Cases and authorities

CRIME – appeals – appeal against sentence – Commonwealth child abuse material offences – State offences of common assault, sexual touching and possessing child abuse material – whether the sentencing judge erred in his findings as to the degree of deception practiced by the applicant in his offending and his use of insights gained from his teaching career – whether the aggregate sentence in respect of the Commonwealth offences was manifestly excessive – whether the overall effective sentence was manifestly excessive as a result of the asserted errors – leave to appeal granted – appeal dismissed

CRIME – appeals – appeal against conviction – murder – where applicant fired 226 cartridges – whether adequate directions given to the jury on the standard of proof for partial defence of substantial impairment – standard of proof – where asserted failure by the judge to explain the meaning of balance of probabilities to the jury in relation to partial defence of substantial impairment – where jury directed on the full defence of mental illness – balance of probabilities – where jury directed balance of probabilities means more likely than not – where directions not given in the terms of R v Porter or the Criminal Trial Courts Bench Book – where no objection taken at trial to the directions given – where jury did not request clarification on the meaning of balance of probabilities – whether miscarriage of justice CRIME – appeals – appeal against conviction – summing up – whether adequate summing up of the defence case – whether summing up when read as a whole is fair, balanced and impartial CRIME – appeals – appeal against sentence – whether the judge erred in assessment of objective seriousness – whether sentence is manifestly excessive – whether the judge gave insufficient weight to the applicant’s subjective factors CRIME – appeals – appeal against sentence – whether the judge failed to give meaningful effect to finding of special circumstances – where modest reduction in variation to statutory ratio – whether degree of adjustment within sentencing discretion

CRIMINAL APPEAL – mixed verdicts – applicant alleged to have sexually assaulted his step-daughter on numerous occasions over a number of years at different locations – where jury returned guilty verdicts on the first three counts, not guilty on four later counts and unable to agree on four other counts – whether verdicts factually inconsistent – test of logic and reasonableness – whether verdicts unreasonable or unable to be supported – relevance of jury being unable to agree – fact specific inquiry – where potent evidence in the form of complaint concerning general allegation of sexual misconduct – where such evidence did not relate to a specific count – whether open to the jury to reach guilty verdicts on some counts but not others – evidence of good character and denials – conflict in evidence of opportunity – whether jury ought to have entertained a doubt – advantages of jury in circumstances of the case manifest and substantial CRIMINAL LAW – directions to jury – “Markuleski” direction – where direction focused on reliability rather than truthfulness – where jury not directed that it was difficult to see how different verdicts could be returned on different counts – where no objection taken to direction at trial – where issues clear – while “full” direction preferable counsel satisfied direction sufficient – leave to appeal refused but absence of direction taken into account in considering ground asserting inconsistent verdicts

CIVIL PROCEDURE — Interim preservation — Freezing orders — Ex parte application for order under Uniform Civil Procedure Rules 2005 (UCPR), r 25.14 — Where funds paid by first defendant into Court for payment of judgment debt subsequently released — Where first defendant has not yet paid the judgment debt and offered no response to plaintiff’s statutory demand, garnishee order and certificate under the Contractors Debt Act 1997 — Whether there is good and arguable case — Whether there is risk of funds being disposed of, dealt with or diminished in value — Whether freezing order should be made against “third parties” under UCPR, r 25.14(5)

CRIME — sentencing — manslaughter — assault occasioning actual bodily harm — breach of ADVO — trespass — common assault —

PRIVATE INTERNATIONAL LAW — Applicable law — Choice of law rules — Immovable property – deceased died domiciled in Germany with moveable assets in Germany and New South Wales – deceased owned real property in New South Wales – a German citizen applies for probate of the deceased’s 2021 will made in Germany of which he is the beneficiary – Australian citizen applies for administration of the deceased’s 2018 will (made in Germany) and in the alternative probate of the deceased 2013 will (made in New South Wales) both of which he is the beneficiary – issue concerning the deceased’s testamentary capacity and knowledge and approval of the 2021 will – German citizen commences proceedings for a summons for administration in 2022 – Australian citizen lodges caveats in answer to those proceedings – German citizen commences proceedings in Germany – nature of the German proceedings in issue – Australian citizen commences these proceedings in New South Wales in 2025 – German citizen applies to dismiss these proceedings on forum non conveniens grounds, or in the alternative, to stay these proceedings until the German courts have finally decided the issue of the deceased’s capacity to make and his knowledge of and approval of the 2021 will – whether New South Wales is a clearly inappropriate forum for the conduct of these proceedings.

JUDGMENTS AND ORDERS – Interest – Calculation of interest – Where agreement provided for method of calculation – Whether interest accrued ought to have been greater due to failure of party to provide consent to transfer of controlled monies – Where no issue raised in substantive proceedings – Interest calculated in accordance with agreement COSTS –Offer of compromise – Whether offer of compromise valid – Whether offer was no less favourable than the order or judgment obtained – Whether interest on a judgment debt is to be taken into account – Discretion to award indemnity costs not exercised – Ordinary costs order made COSTS – Gross sum costs order – Whether gross sum costs order should be made – No basis for gross sum costs order established – Limited evidence as to calculation of actual costs – Discretion to order gross sum costs order not exercised

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — abuse of process — frivolous or vexatious proceedings — order made under the Vexatious Proceedings Act 2008 (NSW)

CIVIL PROCEDURE – proceedings commenced by person under legal incapacity – settlement of proceedings – Court approval – no point of principle

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed — abuse of process

CORPORATIONS — insolvent trading — claim against director under s 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading — whether companies were insolvent or became insolvent by incurring the debts — whether there were reasonable grounds to suspect that company was insolvent or may become insolvent by incurring the debt — whether director was aware that there were reasonable grounds to suspect insolvency or a reasonable person would have been aware

TORTS — nuisance — private nuisance — plaintiffs’ properties flooded after water main owned and operated by Hunter Water Corporation burst — whether defendant’s interference with enjoyment of plaintiffs’ property was unreasonable — whether unreasonableness is an element of nuisance DAMAGES — property damage loss — claim for loss to property value due to stigma associated with flooding

NEGLIGENCE – direct liability – vicarious liability – joint hearing of three matters – where each plaintiff argued that they were sexually and physically assaulted by the same schoolteacher in the 1990s – where some of the assaults were said to have occurred at canoe club camps at Wisemans Ferry – where others were said to have occurred in the woodwork room or adjacent storage area at the school – where limited evidence was and is available to corroborate the accounts – questions of unreliability – where tendency evidence relied upon – whether the acts of the schoolteacher occurred in the course of his employment – whether a finding of direct liability necessarily excludes a finding of vicarious liability in the same claim involving the same defendant – where psychological and psychiatric injuries are said to have resulted from the assaults – whether the nature and extent of the harm experienced was as significant as argued – damages – cross-claim – whether the first and second defendant jointly operated the school – whether contribution followed – appointment of Principals – visitation – whether agency relationship existed

CRIMINAL LAW – bail – child in Minister’s care – accommodation requirement – pre-release condition – where accommodation not organised within 24 hours in accordance with Youth Justice report – where court to list case every two days to ensure suitable accommodation is organised – power to seek information from officers of relevant government bodies – child released to bail

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether birth parents’ consent should be dispensed with – whether adoption order clearly preferable – whether change of name should be approved

CIVIL PROCEDURE — default judgment — default in filing defence — self-represented litigants — the defence filed was not a bona fide attempt to comply with court orders — the defence was not of any substance or in proper form — defendant restrained from distributing or publishing defamatory material about the plaintiff

CONTRACTS – sale and purchase of a business – where contract rescinded for failure to complete a special condition – where purchaser is entitled to recovery of deposit paid under standard form contract clause. CIVIL PROCEDURE – plaintiff’s application seeking default judgment – where statement of claim does not seek judgment in the amount of the deposit as a liquidated sum – no defence filed by vendor – Uniform Civil Procedure Rules 2005 (NSW), r 16.10 – where evidence and pleadings show purchaser’s cause of action in recovering deposit – default judgment entered for the plaintiff and costs ordered

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 20.29 – offer of compromise – whether Magistrate applied subjective test of contractual formation – no error APPEALS – Local Court Act 2007 (NSW), ss 39, 40, 41 – ground of appeal raised question of fact – no basis upon which to grant leave

CIVIL PROCEDURE – striking out and dismissal – application by the fourteenth defendant to have the proceedings dismissed pursuant to UCPR r 13.4(1)(b) or alternatively struck out pursuant to UCPR r 14.28 – no reasonable cause of action disclosed – proceedings dismissed

ADMINISTRATIVE LAW — judicial review — construction of regulation — validity of regulation — Crimes (Administration of Sentences) Regulation 2014 (NSW) (“CAS Regulation”) — inconsistency with the Crimes (Administration of Sentences) Act 1999 (NSW) — complaints to Official Visitor — whether decision to decline permission for plaintiff to call a legal practitioner was invalid — inconsistency of cl 94 of CAS Regulation with Commonwealth Constitution and/or implied freedom of political communication — criminal record checks for legal practitioners — whether decision not to approve use of tablets by inmates for personal calls or calls to legal practitioners was invalid — whether cl 115 of CAS Regulation permits opening etc of letters or parcels from inmates to legal practitioners — whether cl 116 of CAS Regulation applies to correspondence sent to legal practitioner

SUMMARY DISMISSAL – Leave to appeal from order for summary dismissal – Requirement for leave – Absence of any factor warranting the grant of leave – Defects in claim seeking to re-litigate workers compensation entitlements

APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact

OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction

LAND LAW – Strata title – Owners corporation –Where NCAT authorises a by-law regularising the construction of an awning carried out without a resolution of the Owners Corporation by approving a by-law – Where Owners Corporation appeals to the Appeal Panel of NCAT and appeal has been set down for hearing – Where four lot owners, including the constructor of the contentious awning, requisition an extraordinary general meeting of the Owners Corporation to pass a resolution to discontinue the appeal – Where the resolution is passed by a bare majority of one, including the vote of the said owner – Application of the rule in Foss v Harbottle and an exception to it – HELD – Plaintiff granted leave to conduct NCAT appeal on behalf of Owners Corporation

MENTAL HEALTH – forensic patient – extension of status as a forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – where defendant does not oppose making of order – orders for examination made – interim extension order made

PRIVATE INTERNATIONAL LAW – Jurisdiction – Subject-matter jurisdiction – second defendant served with the Statement of Claim in these proceedings but has not appeared – Statement of Claim alleges the second defendant held assets on constructive trust for the plaintiff and was knowingly involved in a breach of duty as a constructive trustee – second defendant died after proceedings commenced – grant of probate made in Singapore to foreign legal personal representative of the deceased second defendant – the foreign legal personal representative seeks dismissal of the proceedings against the second defendant on the basis that this Court has no subject matter jurisdiction over the second defendant’s estate – plaintiff seeks appointment of the second defendant’s foreign legal personal representative to represent his estate under Uniform Civil Procedure Rules 2005, r 7.10 – whether the Court has jurisdiction to entertain an action against the foreign legal personal representative of the deceased second defendant who has been served with legal process but has not appeared.

NEGLIGENCE — Breach — Standard of care — Medical negligence — Whether spinal surgery ought to have been performed — Whether spinal surgery performed negligently NEGLIGENCE — Causation — Medical negligence — Whether lower back pain caused by spinal surgery LIMITATION OF ACTION — Claim in negligence — Where time expired — Whether extension of time should be granted — Where defendant suffered both actual and presumptive prejudice

CONTRACTS — agreement to identify suitable businesses for visa eligibility in return for payment — refundable deposit — entitlement to refund — privity of contract — whether invoices referencing third party created privity of contract RESTITUTION — money had and received — refundable deposit not repaid CIVIL PROCEDURE — appeal from Local Court — alleged denial of procedural fairness — alleged inadequacy of reasons — whether finding of no privity of contract with third party sufficiently explained

PARTNERSHIP – Determining existence – Persons not carrying on a business in common – No partnership – Joint activities essentially transactional in nature PARTNERSHIP – Determining existence – Co-ownership of investment property not of itself sufficient to establish a partnership EQUITY – Estoppel – Principles – Estoppel by convention – Estoppel by encouragement – Estoppel found AGENCY – Actual or apparent (ostensible) authority – Nature and scope of authority AGENCY – Knowledge of agent – Imputed to principal – Manager of business – Solicitor – Agent acting for both parties to a transaction JUDGMENTS AND ORDERS – Publication of reasons for judgment without orders – No estoppel of record – In circumstances of this case no abuse of process arising from earlier judgment in same proceedings

CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Assessed gross sum of $16,000

CIVIL PROCEDURE — appearance — submitting appearance — whether substantive hearing should proceed in absence of contradictor

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

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where employment of managing director of a company purportedly terminated by executive chairman of another company — where executive chairman of that other company alleged to have authority to terminate employment and require resignation as director — where any such authority was terminated when another director ceased to acquiesce in any such arrangement — where no authority to terminate employment or require resignation as a director

CIVIL PROCEDURE — interim preservation —freezing orders — application for freezing orders against third parties — where third parties are affiliated with the second defendant — where third parties did not oppose freezing orders — whether danger of third parties dissipating assets with a view to avoiding judgment debt CIVIL PROCEDURE — service — application for short service of subpoenas — where the time elapsed since the motion was filed minimises the effect of short service

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member or former member of company — General principles to be applied under ss 236 and 237 Corporations Act 2001 (Cth) CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member or former member of company — Reflective loss —Whether loss claimed was reflective of a loss that could have been claimed by company CORPORATIONS — Directors and officers — Fiduciary duties — To whom duties owed — Whether director owed a fiduciary duty to shareholders — Relevance of special circumstances CIVIL PROCEDURE — Originating process — Amendment — Principles to be applied

CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether change of name should be approved – whether consent dispensation orders should be made against the birth parents – where birth mother seeks restoration of the child to her care – where birth father cannot be identified after reasonable inquiry – where child has consented to their own adoption but resided with the proposed adoptive parents for a period of less than two years – where it is appropriate to dispense with the requirement for the birth parents’ consent – change of name to be approved – adoption orders to be made

MONEY CLAIMS — Loan agreement — Advances in dispute — Repayments in dispute

APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

CRIME — appeals — appeal against sentence — intentionally causing grievous bodily harm to 10-week-old daughter — life threatening injuries — whether sentencing judge erred by failing to consider whether a finding of reduced moral culpability meant the applicant was a suitable vehicle for general deterrence — approach to application of Bugmy principles — sentencing person with a profoundly deprived childhood for a very serious violent offence SENTENCING — re-sentencing on appeal — objective seriousness and moral culpability separate but related concepts — departing from findings of sentencing judge — where the Court will not impose a more severe sentence — instinctive synthesis — appeal dismissed

EQUITY – TRUSTS – resulting trust – plaintiff and first defendant each contribute to the acquisition of real property which is registered in the plaintiff’s name – Court appoints trustees for sale – Property sold – net proceeds are in Court – determination of amounts to which plaintiff and first defendant are entitled

CIVIL PROCEDURE – Discovery – Whether necessary for resolution of real issues in dispute

AGENCY – Powers of Attorney Act 2003 (NSW) (the Act) s 19(1)(c) – where a power of attorney is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument but the requirement for a certificate to be endorsed on, or annexed to, the instrument by the prescribed witness stating that the person is not an attorney under the power of attorney is not complied with – whether instrument creates an enduring power of attorney for the purposes of the Act – HELD – it does not

PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – CONTRACTS – Construction – Application to strike out paragraphs of a Technology and Construction List Statement pleading a claim in contract on the basis that no reasonable cause of action is disclosed – Whether such an application should be entertained – Where plaintiff claims an entitlement to delay costs for delay or disruption to it carrying out work on a substantial contract to the upgrade of a highway – Where the Contract, on its proper construction, makes no provision for the Claim – HELD – Claim struck out

PERSONAL PROPERTY – Possession – Right to possession – Where a writ of possession has been previously ordered and executed – Where occupants allowed possession until the completion of the contract for sale – Occupants evicted prematurely without adequate notice – Evidence provided demonstrating agent’s intention to evict upon date of completion of the contract for sale – Application that possession is restored to the defendant – Application successful

CONTRACTS – Construction – Deeds – Scope of appellant’s assumption of third party’s royalty obligation under separate deed entered between unrelated parties – Whether “proportionate share or interest” could refer to a 100% interest.

CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether primary judge constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) — where none of the applicant’s contentions of error identified any arguable constructive failure to exercise jurisdiction by primary judge — where applicant therefore failed to identify issue of principle, question of public importance or reasonably clear injustice going beyond something merely arguable — where leave to appeal refused with costs

CIVIL PROCEDURE — whether relevant misapprehension of facts or law affecting decision of single Judge of Appeal or some matter calling for review or interests of justice require that orders should be set aside under UCPR r 36.15 — where no such misapprehension or error calling for review and interests of justice do not so require CIVIL PROCEDURE — whether interests of justice require that orders of single Judge of Appeal be set aside or whether real likelihood that it would be unjust to applicant to allow judgment to stand such that orders should be set aside under UCPR r 36.16(2)(b) — where no real likelihood of injustice to applicant and considerations of utility weigh heavily against applicant being permitted to reinstate proceedings

Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs Immigration – Visas – Cancellation of visa – Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") – Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence – Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation – Where plaintiff released from immigration detention – Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") – Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain – Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege – Where delegate read and quoted from legal advice in delegate's reasons – Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act – Whether non-revocation decision void for jurisdictional error – Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 – Whether delegate misapplied para 8.5 of Ministerial Direction 110 – Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable. Words and phrases – "certiorari", "constitutional writs", "expectations of the Australian community", "extension of time", "immigration detention", "irrational or unreasonable", "jurisdictional error", "legal advice", "legal consequences of decision", "legal professional privilege", "mandamus", "mandatory cancellation", "necessary in the interests of the administration of justice", "no real prospect of removal", "non-refoulement", "non-revocation", "practical injustice", "procedural fairness", "protection finding", "protection visa", "refugee", "relevant adverse material". Judiciary Act 1903 (Cth), s 44. Migration Act 1958 (Cth), ss 36(2)(a), 76AAA, 189, 195A, 197C(5)(a), 476(2), 476A, 486A, 499(2A), 501(3A), 501CA(4). Migration Regulations 1994 (Cth), regs 2.08F, 2.20(18), 2.25AA(2), 2.25AB, Sch 2, cll 070.612(1), 070.612A(1).

CIVIL PROCEDURE — motion to set aside orders of Court of Appeal — whether orders made irregularly, unlawfully or in bad faith — procedural fairness — where judge put proposition of law to counsel — whether denial of opportunity to respond — no basis to set aside orders

Statutes – Construction – Temporal operation of statute – Where in June 2020 archaeological artefact imported into Australia – Where artefact seized by inspector under Protection of Movable Cultural Heritage Act 1986 (Cth) ("Act") upon request for return of artefact from Government of Bolivia – Where artefact unlawfully exported from Bolivia before commencement of Act – Where appellant purchaser commenced action for recovery of artefact under s 37 of Act – Where Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention – Where s 14(1) of Act provides that "protected object of a foreign country" may be liable to forfeiture – Whether s 14(1) renders liable to forfeiture protected object of a foreign country unlawfully exported from that country before commencement of Act. Words and phrases – "archaeological artefact", "context", "cultural property", "exportation of cultural property", "extrinsic material", "forfeiture", "has been exported", "import of cultural property", "modern approach to statutory interpretation", "movable cultural heritage", "obligations of a State Party", "ordinary language", "presumption against redundant words", "presumption against surplusage", "protected object of a foreign country", "redundant words", "statutory construction", "statutory purpose", "syntax", "temporal operation", "unlawful exportation". Protection of Movable Cultural Heritage Act 1986 (Cth), Pts II, V, ss 3, 7, 8, 9, 10, 12, 14, 27, 28, 34, 37, 38, 41. Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), Arts 1, 2, 5, 6, 7, 15.