Cases and authorities

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – whether sentence inadequate response to findings made on objective criminality and need for deterrence – whether undue weight given to subjective circumstances – whether non-parole period manifestly inadequate – whether excessive discount given for guilty plea – whether excessive discount given for assistance to authorities

CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether the sentencing judge erred in assessing objective seriousness as high range – where only aggravating circumstances under s 61J(2) were (d) age and (e) under authority – where four particularised offences were representative in nature of multiple sexual assaults – identifying absent aggravating factors does not mitigate seriousness – finding of high range open to the sentencing judge CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether sentence manifestly excessive – where sentencing judge’s starting point close to maximum penalty – present case not worst category – sentence unreasonable – appeal allowed and applicant re-sentenced

PRACTICE & PROCEDURE – damages not ready to be heard – application to separate damages and liability – application for separation refused – application for vacation of trial dates granted.

CRIMINAL LAW – evidence – tendency evidence pursuant to Evidence Act 1995, s 97 – coincidence evidence pursuant to Evidence Act 1995, s 98 – allegation of two home invasions committed a month apart – charges of murder, specially aggravated break, enter and steal – aggravated detain for advantage – substantial similarities between two incidents – principal fact in issue whether accused present at both – no concession that joint criminal enterprises proved nor mental elements of offences established – evidence capable of having significant probative value on both bases – risk of unfair prejudice outweighed – evidence admissible on both bases

COSTS – indemnity costs – plaintiff obtained orders that it has rights as secured creditor under mortgage – plaintiff unsuccessful on other issues – where mortgage provides for defendant to pay plaintiff’s costs on a full indemnity basis – whether Court should depart from general rule – whether Court should order indemnity costs in accordance with mortgage provision

Construction of contracts – construction of contracts to vary – oral agreements – promissory estoppel – estoppel by convention – unjust enrichment – credit of witnesses.

Onus of proof – fraudulent conduct – credit of witnesses – reasonable inferences - cash back scheme – specific performance – discounted cash flow valuation.

PRACTICE AND PROCEDURE – defendants’/ cross-claimants’ persistent default in compliance with court directions – failure to engage in court-ordered mediation – inference that they have abandoned proceedings – appropriate to strike out defence to plaintiffs’ claim and enter default judgment and dismiss cross-claim – prejudice to parties – dismissal proportionate to defendants’ default – order that no proceedings be commenced without leave on same or similar facts until cross-defendants’ costs paid – order to prevent further abuse by defendants of court processes CORPORATIONS – liquidation – effect of statutory stay pursuant to s 471B of the Corporations Act 2001 (Cth) – purpose is to protect net assets of a company in liquidation – summary dismissal for want of prosecution not a proceeding against a company under s 471B DAMAGES – breach of contract and misrepresentations – assessment of damages COSTS – gross sum costs order made rather than assessed costs pursuant to s 98 (4)(c) of the Civil Procedure Act 2005 (NSW)

EVIDENCE – privilege – legal professional privilege – subpoenas – application to set aside subpoena alleging abuse of process and privilege – not a collateral attack on a previous order – held, not an abuse of process -- if documents privileged, no waiver in the circumstances – applicant fails to establish privilege against respondent in respect of contested documents – held, subpoena not set aside.

CONVEYANCING – sales by court order or direction – appointment of trustees for sale – contractual limitations upon seeking appointment of trustees – where court previously adjourned proceedings due to non-compliance with contractual pre-conditions for sale – whether pre-conditions now satisfied – trustees for sale appointed

REAL PROPERTY – easements – validity – easement confers rights of parking and garaging – easement confers rights to keep structure erected and replace structure – whether easement capable of being the subject matter of a grant – whether easement deprives the servient owner of proprietorship and possession – easement held to be valid – declaratory relief granted

SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of suit for family provision order –Offer of Compromise served some months prior to the hearing – Plaintiff failed to obtain order more favourable than offer made – Whether Court’s discretion should be exercised – Overall justice of the case warrants exercise of the Court’s discretion

SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders

STATUTORY CONSTRUCTION – entitlement to additional superannuation allowances payable under s 10(1A) of the Police Regulation (Superannuation) Act 1906 (NSW) – former member of the police force partially incapacitated for non-police work – whether additional allowance of 12.25 per cent payable under s 10(1A)(b) requires incapacity to be caused by the member’s original “hurt on duty” infirmity that led to discharge from the police force – whether member’s construction anomalous or leads to “absurd” results – whether second reading speech of assistance

PROPERTY – mortgages – whether valid and enforceable mortgage – whether loans purported to be secured by the mortgage were in fact made – whether intention to create legal relations – whether appellant discharged evidentiary onus FAMILY LAW – ss 5(2)(a), 20 of the Property (Relationships) Act 1984 (NSW) – whether parties in a ‘domestic relationship’ – whether parties in a ‘close and personal relationship’ – whether respondent provided domestic services for fee or reward – whether primary judge erred in assessment of parties’ financial and non-financial contributions – whether primary judge erred in exercising discretion under s 20 of the Property (Relationships) Act 1984 (NSW)

CORPORATIONS – managed investments – schemes of arrangement – judicial advice sought pursuant to (NSW) Trustee Act 1925, s 63 for matters related to trust scheme – whether there is insuperable objection to the scheme.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application for approval of scheme of arrangement – where scheme of arrangement involves the Plaintiff’s shareholders transferring their shares to a purchaser for cash consideration – whether certain shareholder would receive collateral benefit – whether scheme of arrangement should be approved

REPRESENTATIVE ACTION – Queensland Floods – application to strike out statement of claim – alleged defect in failure to plead steps required of flood engineer in pursuing alternative case – alleged failure to plead methodological errors by flood engineers – breaches of duty in December 2010 had no causal consequence – application rejected – experts reports – form of orders necessary to address alleged inconsistencies in reports – no question of principle

HABEAS CORPUS – ex parte application for urgent order – where applicant arrested on warrant after failing to appear on charge of possession of cannabis – whether reasonably arguable that his detention is unlawful – whether possession of cannabis is an offence known to law – applicant alleging plants supplied by God – whether the criminal law can prohibit conduct approved by God – applicant alleging assault by police at time of arrest – whether subsequent detention unlawful – authority of police to execute arrest warrant when not in possession of warrant – whether applicant bound by the laws and usages of this State – where applicant claiming to be a self-governed man who believes the King James Version Bible 1611 is the supreme law – whether able to be dealt with for an offence under the Drug Misuse and Trafficking Act 1985 (NSW) after giving police written notice of that belief

PRACTICE AND PROCEDURE – separate question -whether issues as to the proper construction of the contract should be determined separately and in advance of hearing – where plaintiff may wish to adduce evidence of surrounding circumstances – where matter set down for hearing later in the year – whether separate determination would reduce likely length of hearing; COMMERCIAL ARBITRATION – where party to an arbitration of related matter seeks separate determination of similar question of construction – where other party to the arbitration and the arbitrator consent to such separate determination – undesirability of the separate determination of the two construction issues

SENTENCE – murder – domestic violence – indigenous offender and victim – prolonged assault by offender on victim – history of violence by offender towards victim – intent to cause grievous bodily harm – where victim vulnerable by virtue of size differential, age and intoxication

CRIMINAL LAW – application to discharge jury – extensive publicity of committal proceedings of other persons alleged to have been associates of the accused – prejudice not capable of being cured by direction – application granted

Statutory construction; relationship between section 59 and section 61 of the Liquor Act 2007 (NSW); meaning of dispossessed licensee.

TORTS – negligence – motor vehicle accident – motorcycle colliding with water-filled barrier at night – duty of care – breach of duty – standard of liability – whether using water-filled barrier manifestly unreasonable – expert evidence – whether failure to comply with Australian Standard determinative – Civil Liability Act 2002 ss 5B, 5D, 5R, 43A, 50, 54 – breach of duty and causation not established – s 43A defence established – s 54 defence established – verdict for defendant.

PRACTICE AND PROCEDURE – application for leave to amend Statement of Claim – plaintiff was a PhD student in Faculty of Medicine – her candidature cancelled by defendant – plaintiff’s appeal against cancellation dismissed – multiple claims – administrative law challenges to appeal process – allegations against defendant include breach of contract, breach of duty, misrepresentation and fraud – whether amendments are obviously futile so that leave to amend should be refused – embarrassing pleadings – leave to amend refused on pleading grounds – leave to re-plead granted but only with leave of the Court.

NEGLIGENCE – breach of duty by auditor – discussion of duty of auditor to self-managed superannuation fund – causation – breach of duty did not occasion loss – action dismissed; TRADE PRACTICES – misleading or deceptive conduct – audit certificate represents fair state of affairs reported in financial statements – misleading and/or deceptive – no loss occasioned by misrepresentation.

ADMINISTRATIVE LAW – procedural fairness – existence of obligation to accord procedural fairness – whether power of entry in the course of investigations attracted obligation to accord procedural fairness to landowner – whether statute clearly displaced obligation – Protection of the Environment Operations Act 1997 (NSW) s 166 JURISDICTION – first duty of court to determine jurisdiction – whether claim for declaratory and injunctive relief concerning threatened entry on land in purported exercise of powers under Protection of the Environment Operations Act 1997 (NSW) within exclusive jurisdiction of Land and Environment Court – Land and Environment Court Act 1979 (NSW) s 71

CRIMINAL LAW – conviction appeal – assault committing act of indecency on child under 16 – trial heard by judge alone – whether trial judge did not consider or properly consider the defence case – whether judge did not give adequate reasons for the verdicts – whether verdicts unreasonable and cannot be supported having regard to evidence – whether the possibility that complainant conflated identity of appellant with that of her mother’s partner, against whom she made very similar allegations, should have given rise to reasonable doubt on part of trial judge – appeal dismissed

CRIMINAL LAW – appeal against sentence – two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in assessing objective seriousness – where assessment was vague but not erroneous – limited significance of assault’s relatively short duration – no error in failing to mention absent aggravating factors – error established as sentencing judge referred to the applicant offending whilst on conditional liberty in assessment of objective seriousness – consideration of submissions on manifest excess for re-exercise of sentencing discretion – appeal allowed

EQUITY – Equitable remedies – Declarations – where parties have settled proceedings and Defendants consent to the declarations sought – where declarations would finally determine matters in dispute – whether the declarations sought should be made.

CRIME – high risk sex offender – preliminary hearing – application for interim supervision order – where interim supervision not opposed subject to argument as to appropriate conditions of supervision – need for State to demonstrate a proper basis for imposing conditions sought having regard to the risk sought to be addressed

PROCEDURE – Application for leave to file Amended Originating Process and Amended Statement of Claim – where application made after the expiry of the limitation period for commencing proceedings – whether delay adequately explained – whether Defendants would suffer prejudice PROCEDURE – Applications for determination of separate questions before any trial – where separate questions would depend on the same evidence as would be led at trial – where judge may make credit findings on separate questions and thereby be prevented from hearing the balance of proceedings PROCEDURE – Costs – where Plaintiff discontinues proceedings against the Second Defendant – where continuance of proceedings substantially due to the Second Defendant’s failure to provide Plaintiffs with requested information – whether Second Defendant should be awarded its costs

PERSONAL PROPERTY – where lessor of personalty registered its security interest on the Personal Property Securities Register against the lessee’s Australian business number rather than its Australian company number – where registration consequently defective – where lessee placed in administration – whether lessor’s security interest temporarily perfected pursuant to Personal Property Securities Act 2009 (Cth) s 166 – whether lessor’s security interest vested in the lessee.

CONTRACTS – Joint venture – Whether plaintiffs and first defendant entered into a joint venture agreement to supply chemicals to buyers in the United Arab Emirates and other parts of the Middle East – Where plaintiffs pleaded that the joint venture agreement was established by a series of emails – Where parties never agreed as to how they would share in any profits EQUITY – Fiduciary duties – Whether the first defendant owed a fiduciary duty to the plaintiffs – Whether the first defendant breached the fiduciary duty it allegedly owed to the plaintiffs – Where plaintiff alleged that first defendant contracted with a third party that the alleged joint venture was in negotiations with – Whether the second and third defendants knowingly assisted in the first defendant’s alleged breach – Whether the profits allegedly made by the defendants are held on trust for the plaintiffs – Whether the plaintiffs are entitled to an account of profits.

PRACTICE AND PROCEDURE – application to set aside orders pursuant to UCPR rr 36.15 and 36.16 – where defendants had orders against them vacated despite having been found to have been in contempt of interlocutory regime – where orders had been vacated on basis that defendants’ contempt of court was purged by the granting of a charge over certain land – where contracts had already been exchanged in respect of the property over which the charge was granted and the property was in fact sold by the time the earlier orders were vacated – application successful.

COSTS – application for further security for costs – where an order for further security would stultify the proceedings – where issues will be litigated in related proceedings regardless – application dismissed

APPEAL – application for leave to appeal – judgment below was an appeal limited to questions of law – failure to identify clearly any question of law – amount in issue well below amount triggering the need for leave – no issue of principle – costs already incurred disproportionate to amount in issue MOTOR ACCIDENT – whether accident proved to have occurred “without intent” – three vehicle collision – drivers not previously known to each other – objective evidence not consistent with descriptions given by drivers – claimants failed to satisfy magistrate as to how collision occurred

CRIMINAL LAW - appeal - conviction and sentence in 2007 for offence of conspiracy to import commercial quantity of MDMA - appeal against conviction and sentence being heard in 2015 and 2016 - Applicant abandons appeal in April 2016 - Applicant seeks to revive appeal in May 2017 - extraordinary procedural history of litigation - Applicant still not in position to proceed with hearing of appeal - Applicant’s persistent reliance on incoherent grounds and voluminous material - extension of time refused - application to individual Judge to excuse himself - apprehended bias - no question of principle

CRIMINAL APPEAL – Crown appeal – sexual assaults upon children – five offences – offender under 18 when some offences committed – offences discovered and prosecuted when offender an adult – whether sentencing judge erred in affording Ellis discount – necessity to comply with s 23(2) of Crimes (Sentencing Procedure) Act – error made out – whether sentencing judge erred in assessing objective seriousness of offences – error established in relation to one offence – whether sentencing judge erred in referring to sentencing regime apposite to juveniles if offences discovered earlier – no error in doing so but sentencing judge misstated effect of sentencing provisions for children – whether sentencing judge double counted for offender’s youth – no error established – whether sentencing judge erred in approach to accumulation – no error established – whether individual sentences manifestly inadequate – not established – appeal dismissed

CRIMINAL PROCEDURE – application for leave to appeal against conviction – where extension of time required – where explanation for substantial delay unsatisfactory – where proposed appeal has no merit – application dismissed CRIMINAL LAW – appeal against conviction – unreasonable verdicts – inconsistent verdicts – where complainant’s evidence was supported by other evidence for the charges of indecent assault but not sexual intercourse – where jury could have found applicant made admissions to charges of indecent assault but not sexual intercourse – complaint evidence capable of supporting charges of indecent assault but not sexual intercourse – reasonable basis for differentiating between charges of indecent assault and charges of sexual intercourse – verdicts not unreasonable or inconsistent

PROCEDURE – application to vacate hearing dates – proceedings for possession – where bank previously ordered to pay defendants’ costs of an earlier application and appeal – where earlier costs payable forthwith – delay in assessment process – risk of stultifying defence of bank’s claim

BIAS – apprehension – dialogue with counsel at directions hearing – indications of concern – no reasonable apprehension of bias

PROCEEDS OF CRIME – application for restraining orders

PROCEDURE – transfer of proceedings – related proceedings in Supreme Court of Victoria – duplication of proceedings not fault of either party – balance of factors point to Supreme Court of Victoria – held, proceedings transferred.

PRACTICE AND PROCEDURE – Application to vary or set aside final order made on 6 April 2017 confirming assessment to landholder duty – Notice of motion not filed under UCPR r 36.16(3A) – Application not competent – If power to set aside or vary final order were available, not a proper case to exercise such a power

DEED – construction and implication – reasonable and effective operation – commercial purpose – neither obvious nor necessary DEED – mere contractual obligation by entities not having interest in land – not capable of creating equitable interest in land in favour of promisee

CONTEMPT OF COURT – Where contemnor refused to take oath or affirmation and give evidence – Where contemnor warned of the consequences and adhered to his position – Where reasons for the contempt stemmed from concerns held by the contemnor as to his safety – Where contempt was subsequently purged and the evidence was given – Serious nature of the offending – Particular need for general deterrence – Sentence of imprisonment warranted – Order made that sentence be wholly suspended

COSTS – oppression suit – where both parties seek compulsory purchase order – where only issue is price – where price determined at point between those contended for by each party – held, as plaintiff had to litigate to secure price superior to defendant’s offer, plaintiff substantially succeeded and entitled to costs. COSTS – indemnity costs – where plaintiff bettered Calderbank offer made shortly before trial – where offer made later and open shorter than permissible for formal offer of compromise – held, insufficient reason to give plaintiff benefit of offer which could not be made as formal offer under the rules.

INDUSTRIAL LAW – New South Wales – awards and agreements – application pursuant to s 365 of the Industrial Relations Act 1996 (NSW) – ambulance officer – Ambulance Service of New South Wales Death and Disability (State) Award – Operational Ambulance Officers (State) Award – Operational Ambulance Managers (State) Award – Ambulance Service of New South Wales’ Policy and Procedures for the Management of Return to Work – whether Service complied with obligations under the applicable Award and Policy – entitlements for partial and permanent disability – suitable employment – retraining and rehabilitation – consequences of failure to comply with the Award PRACTICE AND PROCEDURE – Jones v Dunkel inferences – referral to the Industrial Relations Commission of New South Wales

MORTGAGE – Torrens title land – default by mortgagor – mortgagee in possession – mortgagee seeks to exercise power of sale – land alleged to be held in trust – new trustee appointed – new trustee seeks mortgagee’s agreement to new trustee becoming registered proprietor new trustee seeks to have control of the sale of the land.