Cases and authorities

PERSONAL PROPERTY – ownership and possession – possession – rights of possession – human bodies or tissue as property – gametes – sperm – application by widow for possession of sperm extracted from late husband – whether sperm lawfully extracted – whether transfer of possession prohibited by statute – Assisted Reproductive Technology Act 2007 (NSW), s 21 CIVIL PROCEDURE – miscellaneous matters – declarations – application by widow for declaration of ownership of sperm – where sperm extracted from body of deceased husband pursuant to court order – where existing statutory regime regulates extraction, storage, supply, use and exportation of human gametes – Assisted Reproductive Technology Act 2007 (NSW), Pt 2 Div 3 – Human Tissue Act 1983 (NSW), ss 4(2A), 23 – declaration granted CIVIL PROCEDURE – jurisdiction – where interim orders made authorising extraction and storage of sperm from unconscious and moribund patient – whether orders authorised under parens patriae jurisdiction – whether sperm extraction procedure for “benefit” of moribund person – whether orders authorised under Court’s inherent jurisdiction – whether orders authorised under Guardianship Act 1987 (NSW) – whether orders effective WORDS AND PHRASES – “medical or dental treatment” – Guardianship Act 1987 (NSW), ss 33, 36 – whether “medical or dental treatment” inclusive of sperm extraction procedure WORDS AND PHRASES – “tissue” – Human Tissue Act 1983 (NSW), ss 4(2A), 23(3) – whether “tissue” in s 23(3) includes reference to ova and semen – whether reference excluded by context or subject-matter WORDS AND PHRASES – “supply” – Assisted Reproductive Technology Act 2007 (NSW), s 21 – where claim of property in sperm – whether transfer of possession from bailee to owner “supply” of sperm – whether “supply” different to release or surrender

CRIME – conviction appeal – female genital mutilation – appellants A2 and Magennis convicted of offences of female genital mutilation contrary to Crimes Act s 45(1)(a) – appellant Vaziri convicted of being an accessory to those offences – appeal allowed EVIDENCE – application for leave to adduce new evidence – new expert evidence sought to be adduced by appellants – whether necessary that new evidence is “fresh” evidence – whether new evidence relevant – leave granted to admit new evidence as evidence demonstrating a potential miscarriage of justice CRIME – miscarriage of justice – whether miscarriage of justice on account of new evidence – new undisputed evidence of visibility of tip of clitoral head in both complainants C1 and C2 – demonstrates potential miscarriage of justice STATUTORY INTERPRETATION – Crimes Act s 45(1)(a) – meaning of “otherwise mutilates” STATUTORY INTERPRETATION – Crimes Act s 45(1)(a) – meaning of “clitoris” STATUTORY INTERPRETATION – extrinsic material – whether reference to extrinsic material permissible to determine context and purpose of offence provision STATUTORY INTERPRETATION – extrinsic material – extrinsic material which post-dates enactment of offence provision STATUTORY INTERPRETATION – words and phrases – “otherwise” CRIME – unreasonable verdict – whether open to jury to be satisfied of appellants’ guilt beyond reasonable doubt – where court satisfied that trial miscarried due to fresh evidence – not possible for jury to conclude beyond reasonable doubt that clitoris of either complainant “mutilated” – no basis to order new trial on charges under Crimes Act s 45(1) – verdicts of acquittal CRIME – whether new trial should be ordered on alternate counts – alternate counts of assault occasioning actual bodily harm – no new trial ordered EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – relevance – evidence of Dr X relevant EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – requirements of Evidence Act s 79 – particular opinions of Dr X not derived from specialised knowledge – evidence inadmissible as to those opinions EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – discretionary exclusion – probative value of particular opinions did not outweigh potential prejudicial effect – should have been excluded EVIDENCE – competence – evidence of complainant C2 – where C2 participated in recorded interview at age six – where C2 age nine at time of trial – where C2 has mild intellectual disability – time for determination of competence – whether competence to be determined at time of interview or only at trial EVIDENCE – competence – threshold requirement of competence in Evidence Act s 13(1) EVIDENCE – competence – competence to give sworn evidence – C2 not competent to give sworn evidence EVIDENCE – examination in chief – leave to ask leading questions EVIDENCE – cross-examination – disallowance of leading questions – where trial judge adopted “two-phase approach” – not prejudicial or unfair – C2 remained “available” for cross-examination as required by Criminal Procedure Act s 306U EVIDENCE – exclusion or withdrawal of video evidence in the “interests of justice” – Criminal Procedure Act s 306Y EVIDENCE – unreliability warning to jury – no foundation for unreliability warning EVIDENCE – consciousness of guilt – direction to jury – no error in trial judge’s directions on consciousness of guilt CRIMINAL PROCEDURE – rule 4 of the Criminal Appeal Rules – relevant principles EVIDENCE – coincidence evidence – whether evidence of complainants had “significant probative value” as coincidence evidence – whether trial judge misdirected jury – no error established EVIDENCE – tendency evidence – whether evidence of complainants had “significant probative value” as tendency evidence – whether trial judge misdirected jury – no error established EVIDENCE – relevance – relevance of evidence of community education program on female genital mutilation – evidence not relevant CRIMINAL PROCEDURE – presentation of Crown case – whether closing address of Crown prosecutor led to miscarriage of justice – obligations of Crown in closing address – no miscarriage of justice arising from closing address CRIMINAL PROCEDURE – summing up – whether summing up unbalanced – no error in summing up CRIME – sentencing appeal – appellant Vaziri appeals sentence – parity principle – not necessary to determine

CRIME – sentence appeal – supplying prohibited drugs on an ongoing basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) – whether extended definition of supply applies or offence is confined to actual supplies

CRIMINAL LAW – sentence appeal – four counts of aggravated break enter and steal, one count of specially aggravated detain for advantage and one count of aggravated enter dwelling with intent – whether sentence manifestly excessive – young offender – dysfunctional background – whether totality principle properly applied – likelihood of institutionalisation – whether sentence properly characterised as “crushing” – all relevant principles applied by sentencing judge – challenge essentially to exercise of sentencing discretion – no House v R [1936] HCA 40; 55 CLR 499 error disclosed – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – appeal against sentence – asserted error of sentencing judge finding that offence was above mid-range objective seriousness – asserted error of sentencing judge in referring to the serious indictable offence particularised was intimidation instead of reckless damage – asserted error of sentencing judge in failing to consider the applicant’s deprived background for moral culpability – sentence assertedly manifestly excessive – appeal dismissed

CRIME – sentence appeal – domestic violence offences – cause grievous bodily harm by explosion – breach apprehended domestic violence order – call-ups for breaches of bonds – question of procedural fairness – use of “agreed facts” and whether sentencing court bound by them - question of extent of premeditation – assessment of objective gravity – assessment of remorse and rehabilitation – manifest excess

CRIME – sentence appeal – supply prohibited drug and possess prohibited weapon – sentenced to aggregate sentence of 8 years with non-parole period of 4 years – whether sentencing judge erred by finding possession of tasers connected to drug supply – finding of the sentencing judge well open to him – ground rejected – whether aggregate sentence manifestly excessive – sentences imposed very high for offences specified as below midrange – sentences for summary offences dealt with on indictment obviously excessive – aggregate sentence an unreasonable outcome and manifestly excessive – resentenced to 6 years 6 months with non-parole period of 4 years

CIVIL PROCEDURE – Interlocutory application – urgent summons seeking interlocutory injunction – property listed for auction – whether the pleadings demonstrate an arguable case – Uniform Civil Procedure Rules 2005 (NSW) – embarrassing and scandalous – undertaking as to damages – balance of convenience – no evidence to support COSTS – General rule that costs follow the event

EVIDENCE – Admissibility of documents found in the possession of the accused in custody some weeks following his arrest – Where some of the documents expressed extremist views – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence admitted

EVIDENCE – witness evidence – refreshing memory in court – police record of interview from interview with witness in 1985 – witness entitled to refresh his memory using the document – witness entitled to give his evidence by reading questions and answers contained in document aloud

EVIDENCE – criminal proceedings – witness evidence – examination in chief – defence objection to evidence given about accused’s attitude to the Jehovah’s Witness faith – evidence relevant – prejudice outweighed by probative value – evidence admissible and capable of carrying weight

EVIDENCE – Admissibility – Evidence of the finding of the accused’s phone in a dismantled state – Whether that evidence admissible against the co-accused – No point of principle EVIDENCE – Admissibility – Where evidence that one accused left a mobile telephone behind at his premises when he and the co-accused left those premises for the purposes of committing the alleged offence – Where the Crown alleged that the act of leaving the phone behind was a deliberate anti-surveillance tactic of that accused – Whether evidence was admissible against the co-accused on the basis that a joint decision had been reached to leave the phone behind – Evidence rejected

CIVIL PROCEDURE – Application to set aside judgment - whether judgment should be set aside – other extensive relief impugning mortgage sought – dismissal for want of dispatch – delay – explanation – firm rule – ventilation of grievances – finalised orders of court – inappropriate to grant leave

LAND LAW — Torrens title — Exceptions to indefeasibility — Acknowledgement of unregistered interest — Whether incoming purchaser bound at law or in equity to observe and give effect to unregistered lease

BAIL – Breach of ISO – Terrorism – High Risk Offender – Application for ISO presupposes capacity for conditions that sufficiently ameliorate unacceptable risk – nothing in breach that overcomes that inference – Bail granted

COSTS – Local Court proceedings where costs disproportionate to amount in issue – relevance of conduct of the proceedings by respective parties COSTS – costs of appeal in this Court – whether reason to depart from the usual rule that costs follow the event – no question of principle

CRIMINAL LAW – release application – bail pending appeal to the Court of Criminal Appeal – appeal against sentence imposed in District Court – whether single judge has power to hear release application – where bail not sought in the District Court – whether Supreme Court is the Court of Criminal Appeal for purpose of powers granted under Bail Act – where jurisdiction in single judge hitherto assumed – novel submissions by prosecutor – submissions accepted –– construction of Bail Act 2013 – where earlier legislation gave jurisdiction to single judge – second reading speech – possible unintended removal of Court’s power – point never previously raised – absence of relevant authorities – statutory language clear – inherent jurisdiction unable to cure absence of statutory power – lost luggage

HIGH RISK OFFENDER – existing extended supervision order – application by State to vary order by amending conditions – breaches of order by high risk offender – question of necessity of imposing closer supervision on the high risk offender – primary object of legislation – need to protect community

EVIDENCE – criminal proceedings – opinion evidence – where witness is a Family Court judge with extensive prior experience as a solicitor – where witness was personally involved in Family Court proceedings relevant to the present criminal proceedings – where witness had not adopted the Expert Witness Code of Conduct in UCPR Schedule 7 – witness otherwise qualified by his training, study and experience to provide an opinion on the conduct of family law proceedings – opinion evidence admissible under Evidence Act, s 79 EVIDENCE – hearsay – whether file from previous Family Court proceedings should be admitted – where Crown case on alleged motive is linked to Family Court proceedings – business records exception – Evidence Act 1995, s 69 – evidence also relevant for a non-hearsay purpose – Evidence Act 1995, s 60 – file admitted as evidence – order made limiting use to non-hearsay use – Evidence Act 1995, s 136 EVIDENCE – whether evidence of various Family Court judgments should be excluded – Evidence Act 1995, s 91 – where judgments are relevant for another purpose

PROCEDURE – vexatious proceedings orders – where orders made under Vexatious Proceedings Act 2008 (NSW), s 8(7)(a) and (b) – where applicant prohibited from instituting further proceedings to set aside earlier orders – application by person subject to vexatious proceedings orders to set aside earlier orders – Vexatious Proceedings Act, s 9 – where contention that the Court making the vexatious proceedings order was invalidly constituted because one member of the bench exceeded the age of 70 years – Commonwealth Constitution, s 72 – whether s 72 applied to fix maximum age of judges of State Supreme Courts – whether Supreme Court of New South Wales created by the Commonwealth Parliament – whether leave required to apply to set aside vexatious proceedings order – Vexatious Proceedings Act, s 14

EVIDENCE – opinion evidence – exceptions – expert opinion – admissibility of blood pattern analysis evidence – witness qualified in blood pattern analysis – Evidence Act 1995, s 79 – consideration of relevance and probative value of the evidence – where opinion evidence was of significant probative value and not outweighed by prejudicial effect – opinion evidence admitted EVIDENCE – real evidence – demonstrations – visual appearance of blood quantities on horizontal surfaces – where demonstrations were not relevant due to absence of quantitative evidence tendered – demonstrations not admitted

High Risk Offender – Terrorism related offending – Where State sought Extended Supervision Order – Where parties agreed as to the term and condition of such order – Whether proposed order appropriate

LAND LAW – strata title – owners corporation – meetings of owners corporation – validity of general meeting – resolutions of meeting invalid where chairperson not validly elected and not all lot owners invited to attend or vote – injunction in aid of a statutory right – proper administration of owners corporation interfered with – defendant restrained from holding herself out or acting as a member of strata committee unless and until duly elected

EVIDENCE – representation by accused to health care professional – relevance – danger of unfair prejudice – state of mind – whether representation can rationally affect the assessment of a fact in issue

EVIDENCE – hearsay – representation made to medical practitioner at a hospital by way of background to presentation to hospital – interaction between person making the representation and another – whether representation is a contemporaneous statement as to the person’s health, knowledge or state of mind

CONSTITUTIONAL LAW – legislation and legislative powers – extraterritorial operation of legislation – whether the Fisheries Management Act 1994 (NSW) and Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) invalid CONSTITUTIONAL LAW – operation and effect of the Commonwealth Constitution – inconsistency of laws (Constitution, s 109) – whether Fisheries Management Act 1994 (NSW) and Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) inconsistent with Commonwealth legislation CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution – alteration of limits of States (Constitution, s 123) – whether Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) alters the limits of New South Wales

OCCUPATIONS – legal practitioners – appellant found guilty of professional misconduct in respect of his conduct of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – appellant removed from roll – whether Tribunal should have considered proper interpretation of the Act – whether Tribunal denied appellant procedural fairness by failing to consider appellant’s evidence and submissions – whether Tribunal failed to give adequate reasons – whether Tribunal should have permitted appellant to adduce evidence regarding prior complaints – whether there was a reasonable apprehension of bias on the part of the Tribunal

APPEALS – appeal incompetent – no realistic prospect on appeal of obtaining judgment for at least $100,000 APPEALS – oral application for leave to appeal refused – no issue of principle – no injustice in refusing leave APPEALS – summons seeking leave to cross-appeal – s 101(2)(r)(ii) not engaged – leave refused

EVIDENCE – Admissibility – Evidence of clothing found in the possession of the accused at the time of arrest – Where investigating police dressed a mannequin in the clothing and photographed it – Where Crown sought to tender the photograph – Objection taken to the evidence – Evidence excluded

CORPORATIONS – winding up – grounds for winding up – appointment of liquidator.

CRIMINAL ASSETS – serious criminal offence suspected – defendant charged with obtaining financial advantage by deception – suspicion of authorised officer reasonably based – defendant charged with index offence – interim restraining order under s 10A of the Criminal Assets Recovery Act 1990 and ancillary orders sought and granted.

CRIMINAL ASSETS – serious criminal offence suspected – defendant charged with supply of prohibited drugs and dealing with proceeds of crime – suspicion of authorised officer reasonably based – defendant charged with index offence – interim restraining order under s 10A of the Criminal Assets Recovery Act 1990 and ancillary orders sought and granted.

CRIMINAL ASSETS – serious criminal offence suspected – defendant charged with conspiracy to supply prohibited drugs contrary to s 26 of the Drug Misuse and Trafficking Act 1985 – suspicion of authorised officer reasonably based – defendant charged with index offence – interim restraining order under s 10A of the Criminal Assets Recovery Act 1990 and ancillary orders sought and granted.

PRACTICE AND PROCEDURE – application for transfer – related proceedings in Victorian Supreme Court – hearing date already allocated and imminent in this Court – application refused COSTS – reason to depart from general rule – no order as to costs

CRIME – accused charged with wife’s murder – previously found unfit to be tried – special hearing – no issue that accused has defence of mental illness available to him – elderly and frail accused – question of risk posed if released – release to the community appropriate

CIVIL PROCEDURE – cross-claims – amendment – to set up cause of action barred by limitation period –cause of action conferred by Commonwealth statute – Australian Consumer Law ss 236, 237 – whether State statute permits amendment after expiry of limitation period – Civil Procedure Act 2005 (NSW) s 65 CIVIL PROCEDURE – cross-claims – amendment – claim of negligent misrepresentation – whether cross-claimant who obtained contractual warranties had requisite ‘vulnerability’ – whether claim futile – factual determination - inappropriate for interlocutory application – leave to amend granted CIVIL PROCEDURE – parties – joinder – of cross-claimants – after expiration of limitation period – where no misnomer or misdescription of parties – date when addition takes effect – Civil Procedure Act 2005 (NSW) s 64 – UCPR rr 6.28, 19.2 – limitation period stayed where cross-claim made by persons party to the proceedings before expiration – Limitation Act 1969 (NSW) s 74 CIVIL PROCEDURE – cross-claims – amendment – whether amendments work prejudice to cross-defendant – no hearing date fixed – prejudice minimal

No point of principle – outstanding costs orders – whether writ of possession or writ of execution should issue

PRACTICE AND PROCEDURE – application for stay of proceedings under s 67 of the Civil Procedure Act 2005 (NSW) – where application for leave to appeal from earlier interlocutory judgment is pending determination – where dispute between applicant and insurer as to the costs of proceedings is pending determination – whether further steps should be taken in these proceedings pending determination of those proceedings

BUILDING AND CONSTRUCTION – application to quash adjudicator’s determination under Security of Payment Act – whether payment claim invalid as attachment to supporting statement not included – no requirement for such attachment on the facts of this case. BUILDING AND CONSTRUCTION – whether adjudicator failed to discharge her statutory functions in good faith – statutory formulation requires certain specified matters be given weight as fundamental elements in the determination – necessary to consider adjudicators’ reasoning in light of the compressed time constraints in which they are created – importance of not overzealously or mechanically applying the description of the adjudicators’ task explained in SSC Plenty Road v Construction Engineering (Aust) [2015] VSC 631 – fair reading of the adjudicator’s reasons in context demonstrates no jurisdictional error. BUILDING AND CONSTRUCTION – whether builder should be prevented from receiving adjudicated amount – where owner claims to have a substantial offsetting claim – whether owner would be prejudiced if payment out of court is ordered due to insolvency risk of builder – where Security of Payment Act effects a statutory transfer of risk from builder to owner pending final determination – necessary to point to a further risk than that inherent in the statutory allocation to justify the granting of a stay – no such grounds established.

JUDGMENTS AND ORDERS – application to have judgment set aside – public interest in finality – need to balance with interest of justice in efficient rectification of miscarriage of process – where judgment entered for the defendant in action for defamation – plaintiff contending judge misunderstood the defamation, overlooked his evidence and did not have regard to his written submissions – consideration of content of obligation to give reasons for refusing application JUDICIAL OFFICERS – oral application for judge to recuse herself after deciding the case but before determining costs – whether prior adverse judgments afford basis for recusal COSTS – where plaintiff unsuccessful – no basis for departure from usual rule that costs follow the event

PRACTICE AND PROCEDURE – applications – default judgment – defamation – failure to file defence – failure to plead essential element in cause of action – application dismissed PRACTICE AND PROCEDURE – applications – default judgment – discretionary considerations – applicant using default judgment as a tactic to pressure defendant in circumstances where it is known that proceedings will be defended PRACTICE AND PROCEDURE – applications – strike out application – defamation – statement of cross-claim struck out for not pleading publication PRACTICE AND PROCEDURE – jurisdiction – transfer of proceedings – transfer defamation cross-claim from Equity Division to Common Law Division PRACTICE AND PROCEDURE – costs – special costs orders – indemnity costs – costs payable forthwith - order for indemnity costs to be payable forthwith refused where both applicant and cross-defendants responsible for bringing and prolonging hopeless application

EXPERT REPORT – admissibility of revised opinion – no question of principle

SUPPRESSION AND NON-PUBLICATION ORDER – orders necessary to protect investigation techniques and capacity of Australian Federal Police – minimal derogation from the principles of open justice – orders made

EVIDENCE – relevance – messages written on post it notes from accused to deceased – uncertainty as to date of creation at least five months before acts underlying the charge – not tendered in respect of character – state of mind

COSTS — Interpleader proceedings —Gross sum costs orders — further consideration of original costs judgment — Calderbank offer — Jointly made Calderbank offer ineffective in the present case

ADMINISTRATIVE LAW – alleged breach of procedural fairness when claimant’s solicitor did not respond to notification that insurer sought extension of time – whether Proper Officer corrected error when decided to maintain decision to extend time after considering claimant’s submissions ADMINISTRATIVE LAW – meaning of exceptional circumstances – matter for Proper Officer under Medical Assessment Guidelines – decision that oversight by lawyer amounted to exceptional circumstances open to Proper Officer

COSTS — Party/Party — Bases of quantification — Ordinary basis COSTS — Party/Party — Bases of quantification — Indemnity basis COSTS — Party/Party — Offers of compromise/Calderbank offers — whether Calderbank offer should be effective from the end of the 10 day period for which the offer was open or the date when the offer was made

LAND AND ENVIRONMENT – application for leave to appeal from summary dismissal and costs orders – claim for declaratory and other relief regarding alleged compulsory acquisition of land in contravention of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – no arguable basis identified that primary judge erred in summary dismissal – no basis identified on which discretion as to costs miscarried

SENTENCING – appeal against sentence – obtain money by deception – agent corruptly receive benefit – applicant defrauded employer of $3.2m – whether the sentencing judge erred in finding that the impact of the applicant’s offending on the employer was substantial - where employer was a large company making considerable profits over the course of the offending – identifying absent aggravating factors does not mitigate objective seriousness SENTENCING – appeal against sentence – knowingly deal with proceeds of crime intending to conceal – multiple offences from four courses of conduct - whether sentencing judge erred in finding that the offence was aggravated by breach of trust – where dealing with funds part of the course of conduct involving a breach of trust SENTENCING – appeal against sentence – whether necessary to determine who of co-offenders instigated the fraud – where both of the co-offenders were willing participants - whether aggregate sentence was manifestly excessive having regard to indicative sentences for each offence – nothing in indicative sentences indicating errors in approach – aggregate sentence imposed within range – appeal dismissed

SENTENCING – appeal against sentence – aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to consider alternatives to full-time custody – whether sentencing judge decided how sentence was to be served before fixing the term of the sentence – failure to approach matter in two stages not indicative of error where alternatives to full-time custody were rejected after proper consideration SENTENCING – appeal against sentence – whether head sentence for offence to which Form 1 was attached was disproportionate to fixed term sentences for other offences charged – no error where sentences were wholly concurrent and where a fixed term should be regarded as the non-parole period – whether the sentencing judge failed to award a discount for pleading guilty in respect of two of the offences – no error where sentencing judge considered the offences together when discounting the plea SENTENCING – appeal against sentence – whether sentencing judge erred in assessing objective criminality by finding that the offences involved a ‘significant degree of planning’ – no error in circumstances where specific goods were stolen to fulfil work orders received by the applicant’s business – sentence imposed not manifestly excessive – seriousness of offending balanced against strong subjective case – appeal dismissed