Cases and authorities

COSTS — basis of quantification — indemnity basis — letter of offer — where appeal had no reasonable prospects of success — whether to make personal costs order — whether to order gross sum costs

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — dismissal of application for proceeding to be tried by jury — dismissal of application to further amend pleading — dismissal of application to reinstate paragraphs of proposed pleading previously abandoned — dismissal of application to join additional defendants — significant procedural history — no question of principle — no demonstrated injustice

CRIMINAL LAW – release application – show cause – extremely serious allegations – chilling – offence allegedly committed where warrant existed – flight to Western Australia – where applicant pregnant through period of remand – where applicant gave birth days before bail application – where applicant unable to access programmes – separation of mother and infant – Bugmy Bar Book – cause shown – whether risk “unacceptable” – family support – strict conditions – conditional bail granted

CIVIL PROCEDURE – appearance – no appearance at hearing – where defendant afforded ample opportunity to attend and be heard – whether appropriate to proceed with hearing – no question of principle LAND LAW – co-ownership – statutory trust for sale – application by plaintiff under Conveyancing Act 1919 (NSW) s 66G – trustees for sale appointed – no question of principle

SUCCESSION — Will construction — ‘Home-made’ Wills — Will drafted by deceased with minimal revision suggestions by a solicitor and no suggested revision to a contentious clause by which the deceased created a fund for his nephew which “cannot be liquidated before his 35th birthday” — Nephew died aged 29 — Whether the gift was vested in the nephew upon the deceased’s death — Discussion of the scheme of the Will — Determination that the gift vested upon the deceased’s death SUCCESSION — Will construction — ‘Home-made’ Wills — Approach to construction — A precedential approach risks missing or perplexing the deceased’s expressed intention — Caselaw provides guidance as to the proper approach to construction, but may otherwise have limited specific use in construing the disputed provisions of a Will

CRIME – SENTENCE – murder – guilty verdict after Judge alone trial – where the deceased was assaulted by the offender and died from head injuries – where the deceased suffered 71 injuries to his body – where motive for assault was to elicit information – mid range objective seriousness – moral culpability – criminal history – facilitation of administration of justice – aggregate sentence

COMMERCE – Shipping – Imposition of wharfage charges by port authority – Quantification of imposable wharfage charges – Interpretation of determination of Australian Competition Tribunal – Whether plaintiff entitled to rates as determined by Tribunal on proper interpretation of determination – Whether plaintiff entitled to pay determined wharfage charge without also paying determined navigation service charge – Plaintiff entitled to rates as determined – Scope of determination required combined use of wharfage charge and navigation service charge JUDGMENTS AND ORDERS – Interest – Award of on judgment – On order for payment of outstanding wharfage charges – Whether defendant’s evidence sufficient to establish entitlement to interest on outstanding wharfage charges at maximum statutory rate – Evidence insufficient – Defendant did not establish entitlement to interest

ADMINISTRATIVE LAW – consent orders – application to set aside decision of the Appeal Panel of the Personal Injury Commission – where Appeal Panel had regard to inadmissible material – where parties agreed there had been an error of law on the face of the record – consent orders made

CIVIL LAW – plaintiffs seek leave to rely on expert evidence in reply – where both parties failed to comply with case management orders – where plaintiffs’ delinquency in obtaining report most egregious – whether evidence properly categorised as evidence in reply – contest between experts relating to cause of house fire – whether fire caused by electrical fault in appliance or lightning strike – case management – whether plaintiffs bound to retain original expert to provide evidence in reply – multiplicity of experts – fairness to defendant – imminence of hearing date and expert conclave – where part of expert report raises new issues – where part of report responsive to defendant’s expert’s opinion – avoiding multiplicity of experts on same issue – conditional grant of leave – plaintiffs put to election as to the expert upon which they rely – spirited submissions

CONTEMPT — civil contempt — breach of orders — Harman undertaking — distinction between civil and criminal contempt — where orders made to restrain defendant from publishing any matter conveying the same or substantially similar imputations to the publications complained of pending the hearing of this matter — where publications were made after the order — meaning of “pending the hearing of this matter” — defendant found guilty of contempt DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care

CIVIL PROCEDURE — cross-vesting — transfer to Supreme Court from District Court — transfer to Supreme Court of Tasmania — related proceeding — interests of justice — negligence claim — motor vehicle accident — where proceedings against the same defendant for the same accident have been commenced in Tasmania — where the plaintiffs in the Tasmanian proceedings are the current plaintiff’s family members — where defence has not been filed in current proceedings

CONTRACT — sale of goods — miller supplies bulk flour to baker for 5 years — baker makes ‘artisan’ bread — requires flour suitable for its processes including high water absorption, long fermentation and no additives — extensive but inconclusive attempts by parties to formulate specifications for flour — uneventful supply for 4 years – change of head baker and recipe — drought followed by flooding rains — seasonal variation in flour — baker encounters difficulties using flour — continues to order flour until supply ceased for non-payment — whether breach of contract. CONSUMER LAW — false or misleading representations — representations 8 years ago — whether representations made — whether ‘puffery’ — principles at [33]-[34], [64] — whether miller represented that it could supply flour that met baker’s specifications and requirements — unlikely, where no evidence that the baker had “specifications and requirements” at the time — whether represented would supply unique blend of consistent quality — represented consistent quality with seasonal variations — whether misleading — principles at [71]-[74] — reasonable basis for representation as to future matter. PARTIES – contractual document addressed to incorrect company – miller and baker continue to trade for 5 years – who were the contracting parties – principles at [95]-[96] – correction by construction – obvious error. TERMS – miller issues terms of sale – miller prepares Product Information Form (PIF) and Product Specification – letter of agreement – what were the contractual terms – whether PIF incorporated by reference – implied terms – Sale of Goods Act 1923 (NSW) – acceptance of updated terms of sale inferred from conduct – principles at [101]-[115]. SET-OFF – whether entitled to set-off damages against debt ESTOPPEL — Estoppel by convention — Mutual assumption — Course of dealing — whether the baker estopped from disputing unpaid invoices where baker continued to order flour notwithstanding knowledge of flour deficiencies — no mutual assumption.

EQUITY – trusts and trustees – common intention constructive trusts – informal agreement between two brothers to build duplex development – where one brother owns underlying land – each brother to occupy respective property on completion of duplex development – loan for construction costs taken out jointly and secured over the property – designers and tradespersons engaged jointly by brothers – construction completed – subdivision undertaken – where brother registered on both titles dies intestate and prior to transferring title to one lot to other brother – title to both lots transferred to deceased’s widow following transmission application – whether lot occupied by living brother held on trust for him pursuant to agreement with deceased brother – whether detriment established for purposes of common intention constructive trust – detriment established – common intention constructive trust established

SUCCESSION – family provision – intestacy – application for family provision order under s 57(1)(e) or (f) of the Succession Act 2006 (NSW) – whether plaintiff is an eligible person – whether plaintiff was dependent on the deceased – whether deceased had a moral obligation or duty to provide for plaintiff – whether plaintiff was a member of the same household as deceased for a period – whether factors warranted plaintiff making an application pursuant to s 59(1)(b) – whether plaintiff a natural object of testamentary recognition in circumstances where she had an ‘on and off again’ relationship with the deceased – where defendant was administrator of the deceased’s estate and his sister – family provision application successful

WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Discussion of principles relevant to UCPR r 12.7 — Plaintiff’s ex-sole director and shareholder (originally a co-plaintiff) disqualified from managing corporations for five years — Plaintiff yet to appoint a new director — No relevant person to pursue the proceedings on behalf of the plaintiff — Plaintiff’s claim struck out and dismissed CIVIL PROCEDURE — Pleadings — Former Supreme Court Rules provision that a prior pleading stands as the answer to an amended pleading — Provision not incorporated into UCPR — Court can nonetheless direct that a prior pleading stands as the answer to an amended pleading as part of case management CIVIL PROCEDURE — Pleadings — Motion to strike out the plaintiff’s defence and give judgment for cross-claimant — Plaintiff originally filed a defence, then consented to filing of further amended cross-claim but did not file response — Discussion of principles relevant to UCPR rr 16.3 and 16.6 — Defence struck out — Judgment for the cross-claimant COSTS — Party/Party — Defendant seeking orders against non-party (plaintiff’s current sole shareholder and ex-sole director) — Application of criteria in FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 — Orders not made

CIVIL PROCEDURE — Hearings — Suppression and non-publication COURTS AND JUDGES — Bias — Applicable principles

CIVIL PROCEDURE – Implied obligations – Hearne v Street obligation – Release from obligation – Where plaintiffs seek release to use documents discovered by defendants to plead action in England and Wales – Whether release appropriate in circumstances – Release appropriate – Application granted

EQUITY — trusts — rural properties said to be held on trust — plaintiff aware of letter saying he was beneficiary of trust many years ago — plaintiff made deliberate decision not to advance claim based on trust in earlier litigation seeking family provision orders — litigation compromised by release approved by Court — whether claims barred by release — whether claims barred by res judicata or Anshun estoppel — whether claims made out on merits PROCEDURE — appeals — further or fresh evidence — whether plaintiff should be permitted to rely on further evidence — relationship between application for tender of further evidence on appeal and ground of appeal challenging rejection of same evidence at trial — whether plaintiff had established evidence not available by reasonable diligence and whether evidence likely to be material

PARTNERSHIPS AND JOINT VENTURES – existence of partnership – whether primary judge erred in failing to find that there was an unwritten “overarching” partnership sitting above corporate and trust structure under which many of the properties within the Mir Group business were held – whether open to appellant to contend on appeal that the unwritten overarching agreement between the three Mir brothers (as declared by the primary judge after further hearings, having rejected the pleaded partnership claim) itself gave rise to a partnership between the three brothers EQUITY – trusts and trustees – appointment and removal of trustees – whether House v The King error established on the part of the primary judge in declining to remove trustees notwithstanding misconduct by trustees in denying that certain property held on trust and where serious findings made against one of the trustees in relation to his conduct

CRIME — bail — variation application — detention application — terrorist offences — “exceptional circumstances” — Bail Act 2013 (NSW) s 30A — private electronic monitoring — variation granted CRIME — bail — release application — child abuse material offences — bail granted

CIVIL PROCEDURE — Hearings — Adjournment — Where plaintiff seeks adjournment of final hearing due to lack of access to documents in custody TORTS — false arrest — false imprisonment — malicious prosecution — abuse of process

CRIMINAL PROCEDURE – Adjournment – Where adjournment necessary to allow an accused access to an appropriate medical or psychiatric health practitioner

CIVIL PROCEDURE – implied undertakings – release from Hearne v Street obligation – where the plaintiff seeks to use documents in these proceedings which were obtained in District Court proceedings – whether this Court can release a party from the implied undertaking made in a different court – whether special circumstances exist

CIVIL PROCEDURE – interim preservation – freezing orders – UCPR, r 25.14 – whether freezing orders should be maintained – orders maintained against some defendants

CIVIL PROCEDURE – summary judgment – whether summary judgment should be ordered in plaintiff’s favour – where plaintiff claims priority over sale proceeds of two properties – where the sale proceeds have been paid into Court – where 11th to 28th defendants claim their interest in the Kelly Street property should prevail – where plaintiff’s equitable claim is based on an unregistered mortgage provided as security under a loan agreement – where 11th to 28th defendants purchased lots in an unregistered plan of subdivision – where contracts were subsequently rescinded and subdivision never occurred – whether 11th to 28th defendants each acquired an equitable interest in the form of a purchaser’s lien – whether 11th to 28th defendants’ rights were mere equities – where allegations of postponing conduct – not an appropriate matter for summary judgment in relation to matters in contest

CORPORATIONS ­­— Director’s duties ­­— Where sole director of first company sells company to second company, being alter ego of the director, for minimal consideration — Whether sole director has breached duties under Corporations Act 2001 (Cth), ss 180, 181, 182 CORPORATIONS ­­— Constitution and replaceable rules ­­— Construction of company’s constitution ­­— Whether company’s constitution operated to retrospectively ratify breach of fiduciary duty CORPORATIONS — Director’s duties — Whether director should be relieved of liability under s 1318 of the Corporations Act 2001 (Cth) EQUITY — Fiduciary duties — Rule in Barnes v Addy — Whether second company liable for knowing receipt — Whether remedy of constructive trust is in the circumstances appropriate

CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances

CRIMINAL PROCEDURE – Trial – Judge alone – Whether in interests of justice – Where the accused makes application for a trial by judge alone and the Crown does not oppose – Application made less than 28 days before the date fixed for commencement of trial – Application granted

SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Application for rectification of Will — Whether Will gives effect to the testator’s intention — Will gifts nephew property traced by the Lachlan River, including stock and crops on the land but omits reference to water access licence required to utilise the property effectively — Evidence from solicitor that omission was an oversight — Found that Will did not give effect to testator’s intention — Rectification orders made SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Request for an extension of time for making a rectification application — Whether extension is necessary — Whether final distribution of estate has been made — Order extending time for application made

PROCEDURE — default judgment — claim in nature of indemnity for amounts former director liable pursuant to Director Penalty Notices — whether former director entitled to indemnity under corporate constitution — whether continuing director and her company misled or deceived him in trade or commerce — effect of irrevocable undertaking to appoint restructuring practitioner under s 453B of Corporations Act 2001 (Cth) — form of relief

CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances

RESTITUTION — unjust enrichment — contractual interpretation CONSUMER LAW — misleading or deceptive conduct — wholesale price-capped gas contract — representations — insurance — causation — reliance EQUITY — equitable set-off — proper time of application

CRIME – Notice of Motion – application to remit the matter to the Local Court for further committal hearing – where technological difficulties with the audio visual link hampered the proceedings – whether the magistrate ascertained whether or not the accused pleads guilty to the offence – whether the magistrate accepted the plea of guilty in committal proceedings for the offence – application dismissed

CIVIL PROCEDURE – application for expedition of summons seeking leave to appeal – where first respondent has limited life expectancy – loss of claim for future economic loss – expedition granted

CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted

CIVIL PROCEDURE – Parties – Joinder – Of defendants CIVIL PROCEDURE – Pleadings – Amendment – Application for leave to file an Amended Statement of Claim joining cross-defendants as defendants – Where the joinder of a cross-defendant as a defendant does not necessitate any additional cost or burden of proceedings on that party

APPEALS — Procedure — Stay pending appeal — No issue of principle

CIVIL LAW – judgment for possession of real property – writ of possession – ejection of family from home – application to stay judgment, writ and ejection – application made after hours and ex parte – plaintiff’s right to be heard – hardship to family – where emergency accommodation secured – relevant considerations and categories of cases – attempt to re-finance – relief declined in the interim and matter placed in duty list on Monday to enable plaintiff to be advised of the application

CIVIL LAW – restraining orders made – order for compulsory examination refused – accusatorial nature of criminal proceedings – where defendant not afforded to be heard

CIVIL LAW – interstate freezing notice – criminal assets – where order registered in New South Wales – leave to re-open – cancellation of registration of order – no question of principle

PROCEDURE – application to vacate hearing date – revisiting informal ruling made five weeks earlier – no material change in circumstances – no demonstrated incapacity to prepare for trial – prejudice to other parties because applicant an undischarged bankrupt – application dismissed

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether defendant’s motion to vary orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3A) should be granted — Where defendant seeks additional declarations and an order under UCPR r 42.25(1) COSTS — Party/Party — General rule that costs follow the event — Where principal judgment was generally in favour of the defendant — Where plaintiffs submit they had a measure of success — Whether parties should pay their own costs

APPEALS – interlocutory decision on a question of practice and procedure – not to order separate questions – no error of principle CIVIL PROCEDURE – separate determination of questions – application for separate questions under UCPR r 28.2 – where plaintiff applied under Part 1C of the Civil Liability Act 2002 (NSW) to set aside settlement agreements for historical child abuse as part of a claim for damages for personal injury – whether set aside application must be heard separately before hearing of underlying claim STATUTORY INTERPRETATION – Part 1C of the Civil Liability Act 2002 (NSW) – whether application for setting aside “affected agreement” required to be determined by separate determination prior to final hearing TORTS – liability for historical child sexual abuse – two prior proceedings involving substantially the same allegations – both settled by payment of money by the State of NSW – Part 1C of the Civil Liability Act 2002 (NSW) – new proceedings commenced including applications to have prior settlement agreements set aside – application under UCPR r 28.2 to have set aside applications determined as separate questions – separate questions not ordered

PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner

CONTRACT – contract – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established COSTS – Calderbank offer – where successful party did not “better” financial terms of offer by unsuccessful defendant made shortly prior to trial – relevance of issues going to public vindication in assessing reasonableness of rejection of offer – where argument going to this issue inadvertently overlooked – nature of judgment awarding of costs – even if matter dealt with summarily, key arguments need to be addressed DAMAGES – contract of employment – where conduct relied upon to found summary dismissal held not to be established – whether employer would have terminated employment following expiry of fixed term of employment on three months’ notice under termination without cause provisions in circumstances where employee had elected to continue employment following expiry of fixed term – proper basis for assessment of damages in such circumstances – loss of a chance or balance of probabilities EMPLOYMENT LAW – contract of employment – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established

COSTS – gross sum costs order – assessment of gross sum – no issue of principle – order made

CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge