Cases and authorities

TORTS – intentional torts – representative proceedings – strip searches at music festivals – cause of action for assault, battery and false imprisonment – lead plaintiff directed to take her clothes off and move her body parts and body to facilitate the search – where defendant changed its position weeks before the hearing date – where defendant now accepts the search was unlawful Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – the operation of ss 31, 32 and 33 of LEPRA – what is required to satisfy the preconditions of “seriousness” and “urgency” of the circumstances – whether the searching officers failed to comply with the safeguards afforded under ss 32 and 33 of LEPRA – whether there is an implied power to direct that a person being strip searched move their body and/or body parts to facilitate the search – whether “genital area” includes the anus for the purpose of s 32(6) of LEPRA DAMAGES – whether the Limitation Act 1969 (NSW) bars the plaintiff from an award of aggravated and exemplary damages – whether the plaintiff is entitled to aggravated damages for the conduct of the proceedings – where the non-compliance with the LEPRA provisions resulted in egregious breaches by the searching police

CIVIL LAW – high risk sexual offender – extended supervision order – conditions – relevant considerations – lengthy history of predatory conduct – recent signs of rehabilitation – 66-year-old Anaiwan man – mental health and cognitive issues – parsimonious approach to duration of order and conditions

COSTS — Party/Party — General rule that costs follow the event — where plaintiff ultimately successful in her application for provision — where each of the plaintiff and the defendant seeks indemnity costs on basis of offers of compromise made in accordance with r 20.26 of the UCPR or principles established in Calderbank v Calderbank — where none of the offers entitles the maker to indemnity costs — HELD — costs follow the event

ADMINISTRATIVE LAW – judicial review of administrative decision – where interim relief sought seeking stay on NCAT orders and restraint on NCAT making further orders – where jurisdictional question raised – relief against forfeiture - where serious questions to be tried – conditions – orders granted

CRIME – Procedure – Subpoena to produce issued to Australian Criminal Intelligence Commission –Intelligence material collected by the ACIC – Secrecy immunity against production –Whether it is necessary material be produced for the purpose of carrying into effect the provisions of a relevant Act – Whether it is necessary for material to be produced for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions

EVIDENCE – Rulings – Unfavourable witnesses – Application to cross-examine witness pursuant to s 38 – “I don’t recall”-style evidence – Unpredictable witness earlier charged with knowingly giving false evidence CRIME – Murder – Trial by jury – Application to discharge jury – Potential prejudice arising from a failure to call the witness on a Basha inquiry EVIDENCE – Rulings – Admissions – Application for exclusion of evidence under ss 90 and 138 – Admissions subsequently reported by witness to police not captured by s 90 – Statement obtained illegally or improperly assumed for expedience – Balancing exercise favours admissibility

CRIME – Murder – Jury trial – Defence application for Mahmood direction as a result of Crown not calling some twenty persons to give evidence – Consideration of relevant factors – Where anticipated evidence is largely speculative and peripheral to relevant issues – Where anticipated evidence is highly unlikely to be admissible – Mahmood direction given only in relation to non-OCN witness where prosecution was on notice

OCCUPATIONS — health practitioners — misconduct and discipline — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal upheld complaints of unsatisfactory professional conduct and professional misconduct — whether Tribunal erred on a question of law —meaning of “National Board” in s 130 of Health Practitioner Regulation National Law (NSW)

EVIDENCE – Identification evidence – Admissions – Still image depicting murder vehicle bearing an unidentifiable driver – Evidence of subsequent admissions – Whether manipulation by zooming in to certain parts of the image is unfairly prejudicial – Whether evidence should be excluded or its use limited – Evidence of an unidentifiable driver cannot constitute “identification” evidence

EVIDENCE – Unreliable evidence – Warning to the jury pursuant to s 165 – Where witness is not “criminally concerned” with events giving rise to the proceeding – Submission that witness joined conspiracy to murder conceded to lack merit – Drug use not a matter requiring a warning

COSTS — where appellant enjoyed partial success on appeal — where retrial ordered — whether to apply usual rule as to costs for costs of appeal — whether costs of trial should be costs in cause — whether to order security for costs for the retrial CIVIL PROCEDURE — Court of Appeal — where retrial ordered — whether orders should be made affecting ambit of retrial

CRIME – appeals – appeal against conviction – irregularity in criminal trial – materiality – miscarriage of justice – where criminal record of appellant’s accountant was sought to be tendered but not admitted – no irregularity disclosed – any irregularity was not material – no miscarriage of justice CRIME – appeals – appeal against conviction – materiality – where trial judge upheld an objection to questioning of a Federal Agent which called for speculation – no error disclosed

BAIL – release application – aggravated sexual intercourse without consent – one of four co-accused – liability by way of complicity – joint criminal enterprise – unacceptable risk test – where applicant least involved of co-accused – did not instigate offending or participate in physical acts – where Crown case not incontestable – significant period of time in custody if bail refused – issues involving access to complainant’s telephone number and flight – risks not unacceptable – bail granted with conditions

SUCCESSION — Probate and administration — Practice and procedure — Practice in relation to responding to requisitions

CORPORATIONS – members’ rights and remedies – oppression – where company raised capital by the issue of shares to the Plaintiffs pursuant to an Information Memorandum – where shares were issued by the company to a trust controlled by the company’s founder and to various other persons associated with the company at a price well below the price paid by the Plaintiffs – where the company subsequently issued options to various persons to acquire shares at a price well below the price paid by the Plaintiffs – whether the issues of the shares by the company at a price below the price paid by the Plaintiffs amounted to oppressive conduct – whether there is continuing oppression – whether relief should be granted

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due despatch

COURTS AND JUDGES — Judicial review — Coroners Court — Coroners Act 2009 (NSW), s 23 — Scope of coroner’s jurisdiction — Whether jurisdiction limited by common sense test of causation of death — Whether matters coroner indicated she would consider and decide could be characterised as “concerning the death”

MENTAL HEALTH — forensic patient — extension of status as forensic patient — schizophrenia — substance use disorder — experts disagree about extension of status as a forensic patient — least restrictive measure — relevance of community treatment order in risk management — extension not granted

CRIMINAL LAW – Murder – Single count of murder – Trial by Judge alone – Circumstantial case – Plea of not guilty – Strangulation by two ligatures – Sexual intercourse with body after death – Crime scene evidence – Evidence of a struggle – Whether alternative verdict of manslaughter made out – Mental element – Specific intent – Effect of intoxication – Case for the accused – Third-party intruder theory – No evidence of a break-in – Where the accused’s post-offence conduct was said to be the result of a panic that he would be blamed for the murder CRIMINAL LAW – Witness evidence – Expert evidence – DNA evidence – Where a witness being the next-door neighbour of the deceased was able to provide a contemporaneous account of the murder – Where the accused was positively identified by a witness as leaving the scene of the murder immediately after the murder occurred CRIMINAL LAW – Witness evidence – Pseudonym order – Where an informant has given evidence to the Court of admissions made by the accused whilst incarcerated – Where information provided to the Court by an informant could only have come from the murderer – Prison informer CRIMINAL LAW – Post-offence conduct – Where the accused’s post-offence conduct demonstrated a consciousness of guilt – Where the accused brought his mother to the deceased’s body – Where the accused drove the deceased’s vehicle to a remote area and set it on fire – Where the accused burnt his clothes following the murder – Where the accused changed his appearance following the murder – Where the accused demonstrated suicidal ideations following the murder

CRIME – appeals – appeals against conviction – extended unanimity directions – conspiracy to commit an act in preparation for, or planning, a terrorist act or acts - whether an extended unanimity direction required as to terrorist act or acts prepared for or planned – preparing for, or planning, a specific terrorist act not an “essential ingredient” of offence of conspiracy to commit an act in preparation for, or planning, a terrorist act or acts – where only issue at trial was whether the applicant was a party to a conspiracy to do acts in preparation for, or planning, a terrorist act or acts which was admitted to exist between other parties – extended unanimity direction as to a particular terrorist act prepared for, or planned, not required in the circumstances CRIME – appeals – appeals against conviction – lies as consciousness of guilt – whether asserted lies were material and explicable only on the basis that the truth would implicate the applicant – whether jury would employ circular reasoning in their consideration of the asserted lies – no risk of the jury employing circular reasoning – in light of other evidence it was open to the jury to conclude the lies were material and explicable only on the basis that the truth would implicate the applicant

PARTNERSHIPS AND JOINT VENTURES — Joint venture agreements — Rights and duties between joint venturers — Whether partnership — Whether receiver validly appointed

CIVIL PROCEDURE — stay of proceedings until plaintiff satisfies District Court costs order — where District Court dismissed proceedings and ordered costs — UCPR r 12.10 — summary dismissal sought in the alternative — orders sought under Vexatious Proceedings Act 2008 (NSW) — stay granted — referral to pro bono panel — plaintiff to appeal District Court decision

SUCCESSION – family provision – costs – intestacy where plaintiff’s application for a family provision order will succeed – general rule that costs follow the event pursuant to UCPR r 42.1 – where the overall justice of the case must be considered – where question of whether litigation expenses can be recovered may depend on the underlying character of the litigation – where defendant was administrator of the estate – where defendant was defending her entitlement to obtain the deceased’s estate pursuant to intestacy rules – where litigation principally pursued for the benefit of the defendant – defendant entitled to reimbursement for steps undertaken to secure and perform the administration of the estate on an indemnity basis – defendant only entitled to be reimbursed part of her costs of the proceedings from the estate – parties to provide final orders to give effect to reasons – application for costs order by former solicitor for the plaintiff – whether application should be entertained – application not entertained

COSTS – no question of principle

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where plaintiff/cross-defendant was partially successful in respect of one issue in substantive proceedings — Whether plaintiff/cross-defendant’s costs in respect of that issue should be paid out of trust funds — Whether each party should pay its own costs in respect of that issue CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether costs order should be stayed until deadline for filing appeal expires or when appeal is determined — Where no such appeal has been filed

CIVIL PROCEDURE – summary disposal – summary judgment for possession sought by plaintiffs – no issue except whether the plaintiffs were parties to the mortgage and deed of loan – term in mortgage and deed of loan permitting the names of the persons who actually advanced the loan funds to be inserted in the mortgage and deed of loan documentation before the advance of the funds – where evidence established that plaintiffs advanced funds to borrower – on the proper construction of the mortgage the persons who advanced the funds were mortgagees under the mortgage and entitled to sue as plaintiffs – where borrowers accepted they were obligated to repay principal and pay interest and these obligations were secured by the mortgage – no dispute as to default in payment of principal or interest – summary judgment for possession ordered

CONTRACTS – interpretation – agreement for sale of business – sellers’ warranty that accounts give a true and fair view of the financial position and state of affairs of the business as at each of three accounts dates and of the financial performance of the business for the one-month period ending on each accounts date – where the business sold was a division of a larger business – where no separate management or financial accounts had been maintained for the division – where sellers provided to buyer for due diligence purposes accounts for the division for a three-month period prepared by sellers after attributing parts of the revenue, costs and operating expenses of the larger business to the division in each of those three months – meaning of “true and fair view” CONTRACTS – breach of warranty – measure of damages – difference between price paid and true value – approaches to assessing true value

CIVIL PROCEDURE — Hearings — Adjournment — Where plaintiff seeks adjournment of final hearing due to lack of access to documents in custody — where plaintiff failed to comply with previous directions orders — where proceedings commenced in 2001 — where plaintiff’s conduct approaching scandal — application dismissed TORTS — false arrest — false imprisonment — malicious prosecution

INJUNCTIONS – where injunction sought to reoccupy the property – where bank in lawful possession of the property pursuant to court order – where sale of property stayed by the bank in accordance with an undertaking given to the Court

CIVIL PROCEDURE – Notice of Motion – Felons (Civil Proceedings) – application for leave to commence proceedings – duty judge – leave granted nunc pro tunc

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — where limitation period may expire while application for leave part heard – whether interim leave should be granted pending hearing of application

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

COSTS – offer of compromise not accepted – whether offers of compromise were “real and genuine” – whether significant costs were incurred

CIVIL – Notice of Motion – s 4 Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings – leave granted nunc pro tunc

SENTENCING—Appeal against sentence—Erroneous incorporation of reduction for past cooperation within utilitarian discount for early plea—Failure to consider contrition—Re-sentencing exercise undertaken—Appeal dismissed

CRIME — Appeals — Appeal against sentence — Recklessly inflicting grievous bodily harm — Whether failure to take into account mitigatory factors that offence was not planned and provocation — Whether sentencing judge erred in sentencing applicant for all injuries caused to victim in circumstances where applicant initially acted in lawful self-defence

COSTS – costs orders in interlocutory proceedings – whether applicant is an intervener and is entitled to her costs – where there was no hearing on the merits – whether plaintiffs’ conduct was unreasonable – where plaintiffs capitulated to the orders sought – whether indemnity costs ought to be ordered

CIVIL PROCEDURE – Judicial review proceedings – Where leave sought to permit cross-examination and oral evidence – Where evidence sought to be led is directed at merits of underlying decision – Where consideration of merits impermissible for purposes of Judicial review proceedings – Application dismissed

Judicial Review – NCAT decisions – Administrative decisions – Privacy and personal information protection

CONTRACTS — Implied terms — Terms implied in fact — No issue of principle COURTS AND JUDGES — Jurisdiction — District Court — Desirability of expanding power of Supreme Court to transfer cases to District Court where equitable claim secondary or spurious to claim within District Court’s jurisdiction

ADMINISTRATIVE LAW — review of decision of Australian Energy Market Commission — status of Compensation Guidelines — whether Commission failed properly to apply Compensation Guidelines — whether plaintiff denied procedural fairness — whether Commission acted in irrational, illogical or unreasonable manner — whether Commission contravened principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

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 erred in applying psychiatric permanent impairment rating scale in Motor Accident Permanent Impairment Guidelines

PRACTICE AND PROCEDURE – late application to vacate final hearing – 8 days set aside – hearing date in place since February 2025 – assertion new solicitor recently retained – some doubt about that assertion – inadequate explanation – possibility second defendant will be declared bankrupt and the plaintiff will need leave to proceed given creditors’ meeting fixed for Friday 29 August 2025 – plaintiff will proceed to the Federal Court for urgent leave to proceed if necessary – possibility 29 August 2025 creditors’ meeting will be adjourned to allow for further investigation by the trustee CIVIL PROCEDURE – disclosure orders – freezing orders – elements for making freezing orders are satisfied – evidence available that allows an inference that the second defendant has carried out acts inconsistent with previous freezing orders – divesting of assets to company run by second defendant’s mother – extensive casino-based gambling activities by second defendant – alleges mother loaned him money to gamble – know when to walk away and know when to run – alienation of assets to company run by mother – surrounding circumstances and timing support inference that alienation of assets was to defraud current and potential creditors

CIVIL PROCEDURE—Application for further extension of stay to prevent funds paid into court being released to successful party in satisfaction of judgment debt—Short extension granted on previous motion to allow unsuccessful party to consider seeking review—No application for review—No justification for further extension—Prejudice asserted on behalf of third party which is aware of proceedings--Further extension an arbitrary and unjustifiable frustration of successful party’s right to take benefit of orders below—Motion dismissed

PROCEDURAL RULINGS – Use of private solicitors by government agency – Request for order prohibiting use of private solicitors – Request for sound recording – Request for protective costs order – Oaths of office of judicial officers – De facto officers doctrine

CIVIL PROCEDURE – service – informal service –where plaintiff attempted service of originating process on three siblings – where summons emailed, texted, and left at residential addresses – where solicitor previously held instructions to accept service on behalf of first defendant – whether sufficient steps taken to bring summons to notice of defendants CIVIL PROCEDURE – service – substituted service – where personal service on defendants unsuccessful – where summons affixed to residential premises and sent via electronic means – whether personal service impracticable – whether substituted service appropriate

CIVIL PROCEDURE – Notion of Motion – implied undertaking – writ for the levy of property – special circumstances

COSTS — Exceptions to general rule that costs follow the event in probate litigation — Whether testator ‘caused’ the litigation — Application of general principles

EQUITY – Tracing – where signature on land transfer forged and initial recipient of land held the interest in land on Black v S Freedman type trust – where land then transferred to third party – whether third party is a bona fide purchaser for value without notice – whether order for judicial sale should be made – no question of principle

CIVIL PROCEDURE – Application to transfer proceedings from Local Court to Supreme Court – Where claim in Local Court is well below jurisdictional limit of Local Court Small Claims Division – Where no appropriate basis for the transfer – Application refused