Cases and authorities

WORKERS COMPENSATION – employer injured when falling down stairs during fire drill at nightclub owned by his employer – whether employee's injury in course of employment – injury occurred during an interval – whether employer induced or encouraged the employee to spend the interval at a particular place or perform a particular activity – whether employee's injury arose out of employment – whether a causal connection established between the injury and the employment

CRIMINAL LAW – appeal against severity of sentence – offences of using a carriage service to menace, harass or offend or doing so to procure or groom a child under the age of 16 years for sex – whether sentencing judge erred in approach to the delay in prosecuting the applicant – whether sentencing judge erred in approach to setting the non-parole period – whether a non-parole period of 75 percent of the total sentence can be regarded as punitive – whether such a ratio was open to the sentencing judge – whether sentencing judge failed to take account of the extent to which the applicant assisted and co-operated with authorities

CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – offence committed by two co-offenders – parity principle – where one co-offender’s sentence manifestly excessive – relevance of co-offender’s subjective cases to application of parity principle CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – applicability of mitigating circumstance under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(a) – whether injury caused by offence was not substantial because drugs not dispersed into community – where drugs seized upon arrest CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – applicability of principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 – where offending conduct not impulsive wrongdoing

CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) Crimes Act 1900 (NSW) but convicted of the statutory alternative of attempt to commit that offence contrary to s 61P – some evidence of complainant referred to an attempt only while other parts of her evidence referred to penetration – whether verdicts inconsistent – whether verdicts the result of an impermissible compromise – verdicts able to be reconciled on a logical and reasonable basis

CRIMINAL LAW – appeal by accused under s 5F(3) Criminal Appeal Act 1912 against refusal of a permanent stay – allegations of irregular and illegal conduct relating to a controlled operation – suggestion that earlier payments made to the informant tainted the investigation and prosecution of drug transactions the applicant was involved in – grounds of appeal unclear – no House v The King error identified – applicant merely sought to re-argue the issue de novo – appeal dismissed

CRIMINAL LAW – sentence appeal – six offences of defraud Commonwealth and obtain a financial advantage by deception – single ground of appeal – incorrect statement of maximum penalty – clear indications that sentencing judge aware of correct maximum sentence – no error established – application for leave to appeal dismissed.

CRIMINAL LAW – whether context evidence improperly excluded – where context evidence of uncharged illegal acts post-dating charged offences – whether necessary to assist jury in understanding complainant’s evidence – whether necessary to explain why an immediate complaint was not made – whether risk of unfair prejudice to applicant by jury conflating charged and uncharged acts – whether risk of jury engaging in impermissible tendency reasoning – whether Crown case substantially weakened CRIMINAL LAW – application for permanent stay – leave to appeal against refusal – interlocutory judgment or order – where complainant’s evidence to be presented by playing recording of evidence given in earlier trial – re-trial after successful appeal – relevant legislation – absence of discretion in trial judge – where conduct of earlier trial said to be incompetent – failure to distinguish counts from uncharged acts – cross-examination lacking forensic purpose – whether court can predict whether future trial will be unfair – whether stay appropriate when unfairness the result of statute – appeal against refusal to stay dismissed

APPEALS – defendant charged with escaping from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) – where Magistrate dealt with defendant under s 20BQ of the Crimes Act 1914 (Cth) – whether Magistrate applied the wrong test – whether open to conclude the defendant was suffering from a mental illness – consideration of the court’s power under s 20BR to inform itself as the court thinks fit – entitlement to have regard to the probability that the chronic condition from which the defendant undoubtedly suffered in early 2014 was one that continued as at the date of the hearing in the Magistrate's Court

PRACTICE AND PROCEDURE – request for an itemised bill of costs and client file – application of the transitional provisions of the Legal Profession Uniform Law (NSW) – whether s332A of the Legal Profession Act or s187(2) of the Legal Profession Uniform Law (NSW) applies – whether a time limit applies to a request for an itemised bill

CIVIL PROCEDURE – overriding purpose – orders to facilitate overriding purpose

CORPORATIONS – Winding up – Conduct of liquidation – Application for directions – Where remaining asset of Company is a term deposit held by the National Australia Bank – Where term deposit is security for performance bonds issued by the Company – Where only priority creditor is the Department of Employment – Whether Court should approve assignment of the term deposit to the Department.

CONTRACTS – general contractual principles – incorporation – whether contract between rabbi and synagogue incorporates a life tenure provision – where Orthodox Jewish law regulates relationship between rabbi and synagogue – where language and objects of contract give primacy to observance of Orthodox Jewish law – where life tenure of rabbis an aspect of Orthodox Jewish law – held, life tenure provision incorporated, or alternatively, implied. CORPORATIONS – voluntary administrators –contracts of employment – where appointment of administrators has no effect on contracts of employment – where administrators purport to terminate contract of employment contrary to its terms – held, purported termination wrongful, and thus unlawful dismissal of employee. EQUITY – equitable remedies – injunctions – where employee seeks restraint on implementation of unlawful dismissal – where employee holds an ecclesiastical office – where employer in insolvent administration – where sought injunction does not require that insolvent company pay remuneration – where insolvency therefore not sufficient to preclude grant of injunction – held, injunction granted.

CIVIL PROCEDURE – application for preliminary discovery under UCPR, r 5.3 – family companies – plaintiffs shareholders in, but not current directors of, several family companies holding substantial real estate – whether plaintiffs entitled to an order for preliminary discovery - whether plaintiffs have already decided to commence proceedings – whether plaintiffs’ case was weak and whether its alleged weakness is a relevant consideration in the exercise of the Court’s discretion to order preliminary discovery – whether sufficient evidence adduced of the plaintiffs’ potential causes of action to ground UCPR, r 5.3 relief.

PRACTICE AND PROCEDURE – application for a separate determination of questions – where separate issues have been clearly drafted – whether a separate determination will dispose of the plaintiff’s right of action against the second defendant – whether a separate determination will save time and costs – whether there is a clear demarcation between the separate issues and the primary case.

SENTENCE – manslaughter – wilful disposal of a body – cold case – discovery of skeleton in the Royal National Park – where offender initially charged with murder but Crown accepted plea to manslaughter – manslaughter by excessive self-defence – consideration of at what point the offender’s self-defence became excessive – consideration of sentencing principles for common law offences – held that sentencing discretion at large for common law offences

PRACTICE AND PROCEDURE – motions, interlocutory applications and other pre-trial matters – parties in dispute as to order in which four notices of motion should be heard – whether hearing of applications should be stayed pending determination by Full Court of Federal Court of appeal/cross-appeal proceeding in which issues germane to one or more of the interlocutory applications in this court have been raised

HIGH RISK SEX OFFENDER – application by State of New South Wales for extended supervision order – defendant convicted of offence of inflicting actual bodily harm with intent to have sexual intercourse without consent – whether defendant a high risk sex offender – question of duration of order

PRACTICE AND PROCEDURE – application for stay pending special leave to appeal to the High Court – Burgundy Royale test – stay refused

COSTS – departing from usual order as to costs – appellant succeeded on point inconsistent with its case at trial – new point only raised when appeal was heard – where whole appellate process necessitated by failure to take the point earlier – appellant ordered to pay respondent’s costs at first instance

COSTS – indemnity costs – application for order that costs at first instance be assessed on the indemnity basis – reliance on settlement offer made prior to trial as constituting “Calderbank offer” – no indication in settlement offer that non-acceptance would be relied on as a basis for seeking indemnity costs – settlement offer insufficient basis to make indemnity costs order COSTS – indemnity costs – offer of compromise in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 20.26 made prior to appeal proceedings – no discretionary reason to order costs otherwise than as provided by r 42.14

Family provision claim by younger brother of the deceased – whether the brother was “partly dependent” on the deceased within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW) where both once lived in the same household as their mother – whether the primary Judge erred in finding there were no factors warranting the making of the application for the purposes of s 59(1)(b) of the Succession Act 2006 (NSW) – whether allegations of historic sexual abuse by the deceased could be a factor warranting the application

CRIMINAL LAW – evidence – admissibility of tendency evidence – accused indicted on charges of murder and sexual intercourse with a child under 10 – alleged tendency of accused to be aggressive towards and to assault children – whether tendency evidence of significant probative value for either charge – where tendency expressed and provable only at a high level of generality – consideration of R v Hughes [2017] HCA 20 CRIMINAL LAW – severance of counts on indictment – whether counts should be tried separately pursuant to Criminal Procedure Act 1986 (NSW), ss 21(2), 29(3) – whether evidence cross-admissible

CIVIL LAW – application for summary judgment – summons seeking order that judgment be set aside – judgment entered on registration of certificate of costs assessment – whether capable of being set aside – lengthy proceedings in Local Court – lawyers' picnic – where part of costs paid into court – where plaintiff did not pursue appeal rights to District Court under Legal Profession Act - whether relief sought in summons “untenable” – whether proceedings “hopeless” or destined to fail

EVIDENCE ON COMMISSION – two ex parte applications before Court seeking orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) – letters of request from Court of Chancery of Delaware – question of standing under s 52.1 of the UCPR

PRACTICE AND PROCEDURE – notice of motion – orders sought refusing leave and dismissing summons under s 34 of the Civil and Administrative Act 2013 (NSW) – appeal of NCAT decision – proper construction of s 34 and s 83 of the Civil and Administrative Act 2013 (NSW) – whether leave to appeal should be refused at this stage of proceedings – motion dismissed

Civil Procedure – request for information from estate – Uniform Civil Procedure Rules 2005 (NSW), r 54.3(3) – inherent jurisdiction – executor de son tort – applicant’s interest in estate adeemed – proper administration of trust or estate – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – discovery in advance of family provision claim – statutory eligibility to make claim – strength of putative claim – relevance of documents potentially demonstrating existence of notional estate or claims available to estate – no evidence of applicant’s financial circumstances – “may be entitled to make a claim for relief”

APPEAL AND NEW TRIAL – appeal from magistrate – on questions of law – application to strike out summons – whether grounds identify errors of law – claim against committee members of an incorporated association – whether the association incurred debts when unable to pay all its debts – association defended legal proceedings brought against it - whether being subjected to costs orders amounted to incurring a debt - whether incurring a debt raises a question of law

INJUNCTIONS – interlocutory injunctions – to stay enforcement of judgment – deed executed as settlement of proceedings – money to be paid by defendant to plaintiff - entitlement of plaintiff to enter judgment if money not paid on second anniversary of deed – provisions in deed for defendant to commence and pursue proceedings against third party – whether on proper construction of deed enforcement of judgment delayed until completion of third party proceedings – whether term implied into deed to delay enforcement – no serious question to be tried ESTOPPEL – estoppel in pais – whether plaintiff estopped from enforcement of judgment by defendant’s mistaken belief in the construction of the deed

APPEAL – application for leave to appeal – practice and procedure – disciplinary proceedings – summonses to produce – whether summonses disclose legitimate forensic purpose – no error of principle – leave to appeal refused PRACTICE AND PROCEDURE – disciplinary proceedings – summonses to produce – where personal circumstances occurring after impugned conduct are raised – whether summonses disclose legitimate forensic purpose – leave to appeal refused PROFESSIONS AND TRADES – lawyers – complaints and discipline – practice and procedure – where personal circumstances occurring after impugned conduct are raised – whether summonses disclose legitimate forensic purpose

CRIMINAL LAW – high risk violent offender – primary judge made interim supervision order but declined to make interim detention order – application for leave to appeal – leave refused

TRADE PRACTICES – misleading or deceptive conduct – s 18 of the Australian Consumer Law - whether the respondent relied on representations made by the appellant – whether it is necessary to establish reliance on representations – whether the appellant was ‘involved’ in contraventions of s 18 for the purposes of s 2 of the Australian Consumer Law – whether the appellant was liable for contraventions pursuant to s 236 of the Australian Consumer Law CONTRACT – whether the primary judge erred in determining that a payment practice had been established – whether the primary judge misconstrued the terms and scope of the payment practice APPEAL AND NEW TRIAL – no issue of principle – failure to demonstrate that the primary judge’s findings were glaringly improbable or inconsistent with accepted evidence or with evidence overlooked by the primary judge

CONSTITUTIONAL LAW – respondents charged with federal criminal offences – power of court to grant leave to State body to examine person about the subject matter of pending federal criminal charges – power conferred by Crime Commission Act 2012 (NSW) s 35A – whether provision invalid because it (a) contravenes Constitution Ch III (b) interferes with essential features of judicial power to control abuse of process and the adversarial nature of a criminal trial or (c) alters fundamental features of a trial by jury under Constitution, s 80 CRIME – Crime Commission Act 2012 (NSW) s 35A – whether provision confers power on court to grant leave to authority to examine a person subject to pending federal criminal charges STATUTORY INTERPRETATION – whether reference to an “offence” in a State statute covers an offence under federal law – application of Interpretation Act 1987 (NSW), s 12(1) – whether contrary intention appears in substantive Act – Interpretation Act, s 5(2) WORDS AND PHRASES – “offence” – Crime Commission Act 2012 (NSW) –whether “offence” in s 35A includes federal offences

CONSTITUTIONAL LAW – orders for provision of sworn statements and for examination under Proceeds of Crime Act 2002 (Cth) ss 39(1) and 180 – whether these provisions, insofar as they permit such orders where related criminal proceedings are pending, are invalid because they (a) contravene Constitution Ch III (b) interfere with essential features of judicial power to control abuse of process and the adversarial nature of a criminal trial (c) alter fundamental features of a trial by jury in accordance with Constitution, s 80 CONSTITUTIONAL LAW – whether Proceeds of Crime Act 2002 (Cth), s 319 prohibiting court from setting aside or staying orders under s 39(1) or s 180 on ground that related criminal proceedings are pending is invalid CRIME – Proceeds of Crime Act 2002 (Cth), ss 39(1) and 180 – whether provisions permit orders for sworn statements and for examination against defendant in pending related criminal proceedings CRIME – Proceeds of Crime Act 2002 (Cth), s 319 – whether provisions prohibit court from setting aside or staying orders under s 39(1) or s 180 on ground that related criminal proceedings are pending

CRIMINAL LAW – sentence appeal – one count of wound with intent to cause grievous bodily harm – domestic violence – husband attacked wife with knife – sentence of imprisonment for 6 years with a non-parole period of 4 years – whether sentence manifestly excessive – findings as to objective seriousness open – failure to establish that sentence was unreasonable or plainly unjust – leave to appeal against sentence refused.

CRIMINAL LAW – conviction appeal – historical sex offences – 14 counts of aggravated sexual assault and indecent assault – applicant convicted of 10 counts and acquitted of 4 – fitness to be tried – whether presumption of fitness to be tried was displaced – whether applicant may not have been fit to be tried – whether the appropriate tribunal acting reasonably could not conclude that the applicant was not fit to be tried – whether Presser criteria met – applicant fit to be tried – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – sentence of 6 years and 7 months with non-parole period of 2 years and 3 months – whether sentence manifestly inadequate – application of residual discretion – Crown appeal against sentence dismissed.

CRIMINAL LAW – sentence appeal – counts of aggravated indecent assault and aggravated sexual assault with two aggravated sexual intercourse offences on a Form 1 – aggregate sentence of imprisonment for 15 years with a non-parole period of 11 years – whether proper effect given to a finding of special circumstances – whether error in an indicative sentence required a change to the aggregate sentence – offences serious involving offending for 4½ years – failure to adequately reflect finding of special circumstances in sentence – no error in indicative sentences – appeal allowed – need to resentence.

CRIMINAL LAW – Appeal – Practice and Procedure – Amendment of indictment – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where some counts in the indictment originally presented alleged that the money had been received by the appellant from a superannuation fund – Where trial judge allowed the Crown to amend those counts by substituting the name of an individual for the name of the superannuation fund – Whether trial judge erred in doing so – Whether the appellant was unfairly prejudiced by the amendment CRIMINAL LAW – Appeal – Statutory Construction - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the counts in the indictment alleged in each case that the money the subject of the misappropriation had been received by the appellant on terms which required him to pay it towards “seed capital” in house and land packages in Queensland – Whether a charge pleaded in those terms disclosed an offence known to the law – Whether it was an element of the offence that the Crown prove that the money was received on terms requiring to be paid to a particular person CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the Crown relied upon evidence of individual investors in support of each count – Where the Crown also relied upon documentary evidence to support the various counts - Whether a so-called “Murray” direction was required in those circumstances CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where Crown did not rely upon tendency evidence and had not served any tendency notice – Where a tendency evidence direction was nevertheless sought by counsel for the accused – No direction given - Whether error on the part of the trial judge in failing to give such direction CRIMINAL LAW – Appeal – Summing-up by trial judge - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where appellant asserted a number of errors arising from the summing-up of the trial judge – Where trial counsel sought no further direction at the time of the trial when specifically given an opportunity to do so by the trial judge – Application of rule 4 of the Criminal Appeal Rules – Duty upon trial counsel to deal with issues when they arise at trial – Leave refused CRIMINAL LAW – Appeal – Where verdicts on particular counts were asserted to be unsafe and unsatisfactory – Open to the jury to be satisfied beyond reasonable doubt that those counts were established CRIMINAL LAW – Appeal – Sentence – Where delay in charging the appellant and bringing him to trial – Gap of 10 years between offences and trial – Whether delay a mitigating factor – Whether sentencing judge gave appropriate weight to delay - Where the appellant did not give evidence on sentence – Onus upon the appellant to establish the specific asserted effects of delay – Onus not discharged – Asserted error arising from the failure of the sentencing judge to give proper weight to the delay – Where sentencing judge specifically stated that delay had been taken into account – No basis upon which to assert the contrary – Leave to appeal against sentence refused

PRACTICE AND PROCEDURE – subpoenas – application to have subpoena set aside – proceedings for defamation raising an issue of fact as to whether the plaintiff sexually assaulted his son – subpoena issued by the plaintiff to a welfare organisation that had studied the experience of victims of sexual assault with the Family Law system – plaintiff seeking to obtain documents relating to that organisation’s consideration of the son’s story – public interest in protecting confidential information in the case of organisations which rely upon confidentiality for their very existence

TORTS – claim by plaintiff for damages for physical and mental harm suffered while in foster care – matter settled prior to commencement of proceedings – approval of settlement

COSTS – application for security for costs – principles– statutory provision -- security for costs sought from an Owners Corporation – strata scheme - threshold question – whether there is reason to believe the plaintiff will be unable to pay the costs of the defendant if ordered to do so – net negative asset position – no real property – limited cash resources – levy history and performance – reasonable time to pay – discretionary factors – prospects for success – impecuniosity – risks – contribution of defendants – quantum – directions

EVIDENCE – expert evidence – issues for experts in conclave – whether experts should be directed to reach their conclusions on the balance of probabilities – whether Plaintiff’s evidentiary statement should be provided as assumptions the experts are to make

PROCEDURE – judgments and orders – order dismissing proceedings – UCPR r 12.8 – application to set aside order – where order should not have been made – proceedings reinstated

REAL PROPERTY – possession of land – mortgages – default judgment – application to stay execution of write of possession – late application by one of two defendants – owners as tenants in common of land - two prior applications by occupiers to the knowledge of the applicant – delay – default judgment obtained nine months prior to application – applicant represented by lawyers at all times - no explanation for delays – judgment against other defendant not sought to be disturbed – mortgage paid out earlier mortgage – principle in Collier v Morlend Finance – no offer by applicant to pay out the sum paid to the prior mortgagee – application refused

COSTS – plaintiff successful – Court makes orders on 18 April 2017 for family provision by way of a legacy of $460,000 out of deceased’s estate – plaintiff notifies a pre-trial offer of compromise to the defendant on 3 March 2016 in the sum of $349,000 plus costs “on a party - party basis”, be paid out of the estate of the deceased - whether plaintiff’s offer of compromise is compliant with UCPR, r 20.26 and entitles the plaintiff to an award of indemnity costs – whether the defendant’s success on the two non-family provision issues, the secret trust and constructive trust claims, warrants any reduction in the costs awarded to the plaintiff, and if so by what amount.

COSTS – where judgment for less than $500,000 – whether plaintiff justified in commencing proceedings in this court – whether court should make no order as to costs – Uniform Civil Procedure Rules 2005 (NSW) r 42.34

ADMINISTRATIVE LAW – judicial review – review of medical assessment by review panel under Motor Accidents Compensation Act 1999 (NSW), s 63 – where Review Panel did not re-examine or interview the applicant in conducting review – whether re-examination by Review Panel mandated by Motor Accidents Compensation Act or Guidelines – whether failure to re-examine or interview constituted denial of procedural fairness – whether ultimate decision on degree of permanent impairment legally unreasonable

PRACTICE & PROCEDURE – Preliminary discovery - Whether applicant/Plaintiff lacks sufficient information to decide whether to institute proceedings - Whether applicant/Plaintiff had made reasonable inquiries – Whether sufficient information available to applicant/Plaintiff prior to application for preliminary discovery - Whether categories of preliminary discovery sought too wide – Order made for limited preliminary discovery – Parties to consider confidentiality regime and return of documents if proceedings not commenced

SUCCESSION – FAMILY PROVISION – Two proceedings, the first in time brought by an adult grandchild of the deceased - The second in time brought by an adult child of the deceased (the mother of the other Plaintiff) - Proceedings by adult child commenced out of time - Each Plaintiff applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - No dispute as to the eligibility of the second Plaintiff as a child of the deceased – Plaintiff grandchild was living with deceased at the time of her death – No dispute as to eligibility - Whether factors warrant the making of the grandchild’s application - The Defendants are adult children of the deceased and are the only other beneficiaries, with the Plaintiff child, named in the Will - Defendants oppose the making of an order in each matter - Whether inadequate provision made in Will of the deceased for each Plaintiff and, if so, the nature and quantum of the provision to be made for him and her respectively - Competing financial claims advanced by each of the Defendants