Cases and authorities

Judgments and Orders – Enforcement – Writ for Possession of Land

CRIMINAL LAW – murder – plea of not guilty by reason of mental illness – schizophrenia - relevance of consumption of illicit drugs to psychosis – relevance of forensic awareness by the accused to knowledge of wrongfulness – “cover-up” of crime scene - unanimous agreement of experts as to availability of defence

SUCCESSION – testamentary capacity – where the deceased excluded her granddaughter from the will – where the deceased suffered from a progressive neurological condition at the time of the will’s execution – exclusion based on possible mistaken assumption or false belief – Carr v Homersham [2018] NSWCA 65 considered SUCCESSION – testamentary capacity – assessment of evidence – expert evidence – weight of expert reports giving evidence on the legal issue of whether the deceased had testamentary capacity PRACTICE AND PROCEDURE – pleadings and particulars – application to amend statement of claim – proposed claim contingent on the success of the main claim in the proceeding – where proposed claim potentially affects parties not joined in the proceedings – where the relief sought for the proposed claim is narrow – application refused EVIDENCE – affidavit evidence – Uniform Civil Procedure Rules 2005 (NSW), r 35.2 – leave to rely on affidavit where deponent could not attend for examination – where deponent hospitalised – opposing party not informed of deponent’s unavailability until the commencement of the hearing EVIDENCE – opinion evidence – expert opinion evidence – doctor’s opinion expressed in a medical certificate – basis of the opinion – resort to surrounding evidence to show basis – admissibility

HIGH RISK OFFENDER – serious sex offender – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – dispute limited only to conditions – satisfaction that order should be made – discussion of appropriateness of various conditions – extended supervision order imposed

CRIMINAL LAW - sentence - guilty pleas to three offences - aiding and abetting commission of terrorist act - fatal shooting of Curtis Cheng outside New South Wales Police Headquarters - two offences of intentionally collecting funds for Islamic State knowing it to be a terrorist organisation - further offence of being a member of a terrorist organisation (Islamic State) taken into account on sentence - Offender radicalised supporter of violent jihad - objective gravity of offences - tentative expression of remorse at sentencing hearing later withdrawn by Offender - assessment of prospects of rehabilitation and risk of reoffending - factors relevant to sentence - importance of denunciation, specific and general deterrence - substantial determinate sentences imposed

CONTEMPT – criminal contempt – requirements to prove criminal contempt – failure to comply with an order to deliver up vehicles – defendants alleged to have retained possession of vehicles – whether mere fact of non-compliance with court order is sufficient to constitute a contempt – requirement to prove wilfulness of non-compliance with court order

CONTRACTS – where plaintiff unsuccessful at trial and liable to cross-claim – liability for breach of agreement – liability under indemnity and guarantee – quantum of liability - determining quantum of cross-claim

PRACTICE AND PROCEDURE – stay – application for stay of order quashing interim detention order pending appeal – whether appropriate case for grant of stay – whether appeal so weak that stay should be refused – balance of convenience – interim supervision order granted

APPEAL – enforcement of primary judgment stayed – risk that appeal would have been rendered abortive if no stay

LAND LAW – conveyancing – contract for sale – novation – whether contract was novated so that the second appellant replaced the first appellant as purchaser – whether second appellant merely exercised a right to nominate another transferee CONTRACTS – formation – novation – requirements for effective novation of contract by substitution of party

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – whether Deputy President of WCC erred in finding that a total knee replacement is an “artificial aid” within the meaning of s 59A(6)(a) of Workers Compensation Act 1987 (NSW) – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 discussed – appeal dismissed WORDS AND PHRASES – “artificial aid” – Workers Compensation Act 1987 (NSW), s 59A(6)(a)

TORTS – self-represented appellant alleged she was injured in two motor vehicle accidents – liability admitted in District Court – appellant awarded $1,250 damages in each action – no error demonstrated on appeal

CRIMINAL LAW – appeal – Crown appeal against inadequacy of sentence – dangerous driving occasioning grievous bodily harm – fail to stop and assist after impact causing grievous bodily harm – whether sentence imposed is manifestly inadequate –whether sentencing judge erred in assessing the objective seriousness of the fail to stop and assist offence as “well below the mid-level” – whether the Court should exercise its residual discretion not to intervene – resentencing – whether the Court should impose an Intensive Correction Order STATUTORY INTERPRETATION – Crimes (Sentencing Procedure) Act 1999 as amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 – proper construction of ss 17B, 17C, 17D – proper construction of s 66 and meaning of “community safety” – proper construction of s 68 WORDS AND PHRASES – “community safety”

CRIMINAL LAW – application for leave to appeal against sentence – import commercial quantity of border controlled drug – methamphetamine – whether the sentencing judge considered the plea of guilty in mitigation – whether the sentencing judge erred in dealing with the criminality involved in the s 16BA matter – whether the sentencing judge erred in finding the sentence was aggravated by being committed without regard for public safety – organised criminal activity – whether the sentencing judge erred in placing too much emphasis on the offence being committed for financial gain - whether the sentencing judge erred in failing to take into account the character, age and antecedents of the applicant – whether the sentencing judge failed to make a finding regarding rehabilitation – whether the sentence imposed is manifestly excessive

SENTENCING – Subjective considerations on sentence – Mental illness – sentencing judge found that mental health conditions were not causally connected with the offending – whether the sentencing judge erred in failing to give weight to evidence of mental health conditions

CRIMINAL LAW – General matters – Criminal liability– Causation – accused tried on indictment for murder victim died eight months after assault during a home invasion – conflicting medical evidence concerning cause of death – whether it was open to the jury to conclude that the assault caused the death of the victim

PROCEDURE – approval of settlement – person under legal capacity – whether proposed settlement is beneficial to the interests of the plaintiff

CIVIL PROCEDURE – application for review of decision of registrar directing plaintiff to answer interrogatories – claim for damages arising out of bodily injury – consideration of r 22.1(3) of the UCPR – whether there are special reasons to order interrogatories

CIVIL PROCEDURE – application by cross-claimants to re-open their case in chief – post cross-defendant’s final addresses – tender evidence that has recently come to light – balancing test – fairness – s 135 Evidence Act 1995 (NSW) – greater injustice in not ordering an adjournment

CORPORATIONS – winding up – winding up in insolvency – failure to comply with a statutory demand – no evidence to rebut presumption of insolvency CORPORATIONS – winding up – where company represented in proceedings by director – whether the director of a company can defend winding up proceedings – leave of the Court required – leave not granted in circumstances where the director does not understand the real issues in dispute

CIVIL PROCEDURE – settlement – court approval – where proceeding commenced on behalf of minor – where settlement amount takes into account the prospect that the plaintiff may not succeed – settlement approved

CRIMINAL LAW – murder – stabbing - no case application – where no direct evidence that fatal wound inflicted by accused – eye-witnesses give evidence only of inflicting of non-fatal wound – where case partly circumstantial – no other cause of death – immediate collapse and blood loss after stabbing –whether evidence capable of sustaining a guilty verdict – application rejected

APPEALS – leave to appeal – applicant purported to file notices of appeal as of right when leave required – summons seeking leave filed out of time on day of hearing – whether extension of time to file leave summons should be granted – whether leave to appeal should be granted EVIDENCE – admissions – civil proceedings – applicant claimed to have green light when entering intersection – applicant made admission to the contrary to police in interview – notebook entry regarding interview admitted without objection – whether evidence of admission should have been excluded on basis it was influenced by violent, oppressive, inhuman or degrading conduct – Evidence Act 1995 (NSW), s 84 EVIDENCE – medical records – clinical notes included history of motor vehicle accident seemingly inconsistent with applicant’s evidence – clinical notes tendered by applicant without explanation or reservation – whether trial judge approached medical records with appropriate caution – Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 referred to

CONSTITUTIONAL LAW – inconsistency – Constitution, s 109 – circumstances in which operation of State law will be inconsistent with Commonwealth law – where provisions of Security Industry Act 1997 (NSW) and Security Industry Regulation 2016 (NSW), cl 13(3) mandated revocation of company’s security licence upon entering voluntary administration – State laws prevented company entering voluntary administration from carrying on primary business – whether operation of State laws inconsistent with Corporations Act 2001 (Cth), Pt 5.3A – whether State laws invalid to extent of inconsistency CORPORATIONS – voluntary administration – power of administrators to carry on business – security industry licence revoked under State law – whether State law valid – Corporations Act 2001 (Cth), Pt 5.3A COMMERCIAL LAW – security industry – requirement that Commissioner of Police revoke master licence of corporation under administration – whether valid State law

COSTS – security for costs application – general principles – Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.7 – whether costs in the cause – defendants’ substantially successful – prejudice to the defendants – costs payable forthwith – orders

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – summons for purported appeal against Local Court interlocutory decision refusing leave to amend statement of claim – notice of motion seeking to set aside Supreme Court interlocutory decision removing second defendant on summons from proceedings – where no justification for grant of leave to appeal advanced – where irrelevant provisions of Uniform Civil Procedure Rules 2005 (NSW) invoked on notice of motion – where non-appearance of plaintiff when summons and notice of motion made returnable – notice of motion dismissed – leave to appeal refused and summons dismissed

FORENSIC PATIENTS – application for interim extension order – assessment of whether defendant poses an unacceptable risk – two interim orders made

LAND LAW – second defendant’s application to remove plaintiff’s caveat pursuant to s 74MA of the Real Property Act 1900 (NSW) or the inherent jurisdiction of the Court – plaintiff’s caveat claimed equitable interest in second defendant’s property commensurate with right to obtain specific performance of conveyance of part of the property – second defendant had constructed units on the property, subject to off-the-plan contracts – plaintiff’s caveat prevent registration of strata plan and subsequent completion of off-the-plan contracts – second defendant’s development loan called in by bank – second defendant unable to repay loan until completion of off-the-plan contracts – plaintiff offered no undertaking as to damages – balance of convenience favours the removal of caveat, subject to the plaintiff giving undertakings regarding alternative security

BUILDING AND CONSTRUCTION – application by owner to quash adjudicator’s determination in favour of builder dismissed by judge of the division and confirmed by Court of Appeal – whether funds paid into court by owner pending challenge to the determination should be retained in court pending determination of underlying building dispute – where judge hearing application to quash determination had rejected such an application – where Court of Appeal refused to entertain application – whether factors of inability of builder to repay established – whether any factors beyond those available to owner when making original application established

HIGH RISK OFFENDER – Revocation of Extended Supervision Order – No point of principle

CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Factors relevant to exercise of discretion — Relevant evidence not admitted — Registrar’s decision reviewed. COSTS — Security for costs — Relevant factors — Uniform Civil Procedure Rules r 42.21(1A) — Prospects of success — Genuineness of proceedings — Impecuniosity — Whether defendant caused plaintiffs’ impecuniosity — Extent of overlap of cross-claim — Registrar’s order for security vacated.

TRUSTS – charitable trusts – cy-près scheme – variation by consent

ADMINISTRATIVE LAW – judicial review – workers compensation – decision of the delegate of the Registrar – meaning of “additional relevant information” in s 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 – where applicant seeks to rely on new surveillance report – where report neither additional nor relevant – summons dismissed

DEFAMATION – republication – where plaintiff sued persons who provided source material later included as part of a television broadcast but did not sue the broadcaster – repetition of source material in the broadcast relied upon by plaintiff only as to damages rather than as a separate cause of action – requirements of pleading of a cross-claim for contribution by the source against the broadcaster – whether open to source to plead claim against broadcaster based on less than the whole of the episode broadcast

EVIDENCE – hearsay – exceptions – first hand hearsay – criminal trial – murder – whether triple-0 call from murder scene is admissible – s 66 Evidence Act 1995 - maker of call giving evidence – whether triple-0 call should be excluded as prior consistent statement – call tendered as part of witness’s evidence in chief – no issue of credibility – evidence relevant and within the hearsay exception

SOLICITORS NEGLIGENCE – BREACH OF CONTRACT – BREACH OF FIDUCIARY DUTY - whether the defendant solicitors owed the first plaintiff a fiduciary duty arising out of a solicitor and client relationship in circumstances where the defendants were providing the second plaintiff with legal advice relating to different proceedings which the first plaintiff later agreed to assume liability for and give security for – whether the defendants breached fiduciary obligations owing to the first plaintiff in entering into cost agreements with her and taking security over her property in respect of her liability under the cost agreements – whether the defendants gave negligently wrong advice as to the prospects of the proceedings which the first plaintiff later assumed liability for and gave security for - where the first plaintiff obtained independent legal advice before entering into the cost agreements and before agreeing to assume liability of the second plaintiff’s proceedings – where there is no reason to doubt that the arrangements between the first plaintiff and the independent solicitor constituted a proper professional solicitor and client relationship - whether the defendants acted unconscionably - whether the first plaintiff executed the agreements as a result of the defendants exerting undue influence over her - loss - whether the plaintiffs suffered any loss or damage by reason of any wrongful conduct on the part of the defendants - proportionate liability - whether the independent solicitor or former solicitors were concurrent wrongdoers - contributory negligence - whether the first plaintiff contributed to her own loss

CIVIL PROCEDURE – referral to a barrister or solicitor on the Pro Bono Panel for legal assistance

COSTS – whether separate hearing as to orders, to which no challenge was made, was separate event for purposes of costs – Calderbank correspondence – whether special costs order warranted JUDGMENTS AND ORDERS – application to vary made after 14 day period prescribed by rules – no power to extend time – no power to accede to application

ENVIRONMENT AND PLANNING – Jurisdiction of Supreme Court – whether engaged – Exclusive jurisdiction of Land and Environment Court ENVIRONMENT AND PLANNING — Development Consent — Conditions – whether use of parking lots by “occupants” precluded non-resident owners of parking lots from using their lots ENVIRONMENT AND PLANNING — Court of Appeal — Jurisdiction and powers — Class 4 application LAND LAW — Strata title — Owners corporation – whether by-law validly made LAND LAW — Strata title — Strata plan — Strata plan of subdivision – whether consent to subdivision vitiated use conditions in Development Consent

CRIME – sentencing – whether sentencing judge erred in his approach to the applicant’s mental condition – where judge received inadequate assistance from defence counsel on that issue – whether applicant precluded from reformulating his case on that issue in this court – where applicant had presented cogent evidence relevant to his moral culpability and his prospects of rehabilitation

CRIMINAL LAW – conviction appeal – 81 counts of fraud by obtaining a financial advantage from a Commonwealth entity, using forged documents and dealing in the proceeds of crime – where appellant convicted upon verdict of jury – where sheriff’s report provided to trial judge regarding potential juror irregularity – whether sheriff’s report into juror irregularity admissible – whether verdict of the jury should be set aside as it was reached through juror pressure, compromise of verdicts and time constraint pressures from exceeding trial estimate – whether verdicts should be set aside due to alleged juror bias depriving appellant of a fair trial – whether, if Court finds report inadequate, the sheriff should be ordered to conduct a further investigation into allegations of juror compromise and juror bias – additional sheriff’s report ordered – appeal adjourned

SENTENCING — application for leave to appeal against sentence – Whether gross failure by applicant’s legal representatives properly to advise about evidence on sentence SENTENCING – whether applicant denied opportunity to give evidence at sentencing hearing

EVIDENCE – witness evidence – refreshing memory in court – application by Crown for police officer to refresh memory from statement prepared two years after the crime for a coronial inquest – statement is admissible – witness entitled to refresh his memory from the statement – limitation on use Evidence Act 1995, s 136 imposed

CIVIL PROCEDURE – application for an adjournment – no issue of principle – change in position – needs to be telegraphed – recovery of a commercial debt – assignment of a chose in action – notice of assignment – future property – whether the equitable assignment is effective – modern approach to civil litigation – adjournment granted CIVIL LITIGATION – discovery – no issue of principle - classes or categories of documents – specific categories – unverified form – waiver of requirement of verification – omitted documents – not withheld deliberately – supplementary discovery to be verified in accordance with the Rules COSTS – general rule – no dereliction – costs to be assessed and fall payable at conclusion of the litigation

APPEAL – application for leave to appeal on costs – application to amend to expand appeal to challenge to order on points inconsistent with stance taken before primary judge – amendment refused – no question of principle or public importance or reasonably clear injustice JURISDICTION – primary judge granted interlocutory relief extending caveat over property owned by trustee in bankruptcy – trustee appealed from subsequent costs order – whether application for leave to appeal from costs order amounted to a “matter in bankruptcy” – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) considered

ADMINISTRATIVE LAW – judicial review – content of obligation to act in good faith – whether lack of good faith established by failure to “grapple with” all matters decision-maker required to consider – whether lack of good faith requires wilful blindness or conscious maladministration BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – circumstances in which adjudicator’s decision invalid for lack of good faith – whether decision reviewable for failure to “grapple with” all matters adjudicator required to consider – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 10(1)(b), 22(2)

CIVIL PROCEDURE – parties – vexatious litigants – vexatious proceedings orders – Vexatious Proceedings Act 2008 (NSW), s 8

CIVIL PROCEDURE – interlocutory applications – ex parte – duty of disclosure – vital evidence not drawn to judge’s attention – likely ex parte order would not have been made had judge’s attention been drawn to that evidence – obligation of counsel seeking ex parte relief to draw attention to evidence which might weigh against granting ex parte relief

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

COSTS – Party/Party – Court’s discretion – Where the parties have contracted on the question of costs – Whether costs should be paid on the indemnity basis – Orders when proceedings involve multiple parties – Bullock and Sanderson orders