CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations.
CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator
Judgment of
Bathurst CJ at [1]; Bell P at [2]; Macfarlan JA at [76]
CORPORATIONS – unregistered managed investment scheme – winding up – application for directions as to distribution of funds deposited by particular categories of investors
PROCEDURE – appeal – civil – application for leave to commence proceedings against companies in liquidation – application for appointment of representative parties – directions as to payments of costs out of common fund
LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made
COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order
Judgment of
Bell ACJ at [1]
Brereton JA at [16]
Barrett AJA at [64]
SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate
LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death
LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice
Judgment of
Bathurst CJ at [1]
Macfarlan JA at [7]
White JA at [8]
HIGH RISK OFFENDER – appeal from making of continuing detention order – whether conviction for manslaughter on the basis of excessive self-defence was a “serious violence offence” – whether error in not specifying commencement date for continuing detention order – alleged errors in criminal record – alleged errors in submissions to primary judge and summaries provided to experts – whether error in assessing risk – appeal dismissed
Judgment of
Basten JA at [1];
Leeming JA at [2];
White JA at [87]
CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier.
LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed.
Judgment of
Bathurst CJ at [1]; Payne JA at [508]; Simpson AJA at [509]
MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient
PROCEDURE – civil – appeal pending – interim orders – order required to preserve subject-matter of appeal
CIVIL PROCEDURE – judicial review – vacation of hearing date – amendment of summons in course of hearing – no basis to delay hearing – summons sought to be amended to add challenge to refusal to state a case to Court of Criminal Appeal – no evidence of application nor of a material question of law
CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.
CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination
LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D
WORDS AND PHRASES – “discoverable” – “knows” – “fact”
Judgment of
Basten JA at [1];
Macfarlan JA at [71];
Leeming JA at [74]
PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment
JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application
PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available
PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7
Judgment of
Basten JA at [1];
Leeming JA at [61];
Payne JA at [62]
APPEAL – stay of execution of judgment pending determination of appeal – appeal arguable – whether risk that if no stay is granted and appeal succeeds, appellant will be unable to recover from respondent – whether risk that if stay is granted respondent will later be unable to enforce judgment – stay granted
CONTRACTS – construction – scope and nature of commitment – defendant agreed to supply security services to plaintiff for the purpose of enabling the plaintiff to carry out head contract – whether defendant promised to provide plaintiff with the opportunity to do certain other work for it
Judgment of
Macfarlan JA at [1];
Payne JA at [34];
Emmett AJA at [35]
APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence
UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered
Judgment of
Bell ACJ at [1]; Meagher JA at [70]; Barrett AJA at [71]
COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted
TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion
TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court
Judgment of
Basten JA at [1];
Leeming JA at [68];
Barrett AJA at [69]
CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied
Judgment of
Gleeson JA at [1]
Brereton JA at [102]
Simpson AJA at [103]
CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 18 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given “post credits only” status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order
Judgment of
Gleeson JA at [1]
Emmett AJA at [4]
Barrett AJA at [19]
CIVIL PROCEDURE – representation – unrepresented litigant – referral to a barrister or solicitor on the Pro Bono Panel under r 7.36 of UCPR – no issue of principle
TORTS – false imprisonment – wrongful arrest – assault and battery – arrest pursuant to a warrant – whether primary judge erred in preferring the evidence of police officers to the evidence of the plaintiff – whether primary judge erred in finding that the plaintiff was lawfully arrested whether primary judge required to consider all submissions made during hearing – whether police required to consider alternatives to arrest – whether police required to give reasons for arrest – whether primary judge erred in failing to award exemplary damages – false imprisonment found to be unintentional
Judgment of
Macfarlan JA at [1]; Meagher JA at [2]; McCallum JA at [3]
JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose
Judgment of
Leeming JA at [1];
McCallum JA at [97];
Emmett AJA at [124]
CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge’s discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial
Judgment of
Bell P at [1]; McCallum JA at [49]; Simpson AJA at [105]
DAMAGES – non-economic loss – eye injury resulting from hit by tennis ball – whether primary judge erred in assessment of non-economic loss
DAMAGES – future economic loss – impairment of earning capacity – extent of evidence required in case of adolescent – State of New South Wales v Moss (2000) 54 NSWLR 536 considered
APPEALS – nature of appellate review of an assessment of severity of non-economic loss under s 16 of the Civil Liability Act 2002 (NSW)
Judgment of
Macfarlan JA at [1];
Gleeson JA at [57];
White JA at [79]
CONTRACTS – termination – whether building contract validly terminated – whether in the circumstances, 10 business days notice giving opportunity to remedy default needed to be given prior to termination – alternative bases for termination – Shepherd v Felt & Textiles of Australia Ltd
Judgment of
Bell ACJ at [1]; Macfarlan JA at [40]; White JA [41]
APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias
SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims
Judgment of
Meagher JA at [1];
White JA at [2];
Emmett AJA at [85]
FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim parental responsibility order to the Minister – application to return child to parent’s care
CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where imminent proceedings in specialist Court – where no seriously arguable error – leave refused
APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused
REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016
Judgment of
Bell P at [1]; Payne JA at [103]; Emmett AJA at [104]
APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused
DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence
Judgment of
Macfarlan JA at [1]; Payne JA at [2]; Emmett AJA at [99]
SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW)
APPEAL AND REVIEW – application for leave to appeal – amount in issue below threshold – whether alleged error more than merely arguable – whether issue of principle or public importance – likely disproportion between the costs of an appeal and amount in issue
GUARANTEE AND INDEMNITY — novation of uncompleted contract for sale of part of land when whole land sold to third party – third party required to indemnify vendor for claims arising “as a result” of the first contract – legal costs incurred by vendor because of his failure to execute deed of novation – whether indemnity covered vendor’s legal costs
INSURANCE – double insurance – contribution between insurers – “other insurance” clauses – one policy contained an “excess” clause and the other an “escape” clause – whether there was double insurance on proper construction of policies – whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applied
Judgment of
Bathurst CJ at [1];
Macfarlan JA at [14];
Meagher JA at [54]
COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be “just and reasonable” – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be “just”
PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness
JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between “fair and reasonable” and “just and reasonable” – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised
Judgment of
Meagher JA at [1];
White JA at [2];
Emmett AJA at [3]
CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle
Judgment of
Bell P at [1], Macfarlan JA at [28], Payne JA at [29]
CONTRACTS – performance – discharge by performance – valid termination of cleaning services contract – express term prohibiting use of unauthorised subcontracted labour – where unauthorised subcontractors undertook 90 per cent of cleaning services – whether cleaning obligation could be performed vicariously – consideration of personal contracts – no claim for quantum meruit
Judgment of
Gleeson JA at [1]
White JA at [93]
Barrett AJA at [94]
TORTS – Whether the Club breached the duty of care it owed to the Worker as an employee of the Club – Whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins.
APPEALS – whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence.
Judgment of
Gleeson JA at [1];
Brereton JA at [2];
Emmett AJA at [6]
APPEALS – leave to appeal – respondent sought recovery of unpaid rent for area of seabed over which the applicant’s houseboat is moored – no question of principle raised – application for leave dismissed
CIVIL PROCEDURE – leave to appeal – from interlocutory orders – where primary judgment did not involve any question of principle – where primary judge had discretion as to costs
APPEAL – procedural fairness – absence of reasons to support critical finding of fact – absence of reasons to support rejection of account of critical issue by witnesses on both sides of the record – no basis in the evidence to support the finding in fact made or the critical issue – need for a retrial
CIVIL PROCEDURE – hearings – procedural fairness – primary judge denied applicants procedural fairness by precluding them from making submissions on identified topics – application for leave to appeal dismissed
Judgment of
Bell P at [1];
Macfarlan JA at [2];
Gleeson JA at [40]
PROCEDURE – motion seeking dismissal of appeal for want of due despatch or because no reasonable cause of action shown or because the appeal is an abuse of the process of the Court – no matter of principle
CIVIL PROCEDURE – subpoenas – application to set aside – where subpoena sought documents demonstrating respondent’s place of practice – whether subpoena lacks legitimate forensic purpose
PROCEDURE – Client sought leave to file an amended summons by way of appeal from decisions of the Costs Review Panel – Matter struck out or dismissed by primary judge – Primary judge refused to exercise discretion to set aside orders made by the Costs Appeal Panel
JUDICIAL REVIEW – Whether primary judge’s refusal to exercise discretion to grant leave to file the amended appeal summons constitutes jurisdictional error
Judgment of
Macfarlan JA at [1];
Meagher JA at [2];
Emmett AJA at [3]
APPEAL – claim in promissory estoppel based on representations said to derive from two documents – whether primary judge erred in holding that one of the documents was not authentic – no error – no issue of principle
CIVIL PROCEDURE – video link evidence – whether primary judge erred in refusing to permit video link evidence
Judgment of
Bathurst CJ at [1], Bell P at [2] and Payne JA at [78]
COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles
ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15
Judgment of
Meagher JA at [1]
McCallum JA at [47]
Simpson AJA at [48]
COSTS – security for costs – where security order already made – where increase ordered three years after original order – where personal undertaking made to pay costs
Judgment of
Bell P at [29]
Macfarlan JA at [30]
Brereton JA at [2]
LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation
APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS
APPEALS – General principles – Admission of fresh evidence
Judgment of
Leeming JA at [1];
Emmett AJA at [2];
Simpson AJA at [94]
APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW) – whether order an interim order
TORTS – tort of collateral abuse of process – distinguished from abuse of process justifying a stay of proceedings – elements of the tort
Judgment of
Bell P at [1]; White JA at [47]; McCallum JA at [68]
TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform
DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Judgment of
Meagher JA at [1];
White JA at [2];
McCallum JA at [204]
LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle
CIVIL PROCEDURE – representative proceedings – multiplicity of proceedings – competing proceedings brought in single forum by various plaintiffs against the same defendant – where the plaintiffs sought permanent stays of one another’s proceedings – where stay granted against all but the last-commenced proceeding – whether bringing subsequent proceedings constitutes an abuse of process
Judgment of
Bell P at [1];
Macfarlan JA at [101];
Meagher JA and Payne JA at [102];
White JA at [111]
COSTS – Calderbank offer – offer made jointly to both respondents – whether unsuccessful respondent alone could have accepted offer – whether it would have been in a better position if it had accepted offer than it achieved on appeal
ADMINISTRATIVE LAW – judicial review – jurisdictional error – where applicant convicted of knowingly contravening apprehended personal violence order – where applicant appealed against conviction to District Court – whether District Court exceeded jurisdiction in dismissing conviction appeal – no question of principle
Judgment of
Meagher JA at [1];
Payne JA at [36];
White JA at [37].
CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where proceedings dismissed under Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – summons dismissed
JUDGMENTS – setting aside for fraud – summary dismissal – where relitigation an abuse of process
EQUITY – rectification of building contract – whether adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) made within time – answer depends on the date under the contract for the making of a progress payment – whether the primary Judge was correct to order rectification of the contract by changing the due date for payment – whether the evidence supported the finding that the parties had a common intention, at the time the contract was executed, that the date for payment should be otherwise than as recorded in the contract.
BUILDING AND CONSTRUCTION – adjudication application invalid because made out of time – whether the contractor entitled to institute summary proceedings under s 16(2)(a)(i) of the Security of Payment Act to recover unpaid portion of the scheduled amount as a debt – whether adjudication application, although a nullity, had a factual existence that had legal consequences – whether the invalid adjudication constituted an election between inconsistent statutory remedies so as to preclude summary proceedings to recover the debt.
BUILDING AND CONSTRUCTION - contractor in liquidation – whether the Security of Payment Act, as a matter of construction, is capable of operating for the benefit of a contractor which has gone into liquidation in insolvency – where Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; (2016) 337 ALR 452 decides that equivalent Victorian legislation is not available to a contractor in liquidation – whether Victorian Court of Appeal decision is clearly wrong and should not be followed.
Judgment of
Leeming JA at [1];
Payne JA at [44];
White JA at [45];
Sackville AJA at [46];
Emmett AJA at [262].
APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed
Judgment of
Payne JA at [1]; McCallum JA at [44]; Simpson AJA at [45]
ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan
APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition
Judgment of
White JA at [1];
McCallum JA at [15];
Emmett AJA at [16]
CIVIL PROCEDURE – application for stay of writ of possession, pending hearing of proceedings instituted in the Court of Appeal - whether cross-claim dismissed by McCallum J has any bearing on the question of whether there should be a stay of the writ of possession
LEAVE TO APPEAL – application for leave to file a notice of appeal out of time – whether there is any evidence that the respondent failed to produce material documents that would have caused the applicant to not have entered into the in-principle agreement – whether extension of time to appeal is likely to be granted by the Court of Appeal
APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability
Judgment of
Bell P at [1]; Macfarlan JA at [73]; McCallum JA at [74]
CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act
COSTS – offer of compromise – whether judgment “no more favourable” than offer – when order “otherwise” appropriate
Judgment of
Macfarlan JA at [1];
Gleeson JA at [43];
White JA at [44]
LEASES AND TENANCIES – whether the parties entered into a binding and enforceable agreement for lease of the Premises in the terms of the 15 June Document – significance to be attached to the Heads of Agreement as constituting a binding document – whether language used in correspondence of 27 and 31 May 2016 signifies that a reasonable person in the position of the parties would understand the communication as giving rise to a binding and enforceable contract – significance of marking correspondence as “without prejudice”.
APPEAL – whether it was unnecessary to determine whether the Heads of Agreement were binding – whether the parties did not intended to replace the Heads of Agreement and be bound by the 15 June Document until execution and exchange of a formal lease document – whether the law of part performance applied to the question of whether the parties intended to be bound by the 15 June Document – whether the parties conducted themselves in a manner consistent with the 15 June Document, a monthly tenancy or a statutory lease under the Retail Leases Act 1994 (NSW).
Judgment of
Bathurst CJ at [1];
Basten JA at [20];
Emmett AJA at [56]
LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants
Judgment of
Meagher JA at [1];
Gleeson JA at [32];
McCallum JA at [33]
COSTS – application for indemnity costs following rejection of Calderbank offer – where offer accompanied by written submissions in the appeal –where applicant’s prospects of success very good – whether respondent acted unreasonably in refusing offer
Judgment of
Meagher JA at [1];
Brereton JA at [1];
Simpson AJA at [1].
COSTS – appeal – appeal determined without a determination on the merits – further prosecution of the appeal had become futile – both parties acted reasonably – no order as to costs
LEASES AND TENANCIES – Social Housing Tenancy Agreement – Agreement terminated by order of NCAT pursuant to s 91 of Residential Tenancies Act – whether termination would occasion undue hardship to tenant – meaning of undue hardship in context of Residential Tenancies Act – discretion to terminate notwithstanding undue hardship – whether NCAT had regard to hardship in exercise of its discretion – adequacy of reasons for exercising discretion
ADMINISTRATIVE LAW – requirement for NCAT to give reasons – adequacy of reasons for making of a discretionary decision to terminate a social housing tenancy agreement – whether NCAT had regard to hardship to the tenant of termination – whether reasons for decision adequately disclosed how hardship was taken into account
TRIBUNALS – New South Wales Civil and Administrative Tribunal – required to give reasons – adequacy of reasons – reference to “all of the circumstances of the case”
Judgment of
Bell P at [1]; Ward JA at [109]; McCallum JA at [115]
PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances
CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application
LAND LAW – compulsory acquisition – compensation – interest in land acquired terminable on one month’s notice – claim for loss attributable to disturbance – termination of business – claim for loss of ongoing profits of business – Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352 not followed
LAND LAW – compulsory acquisition – compensation – loss attributable to disturbance – claim for additional rental paid to acquiring authority for period between compulsory acquisition and vacant possession
COSTS – compulsory acquisition – claim for compensation – claimant successful at trial – claim rejected on appeal – claim not unreasonable – exception to general rule that costs follow the event – Dillon v Gosford City Council [2011] NSWCA 328; 184 LGERA 179 applied
Judgment of
Basten JA at [1];
Macfarlan JA at [72];
Payne JA at [73];
Sackville AJA at [79];
Preston CJ of LEC at [124]
ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW)
STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act
Judgment of
Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61]
SUPERANNUATION – accident and sickness insurance – benefits for disablement – where benefits insured under group life policy – benefit for “total and permanent disability” – where insurer declined claim twice – where the insurer’s second decision took into account its first decision – whether insurer took into account irrelevant consideration – whether insurer in breach of its contractual duty – whether insurer acted reasonably and fairly in its consideration of the claim
Judgment of
Meagher JA at [1];
Gleeson JA at [2];
Payne JA at [165].
SUCCESSION – whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – whether the draft will reflects the fourth respondent’s wishes as to the disposition of her estate.
TORTS – negligence – negligent battery – plaintiff’s thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be reduced due to plaintiff’s intoxication – quantum of damages
Judgment of
Basten JA at [1]; Brereton JA at [47]; Simpson AJA at [137]
CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order
CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)
Judgment of
Bathurst CJ at [1]; Beazley P at [197]; McColl JA at [198]; Basten JA at [206]; Leeming JA at [279]
CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – appeal from an interlocutory order – no question of principle – application dismissed
APPEALS – nature – entitlement of parties to appeal orders and not reasons – changed circumstances – no operative order which may be the subject of an appeal
CRIMINAL LAW – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision orders revoked
CORPORATIONS – company in administration – stay of proceedings – s 440D Corporations Act 2001 (Cth) – application for leave to appeal to Court of Appeal – separate “proceeding” from proceedings at first instance – no written consent by administrator to proceedings in Court of Appeal and leave not granted by Court – proceedings dismissed as incompetent
CONTEMPT – appeal against conviction and penalty – scandalising conduct in face of court – breach of court suppression orders – whether appellant’s conduct constituted exercise of implied constitutional freedom of political communication – whether suppression orders ambiguous or uncertain – whether suppression orders should be set aside – failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 40.7
CONTEMPT – power of committal – whether Crimes (Sentencing Procedure) Act 1999 (NSW) applied
CONSTITUTIONAL LAW – implied constitutional freedom of political communication – contempt of court – whether appellant’s conduct constituted exercise of that freedom – whether laws pursuant to which suppression orders were made incompatible with that freedom
Judgment of
Basten JA at [1];
Macfarlan JA at [68];
Meagher JA at [139]
TORTS – negligence – no duty to warn of obvious risk – plane collided with kangaroo at regional aerodrome – whether damage to aircraft materialisation of obvious risk – whether risk defined by level of risk and likelihood of materialisation – whether accessing information from website involved requesting advice or information – Civil Liability Act 2002 (NSW), ss 5F, 5G, 5H
TORTS – negligence – public authority – allocation of resources – principle that allocation of resources not open to challenge – Civil Liability Act 2002 (NSW), ss 42(a), 42(b)
Judgment of
McColl JA at [1];
Basten JA at [2];
Simpson AJA at [69]
TAXES AND DUTIES – income tax – collection and recovery of tax – where judgment given in favour of Commissioner for recovery of income tax, penalties and interest charges – where appellant asserts that he was denied “right” to be represented by a person with no legal qualifications – where appellant contends Supreme Court has no authority to determine question of tax debt without his consent – where appellant contends taxation laws do not apply to him without his consent – where appellant asserts debt discharged by delivery of self-described “promissory note” – appeal dismissed – no question of principle
Judgment of
Meagher JA at [1];
Gleeson JA at [1];
Brereton JA at [1]
SUCCESSION – testamentary capacity – weight to be given to conclusory expert medical evidence on the legal issue of whether deceased had testamentary capacity – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills
EVIDENCE – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills – Connor v Blacktown District Hospital [1971] 1 NSWLR 713 and other authorities referred to
Judgment of
Bell ACJ at [1];
Macfarlan JA at [2];
McCallum JA at [79]
NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous
Judgment of
Basten JA at [1];
Leeming JA at [36];
McCallum JA at [130]
ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 (NSW) medical review panel – assessment of degree of permanent impairment – application for judicial review – whether jurisdictional error – whether failure to address an argument properly before review panel – whether denial of procedural fairness – whether review panel directed attention to wrong question – whether error of law on the face of the record – whether review panel’s assessment based on findings of fact for which there was no evidence – scope of error of law on the face of the record
Judgment of
Macfarlan JA at [1]; Leeming JA at [2]; Simpson AJA at [3]
LOCAL GOVERNMENT — powers, functions and duties — power of mayor and council to expel councillor for “act of disorder” — whether describing mayor as “clown” during meeting an “act of disorder” — whether power of expulsion validly exercised — whether dispute suitable for adjudication by Land and Environment Court
WORDS AND PHRASES — “act of disorder” — Local Government (General) Regulation 2005, r 256
Judgment of
Payne JA at [1];
White JA at [4];
McCallum JA at [149]
CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct
EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes
Judgment of
Basten JA and Meagher JA at [1];
Emmett AJA at [82]
ADMINISTRATIVE LAW – jurisdictional facts – whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker’s powers
ADMINISTRATIVE LAW – unreasonableness – whether decision-maker’s satisfaction with a mining strategy was legally unreasonable – whether decision-maker’s view was at least arguable
CIVIL PROCEDURE – Court of Appeal – whether leave to appeal required against costs order where there is an appeal as of right against the substantive orders made at first instance - s 58(3)(c) Land and Environment Court Act 1979 (NSW)
COSTS – administrative law – whether decision-maker entitled to costs when appears to advance arguments in proceedings between two well-represented litigants – Hardiman (1981) 144 CLR 13; [1980] HCA 13 considered
Judgment of
Basten JA at [1];
Macfarlan JA at [99];
Leeming JA at [180]
CIVIL PROCEDURE – appeal from determination of separate questions – where concession in agreed facts as to causation of loss suffered by claimant against the insureds – whether primary judge erred in attaching significance to appellant’s concession when deciding construction of contract of insurance
CONTRACTS – construction – proper construction of a contract of insurance – professional indemnity policy for property valuer – contract comprised in standard policy wording, schedule and endorsements – where exclusion clause in endorsement for valuations undertaken for specified category of lenders – where literal or grammatical meaning must be evaluated against the text, context and purpose of the contract – whether ambiguity arising from requisite causal nexus between subject matter of the exclusion clause and the loss – business commonsense approach to construction – exclusion clause to be interpreted according to its natural and ordinary meaning – where absence of ambiguity precludes recourse to the contra proferentem rule – whether insurer entitled to deny indemnity and refuse to pay defence costs
JUDGMENTS AND ORDERS – court’s powers – hypothetical questions – utility of declaration as to insurer’s liability to indemnify in absence of determination of insured’s liability to claimant – form of declaration – whether too wide – whether negative declaration appropriate
Judgment of
Bell P at [1]
Gleeson JA at [2]
Emmett AJA at [121]
EQUITY – fiduciary duties – whether fiduciary duties owed by a solicitor during negotiations for and steps taken to establish a solicitor/client relationship – breach – whether client gave fully informed consent to enter into agreements with solicitor – whether advice “independent” and “meaningful”
CIVIL LIABILITY – Civil Liability Act 2002 – defences of contributory negligence and proportionate liability not available in answer to claim for breach of fiduciary duties – claim arising “from a failure to take reasonable care” requires absence of reasonable care to be an element of the cause of action
Judgment of
Bathurst CJ at [1];
Macfarlan JA at [2];
McCallum JA at [142]
CIVIL PROCEDURE – dismissal of proceedings – where order granting extension of time to appeal conditional – where conditions not met – where applicant fails to show cause to proceed
DEFAMATION – defamatory meaning – court proceedings – where journalist obtained access to pleadings in civil proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2) – where pleadings alleged breach of duties and cruelty by horse trainers – where newspaper published articles based on both parties’ pleadings — where truth of allegations in pleadings yet to be curially determined — capacity of articles to convey guilt imputations
DEFAMATION – publication – republication – liability for republication — whether republication natural and probable consequence of the original publication
DEFAMATION – defences – defence of publication of fair summary of public documents – where journalist obtained access to pleadings in civil proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2) – where newspaper published articles based on pleadings – whether pleadings deployed in court at a directions hearing prior to publication of matters complained of – whether pleadings “public documents” – Defamation Act 2005 (NSW), s 28(1) – whether matters complained of fair summary of “public documents” – Defamation Act 2005 (NSW), s 28(1) – whether matters complained of published honestly for the “information of the public” – whether matters of defeasance proven – Defamation Act 2005 (NSW), s 28(3)
DEFAMATION – defences – statutory qualified privilege – where plaintiffs horse trainers – where newspaper published report of cruelty allegations made in civil proceedings – where poster advertising newspaper article stated “Cummings Fighting Cruelty Claims” – whether poster published pursuant to statutory qualified privilege – Defamation Act 2005 (NSW), s 30
DEFAMATION – identification – whether poster defamatory in its natural and ordinary meaning or by reason of extrinsic facts – where poster advertising newspaper article stated “Cummings Fighting Cruelty Claims” – whether poster identified plaintiff – whether “defamatory nature” of poster limited to people who would identify poster as referring to Anthony Cummings and not Bart Cummings
WORDS AND PHRASES – “public document” – “open to inspection by the public” – Defamation Act 2005 (NSW), s 28(4)(e)
Judgment of
Beazley P at [1];
McColl JA at [3];
Simpson AJA at [263]
CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations
CIVIL PROCEDURE – parties – supervisory jurisdiction – children as necessary parties – representation – role of representative
MOTOR ACCIDENTS – where collision between two vehicles – where plaintiff injured and sought compensation under Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff’s car parked kerbside or executing a U-turn or right turn at time of collision – where primary judge found plaintiff’s car was performing a U-turn or right turn at time of collision – no error in fact finding by primary judge
Judgment of
Gleeson JA at [1]; Payne JA at [2]; Simpson AJA at [3]
CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to”
VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs
VALUATION – nature of valuation – meaning of “acting as an expert and not as an arbitrator”
PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed
TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to slow down or stop – reasonableness of precautions against unseen vehicles travelling at high speeds – expectation that road users will take reasonable care for their own safety
EXPERT EVIDENCE – negligence – calculation of speed – CCTV footage of accident – failure to assess weight of expert evidence – confirmatory report not taken into account
Judgment of
Basten JA at [1];
Macfarlan JA at [56];
McCallum JA at [57]
COSTS – reinstatement of costs order at trial – offer of compromise in relation to appeal – early ‘walk away’ offer – no evidence of costs incurred – whether genuine compromise – whether appeal doomed to fail – offerors’ position not explained – Uniform Civil Procedure Rules 2005 (NSW), r 20.26
JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4)
Judgment of
Gleeson JA at [1]
Leeming JA at [6]
McCallum JA at [7]
CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis
PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified
PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basis
Judgment of
Bell P at [1];
Macfarlan JA at [78];
White JA at [79]
LAND LAW – Torrens system – claim for compensation from Torrens Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleged that loss was suffered as a result of dealings because claimant forced to sell another property – claimant failed to establish that dealings were a cause of need to sell property – no entitlement to compensation under s 129 of Real Property Act 1900 (NSW)
Judgment of
Bell P at [1];
Leeming JA at [53];
Emmett AJA at [54]
PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430
SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need
Judgment of
Basten JA at [1];
Leeming JA at [2];
Emmett AJA at [190]
DEFAMATION – defences – contextual truth – amendment by plaintiff to adopt contextual imputations – whether primary judge ought to have inferred that the amendment was not brought in good faith or was an abuse of process
APPEAL – practice and procedure – decision by primary judge to allow amendment – particular caution to be exercised by appellate courts
Judgment of
McCallum JA at [1]
Emmett AJA at [42]
Simpson AJA at [50]
LANDLORD AND TENANT— whether landlord’s refusal to produce trust deed justifies tenant’s non-payment of rent — whether tax invoices issued by landlord invalid where no trust deed given to tenant — whether Tribunal at first instance lacked jurisdiction due to pending Supreme Court proceedings — no issue of general importance — application for leave to appeal dismissed
PROCEDURE – writ of possession – stay of execution – where default judgment obtained by mortgagee – where application for vacation and stay of execution dismissed by registrar in common law division – where motion to set aside registrar’s decision dismissed by Supreme Court Judge – no arguable grounds of appeal – no question of principle
LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed
CIVIL PROCEDURE – application to transfer appeal proceedings to Full Court of Family Court –proceedings involving a matter arising from an order made under the Family Law Act 1975 (Cth) – no power for the Court to transfer proceedings to the Family Court as the hearing had not commenced – proceedings dismissed
COSTS – appellant commenced proceedings in the incorrect court – respondent consented to transfer of proceedings on terms – both parties aware that the appeal not competent – no objection to competency – costs in accordance with terms of consent orders – costs to abide outcome of the appeal in the Family Court
CONTRACTS – construction – informal and partly oral contract to provide search engine optimisation services – where service provider instructed to undertake “aggressive” strategy including link building – where “unnatural”, “artificial” or “spammy” links to target website created in violation of Google Webmaster Guidelines – where algorithmic and human demotion in search results applied by Google – whether “aggressive” strategy entailed impugned link building
CONTRACT – remedies – damages – assessment – where marginal profit calculated assuming initial sales revenue from before revenue loss period and growth rate from period after consequences of breach ceased – whether appropriate to apply discount for endogeneity problem, apparent difference in growth trend lines and counterfactual possibility of adverse competition and harmful conduct by plaintiff
EVIDENCE – witness evidence – cross-examination – rule in Browne v Dunn – reliability and truthfulness – where adverse credibility findings made against directors of plaintiff – where substantial points of difference between significant affidavit evidence of plaintiff’s directors and defendant – where truthfulness of plaintiff’s directors put in issue by opening statements and cross-examination – whether denial of procedural fairness
Judgment of
Meagher JA at [1];
Gleeson JA at [95];
Leeming JA at [96]
CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants
CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order
PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged
Judgment of
Bell P at [1];
Basten JA at [3];
Meagher JA at [31]
JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against conviction – where appellant failed to appear and appeal summarily dismissed – whether jurisdictional error
JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against sentence – where judge correctly understood extent of available evidence – where evidence from trial voluminous – where parties directed to put material relied on before the Court – where parties had sufficient opportunity to do so – whether jurisdictional error
CIVIL PROCEDURE – recusal application – apprehended bias – where judge expressed preliminary view as to prospects of success of judicial review proceeding in interlocutory application to vacate hearing date – no basis for reasonable apprehension of bias – no question of principle
STATUTORY INTERPRETATION – statute assumes existence of power – necessary implication – power impliedly conferred
Judgment of
Basten JA at [1];
Meagher JA at [2];
Sackville AJA at [76]
PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition
PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice
STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69
CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid
INSURANCE – civil liability insurance policy – indemnity in respect of claims made against insured – whether single or multiple retentions applicable – Federal Court representative proceeding against insured – whether single or multiple claims against insured – effect of aggregation/disaggregation of claims clause – whether multiple claims arose out of a series of related wrongful acts
Judgment of
Bathurst CJ at [1];
Macfarlan JA at [30];
White JA at [113]
CIVIL PROCEDURE – service – where email addresses of respondent’s solicitors had been blocked by applicant – where applicant’s physical address for service no longer current
LEAVE TO APPEAL – whether the issues raised in the applicant’s statement of claim amounted to a re-litigation of issues dealt with in the earlier proceedings – whether the applicant’s allegation that the Official Trustee had acted in fraudulent disregard of its duty as trustee had no prospects of success – applicant’s failure to identify property said to be subject of the constructive trust binding the Official Trustee.
APPEALS – application for leave to appeal – notice of intention to appeal – delay in filing application for leave to appeal in context of ongoing proceedings – absence of compelling explanation for delay in exercising appeal rights in circumstances where a trial in the District Court had been set down for hearing – expedition in applications for leave to appeal in relation to ongoing proceedings
CIVIL PROCEDURE – pleadings – particulars – further and better – “back and forth” of requests for particulars and answers or non-answers persisted over the course of a year – obligation of practitioners to facilitate overriding purpose of Civil Procedure Act 2005 (NSW) in the making and answering of such requests
COSTS – exceptions to general rule that costs follow the event – application for permanent stay of proceedings – delay in bringing application for permanent stay of proceedings – delay in seeking leave to appeal the refusal of a stay – failure to seek expedition in application for leave to appeal in respect of ongoing proceedings
Judgment of
Bell P at [1];
Leeming JA at [35];
Emmett AJA at [36]
CIVIL PROCEDURE – Uniform Civil Procedure Rules r 36.16 – where orders dispositive of appeal have been made – where applicants seek orders setting aside judgment and allowing the appeals – whether asserted error in judgment readily identifiable, readily rectifiable or inadvertent
Judgment of
Bell P at [1]; Macfarlan JA at [2]; Simpson AJA at [3]
CIVIL PROCEDURE – appeal – subpoenas – application to set aside – subpoena seeking evidence of capacity to enter deed – material not put before the primary judge – Court of Appeal unlikely to undertake a trial of evidence not previously considered
PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge failed to consider witness’ evidence – where witness’ affidavit read – where witness cross-examined on evidence before primary judge – where witness’ evidence the subject of express analysis by primary judge
PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge erred in not taking into account documentary evidence – where documents not in evidence before primary judge – where documents sent by email to primary judge’s chambers in purported answer to notice to produce – importance that evidence be formally tendered
PRACTICE AND PROCEDURE – application for leave to appeal – whether party was denied procedure fairness before primary judge – where party did not appear at the hearing – where no evidence that application was made for affidavit of party to be read – where no submissions as to arguments party would have made
TORTS – negligence – personal injury – respondent tripped on kerb in pedestrian precinct – duty of care to warn pedestrians of height differential – whether risk obvious – whether failure to use yellow highlighting constituted breach of a duty to warn – whether absence of warning causative of harm to person aware of hazard and not looking down
Judgment of
Basten JA at [1];
Macfarlan JA at [12];
Brereton JA at [41]
CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates – later date was date on which one party acquired a right to terminate if agreement not reached – whether earlier or later date relevant date for commencement
CONTRACTS – termination – purported termination pursuant to contractual right – whether party had elected to affirm the contract – whether right to terminate exercised within a reasonable time – meaning of reasonable time – point at which reasonable time to be assessed – whether any difference between a reasonable time to exercise a right and a reasonable time to perform an obligation – Ballas v Theophilos (No 2) (1957) 98 CLR 193 considered
CONTRACTS – ship construction – interpretation –parties entered into an original contract and later into a second contract – where original contract entitled one party to liquidated damages – where second contract contained a release clause – whether, if second contract had been validly terminated, the release in the second contract would still be effective – where clause in second contract set “all” fees until a particular date at a certain rate – whether “all” captured fees from commencement of original contract or second contract
Judgment of
Bell P at [1];
Basten JA at [154];
Emmett AJA [178]
ADMINISTRATIVE LAW – judicial review – victim’s compensation claim – primary victim of domestic violence – claim for “severely disabling” psychological disorder – challenge to rejection by delegate – whether the delegate attributed incorrect meaning to “severely disabling”
ADMINISTRATIVE LAW – judicial review – expert psychologists designated by Director – assessment of disability by designated expert – whether delegate obliged to follow expert’s assessment absent countervailing evidence – whether delegate’s rejection of assessment manifestly unreasonable
APPEAL – leave to appeal – precondition of grant – small amount at stake in individual case – relevance to large number of claims – whether matter of principle or public interest – error identified without setting aside judgment below
Judgment of
Basten JA at [1];
Leeming JA at [57];
McCallum JA at [58]
PLANNING AND ENVIRONMENTAL LAW – Land and Environment Court – jurisdiction – condition of consent provided that music festival must not proceed if Commissioner of Police advised it was unsafe – whether Class 1 appeal lay from Commissioner’s decision – whether decision concerned an aspect of development required to be carried out to the satisfaction of consent authority or any other person – comparison of (former) s 97 and current s 8.7 of Environmental Planning and Assessment Act 1979 (NSW) – decision did not fall within s 8.7
Judgment of
Macfarlan JA at [1];
Leeming JA at [2];
White JA at [58]
CIVIL PROCEDURE – subpoenas – where appellant suffered ill health and unable to instruct solicitors – where appeal filed out of time – where respondent issues subpoenas to test appellant’s evidence – whether documents subject of subpoenas sufficiently relevant to determination of issue – whether subpoenas oppressive
TORTS — negligence — apportionment of responsibility and damages — primary judge held that appellant vicariously liable for injury and breached duty of care owed to respondent — primary judge found no negligence on part of worker’s employer — whether primary judge erred in finding worker’s employer not in breach of duty and liable in damages to respondent such as to entitle appellant to contribution from employer — whether primary judge erred in assessment of non-economic loss by applying a 10% reduction to percentage of most extreme case to reflect for contingency — whether primary judge’s assessment as to past economic loss supported by evidence — whether primary judge’s estimation of working life of 60 years and application of 20 per cent buffer for vicissitudes sufficient to account for fact that surgery brought about by negligence would have been necessary at some point in future in any event
Judgment of
Basten JA at [1];
Gleeson JA at [22];
White JA at [23]
DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO “benchmarks” for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks – whether benchmarks capable of sustaining damages calculated by primary judge – whether nominal damages should be awarded or the matter remitted
TRIAL – procedural fairness – court invited appellant’s counsel to attend to make further submissions on damages after judgment reserved – no response from counsel – invitation repeated by court – appellant’s counsel supplied written submission opposing further hearing – court proceeded to assess damages against appellant without further hearing – whether course adopted by court procedurally unfair
Judgment of
Basten JA at [1];
Leeming JA at [2];
McCallum JA at [87]
FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed
PROCEDURE – appeal against summary dismissal of summons – plaintiff required to show cause why proceedings should not be dismissed – obligations of the Court to self-represented plaintiff – whether plaintiff had arguable case – appropriate orders on appeal
WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) – construction of s 38A – where appellant a worker with highest needs –whether arbitrator made finding that appellant able to return to pre-injury employment – whether appellant entitled to compensation under s 38A
Judgment of
Meagher JA at [1];
White JA at [36];
Simpson AJA at [117]
EVIDENCE – appeals – findings of fact – whether glaringly improbable or contrary to compelling inferences
CONTRACTS – factual causation – subjective determination in the light of all the relevant circumstances
Judgment of
Bell P at [1], Payne JA at [2], Simpson AJA at [55]
DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters in closing address warranted discharge of jury
DEFAMATION – damages – aggravated damages – whether appellable error in failing to order aggravated damages – relevance of plaintiff’s failure to adduce evidence of hurt from newspapers’ publication of jury’s verdict – relevance of identification of award of damages awarded in respect of each of three defendants’ publications
DEFAMATION – statutory qualified privilege – reasonableness – whether publisher’s conduct was reasonable – whether determined by judge or jury – meaning of “general law” – whether Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 clearly wrong – whether reasonableness as element of Lange qualified privilege determined by judge or jury – Defamation Act 2005 (NSW), ss 22, 30 considered
Judgment of
Bell P at [1];
Gleeson JA at [4];
Leeming JA at [6]
COSTS – appeal allowed in part – partial success of both sides – apportionment of costs – impossible to re-exercise costs discretion at first instance – costs at first instance relatively large – remitter to Equity Division
BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed
Judgment of
Bell P at [1];
Leeming JA at [8];
Simpson AJA at [82]
APPEAL – civil – challenge to findings of fact – whether trial judge erred in accepting evidence of defendant – resolution of inconsistencies – absence of independent witnesses – plaintiff bore onus of proof – judge entitled to have regard to inherent implausibility of plaintiff’s case
TORTS – negligence – liability for motor accident – vehicles travelling in adjoining lanes – liability dependent on whether defendant travelling straight ahead from right turn only lane
Judgment of
Basten JA at [1];
Leeming JA at [52];
McCallum JA at [53]
CIVIL PROCEDURE – time – extension of time – whether extension should be granted in proceedings for judicial review commenced out of time
COSTS – security for costs – whether exceptional circumstances established
Judgment of
Gleeson JA at [1]; Payne JA at [2]; McCallum JA at [3]
CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – judgment or order of the Court in a Division for the winding up of a corporation – where debt alleged to have been paid prior to appointment of liquidator – application dismissed
CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion
CIVIL PROCEDURE – appeal – procedural unfairness – determination of motion to remove caveat did not require final determination of existence of life interest – whether appellant denied opportunity to prove existence of agreement to confer life interest
EVIDENCE – further evidence on appeal – need to show possibility of different outcome – application of Supreme Court Act 1970 (NSW), s 75A to evidence of procedural unfairness
Judgment of
Basten JA at [1]; Leeming JA at [18]; Payne JA at [26]
EVIDENCE – expert evidence – use of psychometric testing – methodology experimental – lack of explanation justifying acceptance of methodology – plaintiff’s medical evidence discounted on basis of tests indicating plaintiff was disingenuous in answering test questions
TORTS – battery – plaintiff punched in the face – whether intentional act intended to cause injury – Civil Liability Act 2002 (NSW), s 3B(1)(a) – whether plaintiff grabbing the back of her assailant’s shirt unlawful – whether assailant acted in self-defence under Civil Liability Act, ss 52-53
TORTS – battery – damages – non-economic loss – causation – whether plaintiff suffered psychological injury – pre-attack psychological history – aggravated damages
TORTS – battery – damages – exemplary damages – effect of criminal conviction and sentence
TORTS – negligence – liability of licensee for battery by third party – whether duty of care owed to patrons outside licensed premises – obligations of licensee under Liquor Act 2007 (NSW) – breach
Judgment of
Basten JA at [1];
Gleeson JA at [134];
Brereton JA at [136]
DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff
DEFAMATION — defences — substantial truth — contextual truth — justification of some imputations only — relevance of imputations found to be substantially true — discussion of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Judgment of
Basten JA at [1];
Payne JA at [82];
Simpson AJA at [91]
APPEAL – practice and procedure – appeal from judgement on a review reversing interlocutory decision of Registrar – application of principle of restraint in review of discretionary decision as to practice and procedure
PROCEDURE – interrogatories – personal injury claim – defendant’s application to administer interrogatories to plaintiff – rule requiring “special reasons” to make order – defendant seeking information as to possible limitation defence – information wholly within the plaintiff’s knowledge
Judgment of
Basten JA at [1];
Payne JA at [48];
Simpson AJA at [49]
HIGH RISK OFFENDER – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – interim detention order – whether offender must be in lawful custody when interim detention order made – whether offender must be in lawful custody when an interim detention order is renewed
STATUTORY INTERPRETATION – implied limitation on powers of superior court – purposive interpretation not supportive of limitation – effect of earlier precedent inconsistent with implied limitation – subsequent amendments leaving unchanged provisions the subject of earlier judicial determination
Judgment of
Bathurst CJ at [1];
Basten JA at [2];
Payne JA at [50]
DEFAMATION – offers of amends – where defendant made offer of amends pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW) including offer of compensation and stated offer was “open to be accepted until commencement of the trial, unless withdrawn in writing” – where plaintiff made offer of compromise pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.26, seeking damages in greater amount than compensation in offer of amends – where offer of amends not expressly withdrawn – where plaintiff accepted offer of amends prior to trial – whether offer of compromise constituted rejection of offer of amends – whether offer of amends validly accepted
STATUTORY INTERPRETATION – whether Pt 3, Div 1 of the Defamation Act 2005 (NSW) departs from the general law of offer and acceptance
STATUTORY INTERPRETATION – whether intersection between statutory schemes established by Pt 3, Div 1 of the Defamation Act 2005 (NSW) and offer of compromise provisions in UCPR Pt 20, Div 4
WORDS AND PHRASES – “withdrawn” – Defamation Act 2005 (NSW), s 16
Judgment of
McColl JA at [1];
Basten JA at [120];
Leeming JA at [163]
POLICE – powers and duties – power to prevent persons entering onto closed road – power to arrest – authorisation to use reasonable force – obligation upon police officers to provide identification and information – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 186, 201 and 230 considered
ROADS – power to close road – power to prevent persons entering onto closed road – whether all exercises of power required identification and information to be provided by police officers
TORTS – intentional torts – assault, battery and false imprisonment – whether steps taken to prevent persons entering closed road amounted to directions to which Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 201 applied – whether factual findings of primary judge that plaintiff was resisting police inconsistent with incontrovertible evidence or glaringly improbable – limitations on photographic evidence – malicious prosecution – whether plaintiff established absence of reasonable and proper cause
Judgment of
Gleeson JA at [1];
Leeming JA at [2];
Simpson AJA at [105]
ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness
ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court
APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable
Judgment of
Bell P at [1]
Gleeson JA at [2]
Leeming JA at [71]
CIVIL PROCEDURE – summary disposal – where claim said to be apportionable – dismissal of third-party cross-claim against named concurrent wrongdoer – whether primary judge erred in dismissing cross-claim based on independent causes of action against cross-defendant – consideration of Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195
Judgment of
Bell P at [1];
Macfarlan JA at [56];
Payne JA at [57]
LAND LAW – conveyancing – options – call options – construction – notice of exercise of option able to be given to grantor’s conveyancer – whether option validly exercised - whether notice to grantee required that conveyancer no longer retained by grantor – whether requirement that conveyancer be retained at the time of the exercise of the option
Judgment of
Macfarlan JA at [1], Leeming JA at [2], Payne JA at [3]
LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59
Judgment of
Beazley P at [1], Basten JA at [2], Payne JA at [31]
ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
Judgment of
Beazley P at [1], Basten JA at [2], Payne JA at [25]
REFERRALS – case management – application for leave to appeal - matter listed for leave only hearing
CIVIL PROCEDURE – Court of Appeal – application for stay of orders appointing – stay refused
CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of “acquiescence” – absence of any real prejudice – appropriate conditions to be imposed on amendment
SUCCESSION – grant of probate in common form in respect of a will – application to amend cross-claim to challenge grant on basis of lack of testamentary capacity – no caveat lodged – application to amend made at a time when case ready to be allocated a hearing date – relevant considerations – importance to be placed on ascertainment of true intention of the testator – significance of unique public interest character of probate proceedings – reasonably arguable case that testator lacked testamentary capacity at relevant time – whether application, if granted, doomed to fail – whether challenge to testamentary capacity was an abuse of process in the circumstances – consideration of In re Goode (1890) 11 LR(NSW) (Eq) 281
Judgment of
Bell P at [1]
Gleeson JA at [99]
Leeming JA at [100]
APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal
APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW).
APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.
ADMINISTRATIVE LAW – judicial review – validity of decision – whether deceased was entitled to compensation for permanent impairment pursuant to the Workers Compensation Act 1987 (NSW) in circumstances where death followed inevitably and within a few minutes of injury
STATUTORY INTERPRETATION – meaning of “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66
WORDS AND PHRASES – “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66
WORKERS COMPENSATION – entitlement to compensation for permanent impairment – Workers Compensation Act 1987 (NSW), s 66
Judgment of
Basten JA at [1];
Gleeson JA at [16];
Payne JA at [17];
Sackville AJA at [105];
Simpson AJA at [113];
TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury
TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced
APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach
TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out
CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial
TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence
DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil Liability Act 2002 (NSW), s 13 – whether primary judge adequately engaged with employment history evidence – where plaintiff suffered from pre-existing injuries – whether primary judge adequately engaged with medical evidence to determine extent of exacerbation – whether allowance for future medical expenses was supported by evidence
DAMAGES – measure and remoteness of damages in actions for tort – non-economic loss – Civil Liability Act 2002 (NSW), s 16 – whether primary judge erred in assessment of the degree of severity of non-economic loss – significance of pre-existing injuries – whether primary judge’s assessment susceptible to appellate review
APPEAL AND NEW TRIAL – new trial on particular grounds – whether retrial should be ordered on the assessment of damages – where reliability of evidence in issue
Judgment of
Meagher JA at [1];
Gleeson JA at [2];
White JA at [183].
CIVIL PROCEDURE – application for leave to appeal – challenge to costs order made when dismissing plaintiffs’ proceedings – whether proceedings abandoned – late tender of evidence – plaintiffs not notified of hearings after solicitor ceased to act – failure to attend not evidence of abandonment of proceedings
CORPORATIONS – application for leave to appeal – company in liquidation – leave granted in trial court – need for leave to proceed against company on appeal – challenge to company’s debt – leave granted nunc pro tunc
INSURANCE - Total and permanent disablement - Whether the insurer acted fairly and reasonably in assessing and determining the Member’s claim - Whether the insurer gave reasons for the determination - Whether there was an obligation for the insurer to give reasons for declining the Member’s claim - Whether the insurer was in breach of its duty and obligations - Whether separate letters sent by the insurer should be treated as separate declinatures.
Judgment of
Bell P at [1];
Leeming JA at [3];
Emmett AJA at [4]
ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional
ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately
ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road
ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions
ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights
ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58
Judgment of
Basten JA at [1];
Gleeson JA at [224];
Preston CJ of LEC at [225]
WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered
WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant
WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed
Judgment of
Basten JA at [1];
Macfarlan JA at [6];
Payne JA at [7]
TORT – sale of residential property – special condition for provision of evidence concerning home warranty insurance and compliance with council requirements in relation to building works – implied fraudulent representations in relation to evidence referable to fulfilment of special condition – whether representations made and relied upon
Judgment of
Bathurst CJ at [1];
Bell P at [2];
Macfarlan JA at [3]
CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate
BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building
EQUITY – estoppel – rights arising out of deed of family arrangement – appellant provided capital to fund purchase of property in which she would live with respondents – appellant consented to subsequent move away from that property – respondents relied to their detriment on consent – appellant estopped from complaining of move
Judgment of
Macfarlan JA at [1];
Gleeson JA at [45];
White JA at [46]
ADMINISTRATIVE LAW – Judicial review of decision to dismiss application for inquiry into conviction or sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – Whether jurisdictional error or error of law established – Whether applicant raised any matter that had not previously been fully considered – Summons dismissed
Judgment of
Basten JA at [1];
Macfarlan JA at [2];
White JA at [3]
SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions
APPEALS – nature of appeal – standard of review applicable to family provision orders under s 59(1)(c) of the Succession Act 2006 (NSW)
Judgment of
Macfarlan JA at [1];
White JA at [118];
McCallum JA at [190]
LEGAL PRACTITIONERS — Disciplinary proceedings — Appeal against decision of NSW Civil and Administrative Tribunal (“NCAT”) — Appellant failed to disclose to Law Society her suspension by the Migration Agents Registration Authority (“MARA”) from practising as a migration agent — Whether NCAT erred in finding nondisclosure of suspension amounted to professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) — Whether certain statements by member of NCAT during course of hearing sufficient to ground a reasonable apprehension of bias — Whether appellant denied procedural fairness in relation to NCAT’s use of the fact of the MARA finding
ADMINISTRATIVE LAW – tribunals – proper role of NCAT in hearing professional conduct matters – not appropriate for Tribunal member to express “hope” as to what further investigations Law Society might undertake
Judgment of
Bell P at [1]; Macfarlan JA at [10]; White JA at [11]
PROCEDURE – judgments and orders – application for stay of orders pending appeal – whether significant risk if money paid to respondent it will be unable to be recovered without delay or difficulty if appeal succeeds – where undertakings offered by respondent
CORPORATIONS – service of originating process – service effected almost 6 months after filing – Uniform Civil Procedure Rules r 6.2 provided for service within 6 months – Supreme Court (Corporations) Rules r 2.7 provided for service as soon as practicable after filing and, in any case, at least 5 days before date fixed for hearing – construction of r 2.7 – whether r 2.7 inconsistent with r 6.2 – whether r 2.7 breached – consequences of breach of r 2.7 – power to set aside service of originating process where irregularity
PRACTICE – service – application to set aside service of originating process – contravention of obligation to serve as soon as practicable after filing and in any case at least 5 days before date fixed for hearing – liquidators delayed service until litigation funding agreement in place – relevance of compliance with rule requiring service within 6 months – relevance of explanation for delay – relevance of actual and presumptive prejudice – leave to appeal not warranted
STATUTORY CONSTRUCTION – interaction between Supreme Court (Corporations) Rules and Uniform Civil Procedure Rules – significance of rules governing application and inconsistency – consideration of Supreme Court (Corporations) Rules rr 1.3, 2.7 – consideration of Uniform Civil Procedure Rules rr 1.7 and 6.2 – consideration of Civil Procedure Act 2005 (NSW) ss 11 and 63
Judgment of
Gleeson JA at [1];
Leeming JA at [2];
Payne JA at [83]
APPEALS – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted – orders not properly made – orders set aside
CIVIL PROCEDURE – failure to file notice of appeal as ordered - application for leave to appeal treated as constituting notice of appeal
ENVIRONMENT AND PLANNING – consent – owner of lot constructed road on adjoining lot – owner of adjoining lot sought relief for trespass and breaches of Environmental Planning and Assessment Act 1979 (NSW) – whether road constructed without development consent – whether road constructed otherwise than in accordance with development consent – whether entry onto land for purpose of construction authorised by general right of access – Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(a), 76A(1)(b), 124.
ENVIRONMENT AND PLANNING – erection of buildings – whether roadway following natural lie of land a “building” – whether construction certificate required – Environmental Planning and Assessment Act 1979 (NSW), ss 4, 81A(2).
LAND LAW – easements – section 88B instruments – right of access – description of “right of access” in s 88B instrument did not include right to construct trafficable surface – whether instrument’s express terms varied statutory short form meaning of “right of access” – whether construction a trespass – Environmental Planning and Assessment Act 1979 (NSW), Sch 8, Pt 14.
STATUTORY INTERPRETATION – contextual construction – use of dictionaries
WORDS AND PHRASES – “building” – “erection” – “includes any structure” – “pass over”
Judgment of
Basten JA at [1];
Meagher JA at [113];
Preston CJ of LEC at [114]
CORPORATIONS – Winding up – Statutory demand – Application to set aside – application made outside the time prescribed by s 459G – whether an estoppel can operate to preclude a creditor from claiming that the application was made outside the time prescribed by s 459G
Judgment of
Bathurst CJ at [1]; Leeming JA at [37]; Sackville AJA at [38]
ADMINISTRATIVE LAW – fettering of executive discretion – whether a contract which had the potential to fetter future exercise of executive discretion was ultra vires – ambit of doctrine against fettering of executive discretion – consideration of Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71
APPEALS – further evidence sought to be led on appeal – whether special grounds established – consideration of Akins v National Australia Bank (1994) 34 NSWLR 155
CONTRACT – government contracts – power to enter into contracts – contracts which fetter future exercise of executive discretion – whether ultra vires – whether void as contrary to public policy – whether enforceable by decree of specific performance – whether possibility of award of contractual damages itself a fetter on discretion – importance of upholding contractual bargains
CONTRACT – consideration – whether enlisted serviceman subject to naval command supplies consideration when entering into a training contract
CONTRACT – remedies – whether contract should be specifically enforced if it would fetter future exercise of executive discretion – whether award of damages would itself fetter executive discretion
CONTRACT – damages – loss of a chance of securing better paid employment with particular qualification – approach to assessment of loss –sufficiency of reasoning process – sufficiency of evidence
DEFENCE – power of naval command – power to enter into contracts – whether training contract entered into with enlisted serviceman was ultra vires because it fettered future exercise of discretion of naval command
PRACTICE AND PROCEDURE – representative proceedings – effect of discontinuance of claims by representative party – whether judge has discretion not to answer common questions
Judgment of
Bathurst CJ at [1];
Bell P at [8];
Basten JA at [246]
TORTS – Misfeasance in public office – officers of ICAC appointed as senior investigators recorded contents of documents on video during execution of search warrant – whether officers held public office – whether officers acted in excess of power – whether officers were aware of or recklessly indifferent to a likely risk of harm to the plaintiffs – whether sufficient for there to be a reasonable foreseeable risk of harm – whether officers caused damage to the plaintiffs
Judgment of
Bathurst CJ at [1]; Beazley P at [205]; Leeming JA at [207]
WORKERS’ COMPENSATION – whether the Worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (NSW) – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly
WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy President failed to apply ss 122 and 326 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the Deputy President failed to apply s 122(6) as to the effect of the “conclusive evidence” of a medical panel certificate
Judgment of
Gleeson JA at [1];
White JA at [2];
Emmett AJA at [3]
LEAVE TO APPEAL – interlocutory decision to refuse amendment – amendment sought leave to advance claim for misleading and deceptive conduct – proceedings dismissed after trial based on fraudulent misrepresentation only – no challenge to final judgment – issue estoppels flowing from final judgment – leave refused
PROCEDURE – judgments and orders – amending, varying and setting aside – application for gross sum costs order and payment from a fund – application made out of time with unexplained delay
CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity
EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant's debt to respondent – no error in conclusion by primary judge that impeachment not made out
Judgment of
Bathurst CJ at [1];
Leeming JA at [15];
McCallum JA at [122]
NEGLIGENCE – contribution between tortfeasors – plaintiff suffered injury in workplace – plaintiff brought proceedings against occupier and a contractor on site – proceedings between plaintiff and occupier compromised – occupier sought statutory contribution against contractor – whether primary judge failed to deal with way in which occupier had advanced its case – whether primary judge erred in (notional) assessment of contribution – appeal dismissed
Judgment of
Leeming JA at [1];
Emmett AJA at [82];
Simpson AJA at [85]
APPEAL – leave to appeal – whether insurer should be joined as party to District Court proceedings against insured driver – Motor Accidents Compensation Act 1999 (NSW), s 79 – where real possibility of conflict between interests of insurer and insured driver
Judgment of
Basten JA at [1];
Gleeson JA at [6];
McCallum JA at [53]
APPEAL – appeal against Land and Environment Court judge’s decision to refuse development application – proposed development contravened height development standard – judge not satisfied cl 4.6 request justified contravention – judge not satisfied development consistent with objectives of standard – whether misdirection as to cl 4.6 and objectives of standard – whether denial of procedural fairness by not giving amber light approach
Judgment of
Gleeson JA at [1];
Payne JA at [2]; and
Preston CJ of LEC at [9]
WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – whether Deputy President of WCC erred in finding that a total knee replacement is an “artificial aid” within the meaning of s 59A(6)(a) of Workers Compensation Act 1987 (NSW) – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 discussed – appeal dismissed
WORDS AND PHRASES – “artificial aid” – Workers Compensation Act 1987 (NSW), s 59A(6)(a)
Judgment of
Macfarlan JA at [1];
Payne JA at [44];
Simpson AJA at [45]
CIVIL PROCEDURE – Application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel for legal assistance for appeal – Application previously dismissed – Where leave to appeal against part of first instance decision subsequently granted – Whether grant of leave materially alters circumstances such as to warrant making of referral
RESTRAINT OF TRADE – covenants in restraint of trade – enforcement of covenants following termination of independent contractor relationship – non-interference covenant – where appellant prohibited from interfering with relationship between respondent and its clients – whether appellant interfered
RESTRAINT OF TRADE – reasonableness of non-solicitation covenant - whether respondent had a legitimate commercial interest in protecting client connections and confidential information – whether non-solicitation covenant was reasonable
CONTRACTS – general contractual principles – construction and interpretation of contracts – whether the expression “confidential information” should be limited to information which is confidential in nature
EQUITY – confidentiality obligations – whether respondent’s client lists constituted confidential information – whether client details were known outside respondent’s business – where clients’ contact details kept in appellant’s phone and computer – where clients’ names published on appellant’s Facebook page – whether clients’ details entered public domain
REMEDIES – injunction – where appellant restrained from use and disclosure of contents of client lists – whether discretion to grant injunction miscarried – where client details tendered in open court by respondent without seeking or obtaining confidentiality order – whether client information entered public domain – whether there was utility in restraining appellant from disclosing or using client details
Judgment of
Bathurst CJ at [1]
Beazley P at [2]
Gleeson JA at [3]
APPEALS – application for leave to appeal – well-established grounds for leave to appeal not satisfied –no inadequacy of reasons for primary judgment
CIVIL PROCEDURE – proceedings dismissed by primary judge – applicants failed to exercise liberty they had been afforded to file further amended statement of claim – applicants admitted to being unable to formulate their claim
APPEALS – application for leave to appeal from decisions of practice and procedure – no error of principle identified in primary judge’s exercise of discretion
ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – District Court appeal – conviction and sentence –apprehended violence order – whether District Court committed jurisdictional error
CIVIL PROCEDURE – Court of Appeal – extension of time to file summons under UCPR r 59.10(2)
Judgment of
Gleeson JA at [1]
White JA at [89]
Emmett AJA at [90]
APPEAL – extension of time – two-year delay unexplained – where appeal more than merely fairly arguable – both parties entitled to determination that is just and timely – entitlement to justice not unconditional – need to balance interests of the parties – where prejudice to the respondent caused by the delay
BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether adjudicator simply allowed claim in full in default of any valid submission against it – whether adjudicator engaged in process of evaluation – no requirement for legally correct language – fine-tooth comb approach not appropriate – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9, 10, 22(1), 22(2), 22(3)
ADMINISTRATIVE LAW – judicial review – whether adjudicator exercised statutory function to determine value of construction work – where adjudication may not be set aside for error of fact or law – jurisdictional error – no requirement for legally correct language – determination not to be examined with fine-tooth comb
Judgment of
Bathurst CJ at [1]
Gleeson JA at [2]
Payne JA at [55]