Cases and authorities

APPEAL – application for leave to appeal against interlocutory ruling in Local Court summary criminal proceedings – interpretation of r 8.7(4) of Local Court Rules 2009 (NSW) – leave refused

CRIMINAL LAW – appeal – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty on two counts and acquittal on third count – whether verdicts unreasonable – significance of acquittals when considering unreasonableness of guilty verdicts – whether rational basis existed for the difference in the verdicts returned CRIMINAL LAW – appeal – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty on two counts and acquittal on third count – whether verdicts unreasonable – significance of jury’s rejection of complainant’s evidence on one count on the assessment of reliability in respect of other counts – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

CRIMINAL LAW – application for leave to appeal against conviction – whether a miscarriage was occasioned by misdirection to the jury regarding evidence given on oath by the appellant – whether verdict of jury unreasonable – leave refused to raise first ground – leave granted to raise second ground but held verdict was not unreasonable – appeal against conviction dismissed CRIMINAL LAW – application for leave to appeal against severity of sentence – whether sentencing judge erred in having regard to breach of trust in relation to counts 3, 4 and 5 when being “under the authority” of the appellant was an element of the offences – appeal allowed – appellant re-sentenced

CRIME – Directed verdict – need for accessory to murder or manslaughter to be aware of death of victim – verdict directed – no evidence that any act of the accused assisted the principal offender at a time when accused was aware of the death of victim, or even likely death

HIGH RISK OFFENDER - serious sex offender – preliminary hearing – application for interim supervision order and for examination by court-appointed psychiatrists or psychologists – “serious sex offence” of having 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 - interim supervision order made together with order for examination by two psychiatrists or psychologists

BANKING AND FINANCE – banker and customer relationship – money market deposit accounts – deposits recommended by financial planner – financial planner alleged to have engaged in Ponzi Scheme – monies in accounts misappropriated – monies allegedly withdrawn without mandate – monies allegedly withdrawn with knowledge of fraud INSURANCE – liability insurance – aggregation clause – proper construction – how many “Claims” made in representative proceedings – whether loss for which insurers are liable arises from one “Claim” or multiple “Claims” – unifying factor – how many “Wrongful Acts” – whether there was a “series of related” Wrongful Acts – whether the wrongful acts “unrelated” – whether plaintiff’s claim under policy subject to one or to multiple retentions

CRIMINAL LAW – procedure – application for leave to appeal out of time against sentence imposed in the Local Court on a ground involving a mixed question of law and fact – appeal incompetent since plaintiff sought to challenge order of Local Court which was no longer operative, District Court having dismissed application for leave to appeal – summons dismissed.

EQUITY – contribution – circumstances when contribution excluded – consideration of scope of common intention exception – significance of equity's regard for substance over form – Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 considered GUARANTEE AND INDEMNITY – contribution between guarantors – circumstances when contribution not available – exception when one guarantor enjoys all the benefit – exception when agreement or common intention to contrary – whether primary judge erred in finding guarantors’ liabilities were coordinate

CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)

EVIDENCE — opinion evidence — exceptions — expert opinion — report of forensic pathologist — opinions on healing rates of wounds and blood loss through injuries – evidence admissible

JUDICIAL ADVICE – nature of application – not appropriate for determination of substantive questions of fact and law – necessity for declaratory proceedings – desirability of a contradictor

EQUITY – Trusts and trustees – Where Court made orders appointing new trustee in circumstances where former trustee wished to be discharged from the role – Former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – New trustee contended that order had not been complied with – What constitutes “documents of the trust” liable to be delivered up to incoming trustee – Whether includes documents constituting deliberations of trustee as distinct from decisions – Whether includes private communications with beneficiaries – Whether includes privileged documents – Where outgoing trustee has proceeded on misconceived basis – Orders made for outgoing trustee to verify compliance EVIDENCE – privilege – waiver – joint privilege – Evidence Act 1995, s 124

CIVIL PROCEDURE – Application to dismiss appeal as incompetent – Where SM was detained under Mental Health Act 2007 (NSW) – Where primary judge held that SM was a mentally ill person and that no care of a less restrictive kind was appropriate – Whether appeal involves a civil right amounting to or of the value of $100,000 or more – Mental Health Act 2007 (NSW) – Appeal dismissed as incompetent

EVIDENCE – discretions – application to remove limit on use of evidence previously imposed pursuant to Evidence Act 1995, s 136 – evidence in two exhibits relating to DNA laboratory processes and results – where evidence of various scientists established that the necessary scientific processes recorded in the exhibits had been followed – where court was not satisfied that there was any unfair prejudice to the Accused – where evidence was of high probative value – limit on use removed – evidence not excluded pursuant to Evidence Act, s 137

PRACTICE AND PROCEDURE – application to dismiss statement of claim – no reasonable cause of action disclosed – counsel indicated proposed causes of action in submissions – application dismissed – plaintiff granted leave to replead PRACTICE AND PROCEDURE – reason to depart from general rule that costs follow the event – application brought about by deficiencies in the plaintiff’s pleading – each party to bear own costs

EVIDENCE – Admissibility – Where Crown seeks to adduce evidence of third-party telephone conversations to which the accused was not party – Whether evidence relevant – Whether evidence inadmissible hearsay

CHILDREN - parens patriae jurisdiction

CRIMINAL LAW – Terrorism trial – Application for suppression, pseudonym and closed-court orders relating to a particular witness – Whether orders necessary to prevent prejudice to the proper administration of justice and to the interests of the Commonwealth in relation to national or international security – Whether orders necessary to protect the safety of a witness – Application granted

CRIMINAL LAW – sentence – murder – plea to manslaughter – convicted or murder – findings of non-planned – offender moved in and out of rationality – one wound, little force, intention to injure not kill – objectively below mid-range – strong subjective circumstances - Fernando/Bugmy issues – effect of s 21A(5AA) Crimes (Sentencing Procedure) Act – Sentence imposed.

CRIMINAL LAW – sentencing – murder – domestic homicide – infliction of multiple sharp force injuries – early plea of guilty – serious offence – gravity of the offence – moral culpability – discount for guilty plea – sentence imposed

SUCCESSION — Wills, probate and administration — Construction and effect of testamentary dispositions — Statutory water rights — Change of statutory scheme between date of Will and date of death — Where farming land and related items left to testamentary trust for grandsons — Where residue left to daughters — Whether water rights and associated shares form part of testamentary trust. ENERGY AND RESOURCES — Water — Water management — Development water rights in NSW — — Irrigation water rights — Irrigation Act 1912 — Irrigation Corporations Act 1994 — Murrumbidgee Irrigation Area — Construction of Constitution and Member Contract of Murrumbidgee Irrigation Ltd — Transmission of water rights governed by Constitution and Member Contract.

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Express disclaimer of intention by deceased to benefit plaintiff – Strained relationship between plaintiff and deceased – Whether provision should be made notwithstanding deceased’s disclaimer – Modest provision made

CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Predictions – Whether the impugned representations were misleading or deceptive – Remedies – Measure of damages – Cross-defendant’s onus to prove benefits to cross-claimant caused by cross-defendant’s unlawful conduct CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether the claimed damages were expenditure incurred in the procurement or performance of the contract EVIDENCE – Opinion evidence – Exceptions – Expert opinion – Whether an opinion is wholly or substantially based on a witness’ specialised knowledge

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Whether the proceedings were commenced in breach of a dispute resolution clause – Whether the proceedings should be stayed

CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – offsetting claims – offsetting claim for liquidated damages for failure to complete construction contract by individual milestone dates or overall completion date – where builder prevented sub-contractor from completing works by dates specified in the contract – entitlement to recover liquidated damages CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – offsetting claims – offsetting claim for cost of completing work – claim foreshadowed in supporting affidavit but not yet accrued at time of s 459H application – not an offsetting claim CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – whether conditions should be imposed under Corporations Act 2001 (Cth), s 459M on an order varying the demand – conditions imposed requiring proceedings to be brought and claim amount paid into court

SENTENCING – murder – domestic violence-related – where offender introduced accelerant to bedroom of wife and prevented her from escaping subsequent fire – offence well above the mid-range of objective seriousness – aggravating factors – gratuitous cruelty – presence of children – home of deceased – prospects of rehabilitation unfavourable given continuing denial of responsibility – whether life sentence should be imposed – Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) – community interest in protection and specific deterrence satisfied by lesser sentence considering age of offender at earliest date of release made re-offending unlikely – minimal planning – consistency in sentencing for spousal murders – life sentence not imposed

ADMINISTRATIVE LAW – judicial review – applicant was convicted of filming person’s private parts, contrary to s 91L of Crimes Act 1900 (NSW) – summons for judicial review of two District Court interlocutory decisions – first decision was grant of leave to Director of Public Prosecutions (DPP) to adduce fresh evidence on appeal from Local Court, namely, tendency evidence – second decision was refusal of applicant’s application for counsel appearing for DPP to be precluded from continuing to represent DPP – whether primary judge ought to have submitted questions of law to the Court of Criminal Appeal, pursuant to s 5B of Criminal Appeal Act 1919 (NSW) – no error – whether applicant denied procedural fairness in relation to both District Court decisions – discussion of appellate intervention in criminal interlocutory proceedings – District Court decisions lacked necessary quality of finality – no jurisdictional error established – dismissed also on discretionary grounds including prevention of fragmentation of criminal proceedings

ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59 ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59

LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59

CRIMINAL LAW - sentence appeal - aggregate sentence of five years’ imprisonment with a non-parole-period of three years - offences of recklessly causing grievous bodily harm (s.35(2) Crimes Act 1900) and assault occasioning actual bodily harm (s.59(1) Crimes Act 1900) - victim of offences a 10-month old baby - additional offence of common assault on Form 1 - s.35(2) offence a standard non-parole period offence - whether sentencing judge erred in assessment of objective seriousness for both offences - sentencing for standard non-parole period offences - s.54A and s.54B Crimes (Sentencing Procedure) Act 1999-– consideration of legislative amendments made by Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 after Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 - proper construction of ss.54A and 54B - standard non-parole period to be taken into account on sentence as legislative guidepost - relevance of Applicant’s self-induced intoxication, intellectual impairment, socially disadvantaged upbringing and moral culpability - self-induced intoxication excluded by statute from consideration as mitigating factor - other matters to be considered as part of single-stage process of instinctive synthesis to determine appropriate sentence - sentencing Judge had regard to Applicant’s socially disadvantaged upbringing, intellectual impairment and moral culpability in determining sentence - error not established - whether aggregate sentence manifestly excessive - sentence not manifestly excessive - appeal dismissed

CRIMINAL LAW – appeal – appeal against conviction – murder – whether failure to instruct jury as to possible defence of self-defence occasioned a substantial miscarriage of justice CRIMINAL LAW – appeal – appeal against conviction – murder – tendency evidence – where evidence relied on by accused person – where jury directed that it needed to be satisfied that one or more of the alleged tendency acts had been proven on the balance of probabilities before it could accept the tendency contended – whether such a direction was erroneous CRIMINAL LAW – appeal – appeal against conviction – murder – whether verdict unreasonable or could not be supported by the evidence CRIMINAL LAW – appeal – appeal against sentence – manslaughter – whether trial judge failed to implement a stated intention to structure the sentence to the statutory proportions under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Break and enter and commit larceny in circumstances of special aggravation – Detention with the intention of obtaining an advantage – Where applicant was not charged with the most serious iteration of the offence under s 112(3) of the Crimes Act 1900 (NSW) – Where applicant did not perpetrate act of violence himself – Parity – Whether sentence was manifestly excessive – Leave granted – Appeal allowed

CORPORATIONS - registration time for security interests – application under Corporations Act 2001 (Cth), s 588FM(1) to extend registration time for financing statements registered pursuant to the Personal Property Securities Act 2009 (Cth) – failure to register financing statement because of accident or due to inadvertence

CRIMINAL LAW – murder – trial by judge alone – alleged murder by accused of his mother – defence of mental illness – long history of mental illness – expert evidence unanimous that defence is available – accused untreated for six months prior to alleged offence – chronic and severe schizophrenia – delusions involving deceased – related charge to be dealt with - not guilty by reason of mental illness

PROCEDURE – judgment and orders – application to reopen after reasons for judgment but before orders were made. COSTS – where value of the claims pressed at the hearing were below the jurisdictional limit of the District Court – where matter arguably arose out of a commercial transaction – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) displaces the possibility of a costs order in favour of the successful party – where several pleaded claims were not pressed at the final hearing – whether costs order should only be made in respect of the successful claim. ORDERS – determination as to form of orders.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve proposed scheme of arrangement – whether requirements to order scheme meetings are satisfied. CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in convening a meeting of unitholders to approve an amendment to the trust constitution to give effect to a proposed scheme – whether proposed amendments are within the powers of alteration conferred by the constitution of the managed investment scheme and s 601GC of the Corporations Act.

PRACTICE AND PROCEDURE – pleadings – application to dismiss proceedings as no reasonable cause of action disclosed – principle of reflective loss

CRIMINAL LAW – evidence – tendency evidence – admissibility of tendency evidence in a murder trial – accused not yet arraigned before a jury panel – death by blunt force trauma to head of deceased – whether foreshadowed tendency evidence passes tests in ss 97 and 101

COSTS – Registrar General’s costs – caveats filed causing disruption to the settlement of a Court ordered conveyancing transaction – Registrar General joined to the proceedings and asked by the Court to make notifications on the title to the property in question – Registrar General places notifications on the title and appears in Court in response to the Court’s orders – Registrar General seeks costs of its various appearances – whether application under Real Property Act 1900, s 74P – whether the Registrar General’s costs were occasioned by the conduct of the caveators – whether it can be identified who lodged the caveats – whether the caveats were unreasonable – whether Mr Robert Sebie was responsible for the filing of the caveats – whether a costs order should be made for the Registrar General’s costs against Mr Robert Sebie. SPECIFIED GROSS SUM COSTS ORDER – limited appearance by the Registrar General in substantial proceedings in which multiple judgments have been delivered – proceedings protracted and hard fought – where costs order made in favour of the Registrar General – discussion of the principles for the making of specified gross sum costs orders – whether this is an appropriate case for the making of a lump sum costs order in favour of the Registrar General under Civil Procedure Act 2005, s 98(4)(c) – what is the appropriate specified gross sum costs order – should the amount of any specified gross sum costs order be paid out of the funds held in Court.

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Calderbank offers – Whether genuine offers of compromise – Whether unreasonable for the offeree not to accept offers – Whether discretion to award indemnity costs should be exercised; Held: Defendants’ costs in the substantive proceedings to be costs assessed on the ordinary basis; Defendants to pay the Plaintiff’s costs of this application for indemnity costs, also assessed on the ordinary basis.

CIVIL PROCEDURE – dismissal application of appeal proceedings – objections to competency of appeal pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) – whether the appeal is incompetent – whether the notice of motion should be heard and determined in advance of the hearing of the amended summons – the plaintiff’s extant application for extension of time pursuant to r 50.3(1)(c) – whether, if the appeal was out of time, it may be declared incompetent if there remains outstanding an application to extend time –whether the appeal was filed out of time – time for appeal pursuant to r 50.3 of the UCPR – construction of rr 50.2 and 50.3 of the UCPR – relevant principles – r 50.2(1) definition of “material date” and “decision” – material date is defined as “the date on which the decision is pronounced or given” – whether reasonable argument appeal filed in time – motion dismissed – costs reserved

TRUSTS – charitable trust – trust for the advancement of education – trust established in testator’s will imposed condition that students’ parents be Protestant – cy-près scheme – formulation of scheme – scheme removing religious condition approved and ordered – school named in testator’s will now one of three campuses of merged school – administration of scheme to apply to previous eight years during which income was accumulated

CONTRACTS – Construction – Interpretation – No issue of principle

PRACTICE – refusal of adjournment – notice of motion and affidavit sent to court on day before hearing – affidavit stated that defendant had received menacing text messages threatening him if he attended court – no attendance by defendant or anyone on his behalf – trial judge granted two short adjournments until the afternoon – notice of motion for adjournment then dismissed for want of prosecution – no evidence establishing a solicitor or barrister or agent could not appear – appeal dismissed

CHARITIES — Charitable gifts and trusts — Validity and practicability — Administrative scheme

CIVIL PROCEDURE – plaintiff alleged criminal conduct by defendants in the course of interlocutory application to strike out pleading or dismiss proceedings – defendants applied for non-publication orders – defamation proceedings brought in relation to statements similar to statements made in court –order necessary to prevent prejudice to proper administration of justice

ADMINISTRATIVE LAW – judicial review – Workers Compensation Commission – Medical Appeal Panel – appeal against medical assessment certificate (“MAC”) issued by Approved Medical Specialist (“AMS”) – where MAC issued for nil whole person impairment following workplace accident – where claim by plaintiff that he developed complex regional pain syndrome (“CRPS”) – diagnostic criteria for CRPS not met upon examination of plaintiff – whether incorrect criteria applied by AMS – whether Medical Appeal Panel should have conducted independent clinical examination of plaintiff – summons dismissed

CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury did not return a verdict – whether trial by judge alone is in the interests of justice

PRACTICE AND PROCEDURE – need to adjourn sentence hearing because decision of Court of Criminal Appeal following Crown appeal in respect of co-offender not available

PARTNERSHIPS AND JOINT VENTURES – partnerships – legal characterisation – insolvency practice trading through a proprietary company acting as trustee of a unit trust – fees earned in personal capacity by parties to insolvency practice – where insolvency practice previously conducted business as a partnership – where parties to insolvency practice are directors of proprietary company – whether partnership exists – role of company in partnership – whether income belonged to unit trust – sham PARTNERSHIPS AND JOINT VENTURES – partnerships – dissolution and winding up – accounts – agreement to distribute partnership assets – where agreement does not deal with all assets and liabilities of partnership – where agreement subject to further adjustments – whether agreement binding PARTNERSHIPS AND JOINT VENTURES – partnerships – dissolution and winding up – accounts – calculation of work in progress component – calculation of goodwill component EQUITY – fiduciary duties – directors’ duties to shareholders – whether director owed fiduciary duty to shareholder in taking transfer of shares in company at nominal value upon dissolution of business relationship