Cases and authorities

ADMINISTRATIVE LAW – judicial review – application for exemption from CARS assessment – allegations of false or misleading statements by claimant – whether error of law or jurisdictional error – alleged legal unreasonableness – beneficial construction to be applied to reasons of decision-maker – no error established

ESTOPPEL – equitable estoppel – plaintiffs and defendants executed form of written lease – the term of the lease not included in form – whether defendants made representations that the lease would be for 5 years with the possibility of a 10 year term being offered later – clear representations held to have been made – whether plaintiffs relied on representations – detriment – estoppel made out – plaintiffs entitled to a lease for a term of 5 years

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – adoption – adoption by relatives – whether adoption clearly preferable to any other order that could be made with respect to care of child

COSTS – Party/party – General rule that costs follow the event – Apportionment of costs where application to set aside statutory demand partially successful

COSTS – costs of cross-claim – offer of compromise made one day before hearing due to commence – offer of compromise rejected – better outcome than offer achieved – result of cross-claim not that which either party sought – result of cross-claim reasonably characterised as a “draw”

COSTS – party/party – bases of quantification – indemnity basis – rejection by the plaintiffs of a no less favourable offer of compromise – further offers of compromise following joinder of another defendant – defendants insured under single policy of insurance

HIGH RISK SEX OFFENDER – preliminary hearing – orders sought by the State not opposed – no question of principle

PRACTICE AND PROCEDURE – Interrogatories – Failure to diagnose and manage pre-eclampsia – Inadequate hospital notes – Uniform Civil Procedure Rule 22.1 – Whether leave should be granted to administer interrogatories - Whether there are special reasons that justify the making of an order to answer interrogatories – Whether the interrogatories are necessary – Whether the interrogatories go to state of mind

EQUITY — Trusts and trustees — Judicial advice –– whether executors of deceased estate would be justified in disposing of contents currently stored in garage of deceased’s unit by causing them to be delivered to waste disposal facility –– where the beneficiaries under the will have not collected the contents of the unit which has been sold at auction –– judicial advice given that executor would be justified in so disposing of any of the contents currently stored in the unit and not collected by any of the defendants or a representative on their behalf by 26 March 2019

SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three children, a daughter and two sons – the deceased’s estate comprises of a single residential house property in suburban Sydney and a one third interest in the house occupied by the daughter and used by her as a music studio – the plaintiff is the deceased’s youngest son – the defendant executor is the deceased’s eldest son – the deceased left her one third interest in the property occupied by her daughter to the daughter and thereafter gave some small legacies to her grandchildren and then gave the residue of her estate to each of her three children in equal shares – the plaintiff claims that his present financial needs are such that he should have further provision out of the deceased’s estate – the defendant and the daughter contend that their own financial needs are such that the will should remain undisturbed and no order for provision should be made - whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision should be made for the plaintiff out of the estate of the deceased – if further provision should be made for the plaintiff, what is the nature and quantum of that provision.

COSTS – specified gross sum costs order – where defendant made unmeritorious applications in the course of the proceedings – where defendant sent numerous inappropriate or irregular communications to the Court and to plaintiffs’ solicitors – baseless allegations of fraud or serious misconduct – whether the defendant’s conduct increased the costs of the proceedings – whether the defendant’s conduct suggests a costs assessment likely to be delayed and protracted – quantum of specified gross sum costs order – no challenge to evidence of quantum – specified gross sum costs order made

ASSOCIATIONS AND CLUBS - general matters – interpretation of constitution - whether constitution required a recount of preselection votes in circumstances where a candidate was no longer a party member - impact of delay in bringing claim ASSOCIATIONS AND CLUBS - jurisdiction of the courts - interference in internal management of political party registered in New South Wales under the Electoral Act 2017 (NSW) - interference in internal management of association incorporated under the Associations Incorporation Act 2009 (NSW)

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation - Application for the adoption of child in favour of one person - Father of the child opposed orders until the hearing and then withdrew opposition, although did not consent to the adoption orders - Mother of the child does not consent but did not appear at the hearing despite notice of hearing having been given to her - Whether consent of child’s birth parents should be dispensed with - Whether order for adoption of child should be made in favour of proposed adoptive parent - Whether proposed name change for the child to include surname of proposed adoptive parent should be approved FAMILY LAW AND CHILD WELFARE – Adoption Plans – registration

EVIDENCE – admissibility of a single photocopy document collating three notebook pages – whether the document is relevant to the proceedings - whether a single page photocopy document of three separate original documents is a copy document within the meaning of s 48 of the Evidence Act – whether the original document were seized lawfully – whether the provisions of s 138 of the Evidence Act permit the admission of the document because the desirability of admitting that evidence outweighs the undesirability of not admitting the evidence

HIGH RISK OFFENDER - serious sex offender - final hearing - sexual intercourse with a person under the age of 10 years in 2003 - criminal history includes other sexual offences, chequered history of compliance with supervisory conditions - parole revoked following release on parole in June 2018

VOIR DIRE – expert evidence – whether the expert is appropriately qualified to give opinion evidence - s 79 of the Evidence Act relating to specialised knowledge – where the expert has not adopted the Expert Code of Conduct – whether a witness can refresh their memory prior to giving evidence in court – no point of principle

CRIMINAL LAW – appeal against conviction – resist police in execution of their duty – Crimes Act 1900 (NSW), s 546C – appeal to Supreme Court from decision of President of Children’s Court – Crimes (Appeal and Review) Act 2001 (NSW), Part 3 – where police approached 16-year-old on Manly Corso suspecting breach of bail conditions – where appellant lit up a cigarette contrary to Council signage – where officer said, “You have committed an offence but if you give me some ID we will leave it at that” – where appellant presented fake ID – where officers arrested appellant and he struggled violently resisting arrest – where arresting officer made no mention of issuing appellant Court Attendance Notice – whether police officer’s intention was to charge appellant with smoking offence or to check bail conditions – whether police officers acting in the execution of their duty – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)(b)(iii) – Robinson v State of New South Wales [2018] NSWCA 231 considered

CIVIL PROCEDURE — Cross-vesting — Relevant factors — whether other court is a “more appropriate” forum in the interests of justice — balance of convenience to parties and witnesses considered — application dismissed

COSTS — Security for costs — Relevant factors ––Application for further security ––whether credible evidence to establish that there is reason to believe that plaintiff will be unable to pay an adverse costs order that may be made against it in the proceedings –– whether delay in making application for further security in present case a reason for exercising discretion against award of security –– security for costs ordered

TAXES AND DUTIES – pay-roll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – collection and recovery of tax TAXES AND DUTIES – Payroll Tax Act 2007 (NSW), Sch 2 cl 12 – transitional provisions relating to the continuation of exemptions under s 10 of the repealed Payroll Tax Act 1971 (NSW) TAXES AND DUTIES – meaning of “non-profit organisation” – whether a “non-profit organisation” – where constitution contained an express restriction on distribution of profits to members – where no distribution of profits were made to members – where there were transactions with related entities that received incidental benefits – where alleged that transactions were not arm’s length and on commercial terms – where alleged that the organisation was “carried on for the benefit or gain of particular individuals” TAXES AND DUTIES – meaning of “public benevolent institution” – whether a “public benevolent institution” – whether benevolence was directed to the public at large – whether benevolence was directed to the profit or gain of particular individuals TAXES AND DUTIES – apportionment – whether wages were wages paid or payable to a person in respect of time when the person was engaged in charitable work of a non-profit organisation – whether wages were wages paid or payable to a person in respect of time when the person was engaged in work of a public benevolent nature – apportionment of wages based on time spent by the person engaged in charitable work or work of a public benevolent nature – absence of sufficient evidence STATUTORY INTERPRETATION – extrinsic materials – Interpretation Act 1987 (NSW), s 34 – legislative history – explanatory memoranda EVIDENCE – weight of evidence – expert evidence –letter of instruction – absence of adequate instructions – where no assumptions of fact or questions to be addressed or guidance about how to approach the task was given

CONTEMPT – civil contempt – where parties entered into design and construction contract – where application made under the Building and Construction Industry Security of Payment Act 1999 (NSW) for adjudication of contractual dispute – where adjudication was that plaintiff entitled to judgment for $1,110,063.83 – where adjudication certificate filed as judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicated sum unsatisfied – where plaintiff seeks defendant be punished for contempt by declaration, sequestration order, fine or other orders – where defendant made no case submission – whether prima facie case respondents guilty of contempt – May v O’ Sullivan (1955) 92 CLR 654; [1995] HCA 38 – whether failure to pay a judgment debt is capable of constituting civil contempt – whether relevant distinction between a judgment debt and other order to pay money CIVIL PROCEDURE – civil contempt – where adjudication certificate filed as a judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where judgment given file number – where contempt proceedings commenced by notice of motion – whether proceedings should have commenced by way of summons – Supreme Court Rules 1970 (NSW), Part 55, rule 6(2) – Civil Procedure Act 2005 (NSW), s 63, 133(2)

COSTS – Party/party – caveat lodged to protect right to renew lease – threat to give lapsing notice - proceedings resolved – order for indemnity costs against defendant – application for leave to appeal from decision awarding indemnity costs

LAND LAW – compulsory acquisition – compensation – interest in land acquired terminable on one month’s notice – claim for loss attributable to disturbance – termination of business – claim for loss of ongoing profits of business – Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352 not followed LAND LAW – compulsory acquisition – compensation – loss attributable to disturbance – claim for additional rental paid to acquiring authority for period between compulsory acquisition and vacant possession COSTS – compulsory acquisition – claim for compensation – claimant successful at trial – claim rejected on appeal – claim not unreasonable – exception to general rule that costs follow the event – Dillon v Gosford City Council [2011] NSWCA 328; 184 LGERA 179 applied

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – interlocutory orders restraining and prohibiting the publication of information that identifies a child involved in care proceedings in the Children’s Court and persons and information associated with that case – public interest in open justice

PRACTICE AND PROCEDURE – Application for referral to Pro Bono Panel for legal assistance – Application granted for referral on limited basis

PRACTICE AND PROCEDURE – notice of motion – order seeking to set aside Registrar’s order – motion dismissed – costs

CRIMINAL PROCEDURE – where accused charged with murder – where on first day of trial Crown seeks leave to rely upon expert report – where expert report served late – whether receipt of the report would cause unfair prejudice to the accused – application to rely on expert report rejected

NEGLIGENCE – liability – duty of care – prison authority – control – reasonableness – supervision – unlawful act of third party – inmate assaulted by other inmates – prison authority aware of potential threat

HIGH RISK OFFENDER – child sex offender – application for Extended Supervision Order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – no controversy as to making of order – dispute limited to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders

PRACTICE AND PROCEDURE — Judgments and orders — Stay of proceedings — Pending payment of costs

ADMINISTRATIVE LAW – alleged error of law and jurisdictional error – Commissioner’s decision not to vary the plaintiff’s prison classification – relevance of his immigration status – powers and functions of Serious Offenders Review Council – allegations including bias and that decision was ultra vires – no ground for relief made out

PRACTICE – leave to appeal – seriously arguable question of denial of procedural fairness – leave granted

PRACTICE – appeals – stay – whether appeal should be stayed pending payment of unchallenged costs orders – no demand for payment shown to have been made – application dismissed PRACTICE – appeals – security for costs – appeal brought by natural person – whether special circumstances made out – whether appeal was bona fide – where respondent sought absurdly high amount of security – application dismissed

APPEAL – Leave to appeal from interlocutory decision adopting referee reports – where applicant afforded opportunity to make submissions to referee and had not done so – whether manifest injustice in primary judge not considering afresh questions of fact decided by the referee EVIDENCE – Discretions – Exclusion of evidence – Civil proceedings – refusal of admission of late material – where primary judge had regard to unexplained delay and case management principles – restraint in reviewing discretionary decision concerning question of practice and procedure

APPEAL – Leave to appeal from interlocutory decision not to discharge court appointed receiver – Where complaints of delay by the receiver – Whether error of principle in approach to removal of receiver – Whether manifest injustice in refusing to remove the receiver – Where futility of an appeal given receivership almost complete – Where other remedies available CORPORATIONS – Receivers and managers – Appointment by court – Application for removal of receiver – Conduct of receivership – Powers – Where receiver makes commercial judgments as to timing and staging of sale of assets

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – whether primary judge erred in admitting into evidence expert report based on documents produced under subpoena – whether subpoena should not have been issued without leave prior to close of pleadings – whether primary judge erred in applying test in Webb v Bloch – whether primary judge erred in giving insufficient weight to oral testimony of expert witnesses – whether appeal has sufficient prospects of success

CRIME – appeals – appeal against directed acquittal – elements of offence of dishonestly obtaining financial advantage by deception – cheating at Baccarat – dealer’s communication of cards to be dealt to players – scope for circumstantial case – whether necessary to identify particular minds deceived – whether necessary to call individuals

SENTENCE – CRIMINAL LAW – murder – plea of guilty – killing by one forensic patient of another forensic patient at Morisset Hospital – whether there was a causal link between the offender’s mental illness and the offence – whether the offender a continuing danger to the community.

COSTS — application by plaintiff for specific performance of Family Court consent orders –– costs order sought by each party against the other –– where matter has not been heard on the merits –– conduct of either party not so unreasonable as to warrant a costs order against him or her –– no order made as to costs of the proceedings

CORPORATIONS – winding up – conduct of liquidation – application for special leave to distribute surplus in liquidation – where company in liquidation has only one shareholder – where shareholder is registered in Australia as a foreign company – where shareholder has no Australian bank account – whether special leave should be granted.

CIVIL PROCEDURE – notice of motion – claim that defendant owed duty to take reasonable care to give effect to deceased’s testamentary intention – application for verified answers to interrogatories as to deceased’s testamentary intention – whether professional negligence proceedings “a claim for damages arising out of the death of, or bodily injury to a person” – Uniform Civil Procedure Rules 2005 (NSW), r 22.1(3)(a) – whether purpose of interrogatories was for preparation of an expert report – whether interrogatories necessary

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed

COSTS – application for costs on an indemnity basis – where the successful cross defendant made an offer of settlement prior to trial commencing – whether it was unreasonable for the cross-claimants not to accept the offer – where scant evidence is available to make a finding about whether the offer was a genuine Offer of Compromise at the time – application for costs on an indemnity basis was unsuccessful

EQUITY – contribution for outgoings and improvements to property – where claim brought against administrator after co-owner has passed away ESTATES – reimbursement of funeral and burial expenses – whether twelve-person vault is “reasonable” TRESPASS – cross-claim for mesne profits – where co-owner did not give vacant possession after undertaking to do so PROCEDURAL – leave to file amended pleading – where pleading is deficient – where plaintiff has had multiple opportunities to re-plead in proper form

EQUITY — Trusts and trustees — Express trusts — Intention to create — Original beneficiary deceased — Claim by successor in title — No evidence of words spoken — Admissibility of conduct subsequent to declaration of trust — Conduct of parties consistent only with existence of trust. EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions — Civil proceedings where maker unavailable — Document containing a representation that another representation made to its author — Document admitted as evidence that representation made — s 63(2) of the Evidence Act 1995 (NSW) applied. EVIDENCE — Standard of proof — Civil cases — Allegation of fraud — Whether fraud necessary to prove — s 140 of the Evidence Act 1995 (NSW) applied. CORPORATIONS — Shares — Share certificate — Prima facie evidence of title — Books of company — Prima facie evidence — Where presumptions displaced.

INSURANCE — Group life insurance — Claim for “total and permanent disablement” — “Two-stage” inquiry — Privity of contract — Whether beneficiary entitled to claim damages for breach of duty of good faith and fair dealing — “Stage 1” — Satisfaction of insurer — Whether insurer’s determination “reasonable and fair”— Inconsistency between plaintiff’s history and contemporaneous material — “Stage 2” — Whether plaintiff TPD within policy definition — Determination made. CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Insurance — Claim for “total and permanent disablement” — “Two-stage” inquiry. EVIDENCE — Hearsay — Business records — COPS reports, Evidence Act 1995, s 69(3)(b), applied.

CIVIL LAW – high risk sex offender – imminent release – whether extended supervision order appropriate – statutory criteria – whether satisfied – history of sexual offending – expert opinions as to risk – assessment reports – where defendant concedes order likely to be made – conditions – whether conditions can include obligation to submit to search and seizure – requirement of legality – construction of statute – objective of legislation – protection of the community – where search power facilitates compliance with other conditions – citizen’s right not to be subject to arbitrary search – conditions allowing search amended and limited – conditions involving supervising officer – whether conditions proposed by state improper delegation of court’s power to impose conditions – conditions modified

COSTS — Party/Party — General rule that costs follow the event — Whether event was the outcome of the proceedings or should abide result of related costs assessment — Whether entitlement to costs should be reduced to reflect failure on particular issue

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Conduct of hearings – where costs are claimed for primary hearing and valuation hearing – where parties’ conduct of hearing results in no further order as to costs being made – where each party partly successful and partly unsuccessful – whether order as to costs should be made.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – contested adoption – whether an adoption order should be made – whether the best interests of the child will be promoted by the adoption – whether adoption is clearly preferable to all alternatives that may be available by law FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – sole parental responsibility order – Adoption Act 2000 (NSW) section 92 – powers of the Court – the extent of the power of the Court to make ‘orders in relation to the parental responsibility for the child concerned as it thinks fit’ FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent to adoption – whether the consent to the making of the adoption order by the birth parents should be dispensed with FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – whether the arrangements in the adoption plan are in the child’s best interests and are proper in the circumstances