Cases and authorities

CRIMINAL LAW – sentence appeal – ground of erroneous disparity between sentences imposed upon applicant and co-offender – specific complaint that co-offender of applicant received greater partial concurrence on pre-existing sentence than applicant – discussion of aspects of a ground of appeal against sentence of this kind – appeal dismissed

CRIMINAL LAW – sentence appeal – two counts of supplying an indictable quantity of drugs – offence occurring within two weeks of the expiration of the parole period for similar offending – aggregate sentence of imprisonment for 6½ years with a non-parole period of 4 years – whether sentence manifestly excessive – whether sentencing judge gave effect to her finding of special circumstances – whether undue weight given to specific and general deterrence – applicant a long term drug user – sentence deferred to enable applicant to attend residential rehabilitation facility – attempts by applicant to attend such a facility frustrated by his ill-health – some relapsing into drug use during adjournment period – prospects of rehabilitation “guarded” – question of weight to be given to relevant factors a matter for sentencing judge – error not identified – appeal dismissed.

CRIMINAL LAW – Sentence – Appeal - Application for leave to appeal – Offences of being an accessory after the fact – Whether sentencing judge erred in the assessment of the objective seriousness of the offending – Whether sentence was manifestly excessive – Whether the principle in R v De Simoni was breached by the sentencing judge

CRIMINAL LAW – sentence appeal – plea of guilty to knowingly take part in the supply of not less than a commercial quantity of MDMA – offence of knowingly take part in the supply of a prohibited drug (10kg of cannabis) included on a Form 1 – applicant and co-offender driving to Adelaide and back to collect drugs – whether sentence imposed manifestly excessive – whether parity principle properly applied as between applicant and co-offender – leave to appeal granted but appeal dismissed.

CIVIL PROCEDURE – Discovery – Subpoenas – whether documents necessary for the resolution of the real issues in dispute

EVIDENCE LAW – Evidence admitted - sufficient that evidence seems capable of being probative of some fact in issue to the extent to which the evidence can establish it – evidence informs a decision about a fact which might underpin an argument about self-defence.

Tender of evidence – rejection of tender

CIVIL PROCEDURE — Summons re Appeal from decision of Appeal Panel of NCAT – dismissal of application for an extension of time to commence an appeal –– appropriate to consider the length and reason for the delay in commencement of the appeal and whether the plaintiff has a fairly arguable case

CIVIL PROCEDURE — Court administration — Case management — Self-represented litigant files multiple notices of motion

FAMILY PROVISION – former spouse – prior property settlement orders – freedom of testamentary disposition – criminal history – size of estate

PROCEDURE – multiple proceedings to be heard together – where many but not all issues common to all proceedings – whether order of hearing should be different to the order of filing – whether possible or perceived procedural disadvantage to any party will be caused if that order is not varied

CRIMINAL LAW – application to direct an inquiry or to refer case to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 – applicant convicted and sentenced for four counts of sexual assault of his then wife – where the Court of Criminal Appeal had previously dismissed the applicant’s conviction appeal and special leave to the High Court refused – whether there is a doubt or question as to the applicant’s guilt – fresh evidence – where the application fails to adduce or even identify precisely the evidence sought to be relied upon – where the evidence does not amount to fresh evidence or is otherwise inadmissible – application dismissed

EQUITY – rectification of building contract – whether adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) made within time – answer depends on the date under the contract for the making of a progress payment – whether the primary Judge was correct to order rectification of the contract by changing the due date for payment – whether the evidence supported the finding that the parties had a common intention, at the time the contract was executed, that the date for payment should be otherwise than as recorded in the contract. BUILDING AND CONSTRUCTION – adjudication application invalid because made out of time – whether the contractor entitled to institute summary proceedings under s 16(2)(a)(i) of the Security of Payment Act to recover unpaid portion of the scheduled amount as a debt – whether adjudication application, although a nullity, had a factual existence that had legal consequences – whether the invalid adjudication constituted an election between inconsistent statutory remedies so as to preclude summary proceedings to recover the debt. BUILDING AND CONSTRUCTION - contractor in liquidation – whether the Security of Payment Act, as a matter of construction, is capable of operating for the benefit of a contractor which has gone into liquidation in insolvency – where Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; (2016) 337 ALR 452 decides that equivalent Victorian legislation is not available to a contractor in liquidation – whether Victorian Court of Appeal decision is clearly wrong and should not be followed.

EVIDENCE LAW – Witness giving evidence – witness failing to appear – issue warrant to bring the witness before the court to give the evidence

CIVIL PROCEDURE – cross-vesting legislation – whether proceedings should be transferred to the Supreme Court of Victoria – interests of justice

CIVIL PROCEDURE – parties – vexatious litigants – application for removal of name from public vexatious litigants register pending determination of appeal against vexatious proceedings order – statutory obligation on Registrar to maintain register – whether within Court’s power to direct removal of name pending appeal

CIVIL PROCEDURE – appellants twice failing to comply with directions to serve submissions – whether appeal should be dismissed for want of prosecution

CRIMINAL LAW – appeal –conviction – whether miscarriage of justice occurred –trial judge directed witness to not resume giving evidence –trial judge failed to direct jury of need to be unanimous as to possession of particular quantity of drugs.

CORPORATIONS – leave under s 500(2) of the Corporations Act 2001 (Cth) – where various claims made in interlocutory process – where claims are against companies not presently joined to the proceedings – whether leave should be granted under s 500(2) of the Corporations Act 2001 (Cth) – whether the companies the subject of the claims should be joined.

CRIMINAL LAW – procedure – costs – costs in criminal cases – certificate – reasonableness of instituting proceedings – where applicant charged with accessory after the fact to murder – where applicant agreed to help friend by picking up children – where friend had killed her ex-husband – whether applicant aware of homicide – evidence of single witness unreliable – no other evidence of knowledge of homicide – criminal proceedings discontinued part way through trial – hypothetical prosecutor with the wisdom of hindsight – concession that certificate appropriate – certificate granted

POSSESSION – adjournment – vacation of hearing date – application refused

CRIMINAL LAW - Extended Supervision Orders under the Crimes (High Risk Offenders) Act 2006 (NSW) - high-risk category for violence - unacceptable risk of committing another serious offence - s 9 Extended Supervision Order - primary object of Act to ensure safety and protection of community.

CRIMINAL LAW – notice of motion – s 132 Criminal Procedure Act 1986 (NSW) – application for trial by judge alone – charge of murder – domestic violence offence – single issue at trial whether partial defence of diminished responsibility by reason of substantial impairment by abnormality of mind available under s 23A Crimes Act 1900 (NSW) – application of community standards – whether in the interests of justice to make order – whether accused will have a fair trial – risk of prejudice from adverse media and social media commentary about applicant’s racial background and faith – risk that jurors will not adhere to directions – application dismissed

CIVIL PROCEDURE – specialist lists - Possession List – pleadings – form and content of pleading - leave sought to file and serve cross-claim out of time – where pleadings assert a number of conclusions in the absence of material facts – imprecise and inconsistent pleadings – facts pleaded across two separate pleadings – whether the proposed cross-claim was embarrassing – whether the cross-claimants should be permitted to file any subsequent cross-claim MORTGAGES – mortgages and charges generally – rights and liabilities of mortgagor and mortgagee – whether finance broker the agent of mortgagor or mortgagee

APPEAL – leave to appeal – whether prosecutions of the applicant for offences under Crimes Act 1900 (NSW) validly commenced – whether “any person” in s 14 of Criminal Procedure Act 1986 (NSW) should be read down – where primary judge dismissed application for judicial review – whether decision attended by error

PRACTICE AND PROCEDURE – appeal determined – notice of motion seeking further relief – whether appeal finally determined – whether notice of motion incompetent

CRIMINAL LAW – sentence appeal – possession of equipment to commit forgery – dealing in identification information with intention of facilitating fraud – participation in a criminal group – whether financial gain is an inherent characteristic of an offence of dealing with identification information contrary to s 192J Crimes Act – whether error in judge’s finding that financial gain was an aggravating factor – whether aggregate sentence was manifestly excessive – highly exceptional hardship to applicant’s son – whether less weight to be given to general deterrence – significance of general deterrence for identity crimes – sentence not manifestly excessive – appeal dismissed

CRIMINAL LAW – conviction appeal – wounding with attempt to murder – police pursuit – trial by judge alone – parties agreed at first instance that special verdicts of not guilty on ground of mental illness should be returned – unanimous psychiatric evidence – verdicts of guilty returned – discussion of nature of determination pursuant to s 7(4) of the Criminal Appeal Act 1912 (NSW) – whether it appears to the Court of Criminal Appeal that applicant was mentally ill at time of acts – whether trial miscarried in that trial judge failed to address adequately in reasons for verdicts psychiatric evidence about demeanour of accused in recorded interview – convictions quashed – special verdicts of not guilty on ground of mental illness entered – explanation of meaning and effect of special verdicts

EVIDENCE LAW – Tendency evidence significant probative value – differences in tendency evidence submitted – requirement of degree of specificity between tendency events – extended length of time between tendency events not necessarily preclusive of tendency.

EASEMENTS – where plaintiff seeks easement by express grant or prescription – declaration by consent

CRIMINAL LAW – Jury – Where juror certified unfit to continue – Whether whole jury should be discharged – Early stage of trial – Undesirable to continue with a jury of 11 – Recognition of right of an accused to be tried by a jury of 12 – Jury discharged

HIGH RISK OFFENDER – preliminary hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk – interim supervision order granted – no point of principle

ABUSE OF PROCESS – repetition and duplication – vexation and oppression SUMMARY DISMISSAL – no reasonable claim – no prospects of success

COSTS – where defendant applied to set aside an examination order – where examination order amended – where parties unable to agree who should pay costs of the application to set aside the examination order – where both parties benefited from amendment to the examination order – where prior to determination of the defendant’s application the plaintiff proposed the examination order be varied in terms substantially similar to the amended order – where no evidence that the defendant responded to the plaintiff’s proposal – principle that costs should ordinarily follow the event of limited assistance – no order as to costs

APPEAL – interlocutory appeal – leave – claim in tort dismissed as disclosing no reasonably arguable cause of action – Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1) – whether judge erred in failing to exercise exceptional caution before summarily dismissing the proceedings – whether reasonably arguable that judge erred in law in identifying the elements of the cause of action TORT – malicious prosecution – claim for malicious prosecution arising from dismissal of earlier civil proceedings – applicant not a defendant in earlier proceedings – whether arguable case that a person not a party to earlier proceedings could sue for malicious prosecution

APPEALS – interlocutory appeal – leave – whether arguable error – whether leave available where applicant dilatory in seeking leave – approach to appeals from matters in Commercial List CIVIL PROCEDURE – interlocutory injunction – undertaking as to damages – undertaking required from shareholder of party seeking relief

APPEAL – application for leave to appeal costs order – whether primary judge gave appropriate weight to applicant’s material – whether applicant could raise a new point on appeal – whether primary judge afforded procedural fairness to applicant – leave refused.

CONTRACTS — Construction — Interpretation — whether primary judged erred in construction of commercial contract — whether respondent undertaking contractually required tender process was required to disclose status of ongoing negotiations with a third party to appellant — standard of disclosure and relevant time of disclosure required by contract CONTRACTS — Breach of contract — Standards of contractual duty — whether primary judge erred in finding no breach of commercial contract by respondent — whether contract correctly construed required respondent to disclose to appellant status of third party negotiations during due diligence period — whether respondent breached contractual requirement to disclose CONTRACTS — Remedies — Damages — Loss of chance — whether respondent’s failure to disclose to appellant an offer made by third party caused the appellant to lose a chance to sell its rights under a contract at a substantially higher price CORPORATIONS — Directors and officers — Disclosure requirements — where there are common directors of two companies – whether knowledge acquired by one director in course of acting for one company will be imputed to the second company

TORTS – action by a former police officer against the State pursuant to the Crime Proceedings Act 1988 (NSW) – alleged breach of non-delegable duty to take reasonable care to prevent psychological injury – satisfactory procedures in place to identify officers at risk of post-traumatic stress – whether the New South Wales Police breached its duty of care to the police officer by failing to implement the system for detecting and addressing psychological injury – whether failure to act on recommendations by a Police Medical Officer and Police Psychologist constituted a breach of duty – whether the New South Wales Police were entitled to assume that the appellant’s psychological problems had resolved on her return to work. CONTRIBUTORY NEGLIGENCE – whether appellant’s own conduct contributed to her psychological injury – whether her conduct was the product of the breach of duty.

JUDGE ALONE TRIAL – s 132 Criminal Procedure Act, orders for trial by judge alone – court must make a trial by Judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

PERSONAL PROPERTY — Co-ownership — Direction by court to divide co-owned chattels — plaintiff seeking order for sale of shares held by the parties as co-tenants in common pursuant to s 36A of the Conveyancing Act 1919 (NSW) — sale of shares ordered and defendant to vacate the premises

CIVIL – application pursuant to s 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) – application to vary the extended supervision order by bringing forward the expiry date – dismissed CIVIL – application pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – serious sex offence – considerations under s 5B – orders under s 7(4) – final hearing to be fixed

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – orders

COSTS – determination of separate question – whether order for costs against defendants appropriate – where defendants put plaintiffs to proof of insolvency

ADMINISTRATIVE LAW – judicial review – grounds of review – decision by Racing NSW refusing to renew a trainer’s licence to an experienced thoroughbred trainer – review of licence renewal application prompted by concerns stemming from workers compensation proceedings against the same entity as authorised workers compensation insurer – failure to disclose internal material adverse to plaintiff including material concerning workers compensation claims – late concession by decision-maker that the decision entailed denial of procedural fairness – whether necessary or appropriate to determine remaining grounds of review – where decision no longer operative at time of hearing – utility of relief sought – discretion to grant declaratory relief – impact of decision on plaintiff’s reputation and future applications for a trainer’s licence

ADMINISTRATIVE LAW – Judicial review – Whether appointments of the Chief Commissioner and Commissioners of ICAC invalid – s 64A Independent Commission Against Corruption Act 1988 (NSW) – Consequence of failing to make a written referral of the appointment of the Chief Commissioner to Parliamentary Joint Committee after Independent Commission Against Corruption Amendment Act 2016 (NSW) came into force – Whether s 64A required Joint Committee to consider referred appointments for at least a day before making and communicating its decision and appointments being made – Consequence of consultation required by s 5(2) of the Independent Commission Against Corruption Amendment Act being undertaken before Chief Commissioner appointed – appointments valid - application dismissed – costs STATUTORY INTERPRETATION - Transitional provisions – Whether clause 19A of the Amendment (Commissioners) Regulation 2017 (NSW) valid – Whether clause 19A “of a savings or transitional nature” – Effect of s 26 of the Interpretation Act 1987 (NSW) – regulation valid EVIDENCE — Relevance – Opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) – presumption of validity – s 45 Interpretation Act and s 9(1) Subordinate Legislation Act – opinion not relevant EVIDENCE — Privileges — Client legal privilege – Whether opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) privileged under s 118 of the Evidence Act 1995 – Whether the State was a client of the Attorney or Parliamentary Counsel who gave the opinion – opinion unlikely to be privileged

EQUITY – fiduciary duty – release by beneficiary of parties who allegedly knowingly received fruits of breach of fiduciary duty and who allegedly were knowingly involved in the breach – whether defaulting fiduciary also released CONTRACT – inducing breach of contract – whether release of parties who allegedly induced breach of contract also released party allegedly in breach of contract

EVIDENCE - Privileges - client legal privilege – without prejudice privilege – whether communications made in connection with attempt to negotiate a settlement

SENTENCE – wounding with intent to cause grievous bodily harm – disputed facts - whether the sentencing judge erred in making findings as to motive – whether findings supported by evidence – basis of drawing inferences - whether applicant was denied procedural fairness – whether the sentencing judge erred in setting the non-parole period

CORPORATIONS – winding up – provisional liquidators – remuneration – application for approval of remuneration under s 60-16 of the Insolvency Practice Schedule (Corporations) (Cth) – where significant amount of work related to investigations and statutory duties – where significant amount of work undertaken by more senior staff – whether remuneration claimed by provisional liquidators is proportionate to complexities of the matter.