Cases and authorities

CRIME – bail – release application – applicant on remand following plea of guilty to serious offence – requisite level of satisfaction as to the likelihood of a full-time custodial sentence for purposes of section 22B of the Bail Act 2013 (NSW)

BANKRUPTCY — Provable debt — Whether plaintiffs’ claim for unliquidated damages under s 236 of the Australian Consumer Law arose otherwise than by reason of a contract, promise or breach of trust — Whether, pursuant to s 82(2) Bankruptcy Act 1966 (Cth), the plaintiffs’ claim for unliquidated damages constituted a debt provable in the bankruptcy of defendants

CIVIL PROCEDURE – default judgment – setting aside – whether bona fide defence on merits – no issue of principle CIVIL PROCEDURE – pleadings – whether Defence has tendency to cause prejudice, embarrassment or delay – whether leave to replead

COSTS — Party/Party — Orders when proceedings involve multiple parties — Where plaintiff was successful only as against one of seven defendants and only as to a small proportion of its overall claim — Whether costs should be apportioned by issue — Whether plaintiff’s entitlement to costs should be reduced to reflect limited success COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer by first and second defendants was made on condition that the terms of settlement be recorded in a deed containing standard terms including as to confidentiality and non-disparagement — Whether offer contemplated an outcome which could never have been obtained by first and second defendants from a final judgment — Where offer by fourth to sixth defendants was for an amount that effectively invited capitulation by the plaintiff — Where offer by seventh defendant was to settle all claims made against him — Whether it was unreasonable for plaintiff to reject the offers — Whether costs should be ordered on the indemnity basis

SUCCESSION — Deceased aged 68 died without spouse, children or parents — Deceased met defendant in rehabilitation facility in 2013, they lived together in a property purchased by the deceased at that time until the deceased’s death on Christmas Day 2021 — Contest between 2010 Will benefiting deceased’s cousins propounded by the plaintiff as executor and Purported Will dated 2 days prior to deceased’s death, benefiting defendant aged 50 who claims to have been a friend/companion of the deceased in a ‘close personal relationship’ (though platonic) with the deceased at the time of deceased’s death or otherwise a dependent member of a household of which the deceased was a member SUCCESSION — Probate and administration —Contested probate — No issue that 2010 Will is a valid Will — Issue as to whether it was revoked by the Purported Will — Fragmented hearing — Case initially progressed by defendant on basis that execution of the Purported Will had been properly witnessed — Defendant subsequently acknowledges that stated witnesses were not present at the time of alleged execution of the Purported Will — On resumed hearing validity issues regarding the Purported Will remained including whether signed by the deceased (alleged forgery), testamentary capacity, knowledge and approval, ‘suspicious circumstances’ and whether the deceased intended the Purported Will to constitute his Will EVIDENCE — Unreading of affidavits — Affidavits of alleged attesting witnesses initially read then ‘unread’ on resumed hearing — No matter of principle EVIDENCE — Principle in Jones v Dunkel — Affidavits of alleged attesting witnesses initially read, then unread on resumed hearing — 2 days later the first named alleged attesting witness was unexpectedly presented by counsel as being in attendance at Court with the intimation that he was available to be called to give evidence — Issue as to what, if any, inference is to be drawn from the above circumstances — Held no Jones v Dunkel inference is required to make any conclusion about proper witnessing of the Will as that issue was withdrawn — No other evidentiary issues identified upon which the witness might have given relevant evidence so as to invoke a Jones v Dunkel inference SUCCESSION — Probate and administration —Contested probate — Onus and standard of proof — Party alleging forgery bears an ‘evidentiary onus’ of proving the allegation — Ultimate onus of proving the Will has been duly executed and is the last Will of a free and capable testator remains on the party propounding the Will — Discussion whether or not the Briginshaw principle applies in probate cases to require a higher degree of satisfaction of facts — The nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the fact SUCCESSION — Probate and administration — Due execution requirements — Means of proof SUCCESSION — Due execution/forgery — Expert evidence — Forgery raised by plaintiff — Forgery is a form of fraud — Forensic document examiner cross-examined as to the questioned signature — Failure to establish forgery does not compel a finding of due execution — Held forgery not established but Court not satisfied that questioned signature is that of the deceased SUCCESSION — Informal Wills — A document propounded as an informal Will must still be established to be the Will of a free and capable testator SUCCESSION — Testamentary capacity — Capacity principles discussed — Held capacity not established SUCCESSION — Knowledge and Approval — ‘knowledge and approval’ is directed (upon an assumption of testamentary capacity) to whether the testator truly knew the terms of a will and intended to give effect to them — It is sufficient if the testator is shown to know and approve the gravamen (or essential elements) of the Will— Held knowledge and approval not established SUCCESSION — ‘Suspicious circumstances’ — ‘suspicious circumstances’ per se is not generally regarded as a probate defence, rather such circumstances bear upon the question of knowledge and approval — Held suspicion not dispelled PROPRIETARY ESTOPPEL — Claim by defendant to receive deceased’s estate by means of proprietary estoppel abandoned after fifth (final) day of hearing SUCCESSION — Family provision — Concept of ‘Wastage’ of estate assets advanced as counting against applicant’s claim — ‘Wastage’ arises as a notion in property law usually by reference to obligations of a life tenant and in family law by reference to Family Law Act 1975 (Cth) s 79(5)(d) read with s 79(3)(b)(ii), those matters briefly discussed — On facts no issue of wastage was fairly raised and in any event there is inadequate evidentiary basis for calculating alleged wastage SUCCESSION — Estate assets — Plaintiff references ‘unpaid rent’ an estate asset in inventory of property and updating affidavit — However no formal claim by plaintiff in the proceedings to recover ‘unpaid’ rent as an estate asset No tenancy agreement established — Unauthorised occupation — No application to appoint an interim administrator to bring claims on behalf of the estate to address occupation of the property or seek occupation fee SUCCESSION — Family provision — Benefit from unauthorised occupation of property advanced against applicant’s claim and discussed PROPERTY — Unauthorised occupation — Discussion of ‘mesne profits’ SUCCESSION — Family provision — Eligibility — Requirements of ‘close personal relationship’ discussed — Requirements of dependent member of household discussed — Dependency and membership household do not need to be coincident — Issues as to nature of relationship between the deceased and the defendant — Held defendant eligible on both bases SUCCESSION — Family provision — Factors Warranting — Discussion of ‘factors warranting’ requirement — Held factors warranting satisfied SUCCESSION — Family provision — Inadequacy of provision and amount of provision — Held defendant left with inadequate provision SUCCESSION — Family provision — Form of provision — Risks associated with orders of percentage of sale proceeds discussed SUCCESSION — Family provision — Inadequacy of provision and amount of provision — Provision order foreshadowed SUCCESSION — Costs of contested probate and family provision proceedings — Parties request that costs determination be deferred to await determination and reasons on substantive issues — Significant amounts of money incurred contesting the claims — Provisional observations regarding the proportionality of the costs spent compared to the size of the estate — Parties encouraged to reflect seriously upon the question of costs and to discuss a sensible outcome including some self-moderation of costs to avoid a Pyrrhic victory to some extent for each of the contestants PROCEDURE — Re-opening after main hearing— No matter of principle WORDS & PHRASES – ‘friendship’, ‘affection’, ‘situationship’, ‘birthday effect’, ‘mesne profits’

CIVIL PROCEDURE — application for interlocutory injunction restraining sale of property to preserve status quo pending outcome of related family provision proceedings — where the subject property is the primary asset of deceased’s estate — whether there is a serious question to be tried in the family provision and possession proceedings — whether there is a real risk of prejudice to the applicant if an injunction were refused — whether the balance of convenience favours the ordering of an injunction — where contracts for sale of the subject property have been exchanged — relevant considerations include applicant’s delay in seeking injunction and prejudice to third party interests — whether the possession and family provision proceedings should be heard together

APPEALS – whether primary judge erred in refusing to order an apology under s 237 of the ACL – whether question of public importance raised APPEALS – cross-appeals – whether primary judge acted on a wrong principle in identifying the event for the purposes of the costs analysis – whether primary judge took into account extraneous or irrelevant matters when making a costs order – whether primary judge erred in failing to find that costs should have been calculated in accordance with UCPR 42.15 – whether primary judge acted on a wrong principle in identifying that offer of money was unlikely to provide a basis upon which to settle – whether primary judge’s exercise of costs discretion unreasonable or plainly unjust

CRIME – appeals – appeal against conviction – consistency of acquittal on count 1 with guilty verdicts on two other counts – timing of count 1 offending was raised by evidence and submissions, even though trial judge did not direct that time was of the essence – verdict capable of rational explanation by reference to the complainant’s own evidence about timing in relation to count 1 CRIME – appeals – appeal against conviction –different witness accounts of offending conduct on one count – no extended unanimity direction given or sought – leave required under r 4.15 – Crown relied on one act being proven – evidence did not involve alternative “mutually destructive” bases or create “materially different issues or consequences” –parties and trial judge recognised differences in witness accounts – no injustice to applicant in the atmosphere of the trial

CRIME — appeals — appeal against sentence — whether sentence manifestly excessive — whether primary Judge erred in assessing “rolled-up” charges as beneficial — whether sentencing trend is of assistance

CRIME — appeals — appeal against conviction — historical sex offences — application for permanent stay — applicable standards of appellate review — whether trial judge erred in refusing to permanently stay proceedings due to delay CRIME — appeals — appeal against conviction —historical sex offences — prosecutorial conduct — cross-examination of accused — Court invited to review audio of entire cross-examination — whether identified forensic purposes for listening to entire audio persuasive — forensic purposes not persuasive CRIME — appeals — appeal against conviction — historical sex offences — prosecutorial conduct — cross-examination of accused — improper questions — complaint as to various questioning techniques employed by the prosecutor – substantial repetition of prosecution evidence — manner and tone adopted by prosecutor — asking accused if prosecution witness is wrong — putting evidence of prosecution witnesses to the accused and asking whether the assertions are denied — where failure to raise further objections or seek discharge of the jury — whether cross-examination gave rise to miscarriage — miscarriage established

SENTENCING — appeal against sentence — pre-sentence quasi-custody — whether bail conditions amounted to quasi-custody — factual finding that bail conditions not harsh and restrictive reasonably open to the sentencing judge — no error in failing to backdate the sentence SENTENCING — appeal against sentence — parity principle — where co-offender had strong subjective case — no justifiable sense of grievance arising from disparity with co-offender’s sentence — sentence not manifestly excessive — appeal dismissed

COURTS AND JUDGES – application for disqualification at commencement of sentence severity appeal – apprehension of bias – where judge previously acted for third party in unrelated proceedings – whether fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind – no logical connection between basis for application and feared departure by judge from deciding the case on its factual and legal merits – application unanimously refused

CRIME – appeals – appeal against conviction – unreasonable verdicts – inconsistency of jury verdicts – credibility of complainant’s evidence – logical distinction explains differentiation EVIDENCE – sexual experience – evidence inadmissible under s 294CB Criminal Procedure Act 1986 (NSW) – whether probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer EVIDENCE – fresh and new evidence on appeal – whether evidence unavailable at trial caused miscarriage of justice – whether new evidence suggests the applicant’s guilt was not proven beyond reasonable doubt CRIME – appeals – appeal against sentence – aggregate sentence - manifest excess – whether error in indicative sentence suggests error in aggregate sentence – whether judge erred in finding that personal circumstances were not mitigating CRIME – appeals – manifest excess – whether judge erred in finding that one count warranted the maximum penalty – “reasonably open” test as correct standard for appellate review of factual error at sentence – whether judge erred in finding offending was of “worst category”

CIVIL PROCEDURE – Orders – Final orders – Form of orders appropriate to give effect to judgment CIVIL PROCEDURE – Reference – Orders for appointment of referee to determine appropriate legal fees COSTS – Indemnity costs – Whether indemnity costs payable by defendants/cross-claimants – Where defendants/cross-claimants have conducted the litigation unreasonably – Where knowingly false evidence given – Where cross-claim had no chance of success, including because of statutory immunity – Where plaintiff/cross-defendants made offers of compromise that were not accepted COSTS — Applications for a gross sum costs order — Where costs assessment would cause further expense and delay – Where proceedings already protracted – Applications granted

CORPORATIONS – winding up application –statutory demand – dispute as to date and mode of service – service at registered office – application to set aside statutory demand discontinued – whether company made application in accordance with s 459G – whether company precluded by s 459S from disputing effective date of service – determination of date of failure to comply with statutory demand – whether failure occurred within three‑month period for presumption of insolvency under s 459C –presumption not available – winding up application dismissed

COSTS – party/party – costs orders in interlocutory proceedings – where interim Mareva injunction ultimately varied – where both parties enjoy some measure of success – whether appropriate that indemnity costs be ordered

CRIME – murder – defence of mental health impairment – where parties agree defence available – whether Court satisfied that defence established – special verdict of act proven but defendant not criminally responsible

CONSUMER LAW – FINANCIAL SERVICES – MISLEADING OR DECEPTIVE CONDUCT – where first defendant made offer to plaintiff to subscribe for shares in first defendant prior to proposed initial public offering – where plaintiff accepted offer – where second defendant was sole director of first defendant – where third defendant made various representations to plaintiff prior to offer being made – whether third defendant made such representations as agent for and on behalf of first defendant – whether first defendant engaged in misleading or deceptive conduct by reason of representations made by third defendant and by sending offer letter to plaintiff – whether second defendant was involved in the alleged contravention by the first defendant – whether second defendant personally engaged in misleading or deceptive conduct by sending offer letter as agent for and on behalf of first defendant – whether plaintiff suffered loss and damage as a result of misleading or deceptive conduct – whether plaintiff is entitled to relief CONTRACTS – Breach of contract – whether share subscription agreement included an implied term that the first defendant would lodge a prospectus with ASIC in respect of the proposed initial public offering within a reasonable time – claim not established CIVIL PROCEDURE – where first and second defendants were unrepresented at time of hearing – where second defendant sent email to Chambers requesting adjournment and was informed that it would be necessary for an application to be made to the Court seeking an adjournment – where no such application made and no appearance by first or second defendant at hearing – hearing proceeded in absence of first and second defendants

PUBLIC ASSEMBLY — “public assembly restriction declaration” (“PARD”) scheme — Terrorism and Other Legislation Amendment Act 2025 (NSW) — enacted in the wake of the terrorist attack at Bondi Beach on 14 December 2025 — restriction of the holding of public assemblies within a declared area following a terrorist attack — regime for the authorisation of proposed public assemblies displaced — enhanced police powers when and where a PARD is in force — Terrorism (Police Powers) Act 2002 (NSW), Pt 2, Div 3A — Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 200(5) — Summary Offences Act 1988 (NSW), ss 27A, 27B CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — importance of peaceful protest — substantial burden on implied freedom — legislature perceived potential of public assemblies to undermine social cohesion and place community at risk — purpose of provisions to address this mischief by restricting and discouraging public assemblies within declared areas — purpose not compatible with maintenance of the constitutionally prescribed system of representative and responsible government — disharmony, incivility and disruption accepted as features of democratic intercourse — scheme not reasonably appropriate and adapted — PARD scheme a blunt tool — inability under scheme to tailor restrictions to characteristics of particular public assemblies — impugned provisions declared invalid CONSTITUTIONAL LAW — “matter” — justiciability — standing — plaintiffs assert special interest as protest organisers affected by PARD initially declared on 24 December 2025 — PARD lapsed before hearing — impugned provision conferring power to make a PARD still in force — non-remote risk that a future PARD may be made impacting the plaintiffs in their protest activities — plaintiffs continue to have standing to maintain the proceedings — matter persists and requires resolution — justiciable controversy apt to be quelled — prudential considerations telling against the exercise of jurisdiction not engaged

PRACTICE AND PROCEDURE — application for leave to appeal from decision refusing to grant a permanent stay of proceedings in favour of expert determination — construction of expert determination clause — characterisation of parties’ dispute — relevance of third party as a proper party to proceedings — criteria for leave to appeal not met

OCCUPATIONS — veterinary surgeons — misconduct and discipline — investigation of complaint by Veterinary Practitioners Board — asserted failure to comply with statutory procedures — whether non-compliance with statutory requirements deprived NSW Civil and Administrative Tribunal of jurisdiction — jurisdiction of NSW Civil and Administrative Tribunal to consider procedural error by the Board — effect of non-compliance APPEALS — leave to appeal — appeal from NSW Civil and Administrative Tribunal to Supreme Court — meaning of “interlocutory decision” — meaning of “ancillary decision” — whether leave required — not necessary to decide

COSTS — Security for costs — pending appeal — whether special circumstances — where appellant wholly unsuccessful at first instance — where judgment debt entered and freezing orders made in proceedings below — where real prospect that assets will not be available to satisfy any costs liability made against appellant — where grounds of appeal face significant hurdles

EVIDENCE — opinion evidence — exceptions — expert opinion — where expert certificate tendered and served under and in compliance with ss 177(1), 177(2) and 177(3) of the Evidence Act 1995 (NSW) — where maker of expert certificate not required to give evidence under s 177(5) of the Evidence Act 1995 (NSW) — whether opinion evidence in expert certificate admissible under s 177 of the Evidence Act 1995 (NSW) as an exception to s 76 of the Evidence Act 1995 (NSW) — whether requirements of s 79 of the Evidence Act 1995 (NSW) required to be satisfied for an expert certificate to be admissible under s 177 STATUTORY INTERPRETATION — departure from literal meaning — unreasonable consequences — presumption that word in statute bears same meaning as same word elsewhere in same statute — whether presumption applies less strongly where provision in question containing word was added to statute at later stage of drafting process

LEGAL PRACTITIONERS — Solicitors — whether firm should be restrained from acting for a defendant — where firm sought to be restrained from acting when an employed solicitor was formerly employed by plaintiff firm — test for restraint where confidential information relates to principal of prior firm not client information — whether confidential information needs to be identified - inherent jurisdiction to prevent a lawyer from acting is extraordinary and should be used sparingly — importance of supervision and mentoring opportunities to the legal profession — error of principle to extend dicta relating to restraint of a solicitor possessing client confidential information to support restraint of solicitor allegedly possessing confidential information of a former co-worker APPEAL — whether inherent jurisdiction to protect administration of justice supported restraint in this case CIVIL PROCEDURE — Parties — where orders made against a non-party to motion — whether orders properly made — no application for costs order made — non-party entitled to have costs order set aside

NEGLIGENCE — professional negligence — where solicitor failed to draft notice to complete with reasonable care — client subsequently repudiated the contract — purchaser sued client for return of the deposit and damages — deposit repaid but no damages awarded as causation not established BREACH OF FIDUCIARY DUTY — appeal — failure to advise — where solicitor found liable for breach of duty to client — failure to establish causation of loss claimed REMEDIES — damages — loss of opportunity — assessment of damages where alleged loss of chance — need to prove that alleged lost chance had some value

CRIME – Appeals – appeal against sentence – backdating to account for pre-sentence custody and totality with pre-existing sentences – whether sentencing judge erred in setting commencement date of sentence – whether sentencing judge failed to provide adequate reasons for decision as to commencement date – whether lesser sentence warranted on resentence – appeal dismissed

TRUSTS — superannuation fund — uncertainty as to valid appointment of trustee — missing trust documents — inference of prior valid appointment — presumption of regularity — whether second company validly replaced original trustee and employer — restructuring of fund in 1994 — judicial advice EQUITY — judicial advice — whether trustee justified in administering trust on current basis — gaps in historical evidence — appropriateness of advice rather than curial appointment — Trustee Act 1925 (NSW) s 63 TRUSTEES — de facto trustee — trustee de son tort — whether plaintiff falls within statutory definition of “trustee” — entitlement to seek judicial advice

COSTS – application for an order that the successful plaintiffs’ costs be paid by the four defendants jointly and severally – where plaintiffs succeeded on all claims at trial – where majority of the plaintiffs’ claims in number and value were made against the first and second defendants and plaintiffs made only one claim against each of the third and fourth defendants – where issues raised by plaintiffs’ claims against each of the third and fourth defendants were distinct from issues raised by the plaintiffs’ claims against the first and second defendants – where defendants represented by the same solicitors and counsel – where fourth defendant is a director of each of the first, second and third defendants – application for indemnity costs on the basis of the defendants’ failure to accept offers of compromise – where offers only capable of acceptance by all defendants jointly – whether offers of compromise involved a real and genuine element of compromise – held that plaintiffs’ costs payable on the ordinary basis – where parties agree that gross sum costs order should be made – where plaintiffs adduced evidence of total costs incurred which did not separately quantify costs of claims against first and second defendants and costs of distinct claims against each of the third and fourth defendants – first and second defendants (jointly) and third and fourth defendants each ordered to pay a specified percentage of the sum fixed for the plaintiffs’ total costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

CIVIL PROCEDURE — Preliminary discovery — Plaintiff seeking preliminary discovery from defendant in defendant’s capacity as executor of the estate of a deceased person — Plaintiff and deceased had history of interactions up to time of deceased’s death — Deceased executed will in 2017 — Deceased diagnosed with dementia later in 2017 — Deceased executed another will in 2019 — Probate granted to defendant named as executor under the will executed in 2019 — Plaintiff sought documents from defendant’s solicitors as the firm of solicitors who witnessed execution of the deceased’s will in 2019 and drafted the will executed in 2017 — Plaintiff advised in correspondence that original version of will executed by deceased in 2017 was destroyed and no copy exists — Plaintiff given draft will document but otherwise given no other documents pertaining to the wills executed in 2017 and 2019 — Whether plaintiff has sufficient information to commence proceedings against the defendant to revoke the grant of probate made to the defendant in relation to the 2019 will and propound the 2017 will — Consideration of whether preliminary discovery applications concerning probate litigation are subject to unique considerations

ADMINISTRATIVE LAW – judicial review – decision of Registrar of Local Court to issue arrest warrant – where warrant executed and spent – where criminal proceedings concluded – whether warrant issued invalid and unlawful – whether substantial reasons or in the interests of justice to issue arrest warrant – no jurisdictional error or error of law on the face of the record ADMINISTRATIVE LAW – remedies – where arrest warrant executed and spent – whether certiorari is available to quash warrant issued – whether declarations should be made that warrant invalid and unlawful – where plaintiff does not claim substantive remedies – whether lack of utility – where declaration would not result in the final determination of the issues between the parties – where declaration sought has no foreseeable consequences between the parties CIVIL PROCEDURE – whether extension of time should be grant under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) – whether plaintiff has a fairly arguable case – inutility

CIVIL PROCEDURE – Summary judgment – Where Second Defendant will not file any evidence in relation to Plaintiff’s Claim – Where Second Defendant has no defence to claim COSTS – Gross sum costs order – Where Second Defendant will not file any evidence in relation to Plaintiff’s Claim

Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where certain provisions of Pt 12 of Electoral Act 2002 (Vic) imposed general cap on political donations from a single donor within election period with exception for gifts between registered political party and nominated entity of registered political party ("nominated entity exception") – Where s 222F of Electoral Act permitted registered political party to appoint nominated entity on two alternative sets of eligibility criteria – Where second set of eligibility criteria only available if first appointment of entity as nominated entity made before 1 July 2020 ("time limitation in s 222F(3)") – Where only major parties appointed entities as nominated entities before 1 July 2020 – Where nominated entities of major parties well-capitalised prior to operation of general cap – Where assets of nominated entities of major parties significantly exceed what could lawfully be raised by individual candidate or uncapitalised nominated entity subject to general cap – Where defendant conceded time limitation in s 222F(3) invalid – Whether Pt 12 in operation with nominated entity exception invalid – Whether aspects of Pt 12 severable. Words and phrases – "candidate", "constitutionally prescribed system of representative and responsible government", "differential burden", "effective burden", "effective constraint", "election", "eligibility criteria", "general cap", "gift", "illegitimate purpose", "implied freedom of political communication", "impugned law", "impugned provisions", "indirect burden", "inextricable connection", "justified", "law", "legacy parties", "legal rule", "legislative purpose", "legitimate purpose", "level of generality", "major parties", "nominated entity", "nominated entity exception", "political donation", "political expenditure", "proper objective", "proportionality", "provision", "reasonably appropriate and adapted", "registered political party", "regulated person or entity", "risk of corruption and undue influence", "severance". Electoral Act 2002 (Vic), ss 3, 45(2)(c), 50(1)(a)(ii), 69A, Pt 4, Pt 12. Electoral Legislation Amendment Act 2018 (Vic), s 1(a)(ii). Interpretation of Legislation Act 1984 (Vic), ss 4(1)(a), 6(1), 38. Corporations Act 2001 (Cth), s 50

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where aggregate sentences imposed – consideration of disparity between indicative sentences for common offences – where aggregate sentences accounted for offending not shared between co-offenders – whether disparity in aggregate sentences justified SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender sentenced in the Drug Court – consideration of principles to be applied when comparing a sentence imposed by the District Court and a sentence imposed by the Drug Court – comparison of approaches in Scicluna v R and Tobia v R SENTENCING – penalties – Drug Court – where Drug Court imposes an initial sentence – consideration of objects and structure of the Drug Court Act 1998 (NSW) – whether leniency warranted in an initial sentence imposed by the Drug Court – approach in Tobia v R reconsidered

CRIME – appeals – appeal against sentence – severity – whether no penalty other than imprisonment would be appropriate – whether sentence manifestly excessive CRIME – appeals – extra-curial punishment – whether primary Judge open to consider loss of partner as extra-curial punishment – risk of an overly prescriptive approach to extra-curial punishment given fact-dependence CRIME – appeals – use of victim impact statements – whether inferences arose from sentencing remarks on victim impact statements

MENTAL HEALTH – forensic patient – extension of status as forensic patient – index offences of child sexual assault and aggravated indecent assault – history of offences relating to sexual misconduct against children – cognitive features that may influence risk management in the community – capacity to manage emotionally charged or socially complex situation – increased vulnerability to impulsive or poorly considered behaviour – positive progress in the community – continued demonstration of a lack of insight into the inappropriateness of sexual activity with children

APPEALS — appeal from findings of fact — whether the primary judge erred in finding the Council had actual knowledge of the risk which caused the harm — whether knowledge of particular class of Council persons required – whether the primary judge erred in failing to find the liability arose from road works for the purpose of s 45 of the Civil Liability Act 2002 (NSW) — whether the primary judge erred in failing to find that the claim relied on the exercise of a special statutory power for the purposes of s 43A of the Civil Liability Act — no error in any findings of fact APPEALS — TORTS — negligence — personal injury — application of the Civil Liability Act 2002 (NSW) — whether s 45 Civil Liability Act is applicable — whether the address of the risk that caused harm was ‘carrying out road work’ for the purposes of s 45 — whether s 43A Civil Liability Act applicable — whether special statutory power was exercised for the purposes of s 43A

CIVIL PROCEDURE – commencement of proceedings – leave to commence action under the Felons (Civil Proceedings) Act 1981 (NSW) – proposed proceedings for historical child sexual abuse – no question of principle

Approval of proposed settlement of proceedings pursuant to Civil Procedure Act 2005 (NSW), s 76 where proceedings have been conducted on behalf of the plaintiff by a tutor since June 2023

PLEADINGS – where existing statement of claim discloses no reasonable cause of action – where plaintiff has had opportunities to amend – where latest iteration of the proposed amended statement of claim is embarrassing in part and otherwise discloses no reasonable cause of action – where defendant seeks summary dismissal or striking out existing statement of claim – Held: leave to amend refused; proceedings summarily dismissed.

TORTS – malicious prosecution – absence of reasonable and probable cause – defendant pursued case that plaintiff did in fact engage in criminal conduct – forensic and other evidence did not support original complaint – continuation of prosecution lacked reasonable and probable cause – improper purpose – malice inferred – aggravated and exemplary damages awarded TORTS – false imprisonment – wrongful arrest – whether actions of police in arresting plaintiff were lawful – where plaintiff alleges police did not have reasonable grounds to arrest and did not properly inform plaintiff of reasons for arrest – whether police actions were reasonable in the circumstances – information known to police at time of arrest warranted arrest in order to protect the safety of the community – plaintiff unsuccessful

CIVIL PROCEDURE — parties — persons under legal incapacity — court must be positively satisfied as to legal incapacity — incapacity a task-specific matter — considerations relevant to capacity in context of conducting litigation — level of capacity required commonly greater where person self-represented

SENTENCING — appeal against sentence — whether sentencing judge erred in approach to applicant’s plea of guilty under s 16A(2)(g) — utilitarian value of a guilty plea — whether the prosecution can resile from written concessions made in sentence hearing — whether strength of the prosecution’s case is relevant to utilitarian value of a guilty plea — whether sentencing judge can take into account the subjective value of the applicant’s guilty plea — impermissible and irrelevant factors taken into consideration — error found — appeal allowed — resentence

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Hearing in Supreme Court imminent — No issue of principle

EQUITY — remedies — mandatory injunction — plaintiff seeks injunction on basis of denial of procedural fairness and natural justice — discretion ASSOCIATIONS AND CLUBS — incorporated associations — policy of association — reluctance of court to intervene in affairs of voluntary association

CRIME – Proceeds of crime – Proceeds of Crime Act 2002 (Cth) – Application for examination of the first defendant in relation to own affairs and in relation to the affairs of other named entities – whether named entities are a ‘person’ about whose affairs an examination order can be made under s 180 of the Proceeds of Crime Act 2002 (Cth) – scope of expression ‘affairs of a person’ in the Proceeds of Crime Act 2002 (Cth).

CRIMINAL PROCEDURE — suppression and non-publication orders — appeal against Local Court decision refusing to allow publication of accused’s name — submitting appearances on appeal — paramountcy of open justice

CRIMINAL PROCEDURE — Summary proceedings — Voir dire — Admissibility of evidence — Record of interview under the Food Act 2003 (NSW) EVIDENCE — Discretions — Exclusion of evidence — Admissions — Application under s 90 of the Evidence Act 1995 (NSW) — Record of interview — Where the stated purpose of the interview was for investigations into a company — Where evidence given by a director on the company’s behalf is used in criminal proceedings against the director as an individual

HIGH RISK OFFENDERS – Interim supervision orders – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – where Court unable to be satisfied that the defendant’s term of imprisonment “will” expire before the proceedings are determined – application for interim supervision order refused

CIVIL PROCEDURE — damages — aggravated damages — where exemplary damages not pressed because sentences of imprisonment have been imposed CIVIL PROCEDURE — suppression and non-publication — existing non-publication and pseudonym orders — further order in relation to restricted publication of judgment

ADMINISTRATIVE LAW — jurisdictional error — where PEXA requests Registrar General’s approval to pass through new charge to consumers — where statutory instrument confers power on the Registrar General to withhold approval for such a request — where the Registrar may not unreasonably withhold approval — decision withheld pending reviewing of pricing and charges by independent review body — proper construction of expression “which may not be unreasonably withheld” — whether Registrar General misconstrued the expression and consequently unreasonably withheld approval of increase to PEXA fee — no misconstruction by Registrar General — to the extent relevant, withholding of approval not unreasonable on the proper construction of the expression ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Consideration Registrar General bound to take into account — whether the Registrar General failed to consider a mandatory relevant consideration — where the National Law are intended to promote efficiency and minimise inconsistency — consideration adequately taken into account