Cases and authorities

CRIME – appeal from Local Court against conviction for common assault – whether magistrate erred in assuming jurisdiction to hear criminal proceedings concurrently with civil application for an apprehended domestic violence order – where defendant concedes error of law COSTS – Supreme Court Act 1970 (NSW), s 69 –where plaintiff denied a hearing according to law – where defendant promptly concedes jurisdictional error

EQUITY - Equitable Remedies – Declaratory Relief COSTS - Party/Party — General rule that costs follow the event — Application of the rule and discretion

EQUITY – accounts – procedure on taking accounts – where accounts taken before trial judge

MENTAL HEALTH – final hearing – Mental Health (Forensic Provisions) Act 1990 (NSW) - extension order sought for a period of two years – whether plaintiff poses an unacceptable risk of causing serious harm to others, if he ceases being a forensic patient - whether any risk can be adequately managed by other less restrictive means – length of limiting term –functions of guardians – differences between the powers of the Mental Health Review Tribunal and guardians appointed under the Guardianship Act 1987 (NSW)

PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining orders – notice of motion seeking to set aside restraining orders and summary orders – notice of motion seeking further restraining orders – proper construction of s 10C of the Criminal Assets Recovery Act – whether the 2014 s 10A order should be set aside – whether evidence obtained from the examination in 2014, after the dismissal of the charge, had been obtained in accordance with law and whether it was available to Crime Commission to rely on, in forming suspicions as to whether “serious crime related activity” was engaged – whether further orders under s 10A should be made – whether the Briginshaw test applies to an application under s 10A – further restraining orders to be made – s 10C application refused STATUTES – acts of parliament – interpretation – s 10C of the Criminal Assets Recovery Act 1990 (NSW)

CIVIL PROCEDURE – application for summary judgment

COSTS – Indemnity basis – whether primary judge erred in awarding indemnity costs against applicant APPEAL AND NEW TRIAL – Appeal – General principles – leave to appeal required – whether House v The King type error identified – no issue of principle – leave to appeal refused

PRACTICE AND PROCEDURE – application to vary orders – order made refusing leave to appeal – application to substitute a grant of leave to appeal –application in effect to reopen hearing – no change of circumstances – no misapprehension by court of applicant’s case PRACTICE AND PROCEDURE – costs – application to vary costs order –unsuccessful applicant ordered to pay costs – no sufficient basis to vary order

CRIMINAL LAW – Sentencing – appeal against sentence – whether sentencing judge erred in his consideration of the applicant’s disadvantaged background – whether sentencing judge erred in his consideration of the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 – whether manifestly excessive

CRIMINAL LAW – conviction appeal – felony murder – robbery in company inflicting grievous bodily harm leading to death – whether cross-examination by Crown raised tendency issues – if so whether miscarriage of justice occurred – whether trial judge should have given a direction that no inference adverse to the accused could be drawn from his refusal to be interviewed by police – whether leave should be given pursuant to r 4 – no miscarriage of justice – appeal against conviction dismissed.

CIVIL PROCEDURE – overriding purpose – provision of expert conclave report CIVIL PROCEDURE – orders – decline to vary orders as present

PRACTICE AND PROCEDURE – stay refused in light of several prior indulgences given and lack of material prejudice having regard to prospect of sale by auction

PRACTICE AND PROCEDURE – application for appeal against interlocutory decision of the Local Court – whether leave should be granted to appeal against magistrate’s decision to refuse application for leave to issue subpoena – HELD – leave refused – no issue of principle – no injustice shown – no error identified in magistrate’s exercise of discretion to refuse issue of subpoena on sixth day of hearing

PRACTICE AND PROCEDURE – subpoenas – personal injury proceedings – chairlift accident – subpoena to defendant for production of documents – subpoena used in lieu of discovery – relevance and admissibility of post-accident documents showing changes to procedures and other post-accident action by defendant – whether subpoena amounts to a “fishing expedition” – parts of subpoena set aside TORTS – negligence – proof of subsequent action after accident – s 5C(c) Civil Liability Act

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 – application by forensic patient for non-publication order –bases on which order said to be necessary common to all applications for extension orders under the Mental Health (Forensic Provisions) Act 1990 – a serious mental illness and/or intellectual disability common to forensic patients – no non-publication provision in the Mental Health (Forensic Provisions) Act 1990 cf Mental Health Act 2007 and Guardianship Act 1987 – not the occasion to develop common law based on international convention – order not necessary – alternative remedy of restricting access to court file – application refused

MENTAL HEALTH – forensic patient – Mental Health (Forensic Provisions) Act 1990 – extension order application – final hearing – application unopposed in principle – issue as to length of order – schizophrenia comorbid with intellectual disability, substance use disorder and anti-social personality disorder – custodial environment ineffective and counterproductive – need to transition to therapeutic setting before transition into the community – need for high level support and monitoring – risk would not be adequately managed by civil patient status under Mental Health Act 2007, a guardianship order or good behaviour bonds – experts agreed that two years after release from custody is highest risk time – two years found to be minimum period for treatment and stabilisation – extension order made for two years

PROCEEDS OF CRIME – application for exclusion from forfeiture – s 94 of the Proceeds of Crime Act 2002 (Cth) – only property subject to automatic forfeiture can be subject of exclusion application – property being shares - onus of proof on the applicant – s 94(1)(f) – likely that the applicant had $1 and $10 available to him from legitimate source – probable that shares lawfully acquired – s 94(1)(e) – bare assertion that shareholding not used for any unlawful activity inadequate – question not whether company acted unlawfully, but whether share in that company used as an instrument to achieve unlawful benefit – satisfaction of s 330(2) not exhaustive of ways property becomes instrument of crime – not satisfied that interest in companies not used as instrument of crime – application dismissed PROCEEDS OF CRIME – applications for exclusion from forfeiture – s 29 of the Proceeds of Crime Act 2002 (Cth) – operation of s 29(4) – exclusion impermissible because a pecuniary penalty order could be made – question of whether a pecuniary penalty order will be made irrelevant – applications dismissed PRACTICE AND PROCEDURE – adjournment application – applicant seeking to give evidence in person – evidence sought to be given on matters arising from documentary evidence served on applicant over a month before hearing – applicant conceded ample time to prepare – no effort made to determine nature and extent of evidence to be given – further adjournment unlikely to allow respondent to respond – proximate deadline being date of automatic forfeiture – adjournment contrary to objects of case management – application refused

PRACTICE AND PROCEDURE – rules 17.3 and 17.6 Uniform Civil Procedure Rules 2005 (NSW) – application to withdraw admissions contained in Notice to Admit Facts and Documents – no response to Notice – reasons for no response – party serving notice did not change its position in reliance on admissions – leave sought to file Amended Statement of Cross-Claim – extent of amendments not restricted by earlier decision of Court – leave granted to withdraw admissions and to file Amended Statement of Cross-Claim – COSTS – successful party seeking indulgence of the Court – successful party to pay a proportion of unsuccessful party’s costs.

CRIMINAL LAW – appeal against sentence – supply prohibited drug – whether manifest excess – only superficial comparisons made with other cases – sentencing statistics of no assistance – finding of objective seriousness not challenged – not manifestly excessive CRIMINAL LAW – appeal against sentence – possess unauthorised pistol – whether manifest excess – finding of mid-range objective seriousness – mid-range seriousness does not mean the sentence should be halfway between zero and maximum penalty – several subjective matters in mitigation – sentence manifestly excessive

CRIMINAL LAW – appeal against sentence – question of totality of sentence with interstate sentence – offender with mental illness – question of whether sentencing judge gave adequate consideration to mental illness – whether proper regard to remorse – whether prospects of rehabilitation properly assessed – no point of principal

CRIMINAL LAW – special hearing – murder – circumstantial case – mental illness defence – held that actus reus for murder satisfied – held that accused had untreated paranoid schizophrenia at the time of offending – special verdict entered

ADMINISTRATIVE LAW – judicial review – procedural fairness – therapeutic rehabilitation program – where length of program exceeds remaining non-parole period – whether completion of program is a prerequisite for parole – where entry into program prioritised by earliest possible release date

ADMINISTRATIVE LAW – administrative review –plaintiff challenged decision of defendant to cancel Working with Children clearance in Civil and Administrative Tribunal which confirmed decision – plaintiff requested opportunity to make further submissions if Tribunal intended to dismiss the application – notice not provided by Tribunal to plaintiff that it proposed to confirm the decision under review without hearing from the plaintiff – Tribunal failed to provide opportunity to the parties to be heard on the making of an order dispensing with a hearing and failed to make such an order as required by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) – HELD – decision of Tribunal vitiated by non-compliance with s 50 – matter remitted back to differently constituted Tribunal – satisfied that relief sought by consent ought be granted PRACTICE AND PROCEDURE – non-publication order necessary as statutory prohibitions do not cover relevant field

CRIMINAL LAW – application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) – inquiry into AVO conviction and appeal from the Local Court’s decision to the District Court – four previous applications dismissed – application frivolous and vexatious and abuse of process – application dismissed under s 79(3) having been previously dealt with in review proceedings

Contracts – retainer between solicitor and client – guarantee – construction – multiple contractual documents – main object of contract – deferral of costs – termination of retainer – acceleration of deferred costs – charges of property – consent to lodgement of caveat – issue of tax invoices – interest – repugnancy Contracts – retainer between solicitor and client – solicitor’s costs charged on real property – caveat – lapsing notice – termination – repudiation – breach of non-essential term – repudiatory intention Equity – fiduciary duties – solicitor and client – security for costs of solicitor – breach – conflict of duty and personal interest – adequacy of disclosure Equity – undue influence – solicitor and client – security for costs of solicitor – relationship of influence – adequacy of disclosure Occupations – solicitors – entitlement to take security – reasonableness of security

CIVIL PROCEDURE - Pleadings - Amendment - Late application for amendment CIVIL PROCEDURE - Pleadings — Inconsistency with pleadings filed in other proceedings CIVIL PROCEDURE — Pleadings — Matter arising after commencement of proceedings CONTRACTS — Formation — Offer CONTRACTS — Breach of contract - Consequences of breach — Right to damages CONTRACTS — Remedies — Damages — Proof of loss or damage EQUITY — Equitable remedies — Restitution – Claim for moneys had and received

CRIMINAL LAW – Application for trial by judge alone – murder – killing of baby girl by her father – whether prejudicial nature of the proceedings called for trial without a jury

CRIMINAL LAW – Admissibility of tendency evidence – accused on trial for the murder of his baby – Crown sought to lead evidence of prior acts of violence by the accused against the baby and against the other children in his care – evidence in respect of the baby admitted but the evidence in respect of the other children rejected

CONTRACT – existence of agreement – no concluded agreement – no intention that parties be bound prior to a formal lease being duly executed

COSTS – application for gross sum order under s 98(4) Civil Procedure Act 2005 (NSW) – no response received from cross-claimants on issue of gross sum costs application – sufficient material provided to determine an appropriate sum ­– where cross-claimants unnecessarily contributed to the costs of the proceedings by filing cross-claims which they decided ultimately not to pursue – HELD – gross sum order made in respect of applicants’ costs

CORPORATIONS – external administration – liquidation – liquidator’s remuneration – voluntary winding up – where approval for further remuneration set aside but liquidators have approved remuneration for entire liquidation – where liquidators have undertaken substantial work in excess of approval if costed according to time spent – where court satisfied that liquidators would be entitled to not less than remuneration so far approved – no warrant for review CIVIL PROCEDURE – stay of proceedings – inherent power – abuse of process – collateral abuse of process

COSTS

APPEAL – new argument raised on appeal – whether appellant should be permitted to depart on appeal from approach taken at trial – prejudice to respondents TORTS – negligence – causation – large shareholder claims that underwriter’s negligence caused it loss by failing to make it aware that it could seek acceleration into an Institutional Offer and renounce its entitlement – whether primary Judge erred to find that shareholder would not have sought acceleration in any event TORTS – duty of care – whether company and underwriters involved in an Accelerated Renounceable Entitlement Offer (AREO) owed a duty of care to a large shareholder to inform it that it could seek acceleration into the first stage of the AREO in order to renounce its entitlement

TRAFFIC LAW AND TRANSPORT – compensation for injury suffered in motor accident – assessment of whole person impairment – proper officer’s satisfaction that reasonable cause existed to suspect that the assessment was incorrect in a material respect – referral to review panel ADMINISTRATIVE LAW – judicial review – jurisdictional error – jurisdictional fact, unreasonableness and irrelevant consideration – whether satisfaction of proper officer reviewable ADMINISTRATIVE LAW – judicial review – error of law on the face of the record – whether reasons of officer of administrative body engaged Supreme Court Act 1970 (NSW), s 69(3) and (4)

PRACTICE AND PROCEDURE – jurisdiction of single Judge of Appeal sitting alone – application to set aside orders of Court of Appeal pursuant to Uniform Civil Procedure Rules r 36.16 and to stay costs orders pending determination of the application – whether proceedings “finally determined” – whether stay should be granted – Supreme Court Act 1970 (NSW), ss 46(1)(b), 46(2)(b), 69C(2)(b)

EVIDENCE — Opinion evidence — Exceptions — Expert opinion – whether valuation report disclosed valuer’s reasoning process — whether valuation report disclosed how the valuer’s assessment was based on the application of specialised knowledge to the facts EVIDENCE — Discretions — Exclusion of evidence — Civil proceedings — whether primary judge erred in the exercise of discretion APPEAL AND NEW TRIAL — Appeal — General principles — whether any utility in remittal for further hearing

SUCCESSION – executors and administrators – proceedings against executors and administrators

ORDERS – suppression and non-publication orders – final orders sought under s 7 – prohibiting the publication of any material which is capable of identifying the second defendant – principles of open justice – safety ground, s 8(1)(c) – construction of s 8(1)(c) – meaning of necessary – probability of harm construction – imminence of harm construction – probability of harm if orders not made – orders necessary to protect safety of a person – nature and degree of the likelihood of harm – nature of the risk– imminence of harm – suppression or non-publication order found necessary to protect safety – form of orders subject to submissions – directions

PRACTICE AND PROCEDURE – defendant’s motion concerning plaintiffs’ representation and to set aside subpoenas and Notice to Produce – matters resolved by parties before hearing of motion – only outstanding issue costs of the motion – order that the plaintiffs pay costs of the motion.

FINAL RELIEF – parties cannot agree on form of orders for final relief – parties advance competing forms of order for final relief – plaintiff succeeds at first hearing in securing a declaration that she is entitled to a licence to occupy the property owned by the first defendant during the first defendant’s life and thereafter to share a half interest in the property with the second defendant, her former husband – plaintiff seeks orders to give effect to the declaration – defendant seeks orders on the ground that the first defendant’s hardship that the property be sold – whether orders should be made for the property to be sold. COSTS – application for an order for costs against a third party said to have instigated the proceedings – plaintiff successful against first and second defendants in proceedings for declaration of trust – first defendant determined to be a person under legal incapacity at the end of the hearing and tutors appointed –conduct of proceedings on behalf of the first defendant managed by two relatives, respondents to the plaintiff’s motion for costs (the respondents) – whether the respondents should be responsible for the plaintiff’s costs, the first defendant’s costs and the second defendant’s costs on either the indemnity or the ordinary basis – whether the respondents are entitled to have resort to the assets of the first respondent for the payment of the defence costs of the proceedings – whether in the alternative the first defendant pay the plaintiff’s costs on the indemnity or the ordinary basis and if so whether or not she should not be entitled to resort to the Port Kembla property for the payment of her costs to the proceedings or at least to resort to the first defendant’s interest in that property.

APPEAL – leave to appeal – litigant in person – allegations of negligence, oppression and fraud on minority concerning conduct and management of strata scheme by Owners Corporation rejected on bases including failure to prove loss/detriment– where applicant sought to refer to expert evidence not used at trial – no evidence why not available at trial – whether leave to appeal should be granted PRACTICE AND PROCEDURE – procedural fairness – where primary judge refused numerous adjournment applications by litigant in person claiming to be not fit to conduct case – where primary judge afforded litigant in person latitude in conduct of case – whether denial of procedural fairness warranting grant of leave to appeal

LIMITATION PERIOD – workplace injury – below the knee amputations – leave to commence against insurer – consideration of s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where defendant undischarged bankrupt – where question as to expiry of limitation period – where question as to date of discoverability – adjournment granted for plaintiff to gather evidence on limitation period

Civil Procedure – transfer of proceedings – Federal Court – interests of justice – “more appropriate” forum

ADMINISTRATIVE LAW – prohibition order sought against Crown Solicitor appearing for the New South Wales Health Care Complaints Commission in the ACT Supreme Court– whether Crown Solicitor had standing to appear - order sought not granted

CIVIL PROCEDURE – cross-vesting – transfer to other supreme court – relevant factors – whether Supreme Court of Victoria more appropriate forum

PRACTICE AND PROCEDURE – extension of time – appeal – whether party will suffer prejudice if extension of time to appeal allowed or rejected – whether party will suffer prejudice as a result of delay PRACTICE AND PROCEDURE – application for determination of separate question

ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Clearance – allegations that Defendant sexually interfered with his children – no criminal charges brought against Defendant – Children’s Guardian cancelled Clearance – Tribunal reinstated Clearance -whether Tribunal misapplied the statutory test in s 23(1) of the Child Protection (Working with Children) Act – whether Defendant posed risk to the safety of children – whether Tribunal failed to give adequate reasons – whether Tribunal failed to take into account the seriousness of the allegations against the Defendant

CRIMINAL PROCEDURE – sentence – bond imposed by District Court on appeal from Local Court – offender failed to comply with condition to be of good behaviour – power of Local Court to deal with breach of condition of bond CRIMINAL PROCEDURE – sentence – bond imposed by District Court on appeal from Local Court – direction by District Court judge that offender be brought before him in event of breach – whether direction a condition of bond – whether direction effective to remove power of another court or judge to deal with breach