Cases and authorities

CIVIL PROCEDURE – Interim preservations – Freezing orders – Where extension of freezing orders sought – Where return of Summons adjourned – Extension of orders granted

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where plaintiff has failed to attend a number of medico legal assessments – Where plaintiff’s legal representatives are unable to take instructions – Proceedings dismissed

CHILD WELFARE – Adoption – Where adoptive children are siblings – Where children currently under the care of the proposed adoptive parents – Whether adoption order is in each child’s best interests and clearly preferable – Whether consent of the children’s birth father should be dispensed with – Whether adoption plans should be registered – Whether proposed name changes should be approved

COSTS — Security for costs — Whether plaintiff company is impecunious — Where quantum of security sought might stultify proceedings — Plaintiff to provide security for costs but quantum reduced

EVIDENCE ON COMMISSION – application to set aside subpoenas compelling applicants to give evidence – application to set aside subpoena to produce documents – request from the District Court of Nevada, United States of America – motions upheld in part

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether success or failure on separate claims should affect costs orders

MENTAL HEALTH – forensic patient – preliminary hearing – orders appointing experts – interim extension order – offences of intentionally causing fire and being reckless as to its spread – Black Summer bushfires – mild intellectual disability – moderate alcohol use disorder – not mentally ill – “Well Above Average” risk compared to other male sexual offenders – “High” likelihood of sexual offending – conditional release in community – no behavioural concerns since release – fishing, walking, bike riding – chronic nature of defendant’s cognitive condition – ongoing minimisation and absence of targeted intervention – response to challenges in community – orders made as sought

CIVIL PROCEDURE – registrars – review of Registrar’s decision – Court of Criminal Appeal – application to produce documents – no issue of principle

CRIME – appeals – appeal against sentence – deal with property reasonably suspected to be proceeds of crime – manifest excess – alleged misapplication of the principle of totality – De Simoni error – challenge to discount given for assistance – no lesser sentence warranted – appeal dismissed

CRIME – appeals – appeal against sentence – offence of sexual intercourse without consent – domestic violence – whether the sentencing judge erred in the application of a 25% discount for the applicant’s plea of guilty – whether the sentencing judge denied the applicant procedural fairness in finding that the offending was aggravated by a breach of trust – whether the sentencing judge double counted aggravating factors of a breach of trust and the offending having occurred in the victim’s home – no point of principle – leave to appeal granted – appeal dismissed

MONEY CLAIM – Penalty under s 269-20 of the Taxation Administration Act 1953 – proceedings not to be commenced until Commissioner gives written notice – where posting of notice proved by evidence of system for bulk postage – where notice posted not by the Commissioner personally, nor by his delegate, nor by an officer of the ATO but by a private provider of bulk printing and posting services – notice found to have been posted by the Commissioner

CIVIL PROCEDURE – discontinuance of proceedings under r 12.1 Uniform Civil Procedure Rules 2005 (NSW) – where counsel for the plaintiff engaged late has formed the view that the plaintiff should discontinue – where the defendant was deprived of the opportunity to obtain a favourable judgment by dismissal “on the merits” – where there is no delinquency or forensic misconduct on behalf of the moving party – leave to discontinue granted – discontinued on terms that the plaintiff not commence further proceedings against the defendants on the same grounds

CORPORATIONS — accounts — lodgement of financial reports — where company seeks further extension of time to submit financial reports required by Pt 2M.3 of the Corporations Act 2001 (Cth) — where orders extending time for the filing of financial reports already made on three prior occasions — where financial reports still not filed — where evidence led to support company’s ability to complete filing if further extensions granted not sufficient — application refused

HIGH RISK OFFENDER – interim application – serious violence offender – application for an Interim Detention Order – where the making of an order is opposed by the Defendant – where the Defendant is subject to an Interim Supervision Order – where the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order – application for an Interim Detention Order is refused

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — No issue of principle EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Where residuary beneficiary incurs costs recovering property which benefits estate

CONTRACTS — hire of equipment — damage to diamond saws — whether General Terms of Hire applied — whether “Hire Schedule” required to enliven terms — allocation of risk for damaged equipment — latent defect or damage during hire — application of Jones v Dunkel — assessment of damages by reference to repair invoices — admissibility of repair invoices — proportionality and case management — liability under guarantee — definition of “Owner” — overriding purpose — unpleaded issue raised in reply — Local Court appeal

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Whether Court is satisfied to a “high degree of probability” that defendant poses unacceptable risk of causing serious harm — Whether risk cannot be adequately managed by other less restrictive means — Where risk dependent upon whether defendant maintains sobriety — Where pattern of alcohol-related offending

ESTOPPEL — Proprietary estoppel — Encouragement — Where deceased transferred approximately 3000 ha of farmland to second defendant — Where second defendant and plaintiffs are siblings — Whether the deceased had made representations to the plaintiffs that they would each get a third of the farmland — Whether it was reasonable for the plaintiffs to rely on the alleged representations — Whether the plaintiffs relied to their detriment on the alleged promises SUCCESSION — Family provision — Claim by adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Potentially large notional estate — Where plaintiffs each received cash legacy and second defendant received farmland — Whether adequate and proper provision made for the plaintiffs — Where plaintiffs contend they should each be given further provision to fund the purchase of farmland

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied

CIVIL PROCEDURE — Interlocutory injunctions — Application for interlocutory injunction restraining mortgagee defendant from taking any enforcement action with respect to property owned by mortgagor plaintiff COMMERCE — Agriculture — Farm Debt Mediation Act 1994 (NSW) — Prohibition on “enforcement actions” — Plaintiff submits the prohibition applies to a farm in which steps have been taken to prepare for cattle grazing and on which other cattle are agisted — Discussion regarding the definition of “farming operation” — Regard to the purpose of the legislation — Determined there is a prima facie case the prohibition applies CIVIL PROCEDURE — Whether plaintiff should be required to pay moneys into Court as security — Seemingly $950,000 equity in the subject property — Discussion of “Inglis principle” and exceptions — Determined that plaintiff not required to pay moneys into Court and that undertaking based on equity in property is sufficient PRACTICE — Judgments and reasons —Encouragement to legal practitioners to notify Court, in the context of a busy Duty List, if, upon reflection, reasons are not required expeditiously

CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — Where first defendant charged with serious criminal offences — Where plaintiffs allege first defendant engaged in misleading or deceptive conduct in relation to an investment — Where the transaction at issue in these proceedings also forms the basis of some of the criminal charges being defended by first defendant – Whether it is in the interests of justice to stay proceedings in these circumstances

SUCCESSION – Probate and administration – contest between children of the deceased testator as to which of two competing wills should be admitted to probate – the equity in the estate’s principal asset is being eroded by mortgage interest, an issue which the parties are not addressing – two parties apply for pro bono legal assistance under Uniform Civil Procedure Rules 2005, r 7.36 for the probate contest – whether in the circumstances pro bono legal assistance should be recommended by the Court where the Court doubts the declared financial position of the parties and the parties are not focused upon the declining financial position of the estate.

CONTRACTS — incorporated medical practice has 7-year contract to provide IVF specialist services to bulk billing IVF clinic — IVF specialist receives negative online reviews — IVF clinic receives patient complaints about ‘bedside manner’ and lateness — staff complain about rudeness and yelling — contract terminated without notice on the basis of the “reasonably held opinion” of the IVF clinic that the doctor had “committed an act which if true would” adversely affect its reputation or business – doctor seeks $3.8M damages. NATURAL JUSTICE — whether IVF clinic obliged to give notice – whether IVF clinic obliged to afford natural justice and investigate complaints – case law review and principles at [212]-[232]. CORPORATIONS – attribution of state of mind of officers – principles at [256] – necessary to consider the evidence of three officers to determine whether the corporation had a ‘reasonably held opinion’. NOTICE OF BREACH — whether written notice required — whether notice conformed to requirements of clause — principles at [209]-[210] – oral notice sufficed. DAMAGES — company provides services by its director, who is paid a salary – whether company’s loss is gross income or nett profit – principles at [293]-[296] — failure to mitigate — doctor does not resume medical practice for three years – principles at [304]-[306]. WORDS AND PHRASES — “would” at [233].

ADMINISTRATIVE LAW – appeal from judicial review decision – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs that should be paid by Secretary of Department – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s payment rates for solicitors and counsel – standard of legal unreasonableness – advertence to policy considerations – statutory purpose – no error in reasoning of primary judge

INSURANCE – interpretation – standard business insurance policy – insurance of petrol station – meaning of “building” within policy – whether underground pipes fall within definition of “building” INSURANCE – interpretation – meaning of “contract value” – whether “contract value” distinguishable from “contract price”

SENTENCING — appeal against sentence — relevant factors on sentence — Form 1 offences — whether sentencing judge impermissibly took Form 1 offence into account when assessing the objective seriousness of the principal offence — whether sentencing judge failed to make finding accepting or rejecting case advanced by the applicant — where appeal allowed — resentence — where a greater sentence ought to have been imposed than that given by the sentencing judge

CIVIL PROCEDURE – held – where the defendants consent to defence being struck out and summary judgment being entered for the plaintiffs – where no triable issue raised by the defence – summary judgment for the plaintiffs for possession of the property

CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice, embarrassment or delay — Where plaintiffs commenced proceedings against defendants in defamation — Where plaintiffs pleaded separate imputations that third plaintiff ‘ordered’, was ‘responsible for’ and was ‘criminally involved in’ arson attacks — Whether imputations differ in substance pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.30(3) — Whether pleadings should be struck out for causing prejudice, embarrassment or delay pursuant to UCPR r 14.28(1)(c)

CIVIL PROCEDURE – summary disposal – where the defendant is self-represented and did not appear on the current application – where the only issue between parties is whether the defendant remedied defaults in terms of the loan agreement and mortgage – where the evidence discloses the defendant’s acts of default – no pleadable defence in the circumstances – held – summary judgment for the plaintiff for possession of the property

TRUSTS – whether directors of trustee resolved to amend trust deed and to approve appointment of a new appointor – whether amendment was outside power – whether appointor exercised power to appoint a supervisor for an improper purpose – whether supervisor exercised power to remove and replace trustee upon real and genuine consideration – whether appointments of appointor, supervisor and replacement trustee were invalid and of no effect EMPLOYMENT – where employment of chief executive officer terminated on payment of five weeks’ pay in lieu of notice – whether employment governed by written executive employment agreement – whether a mutual intention to abandon or vary the terms of the written agreement is imputed to the parties – whether employment could only be terminated on reasonable notice – whether employer breached implied obligations of good faith and reasonableness – whether there were grounds for summary dismissal CONTRACT – offer and acceptance – where parties exchanged emails regarding the terms of a proposed bonus in return for the successful implementation of a strategy to develop pubs – whether there was a binding agreement as to this “hospitality bonus term” CORPORATIONS – Oppression – whether the affairs of group of companies were conducted in a manner oppressive to minority shareholder – whether there was a strategy to remove minority shareholder as chief executive officer and as a director of operating entities for purpose of persuading him to agree to sell shares – whether there was commercial unfairness in removing minority shareholder from those roles

EVIDENCE – Expert evidence – application for single expert to be appointed pursuant to r 31.37 of the UCPR – complex and contested quantum issues – unclear scope of expert’s task – financial prejudice to defendants – whether appointment would advance the just, quick and cheap resolution of the real issues – HELD – application dismissed

CIVIL PROCEDURE — subpoenas — objection to production of documents or things — client legal privilege — privileged documents not to be produced CIVIL PROCEDURE — subpoenas — objection to production of documents or things — compliance burden

CIVIL PROCEDURE – Pleadings – Amendment – Where a defendant opposes the filing of a further Amended Statement of Claim – Where a defendant submits that proceedings ought be summarily dismissed – Whether plaintiff had been given sufficient opportunity in the past to re-plead such that further leave should not be granted – Where defendant subject to real prejudice as a result of costs incurred by continued failed attempts to adequately re-plead cause in action – Where plaintiff entitled to ventilate their claim in circumstances where they were a victim of sexual abuse – Where failure of plaintiff’s solicitors to adequately draft an appropriate pleading is not to be attributed to the plaintiff so as to prevent the matter being litigated – Leave granted

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Application for variation or rescinding of previous orders – Application for continuation of stay previously ordered PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks to rescind, set-aside or vary an order made by a Judge of the Supreme Court of NSW regarding the registration of foreign orders based on an alleged error of law and fact – Where said order was made by consent – Whether the order was consented to by the parties in error as a result of an error of fact and foreign law – Insufficient cause shown that the order was made irregularly, illegally or against good faith – No application of the ‘slip rule’ contained in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – Where order sought by the plaintiff does not fall within any identified rules contained within the Uniform Civil Procedure Rules 2005 (NSW), Supreme Court Act 1970 (NSW) or Civil Procedure Act 2005 (NSW) – Where inappropriate for the Court to exercise discretion to set aside an order whilst an appeal is pending with respect to that order – Relief not granted PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks through Notice of Motion a declaration that a stay ordered by a Judge of the Supreme Court of NSW remains in full force and effects whilst awaiting the outcome of similar proceedings in a foreign jurisdiction – Whether a stay ordered previously has come to an end as a result of the delivery of a foreign judgment – Whether there has been final determination of the defendant’s set-off application – Where stay order contains reference to bankruptcy petitions and statutory demands which have not yet been determined – Where international judicial comity and public interest suggests that overlapping proceedings should not be heard simultaneously in different jurisdictions – Where it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of a set-off application in a foreign court – Where the stay order was made on the basis that there would be a determination of a balancing figure after the completion of set-off – Relief granted

CRIMINAL LAW — appeal against conviction — causing grievous bodily harm with intent to cause grievous bodily harm — alleged unreasonable verdict — substantial evidence of multiple blows to the victim’s head – admissibility of statement made immediately after assault — statement made when victim unconscious — whether capable of constituting admission — motive to inflict grievous bodily harm — s 81 Evidence Act 1995 (NSW) — extension of time — delay caused by seeking a second opinion — appeal lacking merit

CRIME – Appeal – Appeal against sentence – Aggregate sentence – 35 counts including dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, actual bodily harm caused by wanton driving – Whether material error in factual findings –Whether sentence manifestly excessive – Whether notional accumulation excessive – Leave to appeal granted but appeal dismissed

CRIME – appeals – appeal against conviction – unreasonable verdict – murder – joint criminal enterprise and extended joint criminal enterprise – investigated nine years later – where applicant acquitted by this Court – where High Court allowed Crown appeal and remitted for determination – admissions – where admissions central to proof of Crown case – reliability of admissions – inconsistent and against interest – litany of lies – Court invited to review recorded material – intercepted telephone calls and interviews with police – nature of advantage held by jury – whether advantage capable of resolving doubt.

CRIME – Appeal – Appeal against conviction – Unreasonable verdict – Murder – Whether Crown excluded the possibility that a person other than accused inflicted at least one blow to the head of the deceased – Deference given to advantage of jury in assessing credibility and reliability of witnesses

CRIME — appeal against sentence — sentence approximates the sentence actually sought at first instance — not manifestly excessive — parity ground — less severe outcome for co-offender amply justified by differences between cases — no question of principle

CRIME – appeals – appeal against conviction – unreasonable verdict – attempt to possess commercial quantity of heroin – whether prosecution required to exclude possibility that an associate of the applicant had attempted to possess the heroin alone – unnecessary for prosecution to exclude that possibility – verdict not unreasonable CRIME – appeals – appeal against sentence – principles in R v De Simoni (1981) 147 CLR 383 – whether sentencing judge sentenced applicant based on his “role in importation” – error established – no lesser sentence warranted

CRIMINAL LAW — appeal — conviction — self-represented applicant — maintaining unlawful sexual relationship with child under 16 years — challenges to conduct of prosecutor, defence counsel and trial judge — allegations of miscarriage of justice — admissibility of tendency, context and complaint evidence — alleged judicial bias — unreasonable verdict — constitutional challenge to s 66EA of the Crimes Act 1900 (NSW) CRIMINAL LAW — appeal — conduct of defence counsel — conduct of prosecutor — whether conduct caused miscarriage of justice CRIMINAL LAW — appeal — sentence — maintaining unlawful sexual relationship with child under 16 years — incompetence of counsel — alleged error in assessing number and frequency of acts — manifest excess — failure to consider particular circumstances — absence of remorse or insight

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentences imposed on five co-offenders — where five co-offenders received lesser sentences after the applicant was sentenced — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment

CIVIL PROCEDURE — pleadings — striking out — where Defendant alleges Plaintiff’s statement of claim has tendency to cause prejudice, embarrassment or delay — where lengthy statement of claim seeking to wind up defendant company alleges unparticularised breaches of a settlement deed, statute and the general law — where statement of claim repeatedly fails to identify facts, matters or circumstances in support of the allegations made —where Defendant alleges Plaintiff does not have standing to bring application — unnecessary to decide — where Defendant alleges winding up application is inappropriate for resolving the Plaintiff’s allegations — held that the complex and unresolved claims would not be appropriately resolved in a winding up application — statement of claim struck out — proceedings dismissed

SUCCESSION — Burial and interment rights — Urgent application by granddaughter within 48 hours of deceased’s death to the Court for orders permitting 90 minutes of private access (with no other person present) to the deceased’s body, including permission for touching, before preparation of body for interment — Deceased made a number of instruments and directions regarding her burial — Ultimately, the deceased appointed a solicitor as executor but entrusted her son (first defendant) with making arrangements for her interment and discussed her wishes with him — Proposed arrangements for deceased’s memorial service to occur within days by closed casket and then for interment of deceased’s body in family vault SUCCESSION — Burial and interment rights — Initial lack of clarity regarding who had custody of the deceased’s body and location — Importance of parties being able to provide the Court with a core of critical information quickly to enable a sufficient picture of essential details to emerge from an obscured position SUCCESSION — Burial and interment rights — Joinder of parties — Deceased’s executor (a solicitor) joined as a party and orders made pursuant to r 7.10(2)(b) UCPR for representation and binding of the estate in respect of the determination in the absence of a grant of probate of the deceased’s Will and Codicil ALTERNATIVE DISPUTE RESOLUTION — Burial law — Law is often a blunt and sometimes can be an insensitive instrument to resolve what are essentially relational disputes between parties — Imperatives of ensuring the interment is conducted in a dignified manner and honouring the memory of the deceased heighten the sensibility of parties endeavouring, within the limited window of time available, to agree on consensual solutions — Parties encouraged by Court to first explore consensual outcomes SUCCESSION — Burial and interment rights — Case management — Plaintiff seeks orders regarding immediate access to deceased’s body and also disclosure of information and records — Access issue to deceased’s body immediately addressed — Application for disclosure of information and records separated from abovementioned matter SUCCESSION — Burial and interment rights — In absence of an agreed outcome between parties, the Court’s resolution of the matter will necessarily require appropriate clarity of orders — Determination that plaintiff should have time in the presence of the deceased’s body in an open casket but with no touching and orders made giving precision to that

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for extended supervision order – final hearing – whether defendant high risk terrorist offender – convicted NSW terrorism activity offender – statutory preconditions – jurisdiction – unacceptable risk test – expert evidence – other relevant material – autism spectrum disorder diagnosis – demonstrated belief in violent jihad – risk-increasing effect of order – primary risk of general violence – untested in community – risk unacceptable – discretion – extended supervision order made – period of 1 year – significantly less restrictive conditions imposed – if I had more time, I would have written a shorter letter – Mark Twain – Blaise Pascal

CORPORATIONS — voidable transactions — application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Second Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established

CRIME – jurisdiction to prosecute executive liability offences under the Food Act – absence of express power – whether Food Authority as a statutory body has implied power to prosecute Food Act offences STATUTORY INTERPRETATION – legislative purpose – consideration of Act as a whole – text and context – coherence of outcome of construction

Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Where Government of Russian Federation granted lease in 2008 by Commonwealth of Australia for land in Australian Capital Territory – Where land to be used for diplomatic, consular or official purposes by Russian Federation – Where land was 300 metres from Parliament House – Where lease terminated by operation of Home Affairs Act 2023 (Cth) – Whether Home Affairs Act supported by s 122 of the Constitution – Whether termination of lease constituted acquisition of property within meaning and scope of s 51(xxxi) of Constitution – Whether s 51(xxxi) of Constitution limited to empowering acquisition of property for purpose related to need for or proposed use or application of property to be acquired – Whether provision of just terms for termination of lease incongruous notion. Words and phrases – "abstract", "acquisition", "acquisition of property", "acquisition power", "carved out", "compensation", "discretion as to costs", "fair dealing", "for the government of any territory", "foreign state", "head of power", "incidental power", "incongruous", "just terms", "land", "lease", "national security", "nexus", "Parliament House", "peace, order and good government", "power to make laws", "property", "proposed use", "protect", "purpose", "qualifies", "reversionary interest", "risk", "scope", "source of legislative power", "Takings Clause", "territories power". Constitution, ss 51(xxxi), 96, 111, 122. Home Affairs Act 2023 (Cth), ss 4, 5, 6, 7.

EVIDENCE – Admissibility of evidence under s 25(3) Crimes (High Risk Offenders) Act 2006 (NSW) – where the plaintiff seeks to adduce evidence relating to charges against the defendant which were ultimately withdrawn – where the defence objects on the ground of relevance – objection overruled – evidence admitted

CIVIL PROCEDURE – defendants seeking dismissal of proceedings pursuant to UCPR, r 13.4 or in the alternative, that Statement of Claim be struck out pursuant to UCPR, r 14.28 – plaintiff pursuing claims under the Public Interest Disclosures Act 1994 (NSW) and Public Interest Disclosures Act 2022 (NSW) – plaintiff pursuing claim alleging misfeasance in public office – plaintiff alleges she suffered detrimental action in reprisal for making a public interest disclosure – difficulty with plaintiff’s pleadings as they currently stand – unrepresented persons often not familiar with the rules of pleadings – case management orders made