Cases and authorities

EVIDENCE — Privileges — Public interest immunity

SUCCESSION – administration of estates – deceased dies intestate leaving three siblings - no issue and no parents – deceased’s brother claims letters of administration of the deceased’s intestate estate - plaintiff claims to be in a de facto relationship with the deceased for at least two years prior to his death – whether the deceased was in a de facto relationship with the plaintiff at the time of his death and for two years before his death – whether letters of administration should be granted to the plaintiff or to the deceased’s brother. SUCCESSION – family provision and maintenance – the plaintiff having failed to establish she was in a de facto relationship with the deceased receives nothing on intestacy as a result of the deceased’s death – whether the plaintiff is an eligible person under Succession Act, s 57(b), (e) or (f) to make a claim out of the deceased’s estate – whether if the plaintiff is an eligible person under Succession Act, s 57 (e) or (f) there are “factors warranting” the bringing of her application - if the plaintiff is an eligible person and there are factors warranting, whether she has been left without adequate provision for her proper maintenance, education and advancement in life.

CRIMINAL LAW – appeal against sentence – importation of an unspecified quantity of methamphetamine contrary to s 307.3 of the Criminal Code 1995 (Cth) – gross weight of item 3.2 kg but actual quantity of drug unknown – sentencing judge made finding that the offender must have been aware it was a significant quantity – whether breach of De Simoni principle – marketable quantity of methamphetamine only 2 g – sentencing judge did err by taking into account the fact it was a significant quantity – sentencing judge did not just make finding in relation to what offender intended to import – appeal allowed

CRIMINAL LAW – criminal investigation – warrant for telephone intercepts - two counts of supplying a prohibited drug - joint criminal enterprise - appeal under s 5F(3A) Criminal Appeal Act against ruling excluding telephone intercept evidence - whether primary judge made erroneous finding of fact –– whether s 60(1) Telecommunications (Interception and Access) Act 1979 (Cth) complied with – whether any irregularity found was a substantial irregularity – whether primary judge erred in determining that telephone intercept was not lawful WORDS AND PHRASES – “immediately”

PROCEDURE – notice of motion – orders sought to dismiss proceedings – Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) – failure to prosecute the proceedings with due dispatch – proceedings dismissed – costs

GUARDIANSHIP – Protected person – Financial management – Appointment of manager – Private manager – Transition from trust regime to protected estate management regime – Protective orders made to facilitate orderly transition MENTAL HEALTH – Protected person – Financial management – Management of trust property – Management of protected estate – Transition from trust regime to protected estate management regime – Form of orders

HIGH RISK OFFENDER - final hearing - application for extended supervision order – whether extended supervision order should be made – whether the duration proposed by the plaintiff and proposed conditions were appropriate

ADMINISTRATIVE LAW – judicial review of decisions of the Council of the Law Society of New South Wales determining complaints against a solicitor – construction of s 537(2) of the Legal Profession Act 2004 – question of consideration of summary disposal of complaints – requirement to consider s 540 as condition precedent to operation of s 537(2) – requirement for Council’s reasons to expose

PROCEDURE – uniform civil procedure – security for costs – application under Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 and inherent jurisdiction – where appellant failed to comply with orders at first instance – whether non-compliance justified security for costs on appeal – where appellant property developer enjoyed “interests” in properties held under discretionary trust – whether reason to believe appellant divested assets to avoid consequences of adverse costs order by causing trustee to sell two properties at undervalue – no issue of principle

CRIME – sentence – appeal by Director against manifest inadequacy – theft of $220,000 from trust fund – offender a solicitor with joint control of fund – money disbursed at his direction – signature of co‑controller forged – money applied to repay personal debt – whether sentence of 2 years imprisonment manifestly inadequate – whether order that sentence be served by way of intensive correction order too lenient – whether a period of actual custody required CRIME – sentence for theft from trust fund – purpose to repay money provided by friend for investment purposes – money lost in gambling – relevance of gambling addiction to sentencing – whether moral culpability affected – whether suitable vehicle for general deterrence – whether basis for leniency

PROCEDURE – application for stay of proceedings pending other proceedings – summary dismissal of application

SETTLEMENT – negligence – injuries arising from a collision with a young child on a pushbike – where child had developmental disabilities – where previous settlement on contributory negligence of the plaintiff – disentanglement of head injuries and pre-existing disability – where there has been no claim for economic loss – proposed settlement held to be in the plaintiff’s best interests

CIVIL LAW - application by Defendant for leave to file Cross Claim - application made at commencement of final hearing of commercial dispute - consideration of relevant discretionary factors - leave granted to file Cross Claim - final hearing vacated - application for costs - Defendant ordered to pay Plaintiff’s costs of leave application and costs thrown away as a result of vacated hearing - order that costs be assessable and payable forthwith - proceedings referred for mediation under s.26 Civil Procedure Act 2005 - proceedings transferred to Commercial List of Equity Division

CONTRACT – Capacity – Mental health – Assessment of capacity time and task specific – Lack of capacity EQUITY – Unconscionable contract – Special disadvantage – Mental health, age and frailty – Improvident transaction – Nature and quality of independent advice CONTRACT – Contracts Review Act 1980 NSW – Unjust Contract – Procedural and Substantive injustice – Improvident transaction – Nature and quality of independent advice

PRACTICE AND PROCEDURE – costs – whether court should depart from general rule that costs follow the event – whether proceedings should be characterised as public interest litigation and, if so, whether there is something more that warrants departure from general rule

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – Australian Consumer Law – Consumer protection – Misleading and deceptive conduct – Causation – whether appellant suffered loss or damage as a result of respondent’s impugned conduct – whether respondent’s failure to provide updated reasonable costs estimates was a cause of appellant’s loss or damage – whether appellants relied on unreasonable costs estimates to their detriment – whether work performed by respondents was wholly wasted APPEAL AND NEW TRIAL - Appeal - General principles – whether appellant was denied procedural fairness – whether question of extent to which work performed by respondents was wasted was properly raised by respondents before primary judge COSTS – Costs assessment – Determination – Appeal – extension of time to appeal from determination of costs review panel – whether appeal would prolong the substantive dispute between the parties COSTS – Costs assessment – Determination – Appeal – whether appellant denied procedural fairness – whether costs assessor relied on adverse material without giving appellant the opportunity to comment – whether a denial of procedural fairness is a ‘decision’ as to a ‘matter of law arising in the proceedings’ pursuant to s 384 of the Legal Profession Act 2004 (NSW) COSTS – Costs assessment – Determination – Appeal – whether costs assessor erred in the exercise of discretion under s 317(4) of the Legal Profession Act 2004 (NSW) – whether discount failed to reflect the magnitude of respondent’s failure in its legal obligations

CRIMINAL LAW – appeal against conviction – appellant charged with 6 counts of indecent assault against 2 child complainants contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to order separate trials in respect of each complainant – cross-admissibility of complainants’ evidence as tendency and context evidence – nature of context evidence – whether appellant had been prejudiced by trial on all counts – use of directions to ameliorate potential prejudice CRIMINAL LAW – appeal against conviction – appellant convicted of 6 counts of indecent assault against child under 16 contrary to Crimes Act 1900 (NSW), s 61M(2) – whether trial judge erred in refusing to discharge jury where complainant did not answer questions in cross examination – whether appellant denied a fair trial – where unanswered questions did not take account of previous answers – cross examination of child complainants CRIMINAL LAW – appeal against conviction – whether trial judge erred in failing to discharge jury on the basis of impermissible communications with witness under cross examination – whether communications calculated to corrupt the witness’s testimony – whether convictions were unreasonable or unsupported by the evidence

CRIMINAL APPEAL – sentence appeal – applicant convicted for attempted drug and firearm possession – attempt to receive for supply a prohibited drug – where applicant attempted to obtain a bag on behalf of a criminal gang – “Brothers 4 Life” – whether primary judge erred in assessment of objective seriousness – whether sentence imposed manifestly excessive – leave to appeal granted – appeal refused

CRIMINAL LAW – bail release application – one charge of aggravated sexual assault and two charges of aggravated indecent assault – one show cause offence – delay a significant factor – a degree of uncertainty about the allegation giving rise to the show cause offence – cause shown – concern about interference with witnesses, but not unacceptable risk with regard to bail conditions – release application granted

CRIMINAL LAW – sentence appeal –– multiple domestic violence offences committed against partner– assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 (three counts) – four offences of assault on Form 1 –break enter and commit serious indictable offence (robbery) under s.112(2) Crimes Act 1900 committed against different victim – aggregate sentence of imprisonment of four years with balance of term of two years – claim of error in finding that s.112(2) offence was in the mid-range of seriousness – no error demonstrated – claim that insufficient weight given to the issue of rehabilitation – no error demonstrated – claim that aggregate sentence manifestly excessive – repeated domestic violence offences – breaches of conditional liberty – applicant subject to bail and apprehended domestic violence order intended to protect partner – need for denunciation, general deterrence and specific deterrence – serious s.112(2) offence committed against different victim – aggregate sentence not manifestly excessive – appeal dismissed

PROCEDURE – costs – part of proceedings settled – possession proceedings - relief as claimed ordered by consent – cross-claim yet to be heard – defence to plaintiffs’ claim for possession based on assertion of constructive trust – assertion by defendants that building erected on land in reliance on agreement with plaintiffs – building destroyed by fire after commencement of possession proceedings – defendants consent to order for possession – cross-claim to be determined after completion of fire enquiries by police and insurer – whether plaintiffs should obtain costs for possession claim

ADMINISTRATIVE LAW – application for judicial review – where alternative available remedy to judicial review - errors of law – injustice to the plaintiff that is more than arguable – where Strata Schemes Management Act 1996 considered – where appeal allowed

CRIMINAL LAW - application for referral to Court of Criminal Appeal under s.78 Crimes (Appeal and Review) Act 2001 - murder - whether appearance of doubt or question as to sentence - claim of Muldrock error - consideration of low threshold for referral under s.79(2) - concession by Respondent that referral should be made - referral made to Court of Criminal Appeal

PROTECTIVE JURISDICTION – Litigant in person – Capacity for management of affairs – Assessment of need for tutor – Functionality the key determinant – Determination task and time specific MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Assessment of need for appointment of tutor – Litigant in person – Capacity for self-management – Functionality the key determinant – Determination task and time specific – Capacity to manage ordinary affairs, but not litigation

TAXATION – PAYG withholding amounts – director penalty – whether director penalty notice served on appellant

CIVIL PROCEDURE – appeals – where new issues raised for the first time on appeal – CONTRACTS – damages – whether respondent entitled to recover cost of the management time spent by its employees in dealing with the appellant’s defective work – CIVIL PROCEDURE – appeals – costs – whether primary judge’s discretion miscarried

CONTRACTS — Formation — Intention to create legal relations — whether intention to make a testamentary contract can be objectively inferred from the conduct of the appellant and the deceased — whether deceased was contractually obliged not to revoke will ESTOPPEL — Proprietary estoppel — Standing by — Knowledge of mistake by party bound — present mistake of fact — whether appellant relied on the mistaken belief to his own detriment that he would inherit deceased’s property — whether unconscionable for deceased to accept benefit of appellant’s assistance when deceased knew of appellant’s mistaken belief — whether respondent is estopped from denying appellant’s entitlement to property ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance — whether necessary for appellant to show that he would have acted differently but for his mistaken belief — whether appellant’s reliance on mistaken belief was unreasonable EQUITY — Equitable remedies — Specific performance — principle of proportionality — whether the benefit of proprietary relief outweighs the detriment suffered by appellant — whether detriment suffered by appellant was substantial

SUCCESSION — Probate — Documents amending will — Testamentary intention COSTS — Offer of compromise — Applicability to probate suits ― Reasonable investigations

VOLUNTARY ASSOCIATIONS — Meetings — Adequacy of information provided — Restraining meetings

CRIMINAL LAW – particular offences – drug offences CRIMINAL LAW – release application – show cause offences – significant period of time on remand – strong Crown case – cause not shown

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of firearms and drug offences – Whether sentencing discretion was constrained by the maximum penalty – Whether an inappropriately severe sentence was imposed – No error found – Leave to appeal refused

CRIMINAL LAW – sentence appeal – offences of murder and wounding with intent to cause grievous bodily harm – plea of guilty – victim former partner of applicant – whether double counting occurred – whether issues of breach of trust, provocation and vulnerability raised by the evidence – whether failure to apply 25% discount for early plea – whether sentence manifestly excessive – error requiring resentence identified – applicant resentenced.

EASEMENTS – RELIEF – right of carriageway – form of relief – effect on other interests in same land

CASE MANAGEMENT – directions hearing – where proceedings commenced urgently to enforce a restraint of trade covenant – where proceedings were commenced in Victoria by the defendants earlier seeking a bare negative declaration – first return of summons in this Court – no application for stay or transfer and none foreshadowed – application that Court simply make no directions – appropriateness of fixing matter for final hearing in this Court and otherwise making directions

CIVIL PROCEDURE – pleadings – application for leave to file cross-claim – where cross-claim raises new issues – case management principles – orders previously made as to filing dates – previous opportunities to file cross-claim – previous disavowal of reliance on cross-claim – where issues in cross-claim able to be litigated in separate proceedings – where hearing date imminent – where cross-claim would require vacation of hearing date COSTS – notice of motion dismissed – whether moving party liable for costs – where plaintiff not a respondent to proposed cross-claim – whether interest in retaining hearing date justifies costs order

CORPORATIONS – Winding up – Release of liquidator – Deregistration of company by ASIC –Distribution of surplus – Destruction of books of company – Application of Insolvency Law Reform Act 2016 (Cth).

PRACTICE AND PROCEDURE – request for an itemised bill of costs and client file – where plaintiff is not required to provide a reason for the request – whether any discretionary considerations apply – whether the application is an abuse of process

CORPORATIONS – external administration – winding up – winding up in insolvency – creditor’s statutory demand – application to set aside – genuine dispute – where plaintiff contends dispute raised is not genuine – applicable principles – abuse of process – where contested proceedings on foot for recovery of debt claimed in demand

ADMINISTRATIVE LAW – summons for judicial review – decision made pursuant to workers compensation legislative regime – whether compliance with time limit to apply for review is a jurisdictional fact – summons dismissed

PROCEDURE – civil – claim to recover money subsequent to assignment of debt – application to amend statement of claim to include proper plaintiff – competing application to strike out statement of claim – application to amend statement of claim granted

ADMINISTRATIVE LAW – summons seeking judicial review – certificate issued pursuant to Farm Debt Mediation Act 1994 (NSW) – deed of settlement and release – judgment entered in District Court of New South Wales – whether enforcement by way of a garnishee order contravened the Act – whether certificate invalid – summons dismissed

SUCCESSION – Wills, probate and administration – Ademption of testamentary gift – Presumption against double portions – Not applicable otherwise than to legacy for a child or particular purpose – Not generally applicable as between de facto partners without particularised purpose. SUCCESSION – Wills, Probate and administration – Ademption of testamentary gift – Where presumption against double portions not available – Express ademption – Intention to adeem must be brought to knowledge of donee at time of acceptance of inter vivos gift. EQUITY – Ademption – Types – Ademption of legacy by portions – Ademption of legacy given for particular purpose – Express ademption – Intention of donor – Knowledge of donee – Different criteria for different types of ademption.

CRIMINAL LAW – sentence – murder – single stab wound – wounding with intent – second victim stabbed in course of same incident – where jury rejected self-defence – whether offender intended to kill – devastating impact on victim’s family – criminal law a blunt tool – sentence and remarks incapable of providing comfort to victims – young offender with no criminal history – no planning or premeditation – no intent to kill – good prospects of rehabilitation – competing purposes of punishment – deterrence important when offender carrying a knife – vindication of dignity of separate victims requiring some accumulation – where conduct of trial facilitates course of justice – consideration of sentences in other cases – need for consistency – need for individual justice – “if justice is not individual, it is nothing”

SUBPOENA – legal professional privilege – whether privilege waived – orders setting aside subpoena refused

APPEAL – from Local Court – whether appeal raises matters not in issue at first instance – purpose of payment into solicitor’s trust account – whether solicitor complied with applicable obligations imposed by Legal Profession Act 2004 (NSW) and Legal Profession Regulations 2005 (NSW) – Local Court’s jurisdiction – appeal upheld

TORTS - negligence – liability – first slip and fall, did it cause the second - personal injury - whether the defendant’s breach of duty of care caused the plaintiff’s injuries - damages - credibility of witnesses - causation - Jones v Dunkel inferences

RESTITUTION – other matters – recovery of money paid under judgment or order – where money paid by appellant pursuant to declaration by primary judge that appellant must indemnify second respondent under Workers Compensation Act 1987 (NSW), s 151Z(1)(d) – where declaration is set aside on appeal – where restitution not sought in notice of appeal or at the hearing – whether appropriate to deny interest in the present case. PROCEDURE – where appellant seeks a further order for restitution of moneys paid under a declaration which is set aside on appeal – where appellant failed to claim restitution in the notice of appeal or at the hearing of the appeal – where omission to claim restitution was an oversight by the appellant’s lawyers – Uniform Civil Procedure Rules 2005 (NSW), r 51.19. COSTS – restitution and interest on moneys paid under a judgment later set aside – where relief not sought in notice of appeal or at the hearing – appropriate order for costs of later application for restitution – where appellant seeks an indulgence and respondent to motion had no basis to oppose the making of an order for restitution.

REAL PROPERTY – Torrens title – caveats against dealings – claim for compensation pursuant to Real Property Act 1900, s 74P – whether appellant had a caveatable interest in land – vendors of land entered into contracts of sale – contracts of sale allowed for novation of contracts to a new purchaser – appellant paid $6 million to vendors’ agent in expectation that contracts would be novated to it – whether payment made at express or implied request of vendors – no loan agreement between caveator and purchaser – money not paid to or on behalf of the purchaser – purchaser subsequently novated the contracts of sale to third party –completion of sale delayed by reason of the caveats lodged and maintained by the appellant. REAL PROPERTY – Torrens title – caveats against dealings – claim for compensation pursuant to Real Property Act 1900, s 74P – whether appellants lodged caveats over land without reasonable cause – appellant advised to lodge caveats by its solicitor – whether claimants had established that caveator did not have an honest belief on reasonable grounds that the caveator had a caveatable interest in the land. APPEALS – leave to appeal – competing claims to fund held in court – where applicant claims immediate entitlement to funds prior to determination of all competing claims – where applicant’s claim based on deed of charge securing legal costs owing by former client – whether charge extended to any entitlement to fund in court – where applicant conceded that their claim to priority was co-extensive with any interest of former client in the Court fund – where former client found not to have any charge or lien over the Court fund.

PROCEDURE – uniform civil procedure – amendment application – where proceeding transferred from District Court to Supreme Court – where by filing of Technology and Construction List Statement application made to amend pleading to add additional claim – whether sufficient prejudice to refuse amendment from loss of viable and realistic cross-claims against third parties – whether basis for imposing monetary limits on existing pleaded claims – no question of principle

BUILDING AND CONSTRUCTION – subcontract for renovation works – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where variations directed by principal after Date for Practical Completion – where Date of Practical Completion 114 days late – where principal sought to reduce payment claim to nil by way of set-off based on liquidated damages claim for delayed completion ADMINISTRATIVE LAW – procedural fairness – where adjudicator rejected liquidated damages claim – whether adjudicator applied prevention principle – whether application of prevention principle denial of procedural fairness