Cases and authorities

CRIMINAL LAW – practice and procedure – application by media to CCTV footage – CCTV footage capturing victim’s death from gunshot wounds – open justice – fair reporting – administration of justice - potential prejudice to jury members – distress to family members – access denied

CRIMINAL LAW – evidence – application under s 38 of the Evidence Act – leave sought granted

CRIMINAL LAW – jury – 11 jurors – trial to continue

CRIMINAL LAW – jury – application to discharge juror – juror discharged – reasons

APPEAL – stay of enforcement of primary judgment – stay granted despite Court not being able to form view as to the prospects of the appeal succeeding

CRIME – proceeds of crime – whether exclusion order can be made in respect of property restrained under the Proceeds of Crime Act 2002 (Cth) that has already been forfeited – whether appellant should be allowed to argue that restraining orders against appellant’s property were obtained by fraud STATUTORY INTERPRETATION – meaning of “conviction day” under Proceeds of Crime Act 2002 (Cth) CONSTITUTIONAL LAW – whether Proceeds of Crime Act 2002 (Cth), ss 18, 26(4), 92, 95 and 338(a)(ii), (a)(iv) and (g) of the definition of “serious offence” are constitutionally valid

APPEALS – section 5F appeal against interlocutory decision to refuse leave to issue subpoenas – sexual assault communication privilege – Criminal Procedure Act – where proposed subpoenas sought documents relating to complainant’s counselling – where trial judge found s 299B had no application – where appellant contended power under s 299B(4) should be exercised to inspect documents pursuant to s 299B(1) – whether the material sought would have substantial probative value pursuant to s 299D(1)(a) – leave to appeal granted – appeal dismissed

CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence against co-offender – sentencing judge allowed 9% discount for promised future assistance – respondent failed to give promised future assistance at trial of co-offender– whether respondent failed wholly or partly fulfil his undertaking – whether discretion not to increase sentence by removing discount should be exercised

CRIMINAL LAW – sentence appeals by two co-offenders – counts of murder, arson and two counts of discharge firearm to prevent lawful apprehension – father and son co-offenders – Gino Stocco – whether principles of totality properly taken into account – whether aggregate sentence manifestly excessive – appeal dismissed – Mark Stocco – whether issue of assistance raised in sentence proceedings – whether failure of sentencing judge to properly take assistance into account – whether miscarriage of justice would result if assistance not taken into account – level of assistance overstated – leave to rely upon ground of appeal refused – whether sentencing judge took into account prospects of rehabilitation – whether principles of totality taken into account – application of parity principle – whether sentence manifestly excessive – appeal dismissed.

CRIMINAL LAW – sentence appeal – child sexual assault offences – sexual intercourse with a child under 10 years, then being a person under the authority of the Applicant, contrary to s.66A(2) Crimes Act 1900 – incite a child under 10 years to commit an act of indecency contrary to s.61O(2) Crimes Act 1900 – assault a child under the age of 16 years and at the time of the assault commit an act of indecency contrary to s.61M(2) Crimes Act 1900 – sexual intercourse with a child under 10 years contrary to 66A(1) Crimes Act 1900 – two victims of child sexual assault were the Applicant’s step-granddaughters – additional Form 1 offences with respect to each victim - unrelated firearm offence – possess more than three unregistered firearms including at least one prohibited firearm contrary to s.51D(2) Firearms Act 1996 – aggregate sentence of imprisonment for 15 years and non-parole period of 10 years and six months – claim that sentence manifestly excessive – aggregate sentence reflected totality of Applicant’s serious offending against two young victims over a period of time together with unrelated firearm offence – sentence not manifestly excessive – appeal dismissed

CIVIL LIABILITY – settlement of proceedings where plaintiff under legal incapacity – consideration whether to approve settlement

CIVIL LIABILITY – defendant company deregistered on its own application after commencement of proceedings and after bringing its own cross-claim – duelling applications to address complications created by that event – plaintiff seeking to join insurers to stand in shoes of deregistered company – cross-defendant seeking to have company reinstated to register – appropriateness of adjourning application for reinstatement

CRIMINAL LAW – sentence – accessory after the fact to manslaughter – principal offence committed by offender’s husband – assisting in attempt to flee the jurisdiction – offender the victim of long standing abuse by him – acting under his direction – her low culpability

BUILDING AND CONSTRUCTION – Building and Construction Security of Payment Act 1999 (NSW) – whether adjudication determination valid – whether adjudicator erred in considering revised payment schedule – whether adjudicator erred in not having regard to adjudication response – no error disclosed in adjudicator’s approach – summons dismissed. COSTS – Calderbank letters – compromise offered as to costs only – where no evidentiary support for plaintiff’s case – indemnity costs ordered – where first defendant represented by senior and junior counsel – such costs limited to costs of competent junior counsel.

PRACTICE AND PROCEDURE – disclosure sought prior to closure of evidence – whether exceptional circumstances shown

PROCEEDS OF CRIME – Practice and procedure – application to limit scope of an examination under s 180 of the POC Act – application for non-dissemination orders under s 266A of the POC Act – orders restricting the publication of the reasons for judgment – costs orders.

CRIMINAL LAW – sentencing – entering Syria with the intention of engaging in armed hostilities – plea of guilty – discount for utilitarian value allowed – immaturity of offender – delay in charging relevant to specific deterrence and prospects of rehabilitation

PROCEEDS OF CRIME – application to vary examination orders – whether examination conducted exceeded that which was permitted under the Proceeds of Crime Act – whether, absent a referral of a question of law under s 192 of the POC Act, the Court has power to intervene in an ongoing examination.

CORPORATIONS – statutory demand – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459G – whether genuine dispute about the existence or amount of debt under Corporations Act, s 459H(1)(a) – whether plausible contention requiring investigation that toll notices were invalid – Corporations Act, s 459M – whether appropriate to set aside demand conditional upon payment into court of substantial amount of the alleged debt.

ADMINISTRATIVE LAW - Judicial Review - Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Review Panel Assessment – whether denial of procedural fairness - whether Review Panel failed to exercise jurisdiction – whether Appeal Panel misapplied the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment in Respect of Apportionment

CRIMINAL LAW – application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – defendants said to be members of Nomads Outlaw Motor Cycle Gang involved in violent conflict with Finks OMCG – whether defendants “involved in serious crime related activity” for which they were not convicted of a serious criminal offence – whether Nomads OMCG was a criminal group – whether defendants participated in a criminal group within meaning of Crimes Act 1900 (NSW) s 93T – whether reasonable grounds to believe order would protect the public by disrupting involvement of defendants in such activity – balancing act required for imposition of prohibitions and restrictions - order granted for term of 12 months EVIDENCE – standard of proof – civil cases – where commission of criminal offence only required to be proved to the civil standard – Briginshaw principle applied

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by shareholders to bring derivative proceedings in name of companies under Corporations Act 2001 (Cth) s 237 – whether applicants acting in good faith in bringing proceedings – whether in the best interests of companies that applicants be granted leave – whether proposed proceedings involved serious questions to be tried – indemnity.

CRIMINAL LAW – application by police pursuant to Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – defendants said to be members of Finks Outlaw Motor Cycle Gang involved in violent conflict with Finks OMCG – whether defendants “involved in serious crime related activity” for which they were not convicted of a serious criminal offence – whether Finks OMCG was a criminal group – whether defendants participated in a criminal group within meaning of Crimes Act 1900 (NSW) s 93T – whether reasonable grounds to believe order would protect the public by disrupting involvement of defendants in such activity - order granted for term of 12 months EVIDENCE – standard of proof – civil cases – where commission of criminal offence only required to be proved to the civil standard – Briginshaw principle applied

COSTS — Interpleader proceedings — solicitor stakeholder – distribution of costs paid by unsuccessful party to successful party for barristers’ fees to barristers briefed by the successful party —entitlement of three barrister claimants to fund held on trust as between the three claimants – whether the claimants expressly or impliedly agreed how the fund should be divided EQUITY — General principles — Rules and maxims of equity — “equity is equality” –– fund to be distributed in fair proportions between three claimants

WORKERS COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker’s appeal to Workers Compensation Commission dismissed – whether findings open to arbitrator – whether arbitrator had jurisdiction to determine existence of injury to thoracic spine – whether arbitrator’s decision unreasonable – whether other errors of law made out – appeal dismissed

PROCEDURE – implied “Harman” undertaking – release from – special circumstances – whether special circumstances existed – where documents of no real probative value – whether decision to exclude documents at first instance was unreasonable or plainly unjust LEASES AND TENANCIES - renewals and options - exercise of option – whether option was validly exercised – whether lease provision referring to modes of service in s 170 of the Conveyancing Act 1919 (NSW) is facultative or mandatory - where neither the lessors’ address nor their whereabouts were discoverable from the lease or a variation document executed before the lease – whether general law of landlord and tenant permits service of notices on agent – where lease provision for service as provided for in s 170 is facultative only – where the notice was served on the solicitor for the lessor

COSTS – leave to appeal – when costs awarded in a case which has been resolved without a hearing on the merits – whether clear that respondent would have succeeded in any event – whether respondent had acted reasonably and the applicants had acted unreasonably – Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 applied

CRIME – appeal against sentence – importing a commercial quantity of a border controlled drug –Criminal Code (Cth) s 307.1 – parity – whether there is a disparity between the sentence imposed upon the applicant and the sentence imposed upon the co-offender such as to leave the applicant with a justifiable sense of grievance – where numerous factors distinguished the criminality of the applicant and the co-offender – where the sentence imposed upon the co-offender was also discounted for assistance to authorities and his guilty plea at the earliest opportunity – no breach of principle of equal justice – no objective and justifiable sense of grievance – leave to appeal refused

CRIME – appeal against sentence – supply of large commercial quantity of methylamphetamine contrary to Drugs Misuse and Trafficking Act 1985 s 25(2) – applicant’s role found to be that of courier – objective seriousness of offending - where offender used coded telecommunications to courier of drugs of significant weight and purity and was motivated by financial gain - principles applying to untested assertions to third parties – where offender relied on statements to psychiatrist inconsistent with agreed facts – sentence not manifestly excessive – no basis for any grounds of appeal

CRIME – appeal against sentence – import tobacco products with intent to defraud the Revenue – s 233BABAD(1) Customs Act 1901 (Cth) – deal in proceeds of crime worth $1,000,000 or more – s 400.3 Criminal Code (Cth) – parity with sentence imposed upon co-offender – whether there is a disparity between the sentence imposed upon the applicant and the sentence imposed upon the co-offender such as to leave the applicant with a justifiable sense of grievance – where unexplained discrepancy in accumulation – where discrepancy not justified by reference to principle of totality – appeal allowed CRIME – appeal against sentence – non-parole period – single period required for multiple federal offences – error in commencing period after commencement of first sentence imposed WORDS AND PHRASES – “non-parole period” – “aggregate” – Crimes Act 1914 (Cth) s 16

CRIMINAL ASSETS RECOVERY – application for production of documents held by solicitor relating to conveyance of interests in property

LAND LAW – co-ownership – appointment of trustees for sale – deed entered into between co-owners – whether on true construction of deed first and second plaintiffs hold interests in the nature of life interests – whether first and second plaintiffs entitled to receive out of net proceeds of sale only the value of their life interests

PRACTICE AND PROCEDURE – where defendant’s case depends on expert evidence - where defendant thrice ordered to serve expert evidence but failed to do so – where final order expressed as a guillotine order – where explanation for failure to serve evidence weak – where defendant sought further extension of time – where doubt as to whether plaintiff could respond prior to the hearing date to any report served in time proposed for service of defendant’s expert report – usual practice in Commercial List to refuse to consider whether leave should be granted until report to hand

SUCCESSION - wills, probate and administration - the making of a will – application for statutory will for seriously ill child – “nil capacity” case - small estate with uncertain possibility of damages award – no evidence as to prospects of success or likely amount of damages (if any) – Succession Act 2006 (NSW), ss 18, 20, 22

TORTS – Negligence – Liability for others’ negligence – Non-delegable duties of care TORTS – Negligence – Essentials of action for negligence – Duty of care – Definition of “physical damage to property” – Reasonable foreseeability of physical damage to property in recognised classes of case – Determination of existence of duty of care in novel cases – Whether a principal owes a duty of care to supervise its contractors and subcontractors – Breach of duty of care – Causation under Civil Liability Act 2002 (NSW) s 5D CONTRACTS – Implied terms – Terms implied in law – Terms implied in fact – Necessary to give business efficacy – Breach of contract CIVIL PROCEDURE – Pleadings – Amendment – Court’s discretion to refuse application for amendment made after commencement of hearing TORTS – Negligence – Essentials of action for negligence – Duty of care – Whether a supplier of goods pursuant to a contract owes a duty of care to protect against economic loss arising from defects – Breach of duty of care TORTS – Defences – Apportionment of responsibility and damages under Civil Liability Act 2002 (NSW) s 35 TORTS – Defences – Contributory negligence under Civil Liability Act 2002 (NSW) s 5R – Reasonableness of plaintiff’s assumption of counterparties’ compliance with their legal obligations CIVIL PROCEDURE – Cross-claims – Court’s discretion to refuse leave to file cross-claim after commencement of hearing

CIVIL PROCEDURE – application to set aside or vary costs decision – no question of principle

PARTNERSHIP – special majority of partners accepted offer by corporation to acquire the partnership business – whether special majority could vary inter se entitlement of partners to share in surplus from proceeds of sale – whether cash amounts and shares issued were wholly the proceeds of partnership property

PROCEEDS OF CRIME – application for payment order – where defendant received cash payments from undercover operative in return for supply drugs – payments received for the benefit of defendant and co-offender – Commission’s entitlement under the legislation to recover whole amount from one offender CONFISCATION OF ASSETS – application for forfeiture of tainted property – where defendant owned house from which drugs manufactured – Commission seeking forfeiture of whole of proceeds of mortgagee sale in addition to payment order for proceeds of offences – consideration of likely hardship to defendant upon release on parole – need for coherence in the law – risk of tension between deliberate hardship of confiscation legislation and rehabilitation of offenders

CIVIL PROCEDURE – application to amend Technology & Construction List Response – proposed amendment pleads that maintenance of litigation is unconscionable within the meaning of the Australian Consumer Law – whether proposed amended defence so weak so as to justify peremptory rejection – no rule of law that litigious conduct cannot be conduct in trade or commerce – instead, determining strength of proposed defence will require consideration of the overall evidence – leave to amend granted.

CORPORATIONS — Directors and officers — Directors’ duties — Duty not to use position as director or officer improperly — Duty not to use information improperly — where first defendant as director and CEO of plaintiff wrongly claimed ownership of intellectual property, confidential information and copyright material of the plaintiff and purported to conduct an Initial Coin Offering in the name of the second defendant using that material – where first defendant had sought and been refused authority from the board of the plaintiff to engage in that conduct – whether first defendant thereby acted in breach of his statutory duties EMPLOYMENT LAW —contract of service and rights, duties and liabilities as between employer and employee — duration and termination of employment — whether first defendant acted in breach of his contractual duties to the plaintiff — whether first defendant engaged in serious misconduct such as to warrant termination of his employment as CEO

COSTS – order sought against non-parties – whether proceedings necessary due to conduct of respondents – respondents caused lapsing notice to be served in relation to plaintiffs’ caveat – whether respondents acted reasonably

CIVIL LAW – unpleasant litigation – contract dispute – loans from mother to daughter – internecine family dispute – where loans formalised by deeds – whether terms of deeds varied by subsequent conversation between parties – dispute as to whether conversation occurred – where neither party presents as a witness of credit – financial shenanigans – palpable personal animosity – dark looks across the public gallery – tsk-tsking – objectively established chronology – not satisfied conversation occurred

EQUITY – general principles – unconscionability – unconscionable dealing – unconscionable conduct – special disability or disadvantage – independent advice – series of property transactions entered into between mother and son – lack of independent advice – whether property transactions should be set aside as unconscionable EQUITY – general principles – undue influence – whether property transactions a product of undue influence

LAND LAW – conveyancing – options – whether written call option agreement contains oral terms – construction of call option agreement – whether agreement subsequently varied – writing requirements EQUITY – remedies – rectification – whether parties had common intention as to duration of call option – whether intention not reflected in call option agreement due to common mistake EQUITY – remedies – estoppel – whether representations made as to duration of call option – whether parties conducted their relationship on basis of an assumption as to duration of call option

CIVIL PROCEDURE – interlocutory orders – Mareva injunctions – whether earlier freezing orders should be amended – where plaintiff alleges fifth defendant acted fraudulently in obtaining money owned by the plaintiff – whether fifth defendant should be entitled to ordinary living expenses and reasonable legal expenses from the trust property held in frozen bank accounts – where fifth defendant asserts a limited proprietary claim – where no lawful entitlement to money held in frozen accounts – consideration of priority in mixed funds

CRIMINAL LAW – Procedure – Miscellaneous powers of courts and judges – application for the provision of food be given to accused during trial – arrangements made for a suitable meal to be provided to accused in the cell not adhered to – direction sought – whether the Court has powers to make direction sought – Court has powers to make the requested direction

TORTS – negligence – work injury – plaintiff/first respondent employed by second respondent labour hire company – first respondent’s services hired out to appellant – breach of duty of care – injury sustained due to nature and conditions of employment – whether primary judge erred in drawing certain inferences regarding work undertaken by first respondent – whether primary judge erred in finding that first respondent would not have received adequate rest breaks – whether primary judge erred in finding that risk of harm was not insignificant – whether primary judge erred in finding that appellant and second respondent breached their respective duties of care to first respondent TORTS – negligence – causation – whether primary judge erred in finding that first respondent sustained internal disc disruption which progressed to a disc protrusion where expert evidence was conflicting – whether primary judge erred in finding that appellant caused first respondent’s internal disc disruption TORTS – negligence – contributory negligence – whether primary judge erred in finding that first respondent was not contributorily negligent

PRACTICE – review of decision of single Judge of Appeal dismissing proceedings following failure to provide security

CONTRACTS – Express terms – Incorporation of terms – Incorporation by reference – agreement stated that balance of terms would be “WB standard for ‘A’ list directors and producers” subject to “good faith negotiations” – whether terms were incorporated before good faith negotiations had taken place – whether terms which were “standard” had been proved to exist COMMERCIAL ARBITRATION – Arbitration agreement – Form of arbitration agreement – Arbitration clause - agreement stated that balance of terms would be “WB standard for ‘A’ list directors and producers” – whether an arbitration clause was “WB standard for ‘A’ list directors and producers”

SUCCESSION – wills, probate and administration – probate and letters of administration – whether applicant for letters of administration was in a “domestic partnership” with the deceased when they maintained separate homes – Succession Act 2006 (NSW) ss 104(b), 105(a) and 111 – Interpretation Act 1987 (NSW) s 21C