Cases and authorities

CONTRACT – contractual interpretation – where written contract recording terms of engagement between Rabbi and company controlled by congregation – where contract provides that “relationship between the Rabbi and the congregation shall be defined in accordance with Halacha” – whether “congregation” means company – whether the principle of Orthodox Jewish law providing the Rabbi with life tenure expressly incorporated as a term of contract with company – whether such a term to be implied – term providing life tenure not incorporated or implied

EVIDENCE – exclusion of tendency evidence – Crown failure to serve tendency notice within relevant time – primary judge refused to dispense with the notice requirements for service – where no explanation for the failure to serve the notice – where evidence had substantial probative value not outweighed by any relevant prejudice – where late service of tendency notice will not cause any prejudice to the accused – whether under Evidence Act, s 100(1) the Court should dispense with the notice requirement

CRIME – appeals – sentencing – evidence of assistance to authorities rejected – sentence initially pronounced incorporated discount for assistance – sentence recast to remove discount – error in failing to admit evidence – whether appeal court required to resentence CRIME – appeals – sentencing – evidence of further assistance to authorities – whether assistance post-sentencing available on appellate resentencing CRIME – appeals – sentencing – plea entered on third day of period fixed for trial – plea to fresh indictment for lesser offence – lesser offence charged in Local Court – plea not proffered in Local Court – whether plea proffered at earliest opportunity – discount for late plea appropriate

BUILDING AND CONSTRUCTION – challenge to adjudicator’s determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether plaintiff should pay into court the amount of the determination pending determination of the challenge – where plaintiff a trustee of unit trust – where plaintiff has insufficient cash funds to pay amount of determination into court – where no evidence of financial position of unit holders – whether as a matter of discretion court should not require the amount of determination to be paid into court

CIVIL PROCEDURE – application for stay of execution of orders – stay pending appeal – insufficient prospects of success CIVIL PROCEDURE – application for variation of order in primary judgment – Uniform Civil Procedure Rules 2005 (NSW) r 36.16.3(a) – where argument could have been raised at trial

PROCEDURE – FAMILY PROVISION – COSTS – Agreement as to costs as between Plaintiff and first Defendant – Agreement did not deal with costs of second Defendant – General rule – Costs follow the event PROCEDURE – COSTS – Costs in related possession proceedings – Overall justice of the case does not warrant what would effectively be an indemnity costs order being made against Defendant

PRACTICE AND PROCEDURE – application for joinder – service of originating process on occupier – UCPR r 6.8 – service of originating process effected – joinder of party to proceedings – UCPR r 6.24 – effect of claim indirect or inconsequential to rights and liabilities of a non-party – notice of motion dismissed – costs reserved

HIGH RISK VIOLENT OFFENDER – preliminary hearing – orders sought by State for interim supervision and psychiatric or psychological assessment – making of orders opposed – defendant’s long history of summary and Table offending – isolated incident in past meeting definition of “serious violence offence”- short period of compliance with parole in the community – question of gravity of any risk

PRACTICE AND PROCEDURE – application for the decision of a question separately before the determination of other questions under Uniform Civil Procedure Rules 2005 (NSW) r 28.2 – where defendant had been given a sufficient opportunity to lead evidence – where no defence to the claim was established by the defendant – whether judgment should be given in respect of the separate issues prior to the determination of other issues

PRACTICE AND PROCEDURE – Review of Registrar's decision under UCPR rule 49.19 on disclosure EVIDENCE – Expert evidence – dispute between parties as to identity of experts to be appointed – Experts appointed may inform decision of categories of documents that should be made available

PROCEDURE – notice of motion – motion withdrawn – costs

TRUSTS AND TRUSTEES – application for judicial advice – where rights of beneficiaries affected – where advice had been given permitting distribution, subject to compliance with Trustee Act s 63(8) requirement for notice to affected beneficiaries – where reasonable attempts made to give notice but frustrated by affected beneficiary – held, any requirement for further notice dispensed with

CORPORATIONS – declaratory relief – declaration sought by plaintiff that he and first defendant each hold 50 percent interest in company – where company in provisional liquidation – whether plaintiff required leave to proceed with application for declaratory relief – Corporations Act 2001 (Cth), s 471B – whether declaration should be made by consent – whether party who consents is a proper contradictor CORPORATIONS – winding-up – whether just and equitable to wind-up company – Corporations Act, s 461(1)(k) – irretrievable breakdown between company directors – where company insolvent

TRUSTS AND TRUSTEES – appointment of trustees – sole director and sole shareholder of a trustee of a family trust dies suddenly – deceased leaves a will –beneficiaries of the trust and of the deceased’s estate apply for orders appointing a new trustee to the family trust under Trustee Act, s 70 - whether a new trustee should be appointed or whether orders should be made under Probate and Administration Act, s 74 for the appointment of an interim administrator to then appoint a fresh director of the trustee company under Corporations Act, s 201F(2), pending a grant of probate of the deceased’s will.

PROCEEDS OF CRIME – restraining orders – whether there were reasonable grounds for suspicions – orders made pursuant to ss 19 and 38 of the Proceeds of Crime Act 2002 (Cth) – costs

CRIMINAL LAW - trial - conspiracy to do acts in preparation for terrorist act - alternative count of knowingly taking part in supply of firearm - pretrial rulings - objection by the Accused to Crown calling expert opinion evidence on anti-surveillance and counter-surveillance measures - held requirements of s.79(1) Evidence Act 1995 satisfied - evidence of substantial probative value and ought not be excluded under ss.135 or 137 Evidence Act 1995 - objection to Crown tendering extremist material found in possession of Accused some of which was communicated by him to others - evidence of substantial probative value and ought not be excluded under ss.135 or 137 Evidence Act 1995

EVIDENCE – Evidence Act 1995 (NSW) s 87(1)(c) – whether section encompasses representations made in furtherance of a common purpose extraneous to proceedings EVIDENCE – Evidence Act 1995 (NSW) – “representation” – meaning of EVIDENCE – where evidence tendered under s 87(1)(c) – where criteria satisfied – satisfaction of criteria does not finally determine admissibility in substantive proceedings

SENTENCING – appeal against sentence – plea of guilty – appellant convicted of State and Commonwealth offences – possessing and accessing child abuse material – where pleas of guilty to both charges entered at same time – where sentencing judge applied discount for plea of guilty in respect of State offence only – whether discount must be given for utilitarian value of plea for federal offences – application of Xiao v R [2018] NSWCCA 4 – ground upheld. SENTENCING – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – where additional criminality in the Commonwealth offence distinct from State offence – where sentencing judge indicated he would partially accumulate sentences but imposed total accumulation – sentencing judge erred in saying he intended partial accumulation but imposing total accumulation – ground upheld. SENTENCING – accessing and possessing child abuse material – objective seriousness – where sentencing judge assessed offences as below the midrange of objective seriousness – where applicant contended that he had not viewed all child abuse images and videos – where Crown could not prove that applicant had viewed files in worst category – assessment of sentencing judge correct.

PRACTICE and PROCEDURE – leave to amend Statement of Claim – Second Attempt – Confidentiality of documents served in error – costs

SENTENCING — terrorism offences — doing an act in preparation for a terrorist act — intervention programs — juvenile offender — subjective circumstances of offender give way to community protection — specific and general deterrence.

JUDGMENTS AND ORDERS – order for possession - writs of restitution – where occupiers re-took possession after execution of writ of possession – whether occupiers were strangers to the possession proceedings – whether leave to issue the writ should be given ex parte

CIVIL PROCEDURE — Interlocutory applications — Remuneration of voluntary administrators CORPORATIONS — External administration — Administrators — Remuneration of voluntary administrators

ADMINISTRATIVE LAW – judicial review – motor accidents compensation legislation – refusal by authority to refer whole of medical dispute referred by insurer – failure to discharge statutory duty to refer whole dispute ADMINISTRATIVE LAW – appropriate relief – statutory mandamus under s 65 of Supreme Court Act 1970 – whether any relevant “decision” which would warrant relief in the nature of certiorari

CRIMINAL LAW – proceeds of crime – restraining orders

DEFAMATION – application to extend limitation period – plaintiff seeking to sue former parents-in-law and former wife for statements allegedly made to police in anticipation of application for Apprehended Domestic Violence Order – where plaintiff first learned of statements well after they were made – whether any discernible publication within the ultimate limitation period allowed under the Act – further delay in commencing proceedings – whether “not reasonable” to have commenced action within one year – consideration of factors relevant to discretion as to choice of date to which limitation period should be extended

SENTENCE – manslaughter by excessive self-defence – death by strangulation and suffocation – peri mortem stab wounds – stab wounds not a cause of death – conduct not a reasonable response in the circumstances as perceived by offender – manifestly excessive response – altercation involving knife

CIVIL PROCEDURE – Application for stay of proceedings – Where plaintiff obtained default judgment for possession of land and subsequently obtained a writ of possession to be executed on 26 June 2018 – Whether stay of proceedings is in the interests of justice – Whether default judgment could be set aside - Whether legitimate explanation for the defendant’s failure to comply with procedural requirements – Whether defendant has a viable defence

DEFAMATION – contextual imputations – whether reasonably capable of being conveyed by the matter complained of – satirical song posted on YouTube – where performance illustrated by images depicting gangsters and firearms

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - probate and letters of administration - testamentary instruments governed by Greek law - the effect of Greek law on the ultimate effect of all of the testamentary instruments executed by the deceased - the revocation of prior wills leaving deceased intestate excepting specific gifts SUCCESSION - family provision and maintenance - whether family provision orders should be made in favour of two children of the deceased being the second and fourth defendants/cross claimants - whether provision made for two children of the deceased was adequate for their proper maintenance, education or advancement in life - family provision orders made in favour of two children of the deceased

CORPORATIONS – deregistration and reinstatement – application by shareholder for reinstatement of company and appointment of new liquidator – Corporations Act 2001 (Cth), s 601AH – where ASIC consented to company’s reinstatement – where reinstatement sought to pursue potential claim against former director – whether shareholder is a “person aggrieved” by the deregistration – whether it is just that company’s registration be reinstated – where former director opposed reinstatement – where potential limitation defence – whether defendant prejudiced by reinstatement – where company’s former liquidator retired – appropriate to appoint new liquidator

CORPORATIONS – external administration – winding up – liquidator’s application – directions – where company’s sole activity as trustee of trust – allowance of remuneration from trust assets – whether statutory order of priority applies in respect of trust assets and trust creditors

ADMINISTRATIVE LAW – judicial review – decision of the Commissioner of Police – whether plaintiff qualifies as a ‘registrable person’ under Child Protection (Offenders Registration) Act 2000 (NSW) STATUTORY INTERPRETATION – determination that a person is a registrable person pursuant to s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) – meaning of “a single offence” – meaning of “against the same person” – meaning of “an offence of the same kind”

CORPORATIONS – appellant seeks leave to commence an appeal against a judgment in favour of a corporation in liquidation – whether application should be adjourned to allow the liquidation to settle accounts between the appellant and the company – leave granted

COSTS – security for costs – appellant is an undischarged bankrupt – motion filed after leave to appeal granted – whether special circumstances established

COURTS – proceedings seeking judicial review of a decision of a Commissioner of the Land and Environment Court – application to transfer proceedings from the Court of Appeal to the Land and Environment Court – whether transfer is appropriate

BANKING AND FINANCE – Loan facility agreements - Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1), s 12GF(1) – Whether Bank’s conduct was unconscionable – Where Bank refused to release various securities –– Whether loss or damage was suffered by the conduct complained of – Appeal dismissed

CRIMINAL LAW – appeal against sentence – subjective factors – parity – dealing with proceeds of crime knowing that they were proceeds contrary to Crimes Act 1900 (NSW), s 193B(2) – four further offences taken into account on a Form 1 – sentenced with co-offender on common principal charges – same aggregate sentence received as co-offender – where appellant’s subjective case more favourable than co-offender – where co-offender had fewer offences on Form 1 – whether sentencing judge failed to give effect to findings on subjective case of appellant – whether disparity giving rise to “justifiable sense of grievance” – appeal dismissed

CRIMINAL LAW – Crown appeal against sentence – adequacy of sentence – sexual intercourse with child under 10 years, using a child for pornographic purposes and possession of child pornography contrary to Crimes Act 1900 (NSW), s 66A, 91G, 91H – complainants were daughters of offender under his parental authority and care – plea of guilty for charge of possession of child pornography – found guilty after trial on other charges – where no remorse nor acceptance of responsibility demonstrated – whether sentence manifestly inadequate – whether “special circumstances” within meaning of Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 – appeal allowed and offender resentenced

CRIMINAL LAW – appeal – sentencing – guilty plea – whether error in not discounting sentence for Commonwealth offence on account of utilitarian value of guilty pleas.

CRIME – appeal against sentence – guilty plea to three counts under Drug Misuse and Trafficking Act 1985 (NSW) – further offences taken into account on each count on Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – three co-offenders – whether sentencing judge erred in approach to indicative sentences leading to excessive aggregate sentence – parity – whether justifiable sentence of grievance when comparing sentence imposed upon one co-offender – whether sentence manifestly excessive

CRIMINAL PROCEDURE – application for an order for trial by judge alone – potential prejudice having regard to drug-taking activities of applicant and deceased – novelty of manslaughter by criminal negligence in this context – desirability of reasons in order that the law can be developed – desirability of category of manslaughter being apparent – potentially complex medical evidence relating to causation

COSTS – application for costs in gross sum – no substantive response to first defendant’s evidence – appropriate to make order

ADMINISTRATIVE LAW – challenge to decision of Civil and Administrative Tribunal – whether reasons adequate – acceptance of complainant’s evidence implied rejection of plaintiff’s evidence – reasons sufficient – formulation of risk – alleged wrongful admission of opinion evidence from investigating police officer as to ultimate issue – application of reasonable person test – no error shown

COMMERCE – misleading or deceptive conduct – where the Australian Cablemakers Association sent letters to government Ministers informing them of safety concerns with Midland’s cable – common ground that the letter contained incorrect representations – whether the letters had tendency to lead the recipient Ministers into error – enquiry to be conducted by reference to the objectively known characteristics of the recipient – each recipient had available considerable expert resources which they would inevitably consider before forming a conclusion on the letter – no likelihood that the letter by itself would lead any Minister into error – this conclusion is supported by reference to what actually took place – no misleading or deceptive conduct – proceedings dismissed.

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – UCPR r 13.4 – where proceedings concerned validity of Crown’s exercise of power to acquire land compulsorily in which plaintiff had an interest – whether proceedings should be summarily dismissed on the basis of estoppel – whether proceedings should be summarily dismissed on the basis that proceedings were brought outside time limited in UCPR r 59.10 ESTOPPEL – estoppel in pais - estoppel by representation – knowledge or intention of representor – whether plaintiff represented that it accepted the validity of the acquisition by suing for and accepting compensation – detrimental reliance – where Crown incurred legal costs, made advance compensation payments and undertook construction on the land – estoppel provided a complete defence to the proceedings in support of summary dismissal CIVIL PROCEDURE – time – UCPR r 59.10 – whether rule had retrospective application to proceedings concerning a decision which predated the commencement of the rule – whether substantive rights affected - rule did not operate retrospectively in support of summary dismissal

PROCEDURE – judgments and orders – no utility of proceedings due to operation of set-off COSTS – assessment of costs – proceedings misconceived – proceedings did not plead final relief – parties did not bring set-off to attention of court – fixed costs order made

CIVIL PROCEDURE — Stay of proceedings — s 135 of the Civil Procedure Act 2005 (NSW) – Inherent power — whether a judgment for costs against the applicants should be stayed until a separate order for costs against the respondents is quantified by assessment

INTERLOCUTORY INJUNCTION — Application for interlocutory injunction — Whether interlocutory injunction should be granted — Interlocutory injunction granted — the balance of convenience favoured the granting an interlocutory injunction in favour of the plaintiff subject to certain qualifications

CRIMINAL LAW – Sentence – Murder – Intimidation – Joint criminal enterprise – Where offender directed the contract killing of a former business associate and the intimidation of his wife – History of disputes between offender and victims – Where the offender funded both the killing and the intimidation – Offences falling at the upper end of range of objective seriousness – Whether life sentence should be imposed for the offence of murder – Where a number of other persons had already been sentenced for their part in the offending – Necessity to have regard to the parity principle – Life sentence not imposed

CIVIL PROCEDURE – Interim preservation – Mareva Orders – General principles – Whether the Plaintiff has demonstrated a good arguable case on a justiciable cause of action – Mareva Order not granted.