Cases and authorities

NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area level with remainder of premises were breaches of duty which caused the injury – findings under ss 5B and 5D of Civil Liability Act 2002 (NSW) set aside – appeal allowed and judgment entered for appellant

PRACTICE AND PROCEDURE – application to remove proceedings pending - whether proceedings should be transferred to the Supreme Court of Victoria - Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - class action - deed of settlement

CIVIL PROCEDURE – application for a stay of judgment - original jurisdiction - statutory judgment - enforcing costs decision of review panel - proceedings for judicial review - proper construction of the costs retainer - whether the case is fairly arguable - whether the matter may be characterised as an error on the face of the record - whether the review panel’s approach conformed with statutory obligations - delay in commencing proceedings - relevantly small debt - balance of convenience - rights of solicitors - rights of third parties

SUCCESSION — Executors and administrators — Administration — Interim distribution — Probate and Administration Act 1898, s 84

PRACTICE & PROCEDURE – subpoena – issued with leave prior to service of statements – whether for legitimate forensic purpose – whether fishing

HIGH RISK OFFENDER – serious sex offender – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – whether such an order should be imposed – dispute as to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders

CRIMINAL LAW – appeal against sentence – offences of possessing child abuse material, disseminating child abuse material and grooming child for unlawful sexual activity – asserted error in the way the sentencing judge took into account the offences on the Form 1 – asserted failure of the sentencing judge adequately to take into account the applicant’s mental condition at the time of the offences – appeal dismissed

CIVIL PROCEDURE – Cross-vesting – s 6 of the Jurisdiction of Courts (Cross-vesting) Act – whether these proceedings have become a special federal matter – whether transfer could be made to the Federal Circuit Court

ADMINISTRATIVE LAW – liquor licensing – extended trading authorisation varied by Authority – where plaintiffs contended lack of procedural fairness – where plaintiffs sought interlocutory order staying decision of authority – whether serious question to be tried – doubtful prospect of serious case – whether balance of convenience favours making of order – staffing and financial consequences unlikely to be particularly detrimental – application refused. ADMINISTRATIVE LAW – liquor licensing – jurisdiction of Civil and Administrative Tribunal under Gaming and Liquor Administration Act 2007 s 13A – where authority varied license – whether NCAT has jurisdiction to review decision to vary license made on Authority’s own initiative – doubtful that decision made by Authority is beyond review – s 13A refers to person aggrieved “in relation to” an application – s 13A appears to encompass Authority’s decision – unnecessary to decide at interlocutory stage.

BAIL – show cause requirement – strength of Crown case – assessment of bail concerns – risk of flight – whether able to be met by imposition of bail conditions

MORTGAGES AND SECURITIES – rights and liabilities of mortgagor and mortgagee – whether mortgage and loan agreement entitled mortgagee to possession of land – where writ of possession previously executed – whether mortgagors were in default of a subsequent agreement with the mortgagee which entitled them to retake possession of the property – where ‘arrears adjustment’ made to loan account – whether default notices complied with requirements of the loan agreement – whether fees and charges applied to loan account accorded with the loan agreement – default not established – mortgagee not entitled to possession CONTRACTS – construction of terms of the loan agreement and later agreement by correspondence – principles of construction of commercial contracts

TERRORISM HIGH RISK OFFENDER – Application for an interim detention order and the appointment of two psychiatrists to assess the defendant sought by the State under the Terrorism (High Risk Offenders) Act – Whether test under s 41 for an interim detention order is satisfied – Whether test for the appointment of psychiatrists under s 38(5) is satisfied

HIGH RISK SEX OFFENDER – Application for a continuing detention order or alternatively an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) – Whether the defendant posed an unacceptable risk of committing another serious offence if not kept in detention under a continuing detention order STATUTORY INTERPRETATION - Whether the substantive test for a CDO application under s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) involves one or two steps – Whether the considerations under s 17 of the Act inform the substantive test under s 5C(d) or otherwise inform the discretion once s 5C(d) is satisfied

ASSOCIATIONS – interpretation of constitution of organisation – particular issue ordered pursuant to UCPR rule 28.2 – members and election of Management Committee

CORPORATIONS – winding-up – application to set-aside winding-up order – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b) – where orders made in the absence of company – where company unaware of winding-up application – where liquidator neither consented to nor opposed the relief sought – where affidavit accompanying the statutory demand pre-dated the demand – whether statutory demand defective under Corporations Act 2001 (Cth), s 459E(3) – whether winding-up proceedings an abuse of process – whether company solvent – Corporations Act 2001 (Cth), s 95A CORPORATIONS – originating process served by post – Corporations Act 2001 (Cth), s 109X – where company alleges non-receipt of originating process – where company experienced previous difficulties with receiving mail – presumption of service – Evidence Act 1995 (NSW), s 160 – Acts Interpretation Act 1901 (Cth), s 29 – whether evidence sufficient to raise doubt about presumption of service

CORPORATIONS – voluntary winding-up – application by creditor for appointment of additional liquidator – where appointment sought to investigate potential recoveries by the company – where current liquidators unfunded and not intending to take any further action – where creditor undertakes to fund investigations of additional liquidator – whether appropriate to make order appointing additional liquidator

VOLUNTARY ASSOCIATIONS – associations and clubs – general matters – appointment of a receiver and manager – alleged expulsion of members and rejection of applicants to association – alleged financial mismanagement – circumstances warranting appointment of receiver and manager

CIVIL PROCEDURE — Parties — Joinder — Of defendant — Family provision proceedings — Joinder of applicant as second defendant declined — leave granted to the applicant to renew his application for joinder at a date closer to the hearing SUCCESSION — Wills, probate and administration — Interim distribution — whether interim distribution from the deceased’s estate should be ordered in favour of the applicant — applicant to receive interim distribution from deceased’s estate

CRIMINAL LAW – bail – bail pending an appeal from a jury verdict – where trial judge granted bail after conviction – subsequent detention application by Crown - where appeal grounds assert inconsistent verdicts and unreasonable verdicts – test for assessing likelihood of success of grounds of appeal – particular problems on bail application where unreasonable verdict asserted - where respondent established only that grounds of appeal are arguable – detention application granted

JUDGMENTS AND ORDERS – setting aside – rule 36.16 UCPR – judgment on notice of motion - judgment made no order as to costs to the intent that each party pay its own costs – no submissions made at hearing as to costs – whether plaintiff denied procedural fairness – whether misapprehension as to facts by court – whether judgment should be varied – correspondence not drawn to court’s attention – judgment varied as to costs

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining orders – interaction of ss 29, 31 and 330(4)(a) – funds in bank are a chose in action – whether funds in bank are an interest in property as defined, being a right, power or privilege in connection with property – meaning of “acquired” – meaning of “third party” – knowledge of circumstances that would not arouse a reasonable suspicion does not require knowledge of offence – joinder of parties – joinder granted, otherwise motion dismissed

CRIMINAL LAW – sentence – murder – joint criminal enterprise resulting in execution– factual basis on which offender must be sentenced given alternative cases which the Crown advanced – objective seriousness of offence – offender’s moral culpability – how principles of parity and totality to be applied – victim impact statements – no discount

CIVIL PROCEDURE – practice and procedure – jurisdiction – extent of Court’s powers under section 73 Civil Procedure Act 2005 (NSW) CONTRACTS – general contractual principles – formation of contractual relations – agreements contemplating execution of formal deed of settlement and release – admissibility of surrounding circumstances

CIVIL PROCEDURE – Pleadings – Striking out – Allegations of breach of duty – Whether the statement of claim articulates the basis on which relief is sought – Where amendment would cure defects – Amendment allowed CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Improper purpose – Relief sought against defendant to induce another party to surrender lease – Reformulation of claim including joinder of additional party – No ongoing abuse of process

CRIMINAL PROCEDURE – appeal against conviction – where convicted of murder – directions to jury – where Crown case joint criminal enterprise – where directions introduced concept of extended joint criminal enterprise – whether the directions erroneously advanced a case for consideration of the jury that was not the Crown case CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Rules (NSW) r 4 – whether error giving rise to miscarriage of justice CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Act s6 – whether “no substantial miscarriage of justice has actually occurred” – whether jury direction precluded application of proviso

APPEALS – appeal from sentence imposed by Drug Court – appeal pursuant to Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF – whether appeal should be heard by single judge – leave to appeal not required CRIMINAL PROCEDURE – probation and parole –sentencing judge failed to direct release at conclusion of non-parole period – judgment prior to repeal of Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 and introduction of Crimes (Administration of Sentences) Act 1999 (NSW), s 158 – whether Court should make direction on appeal SENTENCING – mitigating factors – plea of guilty –aggregate sentence imposed in respect of 30 offences – sentencing judge failed to apply discount for utilitarian value of pleas to four indicative sentences – whether error could have affected aggregate sentence SENTENCING – appeal against sentence – where aggregate sentence imposed by Drug Court exercising jurisdiction of Local Court – where indicative sentences close to maximum penalty allowed for offences in Local Court – whether indicative sentences excessive

CRIME – appeal against sentence – objective seriousness – knowingly take part in supply of large commercial quantity of MDMA – where sentencing judge held that offence fell below midrange but not at lower end of scale – whether judge erred in consideration of lack of financial gain and premeditation and planning – ground rejected. CRIME – appeal against sentence – co-offenders – disparity between sentences – whether insufficient disparity – whether such disparity as to evoke justifiable sense of grievance – supply and knowingly take part in supply of prohibited drugs – co-offender charged with more serious offences and given lengthier sentence – where relevant differences in culpability and subjective circumstances – subjective circumstances favoured co-offender but objective circumstances favoured applicant – sentence disparity fair reasonable and sensible – ground rejected.

CRIMINAL LAW – conviction appeal – conviction of each appellant of one count of aggravated sexual assault – Crimes Act 1900 (NSW), s 61J – where Crown prosecutor opened to jury on more allegations than those about which complainant gave evidence – whether convictions bad for lack of particularity – whether convictions unreasonable or cannot be supported by the evidence – Criminal Appeal Act 1912 (NSW), s 6 (1) – whether evidence insufficient to establish elements of consent and knowledge of absence of consent – Crimes Act, s 61HA – where not guilty verdicts on another count – whether verdicts inconsistent and unreasonable

CRIME – application for leave to appeal against sentence – alleged manifest excess – domestic violence offence – relevance of dynamic between participants – importance of general and specific deterrence and denunciation – no error established CRIME – application for leave to appeal against sentence – statistics particularly unhelpful when charge on Form 1 taken into account in sentence for index offence

WILLS, PROBATE AND ADMINISTRATION – intestate estate – property vested in NSW Trustee and Guardian – application for Benjamin order – order made in circumstances where identification of next of kin is remote CIVIL PROCEDURE – application for cost order on indemnity basis from estate – order refused in circumstances where application brought after significant delay

CIVIL PROCEDURE – jurisdiction – where building claim brought in Local Court – where Magistrate refused plaintiffs’ application to transfer proceedings to Civil and Administrative Tribunal – plaintiffs sought interlocutory orders in Supreme Court – no appearance by defendant – matter to be heard in Local Court day after interlocutory hearing – Home Building Act 1989 (NSW) s 48L requires Magistrate to transfer proceedings on application to the Civil and Administrative Tribunal – plaintiff has an arguable case as to error – Local Court proceedings stayed until further orders

POSSESSION – application for judgment for possession of land – whether proceedings governed by Farm Debt Mediation Act 1994 – definition of “farmer” and “farm debt” under s 4 – whether the defendant was principally engaged in farming operations – defendant involved in farming and non-farming operations – qualitative not quantitative assessment – whether the debt was a farm debt – whether the debt was incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage – evidentiary burden – onus upon the defendant – burden not discharged – not a farmer for the purposes of the Farm Debt Mediation Act – directions

CIVIL PROCEDURE – dismissal of proceedings – no reasonable cause of action disclosed – abuse of process– UCPR r 13.4 – alleged failure to provide procedural fairness – alleged deficiency in Magistrate’s reasons for decision – refusal of Magistrate to recuse self – alleged acts of torture – no applicable civil penalty regime – claims for compensation and damages – no precise quantification – conduct protected by judicial immunity – ss 44A and 44B of the Judicial Officers Act 1986 (NSW) – no private cause of action for alleged commission of 'torture' – provisions under Div 274 of the Criminal Code Act 1995 (Cth) not met – international treaties and conventions inapplicable unless validly incorporated into Australian law – no adverse action under the Anti-Discrimination Act 1977 (NSW) or Racial Discrimination Act 1975 (Cth) – no allegation of making complaints pursuant to Australian Human Rights Commission Act 1986 (Cth) or Anti-Discrimination Act – no jurisdictional error – matters litigated – re-pleading could not save claims or pleadings – amended statement of claim dismissed

CIVIL PROCEDURE – summary – dismissal – no reasonable cause of action – abuse of process in the alternative – UCPR r 13.4 – removal of reports – civil penalty – compensation and damages for criminal act – statutory immunity – bad faith –whether false or misleading statements – exercise of power and official duties – validity of prosecutions – prior disposal of issue – protection from liability under the Independent Commission Against Corruption Act 1999 (NSW) – no breach of statutory duty – no claim in negligence – in any event no basis claim in negligence – statement of claim dismissed – costs

CRIMINAL LAW – bail – fourth application to Supreme Court – applicant in custody from 2015 bail refused – sexual intercourse and attempted sexual intercourse without consent – three independent complainants – whether s 74(3) satisfied – need for applicant to show cause – strength of crown case – whether applicant needed to be released to assist in de-encrypting hard drives from recording devices – whether unacceptable risks of interfering with witnesses and commission of further serious offences – bail refused

CONTRACT – construction of the Deed of Dissolution of Partnership (the 2017 Dissolution Deed) – grazing partnership conducted on four properties – parties agree to dissolve the partnership and distribute partnership assets – parties own land on which partnership is conducted – some land is a partnership asset but other land is not – 2017 Dissolution Deed provides as part of the unwinding of the partnership for the registered proprietor of the non-partnership land (the plaintiff) to lease that non-partnership land to the other partners (the defendants) – 2017 Dissolution Deed also provides for the other partners to be granted an option to purchase the non-partnership land – whether the 2017 Dissolution Deed confers on the other partners an immediate right to exercise the option or whether certain conditions precedent must be fulfilled at the settlement of the Dissolution Deed before the option may be exercised by the other partners.

EQUITY — Trusts and trustees — where father contributed funds to the acquisition of a property by his son – where father later occupies the property and makes further contributions – whether parties intended to create a trust in favour of the father – whether father’s contributions gave rise to a resulting trust

APPEALS – jurisdiction exercised by trial judge unclear – whether primary judge purported to review administrative decision – scope of Court’s judicial review jurisdiction – Supreme Court Act 1970 (NSW), s 69 CRIME – administration of prisons – prisoner applied for orders for access to personal laptop and printer/scanner while in custody –prisoner on remand awaiting trial – whether prisoner had directly enforceable “right to fair trial” or “right of access to courts” JURISDICTION – Supreme Court – inherent jurisdiction – scope of jurisdiction – defendant in District Court criminal proceedings commenced proceedings in Supreme Court – application for orders for access to personal laptop and printer/scanner while in custody – whether defendant had directly enforceable “right to fair trial” or “right of access to courts” – whether inherent jurisdiction supported positive orders binding third party to District Court criminal proceedings – Supreme Court Act 1970 (NSW), s 23 JURISDICTION – Supreme Court – supervisory jurisdiction – scope of jurisdiction to supervise ongoing District Court criminal proceedings – principle of restraint – Smith v Commissioner of Correctives Services [1978] 1 NSWLR 317, applied

WORKERS COMPENSATION – Indemnity of employer – Workers Compensation Act 1987 (NSW) s 151Z – Where primary judge made inconsistent findings as to the identity of the employer – Whether duty of care breached and causation established – Whether costs and expenses incurred in defending the litigation were a direct result of negligence – Appeal allowed

LAND LAW – Caveats – Extension of operation of caveat

CORPORATIONS – winding up – application for winding up order on the just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth) – whether the substratum of the company has failed – whether it has become impossible for the company to achieve its original purposes.

REAL PROPERTY – possession of land – plaintiff appointed receiver and manager of subject property – defendant subsequently made bankrupt – defendant remains in possession of subject property – action by plaintiff as receiver and manager for possession and leave to issue writ of possession – no standing by defendant to oppose orders – no defence to receiver’s claim. PRACTICE AND PROCEDURE – reckoning of time – calculation of time period. PRACTICE AND PROCEDURE – stay – whether stay affects the day on which orders take effect for the purposes of r 36.4 of the UCPR.

LAND LAW – caveats – removal of caveat – service of lapsing notice – caveator claims interest as purchaser under contract for sale of land – vendor terminates contract following alleged repudiation by purchaser – whether serious question to be tried as to existence of caveator’s claimed interest – balance of convenience – caveator not able to proffer undertaking as to damages that has substance – Real Property Act 1900 (NSW), s 74K(2)

HIGH RISK OFFENDER – serious offender – application for interim detention order or interim supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – liberty of defendant currently limited only by 2 year good behaviour bond – threshold question of whether the defendant is a person upon which such orders can be imposed – statutory construction of “current custody (if any) will expire” found in s 18A(a) – construction of “current custody or supervision will expire” found in s 10A(a) – Court not empowered in the circumstances to make an interim detention order or interim supervision order – proposed orders refused

CRIMINAL LAW – murder – conspiracy to murder – trial by Judge alone – circumstantial case – body in surfboard bag – decaying corpse – complications in medical evidence – body dropped out of window after death – possible explanation for a number of injuries observed on post mortem examination – where avulsed tooth located in bowel – indicates trauma occasioned before death – whether other injuries occasioned before or after death – whether evidence capable of excluding other perpetrators – analysis of circumstantial case CRIMINAL LAW – murder – where series of assaults – where act causing death not known – “homicidal violence” – whether Crown must prove intention coincides with act causing death – reckless indifference to human life – whether accused foresaw probability of death CRIMINAL LAW – evidence that may be unreliable – warnings that would be given to a jury – whether woman with hearing difficulties heard a man moaning in the morning – nobbling of witness – consciousness of guilt – disposal of corpse – attempt to “off” witness – analysis of evidence – significant malfeasance

EQUITY — fiduciary duties — fiduciary relationships — employee and employer — where employees established company in competition to compete with employer during their employment — where employees diverted employer’s clients to that company — whether employees bound to direct opportunities to employer EQUITY — fiduciary duties — scope — proscriptive duties — disclosure — whether employees obliged to direct opportunities to employer— where disclosure of opportunity was the only means by which fiduciary could obtain fully informed consent EQUITY — equitable remedies — calculation of loss suffered by employer and profit gained by fiduciary —election between equitable compensation and account of profits

COSTS — Costs incurred by non-parties — Costs of compliance with a subpoena

LEASES AND TENANCIES – leases – option to renew lease – alleged breach of lease by lessee –prescribed notice under s 133E of Conveyancing Act not served – lessee seeks specific performance of obligation to grant new lease – lessor complains of continuing breaches by lessee – discretion to grant or withhold specific performance – specific performance granted

ADMINSTRATIVE LAW – Judicial Review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the Medical Appeal Panel – whether the Appeal Panel failed to properly apply criteria in paragraphs 1.36 and 2.5 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – whether the Appeal Panel’s assessment included chronic pain presentation – whether Appeal Panel erred by not measuring or commenting upon whether there was any muscle wasting – procedural fairness – whether Appeal Panel failed to give party an opportunity to be heard

COSTS – application in respect of costs at first instance – where appeal allowed from District Court judgment – whether order for costs should be made pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 42.35 on the basis that continuation of proceedings in the District Court was warranted