Cases and authorities

CRIME – appeals – appeal against sentence – determination of objective seriousness of offences – whether sentencing judge erred in categorising offences into varying groups of objective seriousness – where diverse victim ages and durations of offending permitted the assessments of objective seriousness – no error found CRIME – appeals – manifest excess – whether individual sentences imposed were outside relevant discretionary range – where sentencing judge accepted applicant's subjective case – sentences imposed not sufficiently unjust or disproportionate to betray substantive error of law – no manifest excess found CRIME – appeals – principle of totality – whether individual sentences were accumulated in such a manner which made the effective total head sentence crushing – where applicant contends large factual overlap between offences and excessive gap in starting dates of offences – sentences imposed were not disproportionate to total offending – no error found

CRIME — appeal and review — stated case — question of law — s 58(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether “existing sentence of imprisonment” means the non-parole period of that sentence — whether the imposition of a new sentence wholly concurrent with an existing sentence engages s 58(1) — whether new sentence of imprisonment has effect of extending non-parole period of existing sentence so as to make the new sentence consecutive or partially consecutive to an existing sentence

CRIME — appeal — four counts of sexual touching of a child CRIMINAL PROCEDURE — trial — self represented accused — whether the trial judge failed to ensure the applicant was accorded a fair trial — whether the trial judge failed to make appropriate directions to the jury or prevent the admission of allegedly objectionable material — no miscarriage of justice demonstrated CRIMINAL PROCEDURE — trial — definition of identification evidence in the Evidence Act 1995 (NSW) — responses given by complainant to propositions in defence case does not fall within the definition CRIMINAL PROCEDURE — circumstances in which it is in the interests of a self-represented accused person that the Crown be permitted to make a closing address — need for consideration of all relevant circumstances — allowing the Crown to make a closing address may assist a self-represented accused to make a more helpful closing address and preserve procedural fairness CRIMINAL PROCEDURE — leave to appeal — not opposed by the Crown except on the basis of merit — where notice of appeal filed out of time — where delay caused by solicitor briefing barristers, who retained the brief, in circumstances where their professional commitments did not allow for timely preparation of the appeal

CRIME – Appeals – appeal against sentence – Commonwealth offence – whether sentencing judge failed to assess or take into account prospect of rehabilitation – where no submissions made in relation to matter at first instance – whether matter “relevant and known to the court” – consideration of Zreika principles – relevance and significance of assessing prospects of rehabilitation – error established – miscarriage of justice – no lesser sentence warranted in law – appeal dismissed

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

SUCCESSION — construction — where will provided that rest and residue of deceased’s estate was to be given to her three children in equal shares following distribution of specified pecuniary legacies — where will further directed that a property which had been transferred by deceased and her late husband to the appellant and his wife be treated as an advancement to the appellant and be brought into account and taken in satisfaction to the extent of the gift in his favour — whether primary judge erred in construction of the will — whether primary judge required to decide whether transfer was a gift or advancement to appellant — whether primary judge erred in construing gift to appellant as being qualified by direction as regards property — whether primary judge erred in finding that transfer was a gift or an advancement — whether primary judge erred in approach to evidence

CIVIL PROCEDURE — summary disposal — contract for design and construction of high physical support accommodation — recovery of unpaid payment claims — summary judgment for plaintiff below — whether triable issue as to valid service of payment claims — whether triable issue as to entitlement to claim progress payments where no insurance for residential construction — whether triable issue because of prospect of expert evidence informing statutory construction — no serious or substantial dispute of fact — no triable issue BUILDING AND CONSTRUCTION — payment claims — Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 — requirements for service of a valid payment claim — whether claimant must establish as a matter of objective fact that construction work was carried out within the relevant time period — failure to serve payment schedule — statutory liability arises from lack of response — payment claims not served prematurely BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW), Sch 1, cl 3(3)(d) — residential building work — dwelling — accommodation specially designed for persons with a disability — meaning of “self-contained units” — no serious question of fact arising from speculative possibility of expert evidence on meaning of words — contextual indications of meaning of “self-contained units”

APPEAL – application for leave to appeal on costs only – underlying proceedings relate to a defamation claim that was statute barred – whether indemnity costs properly ordered – where it was communicated to the applicant in advance that the claim was hopeless and the applicant proceeded regardless – where advance notice given that indemnity costs would be sought – leave refused

APPEALS — application for leave to appeal from dismissal of District Court proceedings for false imprisonment — value of claim assessed at $2,000 — primary judge’s conclusion supported by unchallenged findings — proposed grounds of appeal otherwise weak — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused

STATUTORY INTERPRETATION — consistency with international treaty — foreign state immunity — meaning of “service” — whether provision susceptible to construction consistent with international law — whether statutory method for service inoperative if inconsistent with treaty obligation PRIVATE INTERNATIONAL LAW — jurisdiction — service outside of jurisdiction — Hague Service Convention, Art 9 — meaning of “for the same purpose” — availability of diplomatic channels where receiving party a foreign State STATUTORY INTERPRETATION — literal meaning — Foreign States Immunities Act 1985 (Cth), s 40 — effect of certificate — whether conclusive of valid service

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offenders sentenced in relation to attempt to possess unlawfully imported border-controlled drugs – where co-offender played less significant role in the offence than the applicant and had a stronger subjective case – applicant sentenced to substantial full-time imprisonment and co-offender released immediately on recognisance – whether disparity in sentences justified

CRIME – Appeal against sentence – possess unauthorised firearm – supply prohibited drugs in commercial quantity – cultivate prohibited plant in an indictable amount – aggregate sentence – indicative sentences – procedural fairness – where sentencing judge indicated firearms offences not of any particular impact – where indicative custodial sentence provided for firearms offence – Parkinson's disease as a shield against sentence – no opportunity for submissions against the finding – failure to address submissions in relation to an intensive correction order – manifest excess – totality – resentencing

CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — where appellant has not filed critical documents and not appeared at hearing

WORKERS COMPENSATION — Compensation for medical, hospital and rehabilitation expenses — Limits on employer liability — s 62(1A) of the Workers Compensation Act 1987 (NSW) — whether Workers Compensation (Private Hospital Maximum Rates) Order 2024 (NSW) made pursuant to s 62(1A) fixes maximum amount of employer’s liability for hospital treatment not specified in Order

CONTRACT — lease — tenant’s obligation at end of lease to remediate to standard suitable for on-going commercial/industrial use — Land occupied for many years by Department of Defence — asbestos known to be present on land — whether provision of site audit statement certifying land suitable for commercial/industrial use subject to compliance with environmental management plan discharged tenant’s obligation even though asbestos continued to be present in topsoil — whether primary judge erred in finding asbestos continued to be present in topsoil — tenant’s obligation to return premises clean and in good repair and condition — whether that obligation added to obligation to remediate — significance of statutory regime concerning planning permission and remediation of land — whether appropriate to determine non-dispositive issues concerning release in deed of surrender

COSTS — security for costs — payment out of court — where moneys paid into court as security for costs of appeal — no order made as to costs of appeal — whether to release amount of security in partial satisfaction of costs at first instance — not the purpose of security ordered — purpose of security spent — order for payment out made

CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity

COSTS – where costs sought on indemnity basis – offer of compromise – whether applicant/cross-respondent unreasonably rejected offer

ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20

LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments

SENTENCING — appeal against sentence — material error of fact — whether sentencing judge mistook the number of firearms supplied — where sentencing judge only mistook the dates on which the supply of firearms occurred and not the total number supplied — no miscarriage of the sentencing discretion SENTENCING — appeal against sentence — mitigating factors of lack of prior criminal record and good character — where the sentencing Crown accepted that the absence of previous convictions was a mitigating factor but contested good character — where the sentencing judge made no finding as to good character — error found and applicant re-sentenced

SENTENCING — appeal against sentence — use of comparable cases and sentencing statistics — whether sentencing judge failed to properly consider or give adequate reasons as to comparable cases — where the sentencing judge did make reference to the comparative material — no obligation on sentencing judges to compare similarities and differences with other cases in sentencing reasons — no error SENTENCING — appeal against sentence — finding of special circumstances — whether sentencing judge failed to take into account relevant considerations when varying the statutory ratio — where non-parole period must reflect objective gravity of offending and need for general deterrence — no error in slight variation of statutory ratio — sentence not manifestly excessive — appeal dismissed

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — high risk violent offender — breach of extended supervision order — whether the applicant associated with a child — meaning of associate — whether the verdict of guilty was reasonable

APPEALS — rectification suit — whether common intention contended for on appeal differed from common intention contended for at trial — whether evidence could have been led at trial to rebut common intention contended for on appeal CONTRACTS — rectification — intention — common intention — proof of common intention — where party to deed knew of concern of other party in relation to a risk — where evidence of communications between solicitors of parties to deed in relation to risk — whether clear and convincing proof of common intention — significance of solicitors being closely involved in drafting of the clause sought to be rectified — significance of failure to call plaintiff’s solicitor

CIVIL PROCEDURE – Court of Appeal – notice of motion seeking review of order of a single judge of appeal – whether appellants have identified an error of principle or how the decision is plainly wrong

CRIME — appeals — appeal against sentence — murder and wounding with intent to cause grievous bodily harm — whether the primary judge erred in the application of a 15% utilitarian discount instead of the statutory 25% discount

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – where applicant unrepresented due to his dismissal of three sets of counsel and solicitors before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services

Intellectual property – Trade marks – Trade mark infringement under s 120(1) of Trade Marks Act 1995 (Cth) – Where ss 122(1)(f) and 122(1)(fa) read with s 44(3) of Trade Marks Act provide for defences of honest concurrent use – Where respondent registered word mark "ZIP" – Where appellants used substantially identical or deceptively similar trade marks – Where appellants aware at date of first potential infringement of likelihood of material impediment to legitimate use of trade marks – Whether appellants had defences of honest concurrent use to potential infringements – Whether defences of honest concurrent use assessed at date of first potential infringement – Meaning of "honest" in s 44(3)(a) of Trade Marks Act. Words and phrases – "application for registration", "blameworthiness", "concurrent use", "deceptively similar", "defence to potential infringement", "dishonest", "first potential infringement", "good faith", "honest", "honest concurrent use", "infringement", "knowledge", "normal and fair use", "objective", "ordinary meaning", "point in time", "potential infringement", "standards of ordinary, decent people", "state of mind", "substantially identical", "trade mark", "would obtain registration". Trade Marks Act 1905 (5 Edw VII c 15), ss 19, 20, 21. Trade Marks Act 1905 (Cth), s 28. Trade Marks Act 1955 (Cth), ss 34, 58. Trade Marks Act 1995 (Cth), ss 10, 12, 23, 44, 88, 89, 92, 100, 120, 122.

Admiralty – International law – Treaty – Interpretation – Limitation of liability for maritime claims – Where Art 2(1) of Convention on Limitation of Liability for Maritime Claims (1976) (as amended) ("Convention") lists claims subject to limitation – Where Australia exercised power under Art 18(1) of Convention to exclude Art 2(1)(d) and (e) of Convention from application – Where Convention otherwise has force of law in Australia by s 6 of Limitation of Liability for Maritime Claims Act 1989 (Cth) – Where first respondent's claim against appellant within scope of Art 2(1)(a) and (d) of Convention – Whether claim limitable under Art 2(1)(a) of Convention notwithstanding claim also within scope of disapplied Art 2(1)(d). Words and phrases – "claims", "comity", "convention", "disapplication", "exclude the application of", "force of law", "generalia specialibus non derogant", "limitation of liability", "limiting ship", "loss and damage", "ordinary and common sense meaning", "principles of treaty interpretation", "raising, removal, destruction or the rendering harmless", "reservation", "right of reservation", "scope", "shipowner", "State Parties", "subject to limitation", "wreck removal". Limitation of Liability for Maritime Claims Act 1989 (Cth), s 6. Convention on Limitation of Liability for Maritime Claims (1976), Arts 1(1), 2(1), 3, 15(1), 18(1). Vienna Convention on the Law of Treaties (1969), Arts 2(1)(d), 21, 31(1)-(2).

Constitutional law (Cth) – Judicial power of Commonwealth – Where Autonomous Sanctions Act 2011 (Cth) authorises making of regulations which impose sanctions – Where reg 6(a) of Autonomous Sanctions Regulations 2011 (Cth) empowers Minister to "designate" a person – Where designation triggers operation of regs 14 and 15 – Where contravention of reg 14 or 15 constitutes an offence – Where person contravenes reg 14 if person "directly or indirectly makes an asset available to, or for the benefit of, a designated person or entity" – Where person contravenes reg 15 if person "holds a controlled asset" and "uses or deals with the asset" or "allows the asset to be used or dealt with" or "facilitates the use of the asset or dealing with the asset" – Where reg 18 empowers Minister to grant permit authorising conduct that would otherwise contravene reg 14 or 15 – Where appellant was designated under reg 6(a) by legislative instrument – Where Minister granted permit under reg 18 authorising use of assets associated with provision of legal services – Where practical operation of regs 14 and 15 denied designated person access to legal representation absent permit – Where Minister accepted that practical operation impermissibly impaired ability of designated person to invoke jurisdiction of High Court under s 75(v) of Constitution or Federal Court under s 39B of Judiciary Act 1903 (Cth) to enforce limits of decision-making power conferred by or under Act – Whether regs 14 and 15 could be "read and construed" in accordance with s 15A of Acts Interpretation Act 1901 (Cth) and s 13 of Legislation Act 2003 (Cth) to exclude constitutionally impermissible operation – Whether regulation-making power in Act could be read down to ensure constitutional validity. Words and phrases – "access to legal advice", "access to legal representation", "application of meaning", "artificial construction", "ascertainment of meaning", "autonomous sanctions", "Ch III court", "chilling effect", "clear constitutional limitation", "composite hypothetical question", "conforming interpretation", "constructional imperative", "contingent operation", "contrary intention", "declared person", "designated person or entity", "disapplication", "distributive application", "entrenched jurisdiction", "institutional integrity", "interpersonal justice", "invalid application", "judicial power", "judicial restraint", "legislative act", "liberty to obtain legal services", "manifest injustice", "meaning and application", "ministerial permit", "partial disapplication", "practical operation", "prudential approach", "read and construed", "read down", "regulation-making power", "rights and freedoms", "rule of law", "severable", "severance clause", "standard, criterion or test", "statutory construction", "substantial curtailment", "targeted financial sanctions". Constitution, ss 75(iii), 75(v), 77, Ch III. Constitution Act 1867 (Can), s 96. Acts Interpretation Act 1901 (Cth), ss 2, 15A, 15AA, 33. Autonomous Sanctions Act 2011 (Cth), ss 3, 4, 6, 10, 14, 16, 28. Autonomous Sanctions Regulations 2011 (Cth), regs 3, 6, 14, 15, 18. Judiciary Act 1903 (Cth), s 39B. Legislation Act 2003 (Cth), s 13.

COSTS – partial success on appeal – significance of late offer of compromise – broad brush approach – partial costs order

COSTS – whether costs of unsuccessful application for leave to appeal from interlocutory decision of District Court should be ordered to be paid forthwith – where application for leave to appeal was misconceived and related to a discrete issue – order made

APPEALS – competency – appeal from summary dismissal of claim – leave required APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused

COSTS – security for costs – where appeal has reasonable prospects of success and raises an issue of public importance – excessive estimate of costs of appeal – where undertaking provided by director of appellant – no question of principle

NEGLIGENCE – breach – where respondent distributed refrigerators manufactured by parent company in South Korea – where model of refrigerator purchased by appellants was the subject of a voluntary recall after two instances of refrigerators catching fire – where refrigerator purchased by appellants caught fire – serial number of appellants’ refrigerator not included in list of affected refrigerators provided by parent company to the respondent – whether the respondent ought to have made inquiries of parent company concerning affected refrigerators – whether the primary judge erred in concluding that the respondent did not breach its duty of care and that factual causation was not established EVIDENCE – onus of proof – where respondent did not call evidence from parent company about how the parent would have responded to the inquiries contended for by appellants – whether evidence adduced by appellants sufficient to discharge their onus of proof

CRIME - appeals - appeal against conviction - jury returned guilty verdict on one count of sexual intercourse without consent - applicant and complainant gave evidence - contemporaneous complaint evidence - contemporaneous text messages between applicant and complainant - conceded incorrect statements by applicant in police interview - whether misconduct by police - whether misconduct by barrister appearing for applicant at trial - significance of failing to call flatmate present during some of the time complainant was in the flat - whether misconduct by prosecutor - significance of inconsistencies in complainant’s evidence - whether trial judge had directed jury correctly as to consent - whether jury’s verdict unreasonable - allowance given to unrepresented litigant concerning submissions after judgment reserved and allegations unsubstantiated in evidence - appeal dismissed

CONTRACTS — commercial lease — where fire originating on leased premises destroyed structures on leased and adjacent premises — proper construction of indemnity clause — whether causation in indemnity clause satisfied — whether reinstatement provision includes rebuilding not just repair — whether lease provisions imposing liability negatived implied covenant under s 84 of the Conveyancing Act 1919 (NSW)

APPEALS — leave to appeal — principles governing — obligation under lease to rectify flood damage — question of construction — points of principle identified — no reasonably clear injustice going beyond something that is merely arguable — costs grossly disproportionate to amounts in issue — special interest in finality where small sums at stake — leave to appeal refused

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — where applicant found guilty of seven counts and acquitted of four counts — whether on all of the evidence it was open to the trial judge to be satisfied of the applicant’s guilt beyond reasonable doubt — where many of the trial judge’s findings of fact are contested — where there is an active challenge to a witness’s credibility — where there is a risk of contamination, inconsistencies and contradictory evidence EVIDENCE — Court invited to review recorded material — whether trial judge had an advantage in viewing recorded interviews — whether advantage capable of resolving doubt

COSTS – costs inter partes – general rule that costs follow the event – competing interlocutory applications determined in plaintiff's favour – remaining claim in proceedings undetermined whether costs of entirety of proceedings should be determined – held: costs of entirety of proceedings not appropriate for determination prior to final disposition – interlocutory costs order made for competing applications only – costs to run from date applications foreshadowed to Court – order not assessable or enforceable until final disposition of proceedings COSTS – costs out of estate – executor seeking indemnity from estate on indemnity basis – identity of beneficiaries not yet determined pending separate probate proceedings – whether beneficiaries should have opportunity to be heard – held: no order at this stage; question of indemnity deferred until remaining proceedings completed

EQUITY – equitable estoppel – claim for a constructive trust and other equitable relief – the plaintiff farms a property held in the name of his father and mother, the defendants – all three conducted a three-way farming partnership on the property – the son alleges that the father and the mother made representations to the son, or caused the son to assume, that the son would have the benefit of the property upon the father’s retirement from farming the properties, or alternatively upon the father’s death – the son claims he acted upon the representations to his detriment or that he acted upon assumptions the father induced him to hold – the son claims that the father and mother now hold the properties on constructive trust for him to make good either the promises made or the assumptions – whether the representations were made or the assumptions held – whether the father and mother were aware that the son was relying upon the representations, or was acting on the assumptions – whether the son suffered detriment as a result of the representations or the assumptions – whether it would be inequitable if the father and the mother did not make good the representations relied upon or the assumptions made by the son – whether the son’s claim is statute barred – whether any discretionary defences apply – what if any is the appropriate remedy and how should it be moulded.

Administrative law (Cth) – Procedural fairness – Where appellant granted Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") and released from immigration detention following decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 – Where Commonwealth of Australia and Republic of Nauru entered into Interim Third Country Reception Arrangement ("Interim Arrangement") contemplated by s 198AHB of Migration Act 1958 (Cth) for settlement of initial cohort of three non-citizens in Nauru – Where appellant proposed as one of initial cohort without notice to him – Where officer of Department of Home Affairs applied to Government of Nauru for grant to appellant of long-term stay visa without notice to him – Where appellant's BVR ceased under s 76AAA of Migration Act following grant of long-term stay visa by Government of Nauru – Where appellant returned to immigration detention pending removal from Australia to Nauru – Where Parliament enacted Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth) ("2025 Amendment Act") prior to removal of appeal into High Court – Where item 10 of Sch 1 to 2025 Amendment Act deemed arrangements including Interim Arrangement valid for all purposes if otherwise invalid only because of failure to observe rules of natural justice – Whether entry into Interim Arrangement unlawful because of failure to afford appellant procedural fairness. Immigration – Unlawful non-citizens – Where s 198(2B) of Migration Act authorised and required removal of appellant "as soon as reasonably practicable" – Where medical services in Nauru inadequate to treat appellant's severe asthma on ongoing basis – Where appellant faced increased imminent risk of premature death from fatal asthma attack in Nauru – Whether removal of appellant to Nauru "reasonably practicable". Constitutional law (Cth) – Judicial power of Commonwealth – Whether application of ss 198AHB, 76AAA and 198(2B) of Migration Act to authorise and require removal of appellant to Nauru contravened Ch III of Constitution. Words and phrases – "consequences of removal", "executive power", "executive punishment", "feasibility of removal", "imminent risk of premature death", "inadequacy of medical services", "invalidity and unlawfulness", "judicial power", "natural justice", "non-refoulement obligations", "NZYQ affected person", "penal or punitive", "prima facie punitive", "principle of legality", "procedural fairness", "protection obligations", "punishment", "purposes of punishment", "reasonably practicable", "removal from Australia", "right to life", "risk of harm", "third country reception arrangement", "unlawful non-citizen", "validation provision". Constitution, Ch III, ss 51(xix), 51(xxvii). Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth), Sch 1, items 8, 9, 10. Migration Act 1958 (Cth), ss 3A, 36, 76AAA, 197C, 198, 198AHB. International Covenant on Civil and Political Rights (1966), Arts 2, 6.

Statutes − Construction − Derivative Crown immunity − Where State of New South Wales ("State") agreed Port Commitment Deeds ("PCDs") with first to third respondents ("NSW Ports") − Where PCDs required State to compensate NSW Ports if certain ports were not at full capacity and certain volume of containers diverted to other port − Where appellant alleged NSW Ports' entry into PCDs breached ss 45 and 45DA(1) of Competition and Consumer Act 2010 (Cth) ("CCA") − Whether ss 45 and 45DA(1) of CCA bound NSW Ports despite presumption of derivative Crown immunity. Equity − Estoppel − Abuse of process − Where Australian Competition and Consumer Commission previously brought similar proceedings against NSW Ports ("ACCC Proceedings") − Where ACCC Proceedings dismissed − Where appellant intervened in ACCC Proceedings on limited basis − Whether appellant estopped from bringing these proceedings − Whether these proceedings constituted abuse of process. Contract − Deed of release − Where appellant executed deed of release in favour of State − Where NSW Ports not mentioned in or party to deed − Whether deed of release barred claim against NSW Ports. Words and phrases – "abuse of process", "capacity to contract", "Crown immunity", "deed of release", "derivative Crown immunity", "estoppel", "freedom to contract", "impairment of legal relations", "issue estoppel", "legal rights or interests", "presumption of legislative intention". Competition and Consumer Act 2010 (Cth), ss 2A, 2B, 2C, 45, 45DA, 51 Ports Assets (Authorised Transactions) Act 2012 (NSW), ss 7, 25, Pt 2

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Where plaintiff presently lacks legal capacity — Proceedings stayed pending the appointment of a tutor or further order

REAL PROPERTY — co-ownership — application for appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) — partnership to be wound up — whether plaintiff’s costs should be paid from proceeds of sale — whether defendants conduct justified departure from usual costs order — no basis for departure

COSTS — apportionment of costs referrable to before and after 5 May 2021

COSTS — Review of decision of Manager, Costs Assessment to extend time to make a costs assessment application — Legal Profession Uniform Law Application Act 2014 (NSW), s 93B(3) and Uniform Civil Procedure Rules 2005 (NSW), r 49.19(1) — Where Manager, Costs Assessment allowed extension — Exercise of Court’s discretion CIVIL PROCEDURE — Extension of time for r 49.19 application — Uniform Civil Procedure Rules 2005, r 49.20(4) — Where alternative application made within time pursuant to Supreme Court Act 1970 (NSW), s 69

COSTS – Interlocutory costs orders – Defendants’ application for costs of dismissed portion of plaintiff’s claim COSTS – Interlocutory costs orders – Where defendants seek costs be determined prior to final hearing but do not seek costs be payable forthwith – Where alleged duplication and wasted costs incurred by plaintiff

WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law