidance of interruption” of criminal proceedings except in extremely unusual circumstances – Irrelevance of police charging “policy” – Failure to investigate and obtain exculpatory material can be dealt with during criminal trial – Pending application for similar relief listed for hearing in District Court – Availability of other alternative avenues for relief – Discretion to exercise jurisdiction declined

PRACTICE AND PROCEDURE – Statement of Claim insufficiently pleaded – proposed Amended Statement of Claim has similar difficulties – leave refused to file – leave granted to try again

HIGH RISK VIOLENT OFFENDER – extended supervision orders – unacceptable risk – court must be satisfied to high degree of probability that offender poses unacceptable risk – risk of commission of serious violence offence low

PROTECTED PERSONS - second defendant incapable of managing the second defendant’s affairs - NSW TAG appointed as receiver and manager of the second defendant’s estate - Public Guardian appointed as the second defendant’s committee of the person with plenary authority in relation to the second defendant’s person - in the Court’s first judgment orders made for the continuation of the Public Guardian as the Second Defendant's committee of the person - what costs orders are now appropriate in respect of the costs of the proceedings. INCAPABLE PERSONS - management of estates - plaintiffs fail in application for appointment as manager of the second defendant’s estate - NSW TAG continues for the time being as manager of the second defendant's estate - Court indicates that the second plaintiff, a grandchild of the second defendant, may after a period of delay be appointed as manager of the second defendant’s estate - the NSW TAG’s investigation into the first defendant’s administration of a Power of Attorney from the second defendant ("the investigation”) continues after the production of voluminous documents to the NSW TAG - NSW TAG puts supplementary submissions as to the adoption of a different structure during the period of the investigation to that foreshadowed by the Court - what structure should the Court adopt and over what time period for the future management of the Second Defendant’s estate.

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Whether sentencing judge failed to have proper regard to maximum penalties of Form 1 offences — Whether sentencing judge erred in giving limited weight to evidence of remorse — Whether sentencing judge erred in application of principle of totality — Whether aggregate sentence manifestly excessive — Leave to appeal granted — Appeal dismissed

CRIMINAL LAW – sentence after trial – terrorism offences – conviction for doing an act in preparation for, or planning, a terrorist act or acts – Criminal Code (Cth), s 101.6(1) – guilty plea to attempting to make funds available to terrorist organisation – Criminal Code (Cth), ss 11.1(1) and 102.6(1) – where offender was pursuing the agenda of Islamic State – where offender made funds available to Islamic State to fund foreign fighters – where offender participated in intercepted telephone conversation with senior Islamic State member discussing plan for domestic terrorist attacks

CRIMINAL LAW – trial for murder – verdict of not guilty of murder but guilty of manslaughter – excessive self defence – use of firearm during verbal argument – single shot to chest of deceased – force used vastly exceeded perceived threat

COSTS – non-parties – where leave granted to the applicants to be heard in proceedings without becoming a party under r 2.13(2) of the Supreme Court (Corporations) Rules 1999 (NSW) – where applicants were unsuccessful in their application to have examination summonses set aside – where additional costs were incurred by the applicants’ intervention – whether costs should be ordered against the applicants under r 2.13(2) of the Supreme Court (Corporations) Rules 1999 (NSW). COSTS – whether a gross sum costs amount should be ordered against the applicants under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). COSTS – costs assessment – whether a gross sum costs amount can be determined or should be referred to assessment.

CONTRACTS – formation – agreement – intention to make concluded bargain – formal lease not executed or exchanged – where heads of agreement signed, tenant already in possession and parties negotiating the terms of a formal lease through solicitors – held no intent to be bound in the absence of a formal executed lease LEASES AND TENANCIES – formal requirements – agreements for lease – creation of relationship by payment of rent – retail and commercial tenancies legislation – Conveyancing Act s 127 – Retail Leases Act ss 3, 8, 16, 18

CONFISCATIONS – registration of foreign confiscations order – order made in the UK pursuant to s 6 of the Proceeds of Crime Act 2002 (UK) – authorised application for registration of order – Supreme Court a court with “proceeds jurisdiction” – order registered - no point of principle

CORPORATIONS — Winding up — Statutory demand — Offsetting claim — Alleged professional negligence of solicitors in the conduct of prior proceedings — Meaning of “an affidavit supporting the application” in s 459G of the Corporations Act 2001 (Cth) — Reliance on verified pleadings from other proceedings as evidence — No genuine offsetting claim — Application dismissed.

CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Principles applicable – Where the parties initially intended that contractual document would be signed by both parties if acceptable – Where the parties did not sign the contractual document – Where the parties acted over a significant period as if they were bound by the detailed provisions of the contractual document – Whether contract entered into by conduct of both parties in the absence of formal offer and acceptance CONTRACTS — Termination — Whether the defendant was entitled to terminate the contract under the terms of the contract or for breach of the contract by the plaintiff – Breach by terminating party — Whether termination effective in circumstances where the party asserting a right to terminate is also in default, and where that default contributed to the breach by the other party — Principles relating to novus actus interveniens CONTRACTS — Terms — Classification of terms — Fundamental breaches of contract — Breaches of fundamental or essential terms CONTRACTS — Construction — Interpretation — Meaning of “negligence” in a particular contractual context EVIDENCE — Burden of proof — Civil proceedings — Whether the burden of proof lay on the plaintiff who sought a declaration that a contract remained on foot to establish that there were no grounds available to the defendant to validly terminate the contract — Whether the burden of proof lay on the plaintiff who sought a declaration that there were no breaches of the contract that would justify its termination to establish that there were no such breaches — Significance of the defendant alleging that it had validly terminated the contract on identified grounds

CORPORATIONS – Directors Loans – whether ban or salary – books record loans – no evidence of employment – order for repayment of loan.

CRIMINAL LAW - trial - conspiracy to do acts in preparation for terrorist act - alternative count of knowingly taking part in supply of firearm - jury retired to consider verdict - application by media interests for access to trial exhibits to permit publication and broadcast after verdict - objections by Crown and Accused to release to media of certain photographic and electronic exhibits - application for access refused before delivery of verdict - publication of reasons for ruling - applications considered under Practice Note SC Gen 2 and general law - relevant discretionary factors considered - factors especially relevant to terrorism trials considered - media applications for access to certain photographic and electronic exhibits for copying purposes declined

BUILDING AND CONSTRUCTION – statutory debt under s 14 of Building and Construction Industry Security of Payment Act 1999 (Cth) – creditor’s statutory demand – suspension of work pending payment of demand – application to set aside statutory demand under s 459G of Corporations Act 2001 (Cth) – whether debtor had offsetting claim within meaning of s 459H CONTRACTS – purported termination – whether purported termination precluded by election to affirm contract CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand under s 459G of Corporations Act 2001 (Cth) – offsetting claim arising after filing of setting-aside application – Graywinter principle – offsetting claim foreshadowed by s 459G affidavit – whether offsetting claim “genuine” PRACTICE AND PROCEDURE – funds paid into Court – discretion in relation to release of funds

PRIVATE INTERNATIONAL LAW – partial stay of proceedings – related contracts – different jurisdiction and governing law clauses in each contract – possibility of concurrent proceedings – discretionary judgment – relevant considerations CIVIL PROCEDURE – stay of proceedings – related contracts – exclusive jurisdiction clause in one contract – where partial stay of proceedings generates the possibility of concurrent proceedings – discretionary judgment – competing considerations of enforcement of jurisdiction clause and resolving all aspects of dispute in one forum CIVIL PROCEDURE – application for leave – discretionary decision – principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 – requirement of identifying correct test and why claimed error was material in cases where applicant claims wrong legal test applied – requirement of concluding discretion has miscarried where reliance placed on inadequate or excessive weight being given to factors – requirement ordinarily of drawing attention of primary judge to particular matter if complaint is made that a finding was not made – consideration of Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52, Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 and Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 APPEALS – application for leave to appeal from discretionary decision to stay part of proceedings – whether any error of principle – significance of prospect of multiple proceedings – standard of appellate review – whether discretion miscarried APPEALS ­­– formulation of grounds of appeal from discretionary decisions

CRIMINAL PROCEDURE — Trial — Jury — Investigation by Sheriff – whether NSW Court of Criminal Appeal has jurisdiction to order an inquiry under s 73A Jury Act 1997 – whether there is reasonable apprehension that jurors did not discharge their task impartially – jury member uploading to Facebook a potentially relevant opinion before verdict - jury member connected by marriage to complainant in earlier prosecution of applicant – jury member drinking partner of key witness

CRIMINAL LAW – sentence appeal – manslaughter – applicant drove motor vehicle into deceased – whether sentencing judge erred in his assessment of the objective seriousness of the offence – whether sentence was manifestly excessive – applicant and deceased in long term relationship – applicant followed deceased in car after argument – background of domestic violence – whether fact of domestic violence was relevant to offence – effect of applicant’s mental condition on sentence – no basis for interfering with judge’s finding of objective seriousness – insufficient weight given to applicant’s psychiatric and psychological difficulties – insufficient consideration given to moral culpability – sentence manifestly excessive – need to resentence.

CRIMINAL LAW – child sexual offences – conviction appeal – unreasonable verdicts – whether guilty verdicts on nine counts inconsistent with acquittals on six counts – whether rational and logical basis on which jury could distinguish counts CRIMINAL LAW – child sexual offences – conviction appeal – directions of trial judge to the jury – whether adequate Markuleski direction given – whether Liberato direction required – whether motive to lie direction required in relation to complainants– whether hearsay warning required in relation to third party’s evidence of victims’ conversation CRIMINAL LAW – child sexual offences – conviction appeal – whether trial judge’s summing up adequately put the accused’s case to the jury CRIMINAL LAW – child sexual offences – conviction appeal – objections and points not raised at trial – whether mis-directions and non-directions – whether judge’s summing up adequate – Criminal Appeal Rules, r 4

APPEAL – criminal proceeding – Director’s appeal from interlocutory judgment upheld – respondent’s application for certificate under Suitors’ Fund Act 1951 (NSW) – whether Act applies to appeals in criminal proceedings – discretionary power to grant certificate – scope of “exceptional case” test – whether costs incurred – anomaly of allowing recovery of legal costs where respondent fails but not where respondent succeeds considered