Cases and authorities

CRIME – bail – show cause – detention application and variation application heard together – murder – joint criminal enterprise – where private electronic monitoring condition has to be removed due to Bail Act amendment – where applicant was charged with domestic violence offences while on Supreme Court bail - where applicant has not breached bail – large surety – cause shown – detention application refused – variation granted

COSTS – no question of principle

CRIMINAL LAW – sentencing – manslaughter by unlawful and dangerous act – where offenders convicted at trial of murder – where appeal against conviction allowed – where plea of guilty accepted many years after offer – impact on victim’s family – where delay failed all participants – all parties buffeted by system – considerations relevant to sentence – joint attack – individual actions – where offence committed over 30 seconds but planning for hours or days – offenders employed as muscle – relevance of gang membership – brutal assault – parity with co-offender sentenced for manslaughter and part of assault – due proportion between sentencing – prospects of rehabilitation – relevance of exposure of offenders to violence and drug use in childhood CRIMINAL LAW – sentencing – parole – lengthy delay – where offenders on remand for longer than non-parole period – where no occasion for the parole board to consider parole – where total sentence exceeds period on remand – where offenders on strict bail and compliant – whether offenders required to re-enter custody – whether parole can be ordered while offenders at liberty on bail – separation of powers – judicial function in sentencing – executive function to grant parole – inappropriate for court to communicate with Parole Authority – recommendations made

COSTS – proceedings involve two separate claims one for delivery of rolling stock under a call option and the other for the delivery up of documentation which the defendant agreed to provide – the defendant capitulates on the first claim and agrees to deliver the rolling stock and over time delivers the documentation, or agrees to, rendering the relief sought by the plaintiff otiose – plaintiff seeks its costs of the proceedings – defendant concedes that it should pay the plaintiff’s costs of the rolling stock issue and that each party should pay their own on the documentation issue – HELD – the plaintiff obtained everything it wanted – not appropriate to determine costs on the basis of different issues – defendant to pay the plaintiff’s costs

COSTS – motion to vary costs order – where the Attorney-General of NSW intervened and was the only active contradictor – where the plaintiff failed to address on costs – whether Court should have made no costs order – motion dismissed

APPEALS – appeal from summary dismissal – leave to appeal required under s 101(2)(e) of Supreme Court Act 1970 (NSW) where decision is interlocutory – no question of principle, no clear injustice which is more than merely arguable, leave to appeal be refused, with costs

EQUITY — Trusts — Resulting trust - whether primary judge wrongly failed to apply presumption that appellant did not intend respondent to obtain beneficial interest in property – whether respondent’s legal interest subject to purchase money resulting trust EQUITY — Trusts — Constructive trust — joint endeavour constructive trust — de facto relationship — relationship broken down —investment property purchased in co-ownership as joint tenants — whether primary judge erred in characterising scope of the joint endeavour — whether the primary judge erred in determining beneficial entitlements of two thirds for appellant and one third for respondent — whether appellant entitled to larger beneficial interest APPEALS — From finding of fact — Documentary evidence — text messages between the appellant and respondent — whether primary judge erred in making factual findings having regard to contemporaneous written records APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in assessing respondent’s credit UNREPRESENTED LITIGANTS – Use of Generative AI – Hallucinated case reference – irrelevant case references – where Generative AI used to prepare script for oral submissions – where oral submissions so generated misconceived or irrelevant

COSTS – Application to vary costs order – Where respondent successful in outcome of proceedings – Where applicant was an intervenor in one set of proceedings, and applicant in another – Where applicant’s submissions rejected – Orders in relation to costs of appeal should, in the absence of special circumstances, be sought in submissions filed on the appeal – Examples of special circumstances.

SUCCESSION – Family provision – Respondent grandchild beneficiary under will of deceased grandmother – Respondent lived with and cared for deceased – Respondent dissipated $200,000 obtained unconscionably from the deceased – Whether primary judge erred in granting further provision to the respondent – Provision unreasonable and plainly unjust

CRIME – appeals – appeal against convictions – whether a miscarriage of justice arose in the trial – bases upon which knowledge of absence of consent left to jury – whether the Crown advocate’s misstatement amounted to a miscarriage of justice – whether the judicial direction to the jury regarding knowledge of lack of consent resulted in a miscarriage of justice – miscarriage of justice established – mixed verdicts – whether the guilty verdicts were inconsistent with the not guilty verdicts – guilty verdicts not unreasonable – extension of time and leave to appeal granted – appeal allowed – convictions and sentence quashed – re-trial ordered

BAIL – release application – murder – where conviction quashed by Court of Criminal Appeal – unreasonable verdict – Director’s appeal to High Court allowed – matter remitted to Court of Criminal Appeal for determination according to law – offence for which an appeal is pending in Court of Criminal Appeal – whether special or exceptional circumstances exist that justify a decision to grant bail – consideration of the relative strength of the ground of appeal – whether the appeal has reasonable prospects of success – whether the appeal is reasonably arguable – whether bail concerns are capable of amelioration by imposition of conditions

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – Whether matters alleged in supporting documentation would, if proved, justify making of an extension order – Whether court could be satisfied to the requisite standard that the defendant poses an unacceptable risk of causing serious harm to others if he should cease to be a forensic patient – Application for extension order dismissed.

DECLARATORY RELIEF – Application by plaintiffs that fees charged in invoices issued by defendants are not due and payable by plaintiffs – Onus of proof – Whether plaintiffs established factual and legal basis for negative declarations sought

COSTS — security for costs — the threshold issue — where plaintiff is impecunious — relevant factors — where director of plaintiff has offered an undertaking — where director of plaintiff has substantial real estate assets and funds in joint bank accounts — quantum

CIVIL PROCEDURE — Discovery — Discovery by category — Discovery by issue

LAND LAW — Option to purchase residential property — Where plaintiff (as prospective purchaser), defendants/cross-claimants (as owners and prospective vendors) and cross-defendants (as guarantors) entered into deed of put and call option — Where plaintiff paid a call option fee of $600,000 to the defendants in accordance with the deed — Where the deed stated that the put option was granted by the plaintiff to the defendants in consideration for the call option and a put option fee of $1.00 — Where deed provided that the call option fee would be retained “absolutely” by the defendant in the event that neither option was exercised — Where the proposed contract for sale of land attached to the deed did not include particulars of the purchase price — Where, prior to the expiry of the period in which it could exercise the call option, the plaintiff issued a notice of rescission of the deed, relying on s 66ZI of the Conveyancing Act 1919 (NSW) — Whether the statutory right of rescission under s 66ZI entitled the plaintiff to rescind the deed ab initio

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where appeal purportedly brought as of right from interlocutory decision and from decision as to costs — where appeal dismissed as incompetent

PARLIAMENT – where member of Legislative Assembly convicted in District Court on one count of sexual assault and three counts of assault with act of indecency – where Leader of Government in Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – where member obtained urgent ex parte injunction – power to expel under the Standing Orders not precluded by s 13A of the Constitution Act 1902 (NSW) - power to expel expressly preserved by s 13A(3) of the Constitution Act – no basis for conclusion that proposed power of expulsion being engaged for punitive purposes - if procedural fairness required, no denial of procedural fairness – representative democracy not impaired by proposed motion – principle in Kable v Director of Public Prosecutions (NSW) neither engaged nor infringed. INJUNCTIONS – approaching the Court ex parte – limited circumstances where proceeding without notice appropriate – urgency of matter is no excuse for non-notification where to do so would not defeat the purpose of the interlocutory relief sought – obligation to provide meaningful notification of time and place of urgent application and electronic service of documentation to be relied upon.

JUDGMENTS AND ORDERS — amending, varying and setting aside — application under Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) — motion to vary costs orders — whether misapprehension on part of Court warrants orders being varied

Kain v R&B Investments Pty Ltd Ernst & Young (a firm) v R&B Investments Pty Ltd Shand v R&B Investments Pty Ltd Practice and procedure – Representative action – Orders – Where s 33V(2) of Federal Court of Australia Act 1976 (Cth) provides that in representative proceedings Federal Court may make such orders as are just with respect to distribution of any money paid under settlement or paid into Court – Where s 33Z(1)(g) of Federal Court of Australia Act provides Court may in determining matter in representative proceeding make such other order as Court thinks just – Where s 183 of Legal Profession Uniform Law (NSW) provides law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement – Where applicants in representative proceeding proposed to provide notice of intention to seek common fund order in favour of law practice at settlement or judgment – Where costs agreements to be amended to provide for common fund order in favour of law practice if notice approved – Whether s 33V or s 33Z of Federal Court of Australia Act empowers Federal Court to make common fund order at settlement or judgment in favour of law practice. Words and phrases – "commencement CFO", "common fund order", "concept of justice", "contingency fee", "costs agreement", "distribution", "federal jurisdiction", "funding commission", "funding equalisation order", "group costs order", "just", "legal costs", "litigation funding", "new legal rights", "payment for costs and disbursements", "regulation of the legal profession", "remuneration for risk", "representative proceeding", "requirements of State law", "settlement CFO", "solicitors' CFO", "solicitors' common fund order". Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33V, 33Z, 33ZF, 33ZJ. Legal Profession Uniform Law (NSW), ss 3, 6, 169, 172, 179, 180, 181, 182, 183, 185.

Constitutional law (Cth) – Judicial power of Commonwealth – Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force – Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) – Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle – Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution – Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution – Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" – Whether Tribunal exercised judicial power – Whether Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 distinguishable. Words and phrases – "administrative power", "administrative review", "administrative standards", "administratively reviewable decision", "certificate", "compensation", "correct and preferable", "court", "damages", "distinguishable", "information protection principles", "internal review", "judgment", "judicial decision", "judicial power", "jurisdiction", "legislative capacity", "loss or damage", "matter", "non-judicial", "norm of conduct", "order", "privacy codes of practice", "public sector agency", "resident of another State", "tribunal". Constitution, ss 75, 76, 77(ii), 77(iii). Administrative Decisions Review Act 1997 (NSW), ss 6, 7, 8, 9, 53, 63, 64, 66. Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 27(1)(a), 38, 72, 78. Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 8-19, 21, 29, 30, 32, 52, 53, 55(1), 55(2)(a), 55(3), 55(4A), 69.

Constitutional law (Cth) – Judicial power of Commonwealth – Where s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) ("Act") provided party to certain proceedings before Administrative Appeals Tribunal ("Tribunal") may appeal to Federal Court of Australia on question of law from decision of Tribunal – Where s 46(2) of Act provided that if certificate in force certifying disclosure of matter contained in document would be contrary to public interest Federal Court must do all things necessary to ensure matter not disclosed to any person other than member of court as constituted for purposes of proceeding – Where in accordance with s 39B of Act such certificate included certificate issued by "ASIO Minister" certifying disclosure of matter would be contrary to public interest because it would prejudice security or defence or international relations of Australia – Where plaintiff sought declaration that s 46(2) of Act invalid on ground it infringes Ch III of the Constitution – Where earlier decision of High Court in SDCV v Director-General of Security [2022] HCA 32; (2022) 277 CLR 241 held s 46(2) of Act valid – Whether s 46(2) invalid because it required Federal Court to depart from "general rule" of procedural fairness more than reasonably necessary to protect compelling and legitimate public interest – Whether SDCV authority to contrary – Whether leave to re-open and overrule SDCV should be granted. Words and phrases – "adverse evidence", "ASIO", "certificate", "certified matter", "defence", "disclosure", "essential characteristic of a court", "forensic advantage", "heavy persuasive burden", "international relations", "practical injustice", "procedural fairness", "proportionality", "public interest immunity", "ratio decidendi", "reasonably necessary to protect a compelling and legitimate public interest", "security assessment", "special advocate". Constitution, Ch III. Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39B, 44, 46.

CRIME – appeals – appeal against sentence – fraud offences – where the sentencing judge erred in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences – whether the error was material – whether the error had the capacity to affect the sentencing exercise – whether the sentencing judge may have taken a more adverse view of the applicant’s offending as a result of the factual error – appeal allowed – applicant resentenced SENTENCING – where the applicant is to be sentenced for overlapping offences of dealing with the proceeds of his own crime – principles of accumulation and concurrency

EVIDENCE – where the plaintiff sought to reopen previous procedural rulings – where the plaintiff submits inadmissible evidence is critical to proving the pleaded case

CIVIL PROCEDURE – damages – statutory damages under Australian Securities and Investment Commission Act 2001 (Cth), s 12GF – defendant/cross claimant successful in principal judgment in setting aside certain transaction documents with the plaintiff/cross-defendant – contest about the scope of relief claimed by the defendant/cross claimant – whether amendment of pleadings required – apportionment of liability – proceedings conducted based on an Amended Statement of Cross-Claim – in the course of a relief hearing the plaintiff/cross-defendant contends that a claim for statutory damages is not available due to certain statements made by counsel in closing submissions – discussion of the scope of the pleadings and the manner in which the proceedings were conducted – assessment of damages for lost interest and lost opportunity to invest in Australian bank shares – apportionment does not strictly arise but is considered.

COSTS — Orders to give effect to costs judgment.

SENTENCING – murder – where offender previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offender pleaded guilty to murder before retrial – application of the ceiling principle – discount to reflect utilitarian value of plea – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody

CORPORATIONS – winding up – conduct of liquidation – application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending time to bring voidable transactions claims

EQUITY — equitable remedies — specific performance — whether vendor required to seek order vacating uncompleted order for specific performance before terminating contract — where purchaser has repeatedly failed to perform and has repudiated the contract — legal effect of purported termination by the vendor in the face of an order for specific performance — purported termination invalid — where errant purchaser asserts that vendor’s purported termination was accepted as a repudiation of contract EQUITY — equitable remedies — specific performance — vacating an uncompleted order for specific performance — where innocent party elects for damages in lieu of performance CONTRACTS — remedies — damages — after repudiation — loss of bargain — other expenses

Industrial law (Cth) – Unfair dismissal – Genuine redundancy – Where employer dismissed employees because of changes in operational requirements of employer's enterprise – Where employer continued to deploy contractors to perform work in employer's enterprise – Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise – Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee. Appeals – Standard of appellate review – Where Full Bench of Fair Work Commission applied House v The King standard of appellate review to review of decision that dismissals were not cases of genuine redundancy under s 389 of Fair Work Act – Whether House v The King appropriate standard of appellate review – Whether application of wrong standard of appellate review would constitute jurisdictional error. Words and phrases – "affording latitude", "all the circumstances", "appeal by way of rehearing", "appellate restraint", "business, activity, project or undertaking", "case of genuine redundancy", "contractors", "correctness standard", "counter-factual", "discretionary decision", "employer's enterprise", "employment", "enterprise", "error within jurisdiction", "Fair Work Commission", "genuine redundancy", "House v The King", "hypothetical", "insourcing", "job", "judicial review", "jurisdictional error", "nature of the employer's enterprise", "operational requirements", "position", "reasonable in all the circumstances", "redeploy", "reinstatement", "restructure", "standard of appellate review", "termination", "unfair dismissal", "work", "would have been reasonable". Fair Work Act 2009 (Cth), ss 385, 389.

EVIDENCE – admissibility – hearsay evidence – exceptions – where the applicant seeks to admit statement of pseudonymised person made to Royal Commission – where the identity of the deponent is not known – where the statement is not relevant to any fact the applicant is required to prove

COSTS – where successful plaintiff seeks indemnity costs – where defendant seeks separate orders in respect of the claim and cross-claim on ordinary basis – no just basis for departure from the usual order CIVIL PROCEDURE – where orders permit immediate issue of a writ of possession – proposed removal of “linking shed” – whether matter justiciable

CRIME – Bail – Variation application – Detention application – Large commercial drug supply, manufacture of prohibited drug, possession of proceeds of crime and other serious drug offences –– Bail Act 2013 (NSW) s 30A – Private electronic monitoring – Power of Supreme Court of NSW to hear detention application – Whether revocation within scope of power to vary a bail decision – Whether bail risks could be mitigated by conditions other than electronic monitoring – Bail revoked.

CIVIL PROCEDURE — Hearings — Adjournment — Second defendant’s application to vacate or adjourn hearing — Where 500 pp with potential relevance obtained by subpoena in Family Court proceedings — Where second defendant seeking release from ‘Harman’ undertaking in Family Court — Hearing vacated

COSTS — offer of compromise — where purported Calderbank letter sent — where offer was to walk away — whether offer unreasonably rejected —indemnity basis — gross sum costs

CIVIL PROCEDURE – tutor – where proceedings stayed until legal representation obtained – where statement of claim does not disclose a reasonable cause of action – where defendant seeks self-executing orders to have proceedings dismissed for want of due despatch – further adjournment of hearing of motion refused – self-executing orders made

CIVIL PROCEDURE – subpoenas and discovery – personal injury claim – where the defendant issued subpoena requiring production by plaintiff – whether subpoena impermissibly requires discovery – where Registrar set aside the subpoena – Registrar’s order discharged

ADMINISTRATIVE LAW – judicial review of decision of Appeal Panel of the Personal Injury Commission – s 323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where applicant had pre-existing health condition – whether the Appeal Panel correctly applied s 323 – whether Appeal Panel gave adequate reasons – decision of Appeal Panel set aside

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication – Whether adjudication was affected by jurisdictional error – Whether the adjudicator determined the claim made by the payment claim – Whether the adjudicator failed to consider submissions duly made – Whether there was a denial of natural justice – Whether there was jurisdictional error on the basis of legal unreasonableness

COSTS – interest calculation

PROCEDURE — leave to discontinue proceedings under UCPR r 12.1 — where there are concerns about the plaintiff’s fitness to stand trial — leave granted COSTS — where plaintiff sought leave to discontinue proceedings — where plaintiff largely self-represented

COSTS – gross sum costs order – whether appropriate to make a gross sum cost order – no question of principle

PARLIAMENT – where member of the Legislative Assembly convicted in the District Court of one count of sexual assault and three counts of indecent assault – where the Leader of Government in the Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – whether the power to expel the convicted member exists where a Notice of Intention to Appeal has been filed – whether the expulsion of the convicted member from the Assembly would be contrary to s 13A of the Constitution Act 1902 (NSW) INJUNCTIONS – approaching the Court ex parte – application to restrain the Assembly from taking action to expel the convicted member before the question of the Assembly’s power under s 13A of the Constitution Act is determined by the Court – orders made

CIVIL PROCEDURE — Approval of settlement of liability pursuant to s 76 of the Civil Procedure Act 2005 (NSW) — Settlement approved

CORPORATIONS — membership — register — rectification of register — where shares in two companies left to plaintiff under plaintiff’s mother’s Will — where first defendant, the executor of the Will, agreed to transfer the relevant shares to the plaintiff in accordance with the terms of the Will but subsequently failed to do so — where first defendant instead transferred the relevant shares to himself — where plaintiff did not raise a claim for the transfer of the relevant shares in other proceedings brought in 2018 — where defendants allege Anshun estoppel, abuse of process or laches — where no demonstrated prejudice arising from delay,

COSTS – r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where each party had a measure of success – where it is appropriate to depart from the general rule on defendant’s application for costs

ENVIRONMENT AND PLANNING — Construction of consent — Whether use for the purpose of a gym separate and independent from use for the purpose of a registered club CONTRACT — Termination — Repudiation of contract — Whether failure to issue lease in registrable form was repudiation CONTRACT — Remedies — Damages — Anticipatory breach — Whether party ready, willing and able to perform obligation to enter new lease — Loss of opportunity — Whether the commercial opportunity denied by repudiation had any value

CRIME — Appeals — Appeal against sentence — Where applicant convicted of Commonwealth offences relating to child abuse material — Whether sentencing judge has acted on a wrong principle with respect to the applicant’s mental health and its connection to the offending behaviour — De La Rosa principles

PUBLIC ASSEMBLY – Palestine Action Group to advocate for the worsening humanitarian crisis in Gaza – procession to take place via Sydney Harbour Bridge – Commissioner of Police sought an order prohibiting the holding of the public assembly – plaintiff’s application refused

COSTS – Security for costs – Notice of Motion seeking the provision of security for costs at an early stage of proceedings – Not yet fully or substantially determined – Order for costs to be made at a later date