Cases and authorities

CIVIL PROCEDURE – non-publication orders – Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 – consideration of the principle of open justice – consideration of s 578A of the Crimes Act 1900 (NSW) – public policy relevant to the administration of justice that those who complain of sexual offences should not fear coming forward – non-publication orders made – orders relating to closing of Court to be considered by trial judge in this case

CIVIL PROCEDURE – stay of proceedings – valid termination of lease – orders made by NCAT to that effect – stay refused

CIVIL PROCEDURE – discovery from prospective defendant pursuant to r 5.3 of the UCPR – principles to be applied in applications for preliminary discovery – motion for preliminary discovery granted

CIVIL PROCEDURE — originating process — amendment — where leave sought to amend the summons to include additional grounds not raised at first instance

STATUTORY CONSTRUCTION—Standing to pursue an application under the Liquor Act 2007 (NSW)—Standing to appeal to the New South Wales Civil and Administrative Tribunal—Multiple successive licensees

ADMINISTRATIVE LAW — judicial review — procedural fairness — Health Care Complaints Commission — decision not to take further steps to progress complaint against dentist — decision reviewed and confirmed by commission — whether judicial review available — failure to take matters into account — public safety — failure to give reasons

ADMINISTRATIVE LAW — supervisory jurisdiction — judicial review — declaration sought — decision of Pharmacy Council of NSW — whether Blooms has a financial interest in the relevant pharmacy business — Health Practitioner Regulation National Law (NSW) Sch 5F — NCAT appeal pending — statutory construction — construction of contracts — jurisdiction of the Supreme Court — declaratory relief — interest in the relief — exceptional circumstances — where Council decision is extant — declaration not made

CONSTITUTIONAL LAW — implied freedom of communication on government or political matters — police power to give directions — where apparently genuine protest or demonstration, procession and organised assembly generally exempt from directions — exception for protests “in or near a place of worship” — extent of burden on political communication — test for assessing proportionality — where purpose is legitimate — where alternative approach would impose significantly lesser burden — provision invalid

CONTRACTS – Construction – Interpretation – where parties enter Binding Heads of Agreement – whether obligations under the Binding Heads of Agreement are at an end – no question of principle

EQUITY — Trusts and trustees — intention to create — real property purchased by one company with funds provided by another company — existence of express, resulting, “Quistclose” and/or constructive trusts alleged — intention to create trust determinative of each alternative trust claim — significance of evidence subsequent to claimed agreement to create trust — whether evidence established intention to create trust COSTS — Costs assessment — Determination — Review/appeal — primary judge accepted some of appellants’ claims in court below but did not conclusively determine — whether appellants should be liable for entirety of costs of proceedings below

G Global 120E T2 Pty Ltd v Commissioner of State Revenue G Global 180Q Pty Ltd v Commissioner of State Revenue G Global 180Q Pty Ltd v Commissioner of State Revenue Stott v The Commonwealth of Australia Constitutional law (Cth) – Legislative power – Inconsistency between Commonwealth and State laws – External affairs – Acquisition of property on just terms – Where rate of land tax imposed by State law on non-residents and foreign-owned or controlled entities higher than rate of land tax imposed on other residents and entities – Where Commonwealth law gave force of law to international agreements prohibiting discriminatory land tax on non‑residents and foreign-owned or controlled entities – Where Commonwealth Parliament subsequently passed law excluding State taxes from scope of prohibition in Commonwealth law on imposition of discriminatory land tax on non‑residents and foreign-owned or controlled entities – Whether State law inconsistent with Commonwealth law for purposes of s 109 of Constitution – Whether subsequent Commonwealth law supported by external affairs power – Whether subsequent Commonwealth law had retroactive or retrospective effect – Whether subsequent Commonwealth law effective in removing retroactively inconsistency between Commonwealth law and State law –Whether University of Wollongong v Metwally (1984) 158 CLR 447 should be reopened and overruled – Whether Commonwealth law reviving operation of State law imposing "genuine taxation" characterised as a law with respect to acquisition of property. Words and phrases – "acquisition of property", "agreement between Australia and Germany", "agreement between Australia and New Zealand", "alter, impair or detract", "assessments of land tax", "bilateral agreements and treaties between Australia and other countries concerning taxation", "character of a law", "choses in action", "Commonwealth law", "Commonwealth Parliament", "declaratory relief", "differences in the reasoning of the members of this Court", "direct collision between an obligation imposed by a Commonwealth law and an obligation imposed by a State law", "direct inconsistency", "discriminatory land taxes", "external affairs power", "factors identified in John v Federal Commissioner of Taxation (1989) 166 CLR 417", "force of law", "foreign company", "genuine taxation", "indirect inconsistency", "inoperative", "just terms", "leave to reopen", "legislative power", "manifestly wrong", "obligation to pay additional land tax", "paramountcy of Commonwealth laws over State laws", "partial implementation", "principles carefully worked out in a succession of cases", "property", "purported land tax", "reopened and overruled", "representative proceedings", "restitution", "retroactive operation", "retrospective operation", "revival of inoperative taxes", "rights of recovery", "special case", "State law", "statements of legislative intention", "surcharge rate", "taxes imposed by State legislation", "temporal application", "validity of a law cannot be decided by agreement of the parties". Constitution, ss 51(ii), 51(xxix), 51(xxxi), 109. High Court Rules 2004 (Cth), r 27.08.1. International Tax Agreements Act 1953 (Cth), ss 3(1), 3AAA, 5(1), 5(3), 6B. Judiciary Act 1903 (Cth), s 40(1). Land Tax Act 2005 (Vic), ss 3(1), 7, 8, 10, 35, 36, 104B, 106A, Sch 1, cll 4.1‑4.5. Land Tax Act 2010 (Qld), ss 7, 8, 18B, 18C, 18D, 32, 104, 105, Sch 2, Pts 1, 2. State Taxation Further Amendment Act 2024 (Vic), ss 42, 54. Taxation Administration Act 1997 (Vic), ss 8, 135A. Taxation Administration Act 2001 (Qld), ss 63, 69, 70, 189. Treasury Laws Amendment (Foreign Investment) Act 2024 (Cth), Sch 1, cll 1, 2.

Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where s 501(6)(d)(iv) of the Migration Act 1958 (Cth) provides that person does not pass character test if risk they would, if allowed to enter Australia, "incite discord in the Australian community or in a segment of that community" – Where Minister for Home Affairs ("Minister") refused visa to controversial political commentator on basis of s 501(6)(d)(iv) – Whether there need be risk of harm to Australian community or segment of that community in order to satisfy s 501(6)(d)(iv) – Whether s 501(6)(d)(iv) invalid for infringing implied freedom of communication about government or political matters – Whether Minister misconstrued s 501(6)(d)(iv) in decision to refuse visa. Words and phrases – "aliens power", "character test", "controversial views", "danger", "definitional", "discord", "dissension or strife", "effectively burdens", "extremist views", "free flow of political communication", "harm", "implicature", "implied freedom of political communication", "in the Australian community or a segment of that community", "incite discord", "national interest", "no liberty to enter", "non-citizens", "personal right", "political communication", "practical burden", "right-wing extremism", "visa". Constitution, ss 7, 24, 51(xix), (xxvii). Migration Act 1958 (Cth), ss 65, 501(3), 501(6)(d)(iv), 501(6)(d)(v).

CRIME – appeals – appeal against conviction – inconsistent verdicts – logical and reasonable explanation for jury’s verdicts of not guilty – verdicts not inconsistent so as to be unreasonable

CORPORATIONS – interlocutory application – where plaintiffs seek interlocutory injunction – where defendants proffered an undertaking to take all reasonable steps to have second plaintiff registered as a director – where defendants do not contest there is a serious question to be tried – where balance of convenience does not favour the injunctive relief – where there is a real risk that the management affairs will be dysfunctional – plaintiffs’ application dismissed – costs to be decided on the papers

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – application to transfer proceedings from Local Court to the Supreme Court – whether sufficient cause shown to justify the transfer – where the Local Court does not have jurisdiction to deal with aspects of the defence and cross-claim – proceedings transferred COSTS – party/party – costs thrown away by reason of the vacation of the hearing date – costs where the plaintiff seeks an indulgence – transfer of the matter to a court with appropriate jurisdiction not an indulgence – costs in the cause

CIVIL PROCEDURE — protracted building-defects proceedings – directions and orders made on 46 occasions — extensive application to amend defence and cross-claims on first day of 10-day trial — principles at [32]-[33] — casino seeks $4 million in damages from builder for using combustible and non-compliant aluminium composite panels (ACPs) — builder cross-claims against architect and façade installer’s insurer — amendments sought to align pleadings with evidence exchanged and to narrow issues in dispute — whether amendments actually do this. PLEADINGS — proposed amendments inconsistent with previous pleadings — r 14.18, Uniform Civil Procedure Rules 2005 (NSW) — principles at [51]-[53] — rule is subservient to overriding case management principles, to determine real issues in dispute and correct errors.

COSTS – whether Court should order indemnity costs in accordance with loan agreement – whether Court should apportion costs – no question of principle

JUDGMENTS AND ORDERS – Final orders – no question of principle

CONTINUOUS DISCLOSURE — where scheme implementation deed required parties to comply with applicable laws including ASX Listing Rules and Corporations Act — where bidder contends scheme company’s delay in disclosing letter from industry regulator in breach of ASX Listing Rules — held that no breach of continuous disclosure obligation established CONTRACT — material adverse change provision — where bidder claims material adverse change occurred in relation to scheme implementation deed by reason of decline in scheme company’s sales performance and/or following receipt of letter from industry regulator — held that scheme company’s sales performance declined in relevant period —sales decline and other matters did not meet specified quantitative threshold for material adverse change CONTRACT — representation and warranty — construction — whether representation and warranty clause extended to content of each document disclosed in due diligence materials — held that clause extended only to collation and preparation of totality of documents produced and not the content of each individual document — held that no breach of representation and warranty clause established CONTRACT — termination — election — where scheme company contends that facts establishing bidder’s purported right to terminate known to the bidder when bidder executed amendment of the scheme implementation deed, then entered into deed poll in respect of scheme and then supported approval of the scheme at first Court hearing and reserved its position as to only one of the matters giving rise to the claimed right to terminate — whether any of these matters constituted election between inconsistent rights — whether “anti-waiver” clause in scheme implementation deed prevented election — held that bidder elected not to terminate the scheme implementation deed by reason of matters then known to it by amendment of scheme implementation deed and again by its conduct at first Court hearing — held that “anti-waiver” clause did not prevent election in the circumstances CORPORATIONS — scheme of arrangement — where Court made orders convening meeting of members of scheme company to consider scheme proposal — where bidder seeks declaration that scheme implementation deed validly terminated and associated orders for payment of break fee — where scheme company seeks orders that scheme implementation deed not validly terminated MISLEADING OR DECEPTIVE CONDUCT — where scheme implementation deed required parties to comply with applicable laws including the Australian Consumer Law — where bidder contends scheme company’s disclosure to market of its response to industry regulator letter constituted misleading and deceptive conduct in breach of the Australian Consumer Law — held that scheme company’s response not misleading or deceptive — where bidder contends scheme company engaged in misleading and deceptive conduct in representing that it “expected” its FY25 EBITDA “would be” specified figure — held that alleged representation was not made, given the nature of and context of the relevant forecast — held that misleading and deceptive conduct claims not established

SENTENCING — manslaughter by unlawful and dangerous act — early guilty plea — objective seriousness of the offence — impact of post-offence conduct on the assessment of objective seriousness — subjective considerations relevant to reducing sentence — remorse and prospects of rehabilitation — impact of the offender’s upbringing, relative youth, addiction and mental health issues on sentence — whether special circumstances warranted a variation in the standard ratio

Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs Immigration – Visas – Where plaintiff applied for protection (subclass 866) visa – Where document in application for visa included English text and images with Mandarin characters – Where Minister's delegate requested further information under s 56 of Migration Act 1958 (Cth) – Where plaintiff did not provide translation of document relied on – Where delegate refused application for protection visa – Where delegate stated documents not translated not included as part of assessment – Whether delegate failed to comply with ss 54 and 56 of Migration Act – Whether delegate's decision legally unreasonable – Whether necessary in interests of administration of justice to grant extension of time to make application for constitutional or other writ. Words and phrases – "certiorari", "constitutional or other writ", "extension of time", "have regard to all of the information", "invitation for additional information", "jurisdictional error", "mandamus", "materiality", "must have regard to that information", "necessary in the interests of the administration of justice", "protection obligations", "protection visa", "realistic possibility", "specify all particulars of his or her claim", "unreasonableness". Migration Act 1958 (Cth), ss 5AAA, 54, 56, 58, 62, 65, 476, 476A, 476B, 486A. High Court Rules 2004 (Cth), rr 4.02, 25.02.1, 25.02.2, 25.09.3.

PRACTICE AND PROCEDURE — security for costs — application for order for security for costs of appeal — where appellant bankrupt and impecunious — where appellant has history of non-appearance, non-payment of costs orders and unsuccessful litigation — where appellant has not identified any arguable ground of appeal — where there is significant risk of unrecoverable costs — Uniform Civil Procedure Rules 2005 (NSW), r 51.50

CRIME — appeals — appeal against sentence — related offences dealt with by the District Court under s 166 of the Criminal Procedure Act 1986 (NSW) — whether an offence arises from substantially the same circumstances as those from which the first indictable offence has arisen — no “bright line” — appeal dismissed

SENTENCING — appeal against sentence — federal offenders — steps to be taken when imposing a sentence of imprisonment — consideration of alternatives to full-time imprisonment — application of factors in s 16A of the Crimes Act 1914 (Cth) — where alternatives were available and subject of argument — where consideration of alternatives not undertaken expressly or by inference — appeal allowed SENTENCING — relevant factors on sentence — moral culpability — discussion of process to be undertaken when applying principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 SENTENCING — re-sentence — intensive correction order — practical difficulties on re-sentence — recognizance release order

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – whether proceedings should be transferred to a different court – where proceedings commenced prior to the amendments made to the Work Health and Safety Act 2011 (NSW) by the Industrial Relations Amendment Act 2025 (NSW) – proceedings transferred to the Supreme Court

PRACTICE AND PROCEDURE – application by defendants seeking a stay of a writ of execution – plaintiff not given sufficient opportunity to respond to application – temporary stay granted for one week

CRIME — bail — release application — section 22B of the Bail Act 2013 (NSW) — bail sought after conviction but before sentence for two sets of offences — whether s 22B applies in circumstances where there is an indication that applicant will seek to withdraw guilty plea — whether being sentenced to imprisonment to be served by full-time detention is forward-looking from time of sentence, and how that relates to non-parole period — whether special or exceptional circumstances exist — significance of applicant being offered a place in a residential drug rehabilitation program to special or exceptional circumstances, show cause and unacceptable risk tests

CIVIL PROCEDURE — Where English was witness’s second language — Where no application made for witness to give evidence through interpreter — Where no objection taken to evidence in English — Where magistrate attributed witness’s non-responsiveness to language difficulties — Whether magistrate erred by acting on witness’s evidence given in English — Whether plaintiffs denied procedural fairness — Whether magistrate gave too much weight to witness’s evidence

COSTS – security for costs – relevant factors – strength of the claim – whether plaintiff’s impecuniosity caused by defendants – security ordered

ORDERS – form of orders to give effect to principal judgment – declaration of trust – declaration of liens – declaration in respect of liability for joint loan – declarations relating to capital gains tax liabilities COSTS – where plaintiff successful on primary issue – where mixed success on other issues – defendant to pay 50% of plaintiff’s costs

NEGLIGENCE – medical negligence – application for approval of a settlement – infant settlement – statement of claim – defendant alleged to have breached its duty of care – global developmental delay – whether the proposed settlement is in the best interests of the plaintiff – where statement of claim gives no indication of relationship between particulars of negligence and harm suffered – medical specialists retained by both plaintiff and defendant – competing expert medical evidence –where no adequate summary or analyses of medical opinions was provided to the Court to support application for approval – confidential advice on settlement provided – where Courts require assistance on the question of why the settlement is appropriate

PRACTICE AND PROCEDURE – writ of possession – application by defendant seeking a stay – genuine steps to obtain refinance – hardship grounds – temporary stay granted

APPEALS — appeal from Local Court — costs order — whether leave to appeal required — whether magistrate erred by failing to consider relevant evidence — whether procedural fairness was denied in the Local Court — whether the Local Court should have provided additional assistance to a self-represented litigant — whether the proceedings were in the public interest

CIVIL PROCEDURE — Parties — Where plaintiff has died — Application by de facto partner to be substituted as plaintiff — Where amended statement of claim contends breach of contract and contravention of Australian Consumer Law provisions — Deceptive and misleading conduct — Unconscionable conduct — Whether any cause of action claimed or interest in the proceedings is capable of surviving the death of plaintiff — Whether proceedings should be dismissed — Where plaintiff’s case has been dilatory, lacks poor prospects of success and exposes first and third defendants to a real prospect of being unable to recover order for costs

COSTS – Party/Party – Bases of quantification – Indemnity basis – no question of principle EQUITY – Equitable remedies – Receivers – whether a receiver should be appointed – no question of principle JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable – whether to award simple or compound interest – no question of principle – no question of principle JUDGMENTS AND ORDERS – Stay of execution – whether to order a stay on a monetary judgment

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – conditions to be imposed as part of the ESO – no point of principle

CIVIL PROCEDURE — Professional Negligence — Pleadings — Amendment — where amendments to pleading are substantial — where plaintiff seeks to add a new defendant as a party to the proceedings — where recent expert reports provide a proper evidentiary basis for the proposed amendments — where no prior expert report addresses the issues raised by the proposed amendments — where vacation of hearing required — prejudice cured by costs

CORPORATIONS — application for leave to intervene in proceedings and to conduct appeal on behalf of company— builder’s claim against developer — where company unable to act due — constitution requiring joint directors to be unanimous — Corporations Act 2001 (Cth), ss 236, 237

CRIME — Appeals — Appeal against conviction — Appeals where prior acquittal purportedly controverted by witness evidence at trial — where no objection or direction sought at trial — leave required to rely on matters not objected to at trial EVIDENCE — purported improper admission of evidence — whether evidence was correctly admitted

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Discharge – where discharge of mortgage was necessary for the completion of a contract for the sale of land – undefended claim – HELD that the contract must be specifically performed, including by executing any necessary instruments

GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – undefended claim – judgment for the Plaintiff

VACATE TRIAL – principles at [19]-[21] – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence.

COSTS — party/party — application for special order as to costs — historical child sex abuse proceedings — liability issue — departure from ordinary rule that costs follow the event

COURTS AND JUDGES — bias — disqualification — apprehended bias — judge’s daughter works for defendant hospital

COSTS — party/party — indemnity basis — defamation proceedings — where defendants did not accept two settlement offers — where defendants failed to make settlement offer in reply — indemnity costs awarded

GUARDIANSHIP – Protected Person – Interstate domicile – Transfer of estate to place of domicile – Principles to be applied – Governed by protective purpose of jurisdiction

CORPORATIONS – whether now deceased person was duly appointed as a director of the defendant company for a period of three years prior to her death – whether loan agreement between plaintiff (as lender) and defendant (as borrower) and associated documents duly executed by the defendant – whether plaintiff entitled to make assumptions in Corporations Act 2001 (Cth) s 129(2) and s 129(5) – whether defendant established that assumptions incorrect and that plaintiff knew or suspected at the time of its dealings with the defendant that those assumptions were incorrect

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — appeal under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) – defendant acquitted of charge of unauthorised possession of a pistol in Children’s Court — where prosecution case dependent on expert certificate of forensic ballistics expert identifying pistol — challenge to admissibility of certificate — exclusion of certificate on basis of a lack of “line” between the expertise of maker of certificate and the identification of the pistol— whether question of law — whether Magistrate committed error on a question of law EVIDENCE — Exclusion of evidence —— construction of s 177(1)(c) of the Evidence Act —meaning of “expressed to be wholly or substantially based on that knowledge”

SUCCESSION – family provision – claim by adult son for further provision out of the estate of his deceased mother – where deceased’s estate is comprised of real property, a motor vehicle and a small amount of cash – where deceased made a will leaving the real property and motor vehicle to one of her four children (John) and leaving the cash to her other three children – where the deceased’s will provided that, if John predeceased her, the real property was to be sold and divided between her other three children and John’s children – where John died intestate some four months after the deceased – where John’s wife, from whom he separated several years before his death, has a statutory entitlement to a statutory legacy and half of the remainder John’s intestate estate – where the plaintiff (David) seeks an order for further provision out of his deceased mother’s estate – where the claim is opposed by John’s estranged wife – whether the circumstances and needs of John’s estranged wife are relevant to the determination of the plaintiff’s claim

SUMMARY DISPOSAL — owners of high-rise development bring four proceedings against developers, builder and others for building defects — building work rectification order issued to developers under Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) — owners commence fifth proceedings against developers only seeking declaratory relief in respect of rectification method to comply with order — cost of rectification may be $37M — whether declaration ‘purely hypothetical’ — principles at [79]-[81] — multiplicity of proceedings — multiplicity of legal representation — principles at [93]-[99] — potential inconsistent findings and affected parties not bound by any declaration — whether an abuse of process — whether proceedings should be dismissed, stayed or case managed with related proceedings —proceedings dismissed.