Cases and authorities

INTEREST – calculation of pre-judgment interest – where parties agreed figures for the total profit made from each project diverted from First Plaintiff to the Third and Fourth Defendants – where parties did not agree allocation of profits to particular financial years – disagreement as to time from when pre-judgment interest should run –– no issue of principle COSTS – party/party costs – general rule that costs follow the event – where plaintiffs had substantial success in the principal proceeding – whether there should be an apportionment of costs in respect of issues on which the Plaintiffs failed – whether there should be an award of interest on costs – no issue of principle CORPORATIONS – derivative action – indemnity for costs – where Second Plaintiff was granted leave to bring claims in name of First Plaintiff – where First Plaintiff established claims and received substantial award – where Second Plaintiff sought an order pursuant to s 242 of the Corporations Act 2001 (Cth) that he be indemnified for the difference between the total amount paid in connection with the principal proceeding and any amounts recovered from the Defendants by way of costs orders – whether relief should be granted – no issue of principle

CORPORATIONS – application for declaratory relief – whether administrator was validly appointed – where possibility that a shareholder’s resolution removing a director was backdated – where it is not established that administrator was validly appointed – whether there was or may have been a contravention of the Corporations Act or the company’s constitution – whether relief can be granted under s 447C, 1322(4)(a) or 447A of the Corporations Act – no substantial injustice arises or will be caused – just and equitable to grant relief – relief granted under s 1322(4)(a) – no relief granted under s 447C or 447A

EQUITY – equitable remedies – where plaintiff seeks to enforce its equitable charge – whether order for judicial sale of the property should be made CIVIL PROCEDURE – hearings – where notice of motion filed day before hearing – whether application to vacate the hearing should be granted

ADMINISTRATIVE LAW — review of medical assessment by review panel — judicial review of review panel decision — where medical assessment certificate revoked and replaced by review panel — whether review panel failed to exercise its collective judgment, expose its actual path of reasoning and/or respond to a substantial and clearly articulated argument

COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order in respect of costs of appellate proceedings — no issue of principle — gross sum costs order made in respect of costs of appellate proceedings

APPEALS – from findings of fact – appellate deference – forensic advantages of primary judge – limitations of transcript evidence especially where credit in issue – principles in Briginshaw v Briginshaw – large conflicting bodies of evidence – three week trial – credibility and reliability of witnesses – character evidence – tendency evidence 20 years before alleged abuse – imperfections of human memory – witnesses recalling events from 30 years ago – witnesses of a young age at time of events – effect of traumatic incidents on recollection APPEALS – from findings of fact – fact finding methodology in institutional abuse cases – effect of High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle – observations in Longman, Watson v Foxman and Gestmin SGPS S.A. v Credit Suisse (UK) Limited remain valid after AA – requirement for “actual persuasion” by trier of fact LIMITATION OF ACTIONS – personal injury – alleged historic child abuse – legislative removal of limitation periods – construction of “serious physical abuse” under s 6A(2)(b) Limitation Act 1969 (NSW) – alleged abuse by teacher and teachers’ aide over 30 years ago in infants school – use of wooden ruler to discipline students – forced to stand in sun for long periods – large conflicting bodies of evidence – evidence of fellow students and teachers – absence of complaints formally recorded prior to proceedings – limitations in evidence of Appellant – “serious physical abuse” not made out

EQUITY — Trusts and trustees — Judicial advice — No issue of principle

CONTRACTS — Construction — Rectification ‘by construction’ — No question of principle ESTOPPEL — Estoppel by deed — Standard of clarity required for a statement or representation to establish a claim for estoppel by deed — Principles to be applied WORDS AND PHRASES — ‘complete’ — consideration of the meaning of the word ‘complete’ in the context of a contract for the sale of land

COSTS — Party/Party — general rule that costs follow the event — plaintiff successful in two related proceedings — whether costs should be reduced to reflect unsuccessful claims — distinction between separate claims and separate issues arising within a claim — costs order made in favour of plaintiff with some qualifications PRACTICE AND PROCEDURE — stay pending appeal — conditions — asset disclosure — whether ancillary to enforcement — stay as indulgence — no stay of disclosure orders

CORPORATIONS – Directors and officers – Directors’ duties – duty not to make or pursue a gain where conflict or possible conflict between fiduciary duty and personal interest – duty to act in food faith in the best interests of company and for a proper purpose – duty not to use position as director or officer improperly – where Defendant was director of Plaintiff – where Plaintiff and a number of related entities were placed into voluntary administration, following resolution by Defendant and fellow directors – whether Defendant and fellow directors were genuinely of the opinion that those entities were insolvent or likely to become insolvent – whether Defendant was pursuing a personal benefit by voting in favour of resolutions – whether Defendant breached his fiduciary or statutory duties to the Plaintiff in voting in favour of resolutions to appoint voluntary administrators CORPORATIONS – Directors and officers – Directors’ duties – where an entity controlled by Defendant entered into Restructuring Support Deed with secured lender to the group by which secured lender agreed to support a deed of company arrangement proposed by that entity in relation to two subsidiaries of Plaintiff – where creditors of those two subsidiaries of Plaintiff resolved that those companies execute deeds of company arrangement proposed by entity controlled by Defendant - where Defendant, as director of those two subsidiaries, consented to the redemption of redeemable preference shares for $1.00 held by one entity in the other, so as to satisfy a condition precedent of restructure – where effect of restructure was that the Plaintiff was no longer a holding company of the operating entities of the group, and those entities were held by an entity of which the Defendant was sole beneficial owner – whether Defendant breached his fiduciary duties to the Plaintiff in causing a company which he owned to enter into the Restructuring Support Deed – whether Defendant breached his fiduciary duties to the Plaintiff in taking steps, as a director of the Plaintiff’s subsidiary, to cause that entity to consent to the redemption of the redeemable preference shares REMEDIES – Account of Profits – Equitable compensation – Compensation under s 1317H of Corporations Act 2001 (Cth) – Causation – whether sufficient causal link between Defendant’s conduct and alleged profits or damage – whether other equitable and statutory remedies available – where quantification of profits and compensation depended on valuation of the business of the group and valuation of enterprise and equity value of different entities within the group – consideration of issues in dispute between expert valuers

CIVIL PROCEDURE — subpoenas — to produce documents or things — application for orders of short service and abbreviated times for return

CIVIL PROCEDURE – Summary disposal – application for summary judgment against first defendant in respect of some prayers for final relief but not others – where application for summary judgment not pressed against second defendant – whether arguable defence to claim against first defendant for judgment sum – whether arguable defence to declaratory relief – overlap between issues to be raised as to declaratory relief and issues that will be contested between the plaintiff and the first or second defendants in any event – whether appropriate to grant summary judgment for declaratory relief when proceedings will continue in other respects against both defendants – HELD: summary judgment granted for money sum but not for declaratory relief.

COSTS — Uniform Civil Procedure Rules 2005 (NSW) r 42.1 — where Plaintiffs bring unsuccessful proceedings claiming a declaration that the Defendant unreasonably withheld consent to the substitution of security provided under contractual arrangements between them — whether costs should follow the event or some other order made — HELD — no good reason to depart from the usual rule that costs follow the event

INSURANCE – professional indemnity insurance – whether leave should be granted to join underwriters as defendants pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 – exclusion clauses – leave refused

CIVIL PROCEDURE — application for a stay of tax recovery proceedings — where Part IVC appeals and judicial review proceedings are pending in the Federal Court and Administrative Review Tribunal — whether the defendant taxpayer would suffer extreme personal hardship — clear legislative policy that Commissioner be free to pursue recovery proceedings despite outstanding appeals and reviews — whether granting the stay would facilitate the just, quick and cheap resolution of the real issues in dispute

CIVIL PROCEDURE — cross-vesting — application to transfer to Supreme Court of Victoria — early stage of proceedings — relevant factors — where plaintiff, his lawyers, lay witnesses and expert witnesses reside in New South Wales — majority of damages sustained in New South Wales — where tort occurred in Victoria — convenience of parties and witnesses — notice of motion dismissed

SENTENCING — murder of infant son — guilty plea — intention to kill — relevant factors on sentence — above mid-range of objective seriousness — three-year-old child victim — egregious breach of trust — limited aggravating factor of offence being committed in relative's home — expressions of remorse insufficient to be mitigating factor — where mental health issues reduce moral culpability — contested evidence of background of deprivation — onerous conditions of custody — guarded prospects of rehabilitation — impact of murder on family and community

CRIME – sentence – murder – domestic violence – where pre-meditated intention to kill – offender lying in wait – limited mitigating circumstances

ADMINISTRATIVE LAW — judicial review — judicial review of decision by a delegate of the Minister to sell land comprising a Crown road to an adjoining landholder in 15 lots — whether proposed transaction amounts to an impermissible subdivision not authorised by the Environmental Planning and Assessment Act 1979 (NSW) — proposed transaction not authorised ADMINISTRATIVE LAW — procedural fairness — scope of obligation of procedural fairness attracted by a decision to sell or dispose of a Crown road under s 152E of the Roads Act 1993 (NSW) CONTRACTS — formation — where decision to sell Crown land made to compromise proceedings commenced by adjoining landholder — agreement between the Minister and the adjoining landholder recorded in a Settlement Agreement signed at mediation — where the terms of the Settlement Agreement required the subsequent execution of a deed of release, a formal contract of sale, and an easement in favour of the plaintiff council — application of Masters v Cameron (1954) 91 CLR 353 — whether the parties intended for the Settlement Agreement to be legally binding immediately CONTRACTS — remedies — specific performance — whether specific performance of Settlement Agreement available — essential condition of agreement unable to be satisfied — specific performance not available

APPEALS — appeal against sentence — material inadvertently disclosed at sentence — consideration of material disclosed — material error in sentence SENTENCING — appeal against sentence — consideration of irrelevant material — material error

CRIME – appeals – appeal against conviction – Liberato direction – whether modified Liberato direction was appropriate – where difficulties arising from applicant’s evidence of intoxication – whether risk of confusing jury if unqualified Liberato direction given – rigid adherence to the formulation of an unqualified Liberato direction not required – where Liberato direction fashioned to an aspect of the evidence which was critical to the assessment by the jury of the offence – no objection taken nor redirection sought at trial – no miscarriage of justice from modified Liberato direction CRIME – appeals – appeal against conviction – whether miscarriage of justice by trial judge’s failure to give the standard inferences direction – where Crown case dependent upon direct evidence and jury’s assessment of credibility – where no direct evidence as to the applicant’s state of mind – no further direction sought at trial – circumstantial evidence direction not required – omission of direction did not deflect the jury from its fundamental task – essential elements of the offence proved beyond reasonable doubt – no miscarriage of justice CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – sentencing statistics and comparative sentences – sentence was not unreasonable or plainly unjust

SENTENCING — appeal against sentence — sexual offences committed against biological daughters — whether sentence manifestly excessive — use of comparable cases — where indicative sentences are high — where the sentencing judge applied a significant degree of notional accumulation — aggregate sentence unreasonable or plainly unjust — appeal allowed and applicant resentenced

SENTENCING — appeal against sentence — where appeal is out of time BIAS — whether an apprehension of bias arises from comments made by the sentencing judge PROCEDURAL UNFAIRNESS — whether it was procedurally unfair for the sentencing judge to reject a diagnosis that was unchallenged NEW EVIDENCE — whether the applicant can rely on new reports prepared for use in sentencing proceedings in the District Court — whether the District Court sentencing judge will be bound by the findings of the sentencing judge in these proceedings — appeal dismissed

CIVIL PROCEDURE – freezing orders – alleged non-compliance with freezing orders made by the Court – whether defendants in breach of allowance for ordinary living expenses – freezing orders made to preclude a party from extinguishing or disposing of assets which might be used to satisfy any judgment – defendants ordered to explain whether breach of allowance for ordinary living expenses has occurred

CIVIL PROCEDURE – Determination as to whether proceedings settled – Acceptance of Calderbank offer – Intention to be immediately bound - Appropriate orders to give effect to settlement – No issue of principle - Civil Procedure Act 2005 (NSW), s 73(2)

PRACTICE AND PROCEDURE – application for interim injunctions restraining use of confidential information and intellectual property by former employee and director of plaintiff and giving effect to restraint of trade clause in employment contract – serious question to be tried – balance of convenience – where plaintiff’s case to enforce restraint of trade clause in respect of whole of restraint area (read down to an extent proposed by the plaintiff pursuant to s 4 of the Restraints of Trade Act 1976 (NSW)) is weak – where interim restraint would cause harm and plaintiff and related entities lack capacity to satisfy usual undertaking as to damages

HIGH RISK OFFENDER – final hearing – application for continuing detention – serious violent and sexually violent offender – history of random attacks on vulnerable persons – lack of insight – psychopathic traits – unwilling to acknowledge past offences – community safety paramount concern – continuing detention order imposed

ADMINISTRATIVE LAW – judicial review – where plaintiff a former police officer of the NSW Police Force – where plaintiff made an application in 1995 under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) for certification as being incapable from a specified infirmity of discharging his duties – where plaintiff found not to be incapable of discharging his duties – plaintiff’s application refused – where decision to refuse plaintiff’s application upheld on appeal to the Industrial Relations Commission of New South Wales – where plaintiff made a second application in 2019 under s 10B(2) – whether defendant does not have the power to consider the plaintiff’s further application – whether defendant functus officio STATUTORY INTERPRETATION – construction of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) – precedent – whether bound to follow the Court of Appeal’s decision in Wilson v SAS Trustee Corporation [2024] NSWCA 53 – whether construction of s 10B(1) applies with equal force to s 10B(2) – whether entitlement to annual superannuation allowance is determined once and for all

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — applicant sought to rely on further evidence in appeal — application of Supreme Court Act 1970 (NSW) — whether application for leave to appeal within meaning of “an appeal” in s 75A — court’s power to receive further evidence in application for leave

Courts – Judges – Bias – Reasonable apprehension of bias – Where proceedings for contraventions of civil penalty provisions of National Consumer Credit Protection Act 2009 (Cth) bifurcated into liability and penalty stages – Where primary judge made adverse credit findings at liability stage – Where contraventions established – Where primary judge recused himself from hearing penalty stage – Whether recusal justified on basis of reasonable apprehension of bias – Whether findings at liability stage revealed animus or prejudgment. Words and phrases – "adverse credibility findings", "adverse credit findings", "animosity", "animus", "bifurcated hearing", "civil penalty proceedings", "double might test", "fair-minded lay observer", "finality of judicial decisions", "impartial mind", "logical connection", "ordinary judicial practice", "prejudgment", "reasonable apprehension of bias", "recusal". Federal Court of Australia Act 1976 (Cth), ss 37P, 59. National Consumer Credit Protection Act 2009 (Cth), ss 166, 167, Sch 1. Federal Court Rules 2011 (Cth), rr 30.01, 30.02.

Constitutional law (Cth) – Judicial power of Commonwealth – Where cl 070.612A(1) of Sch 2 to Migration Regulations 1994 (Cth) provided that Minister must impose certain conditions on holder of Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") if both "satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" and "satisfied on the balance of probabilities that the imposition of the condition ... is ... reasonably necessary ... and ... reasonably appropriate and adapted ... for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk" – Where condition 8621 requires BVR holder to wear continuous electronic monitoring device at all times ("monitoring condition") – Where condition 8620 requires BVR holder to remain at notified address between hours of 10.00pm and 6.00am each day ("curfew condition") – Where rules of natural justice do not apply to decision of Minister to grant BVR subject to monitoring condition or curfew condition – Where monitoring condition and curfew condition remain in force for period of 12 months from date of grant – Where non-compliance with monitoring condition or curfew condition an offence punishable by term of imprisonment of between one and five years – Where plaintiff granted BVR subject to monitoring condition and curfew condition – Whether cl 070.612A(1) of Sch 2 to Migration Regulations invalid to extent it authorised and required Minister to impose monitoring condition and curfew condition because it exceeded regulation-making power conferred by s 504 of Migration Act 1958 (Cth) when power construed subject to Ch III of Constitution. Words and phrases – "adjudgment and punishment of criminal guilt", "bodily integrity", "Boilermakers principle", "constitutional paradigm", "constitutionally prescribed system of government", "curfew condition", "detriment", "exclusively judicial", "fundamental freedoms", "judicial power", "Kable principle", "legitimate and non-punitive purpose", "liberty", "Lim principle", "monitoring condition", "nature and severity", "NZYQ affected person", "penal or punitive", "prima facie punitive", "procedural fairness", "proportionality", "protective punishment", "punishment", "punitive purpose", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "reasonably necessary", "separation of powers", "substantial risk of serious harm". Constitution, Ch III. Criminal Code (Cth), Div 395. Migration Act 1958 (Cth), ss 72, 73, 76C, 76D, 76DA, 76E, 504. Migration Regulations 1994 (Cth), regs 2.20, 2.25AD, 2.25AE, Sch 2, cll 070.111, 070.612A, Sch 8, cll 8620, 8621. GAGELER CJ AND GLEESON J. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[1] reopened and overruled Al-Kateb v Godwin[2] and applied Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[3] to hold that ss 189(1) and 196(1) of the Migration Act 1958 (Cth) are invalid as inconsistent with Ch III of the Constitution to the extent they purport to authorise executive detention of an unlawful non-citizen whose removal from Australia under s 198 has no real prospect of becoming practicable in the reasonably foreseeable future ("an NZYQ affected person"). The Commonwealth Parliament responded to NZYQ by enacting the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) and the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth). In conjunction with associated amendments to the Migration Regulations 1994 (Cth),[4] the effect of that legislative response was to establish two distinct statutory regimes each potentially restrictive of the liberty of an NZYQ affected person on the initiative of the Minister administering the Migration Act. The first of those statutory regimes, in Subdiv AF of Div 3 of Pt 2 of the Migration Act, provided for the Minister to grant to an NZYQ affected person a Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") in accordance with criteria and on conditions prescribed in Pt 070 of Sch 2 to the Migration Regulations. The conditions able to be imposed by the Minister on the grant of a BVR specifically contemplated by both the Migration Act and the Migration Regulations as then amended were expressed to include a condition requiring the holder of a BVR to wear a monitoring device 24 hours each day ("the monitoring condition")[5] and a condition requiring the holder of a BVR to remain at a notified address between the hours of 10.00pm and 6.00am each day ("the curfew condition").[6] Clause 070.612A(1) of Sch 2 to the Migration Regulations authorised and required the Minister to impose each such condition unless the Minister was "satisfied that it [was] not reasonably necessary to impose that condition for the protection of any part of the Australian community". The second of the statutory regimes established in response to NZYQ will be seen to be significant in considering the constitutional validity of the imposition of the monitoring condition and the curfew condition pursuant to the first regime. It involved insertion of Div 395 into the Criminal Code (Cth), given effect as law by the Criminal Code Act 1995 (Cth),[7] making provision for the Minister to apply[8] to the Supreme Court of a State or Territory for the making of a "community safety order", defined to include a "community safety detention order" and a "community safety supervision order",[9] in respect of an NZYQ affected person who has been convicted of a "serious violent or sexual offence" as defined for the purpose of the Division.[10] Under Div 395 of the Criminal Code, the Supreme Court of a State or Territory is empowered to make a community safety supervision order on the application of the Minister if the Supreme Court is "satisfied on the balance of probabilities, on the basis of admissible evidence", that the person to be subjected to the order "poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence" (and that such conditions as may have been imposed on the grant of a visa held by the person "would not be effective in protecting the community from serious harm by addressing the unacceptable risk").[11] The Supreme Court is empowered to impose conditions on the person by the community safety supervision order if "satisfied" that the conditions in aggregate, "on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the [person] committing a serious violent or sexual offence".[12] The conditions capable of being imposed by the Supreme Court of a State or Territory on an NZYQ affected person through the making of a community safety supervision order encompass conditions of the same nature as, but more flexible than, the monitoring condition and the curfew condition. The permissible conditions are specified to include that the person to be subjected to the order "remain at specified premises between specified times each day"[13] and "be subject to electronic monitoring (for example, by wearing a monitoring device at all times)".[14] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs[15] subsequently held that cl 070.612A(1) of Sch 2 to the Migration Regulations, in the form in which it was introduced as part of that initial legislative response to NZYQ, was inconsistent with Ch III of the Constitution to the extent it then purported to authorise and require the Minister to impose each of the monitoring condition and the curfew condition. The consequential effect of that holding was that the relevant paragraphs of cl 070.612A(1)[16] were invalid for exceeding the regulation-making power in s 504(1) of the Migration Act when that regulation-making power was read as subject to Ch III of the Constitution.[17] In response to YBFZ, the Migration Regulations were further amended to repeal and substitute a new cl 070.612A(1) of Sch 2.[18] Clause 070.612A(1) as substituted purports to authorise and require the Minister to impose each of the monitoring condition and the curfew condition if the Minister is both "satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" and "satisfied on the balance of probabilities that the imposition of the condition ... is ... reasonably necessary ... and ... reasonably appropriate and adapted ... for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk".[19] The expression "serious offence" is defined for this purpose[20] in terms which largely correspond with the definition of "serious violent or sexual offence" for the purpose of Div 395 of the Criminal Code. By a special case in a proceeding commenced in the original jurisdiction of the High Court against the Commonwealth of Australia by an NZYQ affected person who has been granted a BVR subject to both the monitoring condition and the curfew condition, the ultimate issue now presented for determination is whether cl 070.612A(1) of Sch 2 to the Migration Regulations in its current form, as substituted in response to YBFZ, is inconsistent with Ch III of the Constitution to the extent it purports to authorise and require the Minister to impose each of the monitoring condition and the curfew condition, and therefore invalid because it exceeds the power conferred by s 504(1) of the Migration Act when that regulation-making power is construed as subject to the Constitution. Yet again, the issue is as to the application of Lim. Yet again, applying Lim, the issue presented for determination must be resolved in the affirmative: cl 070.612A(1) of Sch 2 to the Migration Regulations is inconsistent with Ch III of the Constitution to the extent it purports to authorise and require the Minister to impose each of the monitoring condition and the curfew condition and therefore invalid for exceeding the power conferred by s 504 of the Migration Act. To explain that result, it is necessary to commence by returning yet again to the content and scope of the constitutional limitation identified in Lim which was applied in NZYQ and YBFZ. The constitutional limitation The constitutional limitation identified in Lim was expressed in NZYQ at the level of generality appropriate to its application in that case in terms that "a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose".[21] The foundation of that constitutional limitation was explained in NZYQ in the language of Lim to lie in the recognition that Ch III of the Constitution has the substantive effect that, other than in "exceptional cases", "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt".[22] However, the constitutional limitation identified in Lim and applied in NZYQ has not been confined to a Commonwealth law that authorises detention. Before NZYQ, the constitutional limitation identified in Lim had been recognised in Alexander v Minister for Home Affairs,[23] Benbrika v Minister for Home Affairs ("Benbrika [No 2]")[24] and Jones v The Commonwealth[25] to apply to a Commonwealth law that authorises deprivation of citizenship in the same way as the limitation applies to a Commonwealth law that authorises detention. The step taken in YBFZ was to recognise detention and deprivation of citizenship as instances of a wider category of detriments which, by reason of their nature and severity, warrant prima facie characterisation of a law imposing them as penal or punitive, resulting in the ultimate characterisation of the law as penal or punitive if the law cannot be justified as reasonably capable of being seen as necessary for a legitimate and non-punitive purpose. The monitoring condition and the curfew condition were held to constitute detriments within that category.[26] The purported conferral of authority on the Minister to impose each condition was held invalid for want of a legitimate non-punitive purpose.[27] Expressed at a level of generality appropriate to encompass its application in each of Alexander, Benbrika [No 2] and Jones, as well as in YBFZ, the constitutional limitation identified in Lim is therefore that a Commonwealth law purporting to impose a detriment of a nature and severity which warrants prima facie characterisation as penal or punitive, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. Judicial determination of whether a Commonwealth law contravenes that limitation was explained in Jones to be required to proceed in a manner "faithful to the constitutional values" safeguarded by the Lim limitation and "mindful of the procedural and substantive limitations inherent in the performance of the judicial function".[28] Fidelity to the constitutional values safeguarded by the Lim limitation requires attention to the relationship between the individual and the body politic of the Commonwealth inherent in Lim's assignment of the imposition of a detriment that is penal or punitive in character to the exclusively judicial function of adjudging and punishing criminal guilt other than in exceptional cases. The relationship between the individual and the body politic is the relationship inherent in the constitutional paradigm which posits the imposition of a penal or punitive detriment only: (1) by a court; (2) in the exercise of judicial power; and (3) in the performance of the exclusively judicial function of adjudging and punishing criminal guilt. The three elements of the constitutional paradigm are cumulative. Each has distinct constitutional significance. The first element – the court element – entails that the detriment is imposed only through the agency of an entity that is separated from the executive and that meets the description of an "independent and impartial tribunal".[29] The second element – the judicial power element – entails that the detriment is imposed only as the adjudicated outcome of a controversy about an existing legal liability[30] through "'the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process', which 'requires that the parties be given an opportunity to present their evidence and [at least ordinarily] to challenge the evidence led against them'".[31] The third element – the exclusively judicial function element – more specifically entails that the detriment is imposed only "as a penal consequence prescribed by law for an existing criminal liability determined to have arisen from the operation of positive law on past events or conduct".[32] Through the combination of these elements, the relationship between the individual and the body politic can be said to be, as was said in Lim and as has been repeated many times since, such that the individual is "'ruled by the law, and by the law alone' and 'may ... be punished for a breach of law, but ... for nothing else'".[33] The constitutional paradigm of a court exercising judicial power in the performance of the exclusively judicial function of adjudging and punishing criminal guilt must therefore be borne in mind in determining whether a Commonwealth law which imposes a prima facie penal or punitive detriment other than in accordance with that paradigm can be justified as reasonably capable of being seen as necessary for a legitimate and non-punitive purpose. The constitutional paradigm sets the constitutional baseline from which any departure from any one or more of its elements is exceptional,[34] and from which any departure from any one or more of those elements must be reasonably capable of being seen as necessary for a legitimate and non-punitive purpose. The purpose of a law – what the law is designed to achieve in fact[35] – is constitutionally legitimate if and to the extent that the purpose is "compatible with the constitutionally prescribed system of government".[36] An aspect of compatibility with the constitutionally prescribed system of government is compatibility with the constitutional paradigm. YBFZ itself was an illustration of that proposition. The "fundamental difficulty"[37] with the earlier form of cl 070.612A(1) of Sch 2 to the Migration Regulations exposed in YBFZ was one of incompatibility of its "designedly unparticularised and indeterminate" purpose of "protection of any part of the Australian community",[38] which invoked "a concept of such elasticity" as to be "not necessarily inconsistent with the imposition ... of a criminal punishment following an adjudication of criminal guilt – a function which lies in the heartland of judicial power".[39] "If protection from any harm of any nature, degree, or extent were a legitimate non-punitive purpose", it was pointed out, "the very point of the legitimacy requirement would be undermined".[40] Turning from the judicial determination of the purpose of a law to the judicial determination of whether the means adopted by a law in pursuit of an identified non-punitive purpose that has been determined to be compatible with the constitutionally prescribed system of government are reasonably capable of being seen as necessary, it is important to recognise that the requisite inquiry is to be undertaken in light of the constitutional paradigm. The inquiry has a substantive dimension and a procedural dimension. The inquiry is not simply as to what is authorised to be done but as to by whom and how it is authorised to be done. The substantive dimension of the inquiry is the more obvious. For a law authorising imposition of a detriment of a nature and severity that is prima facie penal or punitive in character to be justified as reasonably capable of being seen as necessary for a purpose determined to be constitutionally legitimate, the nature and severity of the detriment can be no greater than is reasonably necessary to achieve that purpose. Hence, it was emphasised in NZYQ that a Commonwealth law authorising executive detention "must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved".[41] The procedural dimension of the inquiry is no less important. A law which authorises the imposition of a detriment determined to be no greater than is reasonably capable of being seen as necessary to achieve a constitutionally legitimate purpose may yet fail to be justified as reasonably capable of being seen as necessary for that purpose if the manner in which the law authorises the detriment to be imposed departs from the constitutional paradigm in a respect or to an extent that is not reasonably capable of being seen as necessary for that purpose. On the one hand, it might be reasonably capable of being seen as necessary for a law to authorise the imposition of a detriment otherwise than in the performance of the exclusively judicial function of adjudging and punishing criminal guilt. On the other hand, it might not be reasonably capable of being seen as necessary for the law to authorise the imposition of the detriment other than by a court in the exercise of judicial power. Noteworthy in this respect is that in each of the two cases in which a Commonwealth law authorising imposition of preventive restrictions on liberty outside the constitutional paradigm of a court exercising judicial power in the performance of the exclusively judicial function of adjudging and punishing criminal guilt has been held to be reasonably capable of being seen as necessary for a legitimate and non-punitive purpose – Thomas v Mowbray[42] and Minister for Home Affairs v Benbrika ("Benbrika [No 1]")[43] – the Commonwealth law in question pursued its purpose by conferring federal jurisdiction on a court to order preventive restrictions on liberty in the exercise of judicial power on application by an executive officer. The extent of the departure from the constitutional paradigm was therefore limited to a departure from the third element: though authorised to be imposed by a court in the exercise of judicial power, the detriment was not authorised to be imposed in the performance of the exclusively judicial function of adjudging and punishing criminal guilt. Also noteworthy is that in Vella v Commissioner of Police (NSW)[44] and Garlett v Western Australia,[45] each of which concerned a State law conferring State jurisdiction on a court to order a preventive restriction of liberty, the jurisdiction so conferred was held by a majority, on close scrutiny of the incidents of its legal and practical operation, not to impair the institutional integrity of the court concerned and therefore to be compatible with Ch III of the Constitution. Together, Thomas v Mowbray, Benbrika [No 1], Vella and Garlett support the emergence of a conventional understanding that the constitutionally guaranteed institutional independence of a court provides reason to consider that a power to constrain liberty by reference to what a person might do in the future, if it is to be conferred at all, is best conferred on a court. As the plurality explained in Vella:[46] "There are good reasons why such powers, if they are to exist, should be exercised by the judiciary. A person subject to an exercise of judicial power should have the power to obtain legal representation, the benefit of a hearing with fair process and generally held in public, an entitlement to written reasons for the decision as to the orders made which demonstrate the application of general rules to the facts of the case, and a power of appeal or to seek leave to appeal. 'This is not the way that any arm of the Executive conventionally operates.'" Together, Thomas v Mowbray, Benbrika [No 1], Vella and Garlett also illustrate that "[p]reservation of the constitutionally guaranteed institutional independence upon which the efficacy of such a conferral depends demands ... that the conferral occur through the legislative formulation of 'a judicial process of some refinement'".[47] Since Lim, of the many cases in which a law authorising imposition of a detriment was held to have been prima facie penal or punitive in character, but justified as reasonably capable of being seen as necessary for a purpose determined to be constitutionally legitimate, Jones is the sole instance in which the law authorised the direct imposition of the detriment by administrative action. In Jones, the detriment involved revocation of Australian citizenship acquired by naturalisation. Notably, the legitimate non-punitive purpose of the law was identified not as protection against a risk of future harm but as protection of the integrity of the naturalisation process.[48] The law was tailored to achieve that purpose insofar as the statutory criteria which authorised executive de-naturalisation were closely related to the statutory criteria which authorised executive grant of Australian citizenship by naturalisation. Division 395 of the Criminal Code adopts the now conventional legislative model of conferring jurisdiction on a court to make preventive orders imposing restrictions on liberty, including restrictions on liberty in the nature of the monitoring condition and the curfew condition, in the exercise of judicial power. Clause 070.612A(1) of Sch 2 to the Migration Regulations does not. Finally, it is important to recall that (as NZYQ[49] underscored and YBFZ[50] reiterated) the only difference between a citizen and an alien in the application of the constitutional limitation identified in Lim lies in the susceptibility of an alien to a law that is reasonably capable of being seen as necessary for one or other of two non-punitive purposes: removal from Australia; or enabling an application for permission to remain in Australia to be made and considered. Each of those purposes is legitimate with respect to aliens but illegitimate with respect of citizens. Neither has present relevance. The impugned provision in context Within Subdiv AF of Div 3 of Pt 2 of the Migration Act, s 73 empowers the Minister to grant a BVR to a person who the Minister is satisfied is an "eligible non-citizen" by virtue of being an NZYQ affected person.[51] The Minister is empowered to grant the visa without application. The significance of the Minister being empowered to grant a BVR to an NZYQ affected person without application, against the background of such person being incapable of being detained under ss 189(1) and 196(1) of the Migration Act, is that the Minister can choose to impose the visa on a person who would otherwise be at liberty in Australia. By making that choice, the Minister engages the mandatory requirement of cl 070.612A(1) of Sch 2 to the Migration Regulations to impose one or other or both of the monitoring condition and the curfew condition if the Minister is satisfied that the criteria for their imposition are met. Within Pt 070 of Sch 2 to the Migration Regulations, cl 070.612A(1) relevantly provides: "For each of conditions [including the monitoring condition and the curfew condition] the Minister must impose the condition if: (a) ... (b) ... the Minister is satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; and (c) the Minister is satisfied on the balance of probabilities that the imposition of the condition (in addition to the other conditions imposed by or under this subclause or another provision of this Division) is: (i) reasonably necessary; and (ii) reasonably appropriate and adapted; for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk." For that purpose, cl 070.111 of Sch 2 to the Migration Regulations defines "serious offence" as follows: "serious offence means an offence against a law of the Commonwealth, a State or a Territory where: (a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 5 years; and (b) the particular conduct constituting the offence involves or would involve: (i) loss of a person's life or serious risk of loss of a person's life; or (ii) serious personal injury or serious risk of serious personal injury; or (iii) sexual assault; or (iv) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6 of the Criminal Code); or (v) consenting to or procuring the employment of a child, or employing a child, in connection with material referred to in subparagraph (iv); or (vi) acts done in preparation for, or to facilitate, the commission of a sexual offence against a person under 16; or (vii) domestic or family violence (including in the form of coercive control); or (viii) threatening or inciting violence towards a person or group of persons on the ground of an attribute of the person or one or more members of the group; or (ix) people smuggling; or (x) human trafficking." Paragraph (a) and sub-paras (i)-(vi) of para (b) of the definition of "serious offence" largely correspond with the definition of "serious violent or sexual offence" for the purposes of Div 395 of the Criminal Code.[52] Sub-paragraphs (vii)-(x) of para (b) of the definition of "serious offence" are additional. The context of cl 070.612A(1) is otherwise unchanged from the context of the clause in the form in which it was considered in YBFZ. Two features of that context to which attention was drawn in YBFZ need to be recalled. The first is that ministerial grant of a BVR under s 73 of the Migration Act subject to either the monitoring condition or the curfew condition attracts the two-stage decision-making procedure set out in s 76E of the Migration Act.[53] The "rules of natural justice do not apply" to the decision of the Minister to grant the visa subject to the condition.[54] Instead, those rules are displaced by the statutory requirement that, as soon as practicable after making the decision, the Minister must notify the visa holder of the decision and invite representations as to why the visa should not be subject to the condition. The Minister must then grant a replacement visa without the condition if such representations are made and "the Minister is not satisfied, on the balance of probabilities, that the [holder] poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence [as defined for the purpose of Pt 070 of Sch 2 to the Migration Regulations]" or "if the Minister is satisfied, on the balance of probabilities, that the [holder] poses [such a] substantial risk ... the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition ... is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk".[55] The second contextual feature of cl 070.612A(1) to which attention was drawn in YBFZ is that the monitoring condition or the curfew condition, if imposed on a BVR that is granted, remains in force for a fixed period of 12 months from the date of the grant.[56] Non-compliance with either condition is an offence punishable by a term of imprisonment of between one and five years.[57] The special case records that as at 30 June 2025, being three months after the plaintiff was granted a BVR subject to both the monitoring condition and the curfew condition, there were 346 BVR holders. The plaintiff was one of 46 who were subject to the monitoring condition and the curfew condition. Forty-one were subject to the monitoring condition but not the curfew condition. One was subject to the curfew condition but not the monitoring condition. The position of the Commonwealth The Commonwealth does not seek to reopen the holding in YBFZ that the nature and severity of the detriment imposed by each of the monitoring condition and the curfew condition warrants prima facie characterisation of their legislative imposition as penal or punitive and therefore as invalid unless justified as reasonably capable of being seen as necessary for a legitimate and non-punitive purpose. The weight of the Commonwealth's argument is that, unlike the form in which cl 070.612A(1) existed at the time of YBFZ, cl 070.612A(1) in its current form is justified as reasonably capable of being seen as necessary for a legitimate and non-punitive purpose. The Commonwealth identifies the purpose of cl 070.612A(1) in its current form as the protection of any part of the Australian community from harm of the kind caused by commission of a "serious offence" as defined for the purpose of Pt 070 of Sch 2. The Commonwealth argues that the purpose so identified is legitimate in its application to all offences that are punishable in the manner described in para (a) of the definition and that are constituted by conduct involving conduct of the nature described in para (b) of the definition.[58] The Commonwealth argues in the alternative that the purpose so identified is legitimate at least in relation to those offences that are punishable in the manner described in para (a) of the definition and that are constituted by conduct involving conduct of the nature described in para (b) of the definition in respect of which the harm inherent in the conduct can be characterised as "grave and specific".[59] The Commonwealth argues on this alternative that the descriptions in para (b) of the definition are severable[60] if and to the extent that the purpose cannot be so characterised in relation to some of those descriptions.[61] In seeking to justify the imposition of the monitoring condition and the curfew condition as reasonably capable of being seen as necessary for the purpose so identified as the protection of any part of the Australian community from harm of the kind caused by commission of such a "serious offence", the Commonwealth eschews reliance on any characteristic that might distinguish an NZYQ affected person from any other person. This leads the Commonwealth to acknowledge that acceptance of its argument that cl 070.612A(1) in its current form is justified as reasonably capable of being seen as necessary for a legitimate non-punitive purpose would have the far-reaching consequence that Commonwealth legislative authorisation of executive imposition of restrictions equivalent to the monitoring condition and the curfew condition on any person, whether a citizen or an alien, by reference to criteria equivalent to those laid out in cl 070.612A(1)(b) and (c) would not transgress the constitutional limitation recognised in Lim. Were the Commonwealth's position to be accepted, Commonwealth legislative authorisation of executive imposition of restrictions equivalent to the monitoring condition and the curfew condition would be unconstrained by Ch III of the Constitution and would turn solely on the availability of a source of Commonwealth legislative power. The availability of s 122 of the Constitution as a source of power to enact laws governing the conduct of persons in a territory[62] would mean, for example, that it would be constitutionally permissible to establish by Commonwealth law a statutory regime which authorises executive imposition of equivalent restrictions by reference to equivalent criteria on any or all inhabitants of a territory. Purpose With one qualification, the Commonwealth's identification of the legislative purpose of cl 070.612A(1) accords with the purpose that emerges from the proper construction of cl 070.612A(1)(b). The proper construction of the reference in cl 070.612A(1)(b) to ministerial satisfaction that a BVR holder "poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" as defined in cl 070.111 is that it refers to ministerial satisfaction that the BVR holder poses a substantial risk of committing a "serious offence" as so defined. The harm to any part of the Australian community in the event of that risk materialising is to be found in the harm that is inherent in the particular conduct constituting the offence meeting a description in para (b) of the definition. The qualification to the Commonwealth's identification of the legislative purpose is that the specification of the level of risk of the harm involved in the commission of such an offence occurring must be treated as part of the description of that purpose. The legislative purpose of cl 070.612A(1) is therefore most appropriately identified as protection of any part of the Australian community from a substantial risk of the harm that is inherent in particular conduct that constitutes a "serious offence" as defined for the purpose of Pt 070 of Sch 2 to the Migration Regulations. Whether the purpose so identified is constitutionally legitimate in its application to all conduct constituting a "serious offence" as defined for the purpose of Pt 070 need not be determined. It is sufficient for present purposes to conclude that the purpose so identified is legitimate in its application at least to particular conduct of the kinds described in para (b)(i)-(vi) of the definition.[63] The harm inherent in particular conduct of those kinds can readily be characterised as grave and specific. The descriptions of conduct of other kinds in para (b)(vii)-(x) of the definition are plainly severable. The identified purpose is not rendered constitutionally illegitimate by reason that the purpose is pursued by cl 070.612A(1) of Sch 2 to the Migration Regulations solely in respect of the risk of harm that is posed by NZYQ affected persons. The Constitution has not been interpreted to impose a general requirement of substantive equality before the law,[64] and discrimination alone cannot change a purpose that is consistent with the constitutionally prescribed system of government into one that is not.[65] Inherent in the conferral of power on the Commonwealth Parliament by s 51(xix) of the Constitution to make laws with respect to "aliens" is that "the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons"[66] and that, by those laws, it may create and differentiate between classes of those having this status in burdens, obligations and disqualifications it chooses to impose. Necessity Having: (1) identified the non-punitive purpose of cl 070.612A(1) of Sch 2 to the Migration Regulations in its current form as protection from a substantial risk of the harm that is inherent in particular conduct that constitutes a "serious offence" as defined for the purpose of Pt 070 of Sch 2; and (2) accepted the legitimacy of that purpose at least in part, the question becomes whether the authority purportedly conferred on the Minister to impose the monitoring condition and the curfew condition is reasonably capable of being seen to be necessary for that purpose. This is the stage in the analysis at which cl 070.612A(1) of Sch 2 to the Migration Regulations in its current form must be found to infringe the constitutional limitation recognised in Lim. In YBFZ, a majority of the Court made the obiter observation that "even if protection of the Australian community from the risk of harm arising from future offending were accepted to be a legitimate and non-punitive purpose", the clause in its earlier form was "not reasonably capable of being seen as necessary for that purpose".[67] The significance of the observation lies in the circumstance that the two features of the context of the clause in that form to which the majority referred in support of the observation remain features of the context of the clause in its current form. The continuing substantive feature of the context of cl 070.612A(1) in its earlier form to which attention was drawn in support of that observation in YBFZ was the fixed duration of the operation of the monitoring condition and the curfew condition of 12 months from the date of the grant of the BVR irrespective of whether imposition for the entirety of that period was reasonably capable of being seen as necessary for the identified purpose.[68] Now, as then, the fixed duration of the operation of the monitoring condition and the curfew condition means that the detriment which results from their imposition under cl 070.612A(1) of Sch 2 to the Migration Regulations fails the test of reasonable necessity to achieve the identified purpose of their imposition. In YBFZ, the continuing procedural feature of the context of the clause to which attention was then drawn in support of the observation was the two-stage decision-making procedure set out in s 76E of the Migration Act, through the operation of which it was noted that the right of the holder of a BVR "to make representations against the conditions being imposed exists only after the conditions have been imposed".[69] The point made was that this exclusion of procedural fairness at the first stage of the decision-making procedure had the capacity to result in the conditions being imposed on the basis of incomplete or inaccurate information. But the exclusion of procedural fairness at the first stage of the decision-making procedure set out in s 76E of the Migration Act is indicative of a more fundamental difficulty with attempting to justify the departure which conferral of authority on the Minister to impose the monitoring condition and the curfew condition under cl 070.612A(1) of Sch 2 in its current form involves from the baseline set by the constitutional paradigm reflected in Lim's assignment of the imposition of a detriment that is penal or punitive in character to the exclusively judicial function of adjudging and punishing criminal guilt. Procedural fairness can be statutorily excluded from an administrative process. Procedural fairness cannot be statutorily excluded from a judicial process, consistently with Ch III of the Constitution.[70] Protection from a substantial risk of the harm inherent in particular conduct constituting a "serious offence" as defined for the purpose of Pt 070 of Sch 2 to the Migration Regulations justifies conferral, by cl 070.612A(1) of Sch 2 to the Migration Regulations in its current form, of authority to impose restrictions in the nature of the monitoring condition and the curfew condition other than in the performance of the exclusively judicial function of adjudging and punishing criminal guilt. What cannot be accepted to be reasonably capable of being seen as necessary for that purpose is for cl 070.612A(1) of Sch 2 to the Migration Regulations in its current form to authorise imposition of restrictions of that nature other than by a court in the exercise of judicial power. Its departure from the baseline set by the constitutional paradigm is to that extent unjustified. Division 395 of the Criminal Code strengthens that proposition in demonstrating by its very existence an alternative legislative regime pursuant to which restrictions in the nature of the monitoring condition and the curfew condition are even now capable of being imposed by a court in the exercise of judicial power. This comparison between the two statutory regimes does not involve impermissible proportionality analysis by questioning whether there is a less restrictive means of achieving the legislative purpose.[71] Rather, the comparison points to the failure of that purpose to explain the scope of the power purportedly conferred by providing an example of a law that conforms with the constitutional baseline. Conclusion The purported conferral by cl 070.612A(1) of Sch 2 to the Migration Regulations on the Minister of authority to impose the monitoring condition and the curfew condition may be accepted to be for a non-punitive purpose that is at least in part consistent with the constitutionally prescribed system of government. However, the conferral of that authority on the Minister is not reasonably capable of being seen to be necessary for that purpose. The special case formally raises three specific questions for determination. The first and second questions respectively ask whether cl 070.612A(1) of Sch 2 to the Migration Regulations is inconsistent with Ch III of the Constitution and is therefore invalid to the extent it purports to authorise and require the Minister to impose each of the monitoring condition and the curfew condition. The answer to each is: yes. The third question asks who should pay the costs of the special case. The answer is: the Commonwealth.

COSTS — interlocutory motion — leave to file further caveat under s 740 — alternative security offered by defendant — charge and caveat offered shortly prior to hearing — parties each achieving partial success — whether plaintiff acted unreasonably in proceeding with motion — costs of motion be costs in the cause

PRACTICE AND PROCEDURE — cross-claim — application for leave to file cross-claim out of time — negligence claim against former solicitors arising out of conveyancing transaction — whether cross-claim raises substantially the same issues and evidence as principal proceedings — leave granted subject to costs CONTRACTS — sale of land — auction contract — alleged special conditions — claim for specific performance — alleged agreement by exchange of correspondence between solicitors — rectification

CORPORATIONS – application to set aside creditor’s statutory demand under s 459G of the Corporations Act 2001 (Cth) – whether there is a genuine dispute about the existence of the debt – where there is uncertainty as to the legal relationship underpinning the debt – statutory demand set aside

PUBLIC INTEREST IMMUNITY – production of documents – where plaintiff solicitor seeking to challenge validity of search warrant – defendant police seeking there be no access to search warrant application to extent subject to public interest immunity and/or relates to matters of state – whether plaintiff has legitimate forensic interest in accessing unredacted search warrant application – balancing exercise between public interest in withholding information to protect investigation of crime and public interest in ensuring access to relevant evidence – passage-by-passage analysis undertaken – immunity claim upheld in relation to certain passages

APPEALS — Leave to appeal — interlocutory orders — application for leave to appeal from a decision that the Liquidators were justified in declining to convene a meeting of creditors — whether there is any practical utility in the appeal — where there is an available alternative avenue for the applicants to seek the remedy claimed — leave to appeal dismissed APPEALS — Admission of further evidence — whether the primary judge erred in granting leave to the Liquidators to call and admit further evidence after Liquidators had closed their case — whether the further evidence was outside scope of leave granted APPEALS — Statutory Interpretation — whether requirement of “good faith” under r 27-250 of the Insolvency Practice Rules (Corporations) 2016 (Cth) imports condition of objective reasonableness APPEALS — From finding of fact — whether primary judge erred in finding that the Liquidators formed the requisite opinion acting in good faith — whether Liquidators asked themselves the wrong question (in considering the possible outcome of the meeting rather than whether direction to convene the meeting was unreasonable) — whether Liquidators failed to carry out the required balancing exercise between benefits of convening meeting and prejudice to creditors/shareholders of complying with Direction

APPEAL — Application for leave to appeal — Application filed out of time — Appeal from decision granting summary judgment for possession of land — No question of general principle — No question of public importance — No error amounting to a reasonably clear injustice going beyond what is merely arguable

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where differential verdicts reached on counts arising from a single course of conduct — where counts alleged conduct at differing levels of specificity — no inconsistency CRIME — appeals — appeal against sentence — sexual touching — objective seriousness — whether open to primary judge to be satisfied of skin-to-skin contact — finding reasonably open to sentencing judge

CORPORATIONS – applications to set aside creditor’s statutory demands under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) – where statutory demands have been stayed by consent of the parties pending determination of challenge to arbitral award – whether pressing statutory demand constitutes enforcement inconsistent with stay – whether statutory demand should be set aside under s 459J(1)(b) – offsetting claim – substantiated amount – whether the hearing should be adjourned – no adjournment – statutory demand set aside under s 459H(3)

CORPORATIONS – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of creditors and members to consider scheme of arrangement

COURTS AND JUDGES — bias — disqualification of judge to make directions and hear proceedings on basis of apprehended bias – where judge made findings as to witnesses and facts in previous proceedings – where Court does not operate on a docket system – where judge not presently allocated to hear the proceedings – disqualification application dismissed CIVIL PROCEDURE – making of directions in the proceedings – where First and Second Defendants seek directions to be deferred pending the determination of stay application – where Third and Fourth Defendants have not filed a Notice of Appearance – making of directions consistent with ss 56–58 Civil Procedure Act 2005 (NSW) – orders for the filing of Points of Defence and other directions made CIVIL PROCEDURE – parties do not choose their judges – allocation of judges based on just, quick and cheap resolution of real issues in dispute

CIVIL PROCEDURE – expert reports – application for leave to tender an expert report – whether exceptional circumstances exist to warrant granting of leave

PRACTICE AND PROCEDURE — where defendants apply to be released from undertakings given to court not to dispose of or diminish a specific asset — where those undertakings were the product of an agreement between the parties under which the plaintiffs would not apply for the continuation of freezing orders in return for the defendants giving the undertakings — whether defendants must demonstrate exceptional or special circumstances warranting release from the undertakings — whether defendants have demonstrated material change in circumstances warranting reconsideration of the undertakings

CIVIL PROCEDURE – interim preservation – freezing orders – where interest in real property disposed of for consideration of one dollar – whether basis for suspicion transfer was for the purpose of defeating potential creditors exists MEDIA AND COMMUNICATIONS – publication – non-publication order - whether non-publication order covering second respondent necessary to protect identity of the plaintiff

CONTRACTS – Construction – Interpretation – whether defendant obliged by contract to pay a “Rent Guarantee” of more than $50,000 to the plaintiff – whether new lease was “procured” by defendant before date contemplated by contract – whether defendant liable for “Leasing Costs” claimed by plaintiff in amount greater than “Rent Guarantee” – defendant not liable under relevant clauses for any amount in excess of $50,000. CONTRACTS – Construction – Interpretation – meaning of defined expression "Rent Guarantee" – whether parties intended defined term to be in the nature of a cash security – where no contractual provision for the length of time the security is to be retained – where no contractual provision for the means by which the security is to be returned – the clause requiring payment of the “Rent Guarantee” should not be interpreted as requiring payment of an amount which is merely provided by way of security. CONTRACTS – Construction – Interpretation – meaning of defined expression “Leasing Costs” – whether “incentive” expenses, legal costs and/or agent’s fee fall within definition – whether amounts claimed were “incurred by” defendant within the meaning of the definition.

Valuation of land – appeal – decision on question of law – whether identified – weight to be given to comparable sales – whether valuation principle – whether error in valuation principle an error on a question of law – calculation of median and mean of values – whether valuation principle – adequacy of reasons

CIVIL PROCEDURE — Hearings — vacation of hearing date — no issue of principle

COSTS – application to vary order – judgment given in absence of defendants – costs liability of inactive defendant – whether conduct warrants indemnity costs – whether gross sum order appropriate

CRIME – costs – application for costs certificate under Costs in Criminal Cases Act 1967 (NSW) – whether if prosecution had all relevant facts it would not have been reasonable to institute proceedings – where applicant acquitted of murder as accessory before the fact following judge alone trial – Crown case structurally deficient – verdict did not turn on availability of competing inferences, with limited exceptions – circumstances Crown relied on to prove applicant provided getaway car were either contrary to evidence or too few and weak in combination to support inference that he did – other inferences Crown sought regarding applicant’s mental state baseless and illogical – certificate granted

CORPORATIONS – where defendant seeks a stay of proceedings – where defendant contends current proceedings constitute an abuse of process – where costs orders from earlier proceedings remain outstanding – where plaintiff has indicated a lack of intention to pay outstanding costs orders – whether the grant of a stay would stifle proceedings – no prima facie case established in earlier proceedings – where new proceedings mirror grounds addressed in earlier proceedings – stay of proceedings appropriate