Recent decisions for Court of Appeal

Catchwords:

APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

Catchwords:

TRUSTS – new trustee – provision of documents by former trustee to new trustee – effect of vesting order – former trustee prima facie required to provide trust documents to new trustee – where former trustee failed to distinguish between documents received and possessed by her as trustee and documents received and possessed by her in other capacities – former trustee required to make copies of documents used by her, even if not owned or co-owned by her, for new trustee – primary judge found that particular documents were trust documents but need not be provided to new trustee until completion of pending arbitration – whether primary judge found that former trustee did not own or co-own documents in her capacity as trustee – whether primary judge erred in the exercise of discretion – appeal allowed and former trustee ordered to provide documents to new trustee

Catchwords:

CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be resolved

Catchwords:

NOTICE OF MOTION – Application to remit to Common Law Division – Notice of motion dismissed

Catchwords:

COSTS — Security for costs — Appellant to provide security for costs

Catchwords:

APPEAL – Competency – Appeal brought purportedly as of right from refusal to vary orders – Appeal dismissed as incompetent

Catchwords:

EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts and Trustees – Constructive Trusts – Whether director liable for breach of trust as trustee de son tort – Pre-requisite that one must assume the trust by purporting to act as trustee – Finding that acting in capacity as director of corporate trustee, even without authority and in breach of fiduciary duties, does not alone constitute assumption of the trust – Holding that director not liable as trustee de son tort EQUITY – Trusts and Trustees – Whether director acted “dishonestly” in the context of postponement of the statutory limitation period or equitable equivalent – Where director of corporate trustee was entrusted by other director to manage most company affairs alone – Whether director held honest belief that he was entitled to deal with trust proceeds as he did – Finding that director deliberately withheld information from other director that may have caused her to object to his decisions regarding trust assets – Finding that director’s conduct involved dishonesty in the form of conscious wrongdoing and active concealment EQUITY – Defences – Laches – Knowledge of ability to bring claim – Whether means of knowledge is as good as knowledge – Requirement of knowledge of the relevant facts, although not necessarily of the rights to which they give rise EQUITY – Tracing – Whether property and its commercial proceeds were traceable – Extent to which property was purchased with proceeds of sale of trust assets in breach of trust – Where trust monies were loaned by constructive trustee to purchaser of property and repaid before property was purchased – Where purchaser was alter ego of constructive trustee – Finding that property was effectively purchased by constructive trustee and was therefore traceable property, along with its proceeds LIMITATION OF ACTIONS – Equity – Application of Limitation of Actions Act 1958 (Vic) – Section 21(2) does not apply to actions for breach of fiduciary duty in respect of remedial constructive trusts imposed by Court – Section 5 does not apply to claims for an account in equity, except by analogy LIMITATION OF ACTIONS – Equity – Application of limitation periods by analogy – Claims for proprietary relief and equitable compensation – Claims determined to be within analogy of Limitation of Actions Act 1958 (Vic), s 5, for application of equivalent equitable limitation period

Catchwords:

RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director can rely on “defence” of payment over to company where not expressly pleaded – whether primary judge erred in dismissing claim against Director without expressly finding had no notice of illegality – form of notice required for agent who pays funds to principal received under illegal contract – HELD: claim rejected – manner in which case conducted meant that “defence” was available – primary judge’s findings inconsistent with Director having relevant notice AUSTRALIAN CONSUMER LAW – representation that visa “would be” granted – whether such a representation made – whether “illegality” of representation or underlying transaction meant no conduct in trade or commerce or recovery impermissible – HELD: representation not made – if it was made was in trade or commerce and recovery permissible

Catchwords:

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers

Catchwords:

LAND VALUATION — compulsory acquisition – partial acquisition of land – lease of land – lease to operate service station and convenience store business – compensation payable – market value of acquired land – decrease in value of residue land - before and after approach to determine compensation – appropriate valuation method – assessment of diminution in cash flow of business– whether valuation method available – whether valuation methodology accepted by primary judge raises question of law – agreement for term of lease to be extended – equitable term of lease – compensation to be determined having regard to equitable term of lease

Catchwords:

CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – where delay in completion – claim for consequential loss – expenditure incurred in mitigating action – interplay between causation and mitigation – whether causative link between breach and action to mitigate loss – where purchaser agreed to pay mortgagee up to $500,000 if shortfall on recovery of mortgagee’s loan from second security CONTRACT – remedies – damages – mitigation of loss – vendor unable to obtain discharge of mortgage – expenditure incurred by purchaser to obtain discharge of mortgage – whether reasonable action to mitigate loss – where available alternatives would have exposed purchaser to potentially greater loss CONTRACT – remedies – damages – remoteness – whether in contemplation of parties that purchaser would need to pay off part of mortgagee’s loan to obtain discharge of mortgage – where vendor had not obtained mortgagee’s consent to contract for sale or the release of deposit or prepayment to the vendor – where vendor failed to complete on fixed date

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — offer of compromise — where offer made to compromise claim and cross-claim — where no separate offer made in relation to appeal proceedings — circumstances in which it is appropriate to “otherwise order”

Catchwords:

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the medical practitioner – whether the circumstances were urgent enough to warrant the exercise of the emergency power contained in s 150 – whether suspension of registration was in the public interest

Catchwords:

COSTS – party/party – award in favour of jointly represented active defendants against unsuccessful plaintiff – claim by non-active defendants in same interest – principle favouring single award where parties in same interest – claim by proposed defendants on joinder motion which lapsed with rejection of primary claim – whether plaintiff should pay costs of motion – Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 applied

Catchwords:

APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a separate building project was significantly probative of the issue concerning the alleged builder’s role in the building project the subject of the proceedings – s 97 of the Evidence Act considered EVIDENCE – whether the primary judge erroneously failed to draw a Jones v Dunkel inference CONSUMER LAW – misleading and deceptive conduct – causation – whether, absent the misleading and deceptive conduct, the property developer would have obtained a valid contract of insurance by honest means

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to vary or set aside her order by reference to the argument not addressed – where that course not taken – where it was not possible for the Court of Appeal finally to dispose of the issue without remitting proceedings to the District Court – where the interests of justice did not warrant the grant of leave to appeal

Catchwords:

CRIME — appeal and review — appeal from Local Court to District Court — privative clause precludes judicial review unless jurisdictional error — whether refusal by a District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) amounted to a jurisdictional error APPEALS — procedural fairness — bias or apprehension of bias — District Court judge after correction on appeal declined for a second time to state a case because an answer by the Court of Criminal Appeal to the question of law in favour of the applicant would not have affected the outcome of the appeal to the District Court

Catchwords:

APPEAL – interlocutory decision – joinder of additional defendants back-dated to commencement of proceedings – challenge to decision to back-date joinder – consequent upon potential contractual limitation defence – where outcome of appeal would not prevent trial – variety of ways in which issue might not arise – absence of full argument on construction of defence and underlying power – where point available to be taken as of right after trial, if it were material to any judgment – leave refused

Catchwords:

ADMINISTRATIVE LAW — Bias rule — Actual or apprehended ADMINISTRATIVE LAW — Procedural fairness ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”

Catchwords:

LIMITATION PERIODS – plaintiffs were parent company and wholly owned subsidiary – parent company entered into option to acquire land following receipt of valuation – valuation negligent and misleading and deceptive – parent company nominated subsidiary to hold the land – parent company paid $11.1m towards purchase price – sale never proceeded – both companies sued valuers 8 years later – trial judge held that subsidiary’s causes of action in negligence and for misleading and deceptive conduct were statute barred, but parent’s causes of action in negligence and for misleading and deceptive conduct were not statute-barred – trial judge found parent implicitly lent to its subsidiary the funds which were transferred to vendor, such that cause of action only accrued when loan became unable to be repaid – significance of corporate relationship between parent company and wholly owned subsidiary – circumstances when implicit loan and obligation to repay may be inferred – significance of contemporaneous documents – appeal allowed and judgment entered in favour of valuers MISLEADING AND DECEPTIVE CONDUCT – significance of disclaimers in valuations – significance of clause permitting use of valuation only by vendor – significance of plaintiffs’ failure to adduce testimonial evidence of reliance on valuation – documents suggesting transaction entered into for extraneous reasons – documents suggesting flaws in valuation appreciated at time – whether requisite causal relation between valuation and payments made out – if necessary, appeal also allowed on basis that causation not established

Catchwords:

CIVIL PROCEDURE — Court of Appeal — variation of costs order — whether non-acceptance at first instance of an Offer of Compromise and Calderbank offers warranted departure from ordinary cost consequences — whether the Court should “order otherwise” for the purposes of UCPR r 42.15(2)

Catchwords:

TORTS – trespass to the person – false imprisonment – wrongful arrest – reasonable grounds to suspect –genuine belief of arresting officer – appellant named and described by victim – statement by co-accused placed appellant at scene – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 TORTS – malicious prosecution – laying of charge – reasonable and probable cause – detective mis-represented contents of statements in interview with appellant – whether malice established – whether belief in guilt of person charged TORTS – malicious prosecution – allegation against appellant withdrawn by victim – whether mis-representations made by detective to appellant’s barrister – maintaining of charge in changed circumstances – whether malice established – whether lack of reasonable and probable cause

Catchwords:

PRACTICE AND PROCEDURE – application for referral for pro bono assistance – previous applications – one in unrelated matter – one where assistance not obtained – lack of obvious merit – nature of discretion

Catchwords:

ASSOCIATIONS AND CLUBS – jurisdiction of courts – justiciability – whether party pre-selection process justiciable – application of Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24 – whether statutory provisions create an interest in members allowing Court to enforce procedures under Party Constitution ASSOCIATIONS AND CLUBS – unincorporated political party – pre-selection dispute – where constitution of a party authorises Federal Executive to intervene in the management of a State Division – whether “management” includes “management and control” – whether power to endorse candidates for election is exercise of management function – whether power to endorse candidate subject to Constitution of State Division

Catchwords:

APPEALS – leave to appeal – principles governing – public importance – regulation of legal practitioners’ dealings with clients – where costs two-thirds of judgment amount LEGAL PRACTITIONERS – costs – personal injury claims – statutory cap on costs – removal of cap on solicitor/client costs – removal by entering into costs agreement – disclosure requirements – disclosures to give effect to statutory purpose – client to be informed of statutory protection and effect of costs agreement – disclosures to be read in context of documents provided – importance of independent legal advice – Legal Profession Act 2004 (NSW), ss 338, 339 – Legal Profession Regulation 2005 (NSW), cl 116

Catchwords:

PROCEDURE – application to reopen judgment – no basis shown – application dismissed

Catchwords:

SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased’s statement that she was not agreeable to one of her daughters getting any money was a reference to a testamentary gift — whether any “suspicious circumstances”

Catchwords:

PRACTICE AND PROCEDURE – vexatious proceedings order – prohibition on commencement of fresh proceedings in specified matters – judicial review application dismissed in a specified matter – fresh claim for damages based on unlawfulness of same conduct – claim dismissed under vexatious proceedings order – notice of appeal dismissed as incompetent under vexatious proceedings order

Catchwords:

COSTS — Security for costs — On appeal – Security for costs of appeal provided by appellant in form of bank guarantee – Terms of bank guarantee required appellant to pay costs to respondent “in the event that its appeal is unsuccessful and it is required to do so by Court Order” – where interlocutory costs orders made against appellant – where appellant substantially successful in appeal – Finding that proceedings not “unsuccessful” and guarantee not engaged – Order that security be released COSTS — Security for costs — Security provided in form of bank guarantee — Held, costs ancillary to administering bank guarantee not recoverable in circumstances where guarantee was an indulgence for convenience of party providing security

Catchwords:

CIVIL PROCEDURE – proceedings in Equity Division – claim for order that solicitor disgorge fees from proceeds of mortgagee sale – removal to Court of Appeal – whether exercise of disciplinary jurisdiction – order to disgorge excess legal costs not claim for costs against legal practitioner COURTS AND JUDGES – supervisory jurisdiction – Court of Appeal – solicitor acting for mortgagee – property sold – solicitor appropriated proceeds from sale of property for professional fees – claim by mortgagor for amount in excess of reasonable legal costs – whether order for disgorgement by solicitor invoked disciplinary jurisdiction – Supreme Court disciplinary jurisdiction not enlivened

Catchwords:

JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

Catchwords:

PRACTICE AND PROCEDURE – review of decision of Registrar – show cause direction – proceeding dismissed for non-compliance – failure to comply with directions and attend directions hearings – proceedings lacking utility

Catchwords:

COSTS – Security for costs – moneys paid into court by appellant – appellant succeeded on appeal – whether certain sums should not be released because of costs orders in favour of respondent in relation to application for security for costs and unsuccessful variation and adjournment application – moneys ordered to be released without any retention

Catchwords:

COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross sum to be awarded – appropriate discount

Catchwords:

APPEAL – application for leave – interlocutory decision dismissing application for summary dismissal of summons – no question of principle – leave refused

Catchwords:

APPEAL – leave to appeal – discretionary decision on matter of practice and procedure – admission of further evidence on remitter – no issue of principle, public importance or injustice

Catchwords:

CIVIL PROCEDURE – appeal – security for costs – stay of proceedings pending provision of security – jurisdictional requirement – criteria relevant to exercise of power – corporate trustee appellant – unpaid gross sum costs order – stay not sought

Catchwords:

LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – recovery of fees – retainer to investigate dispute between client and third party arising from frauds committed by solicitors’ employee –actual conflict between solicitors’ personal interests and fiduciary duty to client – whether solicitors obtained fully informed consent to act – whether nature of conflict precluded reliance on consent LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – undertaking not to charge fees for work done – whether undertaking given in a professional capacity – whether reliance, loss or consideration required to enforce undertaking – whether Court should prevent solicitors reneging on undertaking

Catchwords:

PROCEDURE – application for disqualification – application refused – no question of principle

Catchwords:

GUARANTEE AND INDEMNITY – Guarantor – Right to indemnity – Refinance agreement entered into by corporate agent of partnership comprised of three companies – Respective directors as guarantors – One partner seeking to leave the partnership – Corporate agent defaults – Settlement negotiated by one guarantor – No express right of indemnity of guarantors – Whether implied contractual right of indemnity inferable – Whether principal debtor requested guarantors to give guarantee – Whether request inferable from circumstances of case – Majority of directors of corporate agent and majority of partners in partnership aware guarantee would be provided and acquiesced to such a course – Commercial circumstances evinced request for guarantee so business could continue to operate – Guarantee given in same document that established debt obligation – Express request for guarantee by creditor irrelevant – Right to indemnity established – Appeal allowed GUARANTEE AND INDEMNITY – Indemnities – Construction – Whether right to indemnity excluded by inconsistent express or implied agreement or otherwise estopped – Assurances by one partner to departing partner regarding freedom from liability not made with knowledge or authority of third partner – Departing partner did not consider concluded agreement to have been reached – No inconsistent agreement – No estoppel PARTNERSHIPS AND JOINT VENTURES – Rights and duties between partners – Implied authority to bind other partners by representations – Representations of freedom from liability made to departing partner – Representations not made to third party – Representations not made in ordinary course of business of partnership – No authority GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – Contribution before payment made – Partners liable to contribute in proportion to their interests in partnership – Declaratory relief granted

Catchwords:

NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered

Catchwords:

APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary’s decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16 CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a “necessary party” –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary

Catchwords:

ADMINISTRATIVE LAW – decisions of Legal Services Commissioner – judicial review – whether decisions reviewable – whether decisions perverse or legally unreasonable APPEALS – judicial review – proceeding summarily dismissed – order interlocutory – leave to appeal –grant of leave where judgment effectively a final determination of proceeding – whether reasonable cause of action disclosed LEGAL PRACTITIONERS – complaints to Legal Services Commissioner about conduct of own lawyers – complaints dismissed – application to review decisions not entertained – scope of Commissioner’s discretion

Catchwords:

COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of knowingly giving false evidence before the Independent Commission against Corruption – failure to consider substantial component of defendant’s case – significance to defendant of subject-matter of false statement – significance first raised by prosecutor COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of giving false evidence before the Independent Commission against Corruption – defendant called expert evidence of cognitive impairment and memory loss – whether judge failed to apply criminal burden and standard of proof – whether burden cast on defence – judgment to be read as a whole

Catchwords:

SUCCESSION – contested probate – knowledge and approval – suspicious circumstances - significance of reading out will to capable testator – whether reading out will to capable testator who executes it will discharge onus on propounder – whether sufficient to establish knowledge of contents of will or whether it may be necessary to establish knowledge of its effect – consideration of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 – consideration of “mistake doctrine” – significance of statutory power to rectify wills SUCCESSION – contested probate – severance of testamentary instruments – power to admit only those clauses to probate of which testator has been shown to have known and approved – distinction between omitted clauses which confer bequests and omitted clauses which confer power – Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 considered and explained SUBPOENAS – production of documents – redaction of parts of documents on ground of relevance – distinction between redaction for privilege and redaction for relevance

Catchwords:

CONTRACTS – repudiation – whether the Builder repudiated the Lump Sum Contract – whether the Builder’s claim for payment under the Lump Sum Contract constituted repudiation – whether the Builder’s “failure to resume work” constituted repudiatory conduct RESTITUTION – mistake – restitution of money paid by the Owners to the Builder – whether a comparison of sums paid under the Lump Sum Contract with the value of the work completed revealed whether there had been an overpayment by the Owners to the Builder CIVIL PROCEDURE – Owners sought leave to reopen case after judgment to tender additional evidence concerning loss – election had been made to claim damages on a particular basis – whether there were special circumstances that justified departure from the ordinary rule that a party is bound by the case that it conducts to judgment

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there was significant differences of opinion among medical practitioners ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 63(3) –– whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer

Catchwords:

APPREHENED BIAS – previous dismissal of motion in proceedings at first instance – no question of principle

Catchwords:

APPEAL – civil procedure – stay of judgment pending appeal – undertaking proffered by appellant – stay granted

Catchwords:

APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application APPEAL – motion to adduce further evidence – where appellant sought to examine opponent’s lawyers as to conduct of trial – full transcript of trial available APPEAL – challenge to finding as to credibility of police informant – finding not inconsistent with objective evidence nor glaringly improbable – allegation not put to police officer in cross-examination CIVIL PROCEDURE – hearings – application to vacate hearing – challenge to covid-19 protocol requiring persons entering court to be vaccinated – matter not fixed for live hearing – hearing by audio-visual link or telephone available – applicant homeless – inconvenience where no live hearing CIVIL PROCEDURE – application for trial by jury – application for appeal to be heard by jury – no jury available on appeal COURT AND JUDGES – procedural fairness – reasonable apprehension of bias – plaintiff wrongly accused State of concealing documents - judge told plaintiff he owed the State an apology – whether lay observer might think judge might be biased TORTS – malicious prosecution – evidence of improper purpose – whether prosecutor concealed evidence – improper motive said to be revenge for prior successful claim by appellant

Catchwords:

JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Catchwords:

ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94 CONSTITUTIONAL LAW – inconsistency – State law having discriminatory impact on ethnic group – whether inconsistent with Racial Discrimination Act 1975 (Cth), ss 9, 10; Constitution, s 109 HUMAN RIGHTS – discrimination – grounds – racial discrimination – ethnic origin – restrictions on use of language – disparate impact – prison security – extreme high risk inmate – communications with family and lawyers – Racial Discrimination Act 1975 (Cth), ss 9, 10 PRISONERS – administration – supervision of visits and telephone calls – requirement to communicate in English – validity of Regulation – Commissioner’s monitoring policy – validity of policy – application to legal visits and communication with legal representatives – prisoners’ right to lawyer of choice and access to courts – whether criminal record check authorised – power to refuse visits by legal practitioners for any other reason STATUTORY INTERPRETATION – regulation-making power – authorising regulations limiting common law rights – sufficiency of general words – administration of prisons – rights of access to courts and legal advice – Crimes (Administration of Sentences) Regulation 2014, cll 15, 101, 116, 119

Catchwords:

APPEAL – stay application refused – no issue of principle

Catchwords:

APPEAL – stay application refused – no issue of principle

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Review of previous decision of the Court of Appeal – Application to set aside decision pursuant to UCPR r 36.16 or court’s inherent jurisdiction – No identified matter raised in appeal overlooked – No misconception, misapprehension, oversight or inadvertence – Application dismissed COSTS – Party/Party – Unmeritorious application seeking to reargue unsuccessful appeal – Indemnity costs awarded

Catchwords:

EQUITY — Trusts and trustees — Constructive trusts — Rule in Barnes v Addy — Whether the in personam exception to indefeasibility applies to the first and second limb of Barnes v Addy EQUITY – Breach of fiduciary duty – where fiduciary held interest transferred to herself on constructive trust for principal – assessment of equitable compensation where fiduciary transferred assets to herself and sons for no consideration LAND LAW — Torrens title — Exceptions to indefeasibility — Rights in personam

Catchwords:

DEFAMATION – defamatory matter – series of letters published conveying defamatory imputations – inference that all of the letters were published by the same person – whether the appellant the publisher of any or all of the letters DEFAMATION – remedies – where primary judge awarded general and aggravated damages – whether primary judge’s assessment of damages was excessive – whether respondents entitled to award of aggravated damages COSTS – party/party – whether costs should be assessed on an indemnity basis

Catchwords:

NEGLIGENCE – Causation – Purely psychiatric injury – Post-traumatic stress disorder – Where trial judge disbelieved plaintiff’s evidence as to the event she witnessed and as to her symptoms – Whether error in fact-finding established – importance of paying due deference to the trial judge’s advantage in hearing the evidence

Catchwords:

CRIME — Appeal and review — Judicial review — Where Supreme Court refused to consider or otherwise deal with applicant’s third application for inquiry into convictions under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) — Where decision-maker considered that the matters raised by the applicant had been dealt with in two prior unsuccessful applications — Whether decision was legally unreasonable — Whether medical evidence was considered — Whether new hypotheses had been “invented” by the judges who determined the previous applications

Catchwords:

CONTRACTS – termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – performance by landlord not insisted upon during this period – where certain rights under the agreement for lease expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned CONTRACTS – termination – frustration – agreement for lease – where landlord agreed to carry out works to construct shopping centre and to grant lease of part of shopping centre to tenant – development consent obtained – where parties contemplated incorporation of department store into shopping centre – where development application for incorporation of department store refused – whether agreement for lease was varied to incorporate plans for department store CONTRACTS – termination – frustration – agreement for lease – landlord to perform works for construction of shopping centre development – where those works were authorised by and subject to a development consent obtained in 2008 – where parties operated under common assumption that landlord would be able to carry out works lawfully in accordance with development consent – neither party responsible under agreement for maintaining that state of affairs – development consent lapsed in 2014 prior to commencement of works – works subsequently unable to be performed lawfully – whether agreement frustrated – whether lapse of development consent resulted in a “radical difference” in circumstances of performance – whether landlord responsible for lapse of development consent LEASES AND TENANCIES – default and termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – where performance not insisted upon – where certain rights under the agreement expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned – whether by conduct and correspondence parties mutually intended that contract was not to be performed

Catchwords:

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where first respondent assigned $18.5 million debt to daughters for no consideration – where pressed to do so to avoid potential claims to asset – where demand for repayment of debt would require sale of some of assignor’s substantial business assets – where assignment has disadvantageous legal and practical impacts on assignor – where assignor not understand significance of assignment on legal rights – where assignor denied opportunity to take independent advice – whether primary judge erred in finding Deed of Assignment unjust – whether error in considering consequences of contract for person other than party claiming relief under Act

Catchwords:

CHILD WELFARE – care proceedings – interlocutory application – whether care order should be stayed – whether orders should be made allowing child to live with mother or allowing daily contact – whether parens patriae jurisdiction should be invoked.

Catchwords:

TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that pregnancy post surgery was attributable to negligent operator error on part of doctor TORTS – Damages – Civil Liability Act s 71 – Difference between damages for pregnancy and birth of child and damages for economic loss for loss of earnings attributable to psychiatric injury associated with birth of child TORTS – Damages – Non-economic loss – assessment of percentage of most extreme case

Catchwords:

APPEAL AND REVIEW – extended supervision order – appeal – error conceded – appeal by rehearing – whether appeal court should determine application or remit to primary judge – Crimes (High Risk Offender) Act 2006 (NSW), s 22 – Lynn v State of New South Wales [2016] NSWCA 57 HIGH RISK OFFENDERS – extended supervision orders – matters to be considered – where appellant committed sexual offences against young girls and women – prohibition orders – child protection register and reporting – community treatment orders – national disability insurance scheme – Crimes (High Risk Offender) Act 2006 (NSW), ss 9(3)(e1), (f), (g), (i) HIGH RISK OFFENDERS – extended supervision orders – conditions – duration – monitoring – appropriateness for treatment and rehabilitation

Catchwords:

EQUITY – fiduciary obligations – scope of duty – company’s contracts to provide crushing services to a mine were performed by a director’s and employee’s own companies without disclosure – whether constituted a breach of duty – whether inability of company to perform its obligations a defence – whether acquisition of separate quarry in Victoria within scope of duty – scope of fiduciary duty identified by company’s actual course of conduct – primary judge correct to hold that performance of company’s existing contracts was breach of duty, and acquisition of separate quarry in Victoria not in breach of duty EQUITY – remedies for breach of fiduciary duty – account of profits – contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties – contracts incapable of rescission – whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits – consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson – principles only applied to cases where fiduciary acquires property when acting on behalf of principal – principles inapplicable to contracts for the supply of services EQUITY – remedies for breach of fiduciary duty – account of profits – discretionary withholding of relief – where principal is less than fully informed, but nonetheless “stands by” while fiduciaries continue to derive profits – whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits – profits made after October 2011 held not to be within account APPEAL – procedural fairness – complaint that aspects of reasoning at first instance denied procedural fairness – appeal by rehearing – not said that different evidence would have been led – no retrial sought – appellate court empowered and required to make appropriate findings – any denial of procedural fairness incapable of being material – in any event no denial of procedural fairness EVIDENCE – coincidence evidence – whether primary judge’s reasoning contravened coincidence rule – evidence tendered without objection – reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW)

Catchwords:

NEGLIGENCE — Negligent advice to settle claim for weekly workers’ compensation payments — whether claim for damages for professional negligence was “for personal injury damages” as defined COSTS — Whether costs capped at $10,000 — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “for personal injury damages” — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “personal injury damages” — Civil Liability Act 2002 (NSW), s 11

Catchwords:

CIVIL PROCEDURE – Judgments – Suppression and non-publication – Application for redaction – Possible identification of children through identification of parent – Possible identification of children through reference to related proceedings – Order for use of pseudonym in judgment

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Where care proceedings on foot in the Children’s Court – Where applicant applied to Supreme Court for stay of care proceedings – Whether Supreme Court proceedings duplicated issues and relief sought in care proceedings – Where final orders now made in care proceedings – Where only relief sought on appeal was declaration that removal of children was unlawful due to defective warrant – Children’s Court unable to grant such relief but able to determine same question as part of ascertaining its own jurisdiction – Granting declaration would merely be an advisory opinion – Evidence suggests serious obstacles to impugning warrant – Leave to appeal refused CHILD WELFARE – Statutory removal – Emergency removal – Care order – Warrants – Challenge in Supreme Court to validity of warrant for removal – Whether abuse of process – Duty of Children’s Court to ascertain its own jurisdiction COSTS – Orders against non-parties – Personal costs orders against lawyers – Where counsel appeared on watching brief for child despite no substantial interest in outcome – Whether to disallow costs of child’s independent legal representative – Children joined of Court’s own motion – Representative able to provide explanation for why submitting appearance not filed – Costs not disallowed

Catchwords:

TORTS — General principles — Damages — Requirement to assess damages following successful appeal — Whether assessment should be undertaken by Court of Appeal in circumstances where adverse credit findings made by primary judge — Where quantification of damages turns primarily on expert medical evidence — Proportionality and convenience

Catchwords:

CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – where cl 50.1 required the business to be conducted in its “usual and ordinary course” – the meaning of “usual and ordinary course” – whether the phrase refers to the usual and ordinary course of hotel businesses generally or to the particular business – whether the business was required to be carried on in an identical manner to the way it was carried on pre-contract – objective intention of the parties – purpose of the transaction CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – where risk passed on completion not on contract – whether such risk would include the significant restriction on trading resulting from the Public Health Orders – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID 19 pandemic – restrictions on trading – severability – where cl 63.7 dealt with severance – whether cl 63.7 operated to sever cl 50.1 in the contract of a temporary supervening illegality – whether the Public Health Order rendered cl 50.1 unenforceable – whether cl 50.1 formed part of an indivisible whole by which the hotel and business was to be transferred as going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – implied terms – terms implied in law – contract for the sale of a hotel and associated business – whether there was an implied term to the effect that the obligation in cl 50.1 of the contract was limited to the extent permitted by law – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – termination – repudiation of contract – wrongful termination – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – whether the respondent was entitled to issue a notice to complete and a notice of termination – whether the conduct of the respondent amounted to repudiation of the contract – whether the conduct of the respondent was such as to convey to a reasonable person in the position of the appellants renunciation either of the contract as a whole or a fundamental obligation under it CONTRACTS – termination – frustration – supervening illegality – contract for the sale of a hotel and associated business – COVID-19 – restrictions on trading – whether compliance with cl 50.1 was illegal because of the operation of the Public Health Order – where the effect of the temporary supervening illegality of cl 50.1 rendered the sale of the business not as a going concern – whether the respondent was entitled to demand completion in circumstances where it was not able to deliver possession of the hotel as a going concern – whether cl 50.1 of the contract made it a condition that the business be sold as a going concern – whether cl 50.1 was an essential term in that a purchaser would not have entered into the contract without the business being sold as a going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW)

Catchwords:

NEGLIGENCE – vicarious liability of State – persons in service of Crown – police officers NEGLIGENCE – breach – standard of care – mental illness – major depressive disorder – post-traumatic stress disorder – traumatic events – employer’s systems of work – whether plaintiff should have been referred for psychiatric assessment NEGLIGENCE – breach – foreseeability of risk – objective test – whether psychiatric harm to plaintiff reasonably foreseeable NEGLIGENCE – causation – factual causation – whether plaintiff would have disclosed mental condition if referred for assessment NEGLIGENCE – causation – concurrent cause – non-tortious psychiatric and physical injury – whether properly taken into account in assessing damages NEGLIGENCE – defences – contributory negligence – whether plaintiff should have reported symptoms WORKERS COMPENSATION – common law remedies – interest on damages – Workers Compensation Act 1987 (NSW) s 151M – whether mediation offer unreasonable

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – motion seeking variation of final orders – where judgment left open a number of outstanding issues – whether outstanding issues need to be determined by a judge of the Equity Division

Catchwords:

APPEAL – application for leave to appeal – challenge to interlocutory decision refusing summary dismissal of proceedings – where no issue of principle or general public importance – no injustice shown – costs – challenge to costs order where no ground of appeal directed at costs – no reasonably arguable error in exercise of costs discretion

Catchwords:

ADMINISTRATIVE LAW — judicial review — requirement to demonstrate jurisdictional error or error of law on the face of the record — no error demonstrated ADMINISTRATIVE LAW — remedies — discretionary factors — where statutory right of appeal not availed of — absence of satisfactory explanation — avoidance of need to obtain leave to appeal — whether relief should be refused on discretionary grounds LEASES AND TENANCIES — concurrent lease — relationship between concurrent lessee and tenant under current lease — assumption of obligations to tenant by concurrent lessee

Catchwords:

CIVIL PROCEDURE — application for leave to appeal against summary dismissal of — no reasonable cause of action — where applicant sued his former solicitors — advocates’ immunity — no question of principle

Catchwords:

TORTS – trespass to the person – false imprisonment – defences – where respondent passenger on applicant’s cruise ship – where respondent detained in guest cabin for five days pending return of ship to port where alleged sexual assault would be investigated by local police – whether captain justified in detaining respondent “for the preservation of order and discipline or for the safety of the vessel or the persons or property on board” – whether justification defence in Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413 part of Australian common law – whether that defence requires that captain subjectively believe detention is necessary PRIVATE INTERNATIONAL LAW – applicable law – choice of law rules – torts – where alleged tort committed on ship on high seas – where applicable law the law of ship’s flag – where law of flag neither pleaded nor sought to be proved – where primary judge applied substantive law of New South Wales SHIPPING AND NAVIGATION – false imprisonment – alleged sexual assault by passenger on cruise ship on high seas – confinement of passenger by order of captain – captain’s power to detain – whether confinement necessary

Catchwords:

CONTRACTS – formation – intention to create legal relations – agreement evidenced by course of conduct – regular rate of payment – record of hours worked – whether payment for work performed gave rise to contractual rights or obligations on a quantum meruit TORTS – negligence – workplace injury – whether injured party a worker or deemed worker – whether work done under contract of employment – non-compliance with procedural requirements if claim for work injury damages – application of Workplace Injury Management and Workers Compensation Act 1998 (NSW), Sch 1, cl 2

Catchwords:

PRACTICE – leave to proceed against company in liquidation – Corporations Act 2001 (Cth), s 500 – appeal from orders obtained by company in liquidation concerning title to property – whether appeal required extension of time and leave – where new point sought to be advanced on appeal – leave granted, subject to security for costs and filing of application for leave to appeal

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Appeal out of time – No compliance by appellant with directions for filing of affidavits and submissions on question of extension of time – No motion for dismissal filed by respondent – First default by appellant in this Court – Indulgence granted to appellant but with self-executing dismissal of appeal if orders not complied with

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Summary disposal – Dismissal of proceedings – Want of due despatch – Multiple defaults by applicant to date – Submissions now filed and applicant not presently in default – Remaining need for proceedings to be brought into order – Orders made for filing of Amended Summons but with self-executing dismissal of application if not complied with

Catchwords:

APPEALS – application for leave – whether grant of leave should be revoked – whether reasonably clear injustice going beyond something that is merely arguable CIVIL PROCEDURE – pleadings and particulars – pleadings in defamation – adequacy of particulars of publication, identification and extrinsic facts – where plaintiffs alleged five posts in WeChat group were defamatory – plaintiffs failed to comply with condition of leave to replead – seventh version of pleadings over four years – whether pleadings provided sufficient particulars for defendants to know case they have to meet – whether primary judge erred in summarily dismissing proceedings

Catchwords:

COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge’s partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant

Catchwords:

HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention – nature of double intention required – Terrorism (High Risk Offenders) Act 2017 (NSW), s 10(1)(c)(i) HIGH RISK OFFENDERS – extended supervision orders – assessing “unacceptable risk” of committing a “serious terrorism offence” – questioning of expert witness as to effect of delusions denied by offender – basis for rejection of opinion of court-appointed experts – reliance on failure of offender to give evidence – Terrorism (High Risk Offenders) Act 2017 (NSW), s 20(d)

Catchwords:

OCCUPATIONS – Legal practitioners – Solicitors – Removal from roll of solicitors – Recommendation by NCAT – Misuse of trust funds in the order of approximately $50,000 – Dishonesty and professional misconduct admitted by respondent solicitor – Submitting appearance filed – Court not required to revisit, review, or rehear proceedings – Court nevertheless required to be independently satisfied that removal from roll appropriate – Court so satisfied – Removal from roll ordered

Catchwords:

CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety is paramount consideration in exercising the discretion to make intensive correction order

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct

Catchwords:

COSTS – party/party – appeals – whether the respondent should pay its costs of the proceedings in the court below – whether there should be no order as to costs – where the primary judge’s conclusions in favour of the respondent on some issues was upheld

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership

Catchwords:

COSTS – application for indemnity costs – offers of compromise – Calderbank offers – scope of Defamation Act 2005 (NSW) s 40 – whether offers were reasonable when made – whether non-acceptance reasonable – whether offers genuine offers of compromise – offers made no provision for existing legal costs – application dismissed COSTS – claim for interest – claim for interest to be back-dated to date costs paid – scope of Civil Procedure Act 2005 (NSW), s 101(5) – whether variation of existing costs order – application of UCPR r 36.16(3A) – if applicable, variation sought out of time – whether order should be made

Catchwords:

JUDGMENTS AND ORDERS – application to vary or set aside orders – application to amend judgment – application to amend catchwords – whether terms of catchwords justiciable

Catchwords:

CIVIL PROCEDURE – application to expand scope of leave to appeal after final hearing and determination of appeal – repeated applications COURTS AND JUDGES – bias – repeated applications for recusal on substantially the same grounds – no basis for recusal

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer of compromise not served until after office hours on Friday before hearing and open for acceptance only until an hour before commencement of hearing COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Costs of proceedings below — Where appellant successful on appeal — Where issue on appeal “separable” and “dominant” — Where respondent substantially successful on factual issues below — Where costs of issues on which respondent succeeded below would vastly have exceeded costs on issues on which it failed

Catchwords:

PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Partnership and contribution claims by corporate appellant as assignee of the rights of the trustees in bankruptcy of two former business associates of respondent – Respondent and two associates previously members of appellant firm operating in Kazakhstan but departed to establish competitor – Prior arbitration in London between appellant and respondent – Prior proceedings in Australia by appellant against two associates – Appeal from permanent stay of claims pursuant to rules for service outside of Australia PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Person outside of Australia a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the court – Whether insufficient prospects of success to warrant service – Whether amount in issue only approximately USD$2,000 – Whether any right of contribution – Appeal on contribution claim dismissed PRIVATE INTERNATIONAL LAW – Orders with extraterritorial effect – Anti-suit injunctions – Anti-suit injunction restraining claims previously determined and adverse findings previously made by arbitration in London – Interpretation of arbitral award – Majority of aspects of contribution claim covered – No error in finding that claim could only amount to USD$2,000 EQUITY – Contribution – Exclusion of right – Knowing assistants – Persons with liabilities not of same nature and extent not entitled to contribution – Persons without clean hands not entitled to contribution – Previous High Court proceedings identified two associates as knowing assistants in dishonest breach of trust, with liability of potentially differing nature and extent – Appellant as assignee not entitled to claim contribution, let alone indemnity EQUITY – Contribution – Exclusion of right – Persons who have not paid just proportion of liability or not willing and able to do so not entitled to contribution – Two associates both bankrupt and one deceased – No prospect of payment – Appellant as assignee not entitled to claim contribution PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Whether partnership formed or carried on business in Australia – Whether partnership agreement governed by Australian law or enforceable or cognizable in an Australian court – Nothing to indicate satisfaction of such requirements – Leave to serve required PRIVATE INTERNATIONAL LAW – Applicable law – Choice of law rules – Partnerships – Place where partnership formed or carries on business – Partnership formed and operated in Kazakhstan – Partnership not governed by Australian law PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Leave to serve – Real and substantial connection – Previous proceedings in Australia resulting in partnership liability, bankruptcy events, unsigned consultancy agreements, citizenship, and litigation funding all insufficient – Existence of partnership assets in Australia – Partnerships can, and possibly only can, be wound up and accounts taken in Australia – Real and substantial connection established – Australia an appropriate forum – Leave to serve granted PARTNERSHIPS AND JOINT VENTURES – Partnership property – Identification – Evidence that partnership has asset-owning and operating entities in Australia – Evidence in the form of engagement contracts, receipts, and Australian bank account APPEALS – Point not taken below – Conduct of trial – Existence of partnership assets not referred to in submissions below nor primary judgment but was in evidence and articulated in affidavit of solicitor – Raised in submissions on appeal and not contested by respondent – Radical effect upon outcome – Permissible to consider on appeal PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Effect of recognition and enforcement – Whether English courts mandated consideration of partnership claim by Australian courts – English courts merely ordered case management stay in context of lis pendens – Judgments say nothing about jurisdiction or appropriateness of Australian courts PRIVATE INTERNATIONAL LAW – Non-exercise of jurisdiction – Inappropriate forum – Existence of real and substantial connection makes Australia an appropriate forum and negates inappropriate forum conclusion APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Appeal from permanent stay – No final determination of rights and obligations of parties – Distinction from final resolution by way of estoppel arising from earlier proceedings – Leave required – Decision nevertheless finally determined ability of appellant to litigate – Appeal heard concurrently and in full – Appeal meritorious – Leave to appeal granted CIVIL PROCEDURE – Time – Extension of time – Motion by appellant seeking extension of time to comply with orders for provision of transcripts, orders, and reasons of English courts – Material of relevance – Material said to already have been in possession of solicitor – Material not responsive and ought to have been obtained prior to hearing – Extension granted but appellant to pay costs of motion APPEALS – Further evidence – Evidence not available at hearing – Evidence of transcripts, orders, and reasons of English courts – Motion not required for Court to have regard to such evidence – No reason to permit other further evidence identified in motion – Motion dismissed with costs COSTS – Party/Party – Appeals – Equal measure of success and failure for each party on appeal – Appellant improved position but incurred and inflicted unnecessary costs – No order as to costs of appeal and primary proceedings

Catchwords:

COSTS — security for costs — where appellants provided security for respondents’ costs of the appeal — where appeal allowed — order for release of sum paid as security

Catchwords:

CONTRACTS – Unconscionable conduct – Special disadvantage – Contract for sale of 50% of real property – Advertisement by respondent for $300,000 – One page agreement for $250,000 presented by appellant – Other terms of agreement improvident – Respondent suffering from very poor eyesight – Appellant aware or ought to have been aware of such facts – Appellant unable to surmount high bar for overturning demeanour-based findings that respondent could not read agreement and was unaware of different price – Special disadvantage established – Agreement void – Appeal dismissed CONTRACTS – Remedies – Specific performance – Appellant unable to demonstrate that ready, willing, and able to complete – No entitlement to specific performance in alternative that agreement not void EQUITY – Equitable remedies – Equitable compensation – Order setting aside agreement for unconscionability conditional upon party obtaining relief doing equity – Insufficient evidence of appellant’s expenditure on property or of enhancement to property’s value – Any entitlement offset by appellant’s rent-free enjoyment of property despite void agreement – No compensation payable APPEALS – Procedural fairness – Bias or apprehension of bias – Interventions by primary judge during appellant’s questioning of witnesses – Rejection of evidence and strong adverse findings – Allegations that primary judge lied – Late grant of leave to respondent to amend pleadings – No bias demonstrated CIVIL PROCEDURE – Hearings – Adjournment – Appellant received material from respondent shortly before taking of evidence – Evidence had been served long before – Submissions did not commence for another three weeks – Ample time to respond – No injustice identified CIVIL PROCEDURE – Hearings – Procedural Fairness – Use of audio-visual link – Technology imperfect but no resulting injustice identified CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Primary judge suggested that respondent amend originating process to explicitly plead unconscionability – Case always conducted on basis of unconscionability – No injustice identified

Catchwords:

NEGLIGENCE – Damages – Economic loss – Earning capacity – Assessing loss of future earning capacity by way of buffer – Where primary judge reduced the period of earning capacity without a sufficient evidentiary basis – Appeal allowed

Catchwords:

CIVIL PROCEDURE – application to vacate hearing – where admissions by appellants of loan balances outstanding – appellants belatedly sought access to records held by provisional liquidator in aid of potential application to withdraw admissions – primary judge found appellants had access to relevant documents and delayed seeking and reviewing documents – whether appellants deprived of opportunity to review documents – whether error in discretionary decision refusing to vacate the hearing CIVIL PROCEDURE – pleadings – where derivative proceedings on behalf of company to recover management fees – where pleadings alleged certain management fees were “excessive” – defence asserted entitlement to reasonable remuneration – parties had served lay and expert evidence as to reasonable remuneration – respondents’ written opening put in issue whether remuneration was reasonable – whether appellants put on notice of case they had to meet

Catchwords:

EVIDENCE – admissibility – hearsay – business records exception, s 69 Evidence Act 1995 (NSW) – where appellant/tenant introduced soil onto property alleged to be contaminated – where Council issued clean-up notice to respondent/landlord – where respondent commissioned expert report – where samples collected and tested by persons other than author of report – whether report business record of respondent – whether primary judge erred in giving weight to report EVIDENCE – expert reports – where no orders made for service of expert reports – where both parties served expert reports late – where both parties had opportunity to cross-examine experts – whether “exceptional circumstances” for admitting expert report in reply served by respondent – Uniform Civil Procedure Rules 2005 (NSW), r 31.28(4) – whether primary judge erred in House v The King sense DAMAGES – damages awarded for costs of remediating land – where only evidence of quantum was two quotes obtained in preparation of proceedings – where quotes contained hearsay material – where no objection by appellant to admissibility of quotes at trial – where appellant self-represented at trial – whether primary judge erred in giving weight to quotes DAMAGES – damages awarded for unpaid rent – where primary judge made declaration that lease validly terminated by respondent – where appellant remained in possession of property – where no termination order yet made by NCAT – whether residential tenancy agreement remained on foot – whether landlord’s remedy limited to loss of bargain damages

Catchwords:

JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to three offences including using carriage service to menace, harass or cause offence – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence – District Court allowed appeal imposing a lesser full-time custodial sentence – whether District Court fell into jurisdictional error when rejecting submission that sentence be served by intensive correction order – significance of community safety being paramount consideration – significance of requirement to consider whether intensive correction order more likely to address risk of reoffending – part of reasoning in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved – error in agreed facts concerning number of text messages giving rise to carriage service offence – agreed facts stated applicant had sent 24,459 text messages – in fact applicant had sent 11,204 messages – whether factual error gave rise to jurisdictional error – no jurisdictional error established and summons dismissed

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay of orders pending application for special leave to appeal to High Court – where orders made in underlying proceedings for payment out of funds held in court – where leave to appeal against those payment orders and earlier orders refused by majority of this Court – whether substantial prospect that special leave will be granted – application dismissed

Catchwords:

PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal – whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable

Catchwords:

SUCCESSION – Family provision – claim by adult son for provision from the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW) – where primary judge erred in her conclusion that adequate provision had not been made for the adult son’s proper maintenance and advancement in life – where adult son had remained on farming land but had received earlier significant benefits from his parents recognised as an “early inheritance” – extent to which anticipated adverse costs liability from non family provision claim should affect analysis of adequate provision COSTS – Offers of compromise – where offers of compromise were capable of acceptance and did represent a genuine element of compromise – where although the offeror could be said to have obtained a judgment no less favourable than the terms of the offer within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2), the Court “ordered otherwise” as to costs

Catchwords:

PROCEDURE – no issue of principle

Catchwords:

APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons – failure to engage with the case presented by each party – duty to give reasons for rejecting evidence of expert or preferring evidence of one expert over another – whether the primary judge failed to adequately explain why the Appellant’s expert evidence was rejected or why the Respondent’s expert evidence was preferred. BUILDING AND CONSTRUCTION — Contract — Termination — Repudiation – the Respondent, the builder, was shut out from site after repudiatory conduct by the Appellant, the owner – whether the owner repudiated the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – relevance of repudiation to claims for damages for defects – whether repudiation by the owner not relevant – Appellant had accrued rights in respect of work carried out prior to determination of the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – engagement of second builder to complete work of the Respondent including repair of defects of Respondent not exculpatory of Respondent and not relevant to the loss claimed in respect of defects solely the result of work performed by the Respondent – whether owner had accepted the defective work. BUILDING AND CONSTRUCTION — Contract — Damages – proof of loss – adequacy of evidence supporting loss – where failure to mitigate damages not pleaded – whether evidence from the Appellant’s expert that would enable the Appellant’s loss to be calculated albeit on the basis of demolition of the building.

Catchwords:

TORTS – negligent misstatement – whether a planning certificate issued by Council under s 149 of the Environmental Planning and Assessment Act contained negligent misstatements – whether resolution adopted by Council constituted a “policy” – whether any such policy was abandoned TORTS – negligent misstatement – answers to requisitions supplied by vendor of real property did not contain misstatements TORTS – negligent misstatement – s 43A Civil Liability Act – whether the issue of a planning certificate under s 149 Environmental Planning and Assessment Act constituted the exercise of a “special statutory power” TORTS – negligent misstatement – s 733 Local Government Act – whether s 733 exemption from liability applied to s 149 planning certificate issued by Council – whether “advice… relating to the likelihood of any land being flooded”

Catchwords:

APPEALS – leave to appeal – challenge to dismissal of summons seeking relief against the Judicial Commission – no arguable reason advanced for concluding that primary judgment erroneous – no prospects of success on an appeal – leave to appeal refused

Catchwords:

APPEALS – leave to appeal – challenge to dismissal of summons seeking relief against the Judicial Commission – no arguable reason advanced for concluding that primary judgment erroneous – no prospects of success on an appeal – leave to appeal refused

Catchwords:

NEGLIGENCE – damages – challenge to award of damages made by primary judge to injured respondent – whether post-accident surveillance footage of respondent and medical evidence properly taken into account by primary judge – whether primary judge erred in making awards under certain heads of damage – credit-based factual findings by judge – no appellable error by primary judge established WORKERS COMPENSATION – uninsured liabilities – payments of workers compensation by Nominal Insurer to injured worker – partial reimbursement to Nominal Insurer by employers – third party tortfeasor liable for worker’s injury – whether employers able to claim against third party tortfeasor under s 151Z(1)(d) Workers Compensation Act for all of workers compensation payments made – proper construction of s 151Z(1)(d) – meaning of “the person by whom the compensation was paid” – employers properly to be regarded as person by whom compensation paid

Catchwords:

ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – committees – association constitutions – whether an unincorporated association was capable of being a State Council under the AFIC Constitution – where the unincorporated association was a group of individuals ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was removed as the State Council – whether the meeting at which the resolution removing UMNSW as State Council was properly convened ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was replaced as the State Council by an elected committee of individuals ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – election of members – association constitutions – whether an elected person was duly appointed as delegate of the State Council under the AFIC Constitution

Catchwords:

CONTRACTS — termination — whether agreement wrongfully terminated — construction — meaning of “change in control including change in the majority shareholding” — whether satisfied where majority shareholder ceased to hold any shares but no new majority shareholding created

Catchwords:

COSTS – party/party – appeals – unsuccessful applications for joinder and reopening of appeal after appeal decision handed down – limited success of applicants in having orders varied to cure misapprehension of Court – respondents achieved significant measure of success on substantial issues – applicants to pay 50% of the respondents’ costs

Catchwords:

APPEALS – Local Court entered judgment in favour of respondent and dismissed cross-claim – appeal to Supreme Court constituted by Associate Judge dismissed – leave refused to bring appeal on mixed question of fact and law – nature of further appeal to Court of Appeal – whether appeal as of right or with leave – no error attending refusal of leave – appeal dismissed

Catchwords:

DAMAGES – developer purchases land by tender – developer obliged to construct development as specified in masterplan – developer makes profit – solicitors acting for developer give misleading advice concerning whether land flood affected – developer incurs costs in persuading council to remove flood notation – developer sues solicitors, advances “no transaction” case and claims difference between purchase price and “true value” – consideration of “Potts v Miller” damages – significance of absence of market for land – significance of obligation to construct development – appeal dismissed

Catchwords:

COSTS — Security for costs — Relevant factors — Impecuniosity — Whether evidence establishes that members of incorporated association do not have means to provide the security sought — Strength of the claim — Where opponent’s submissions on appeal fail to grapple with finding central to the determination below

Catchwords:

RESTITUTION — where contribution assessment determination made as part of claims resolution process under Pt 4 of the Dust Diseases Tribunal Regulation 2013 — where co-defendants to a claim in the Dust Diseases Tribunal consent to orders giving effect to determination without admission of liability — where claim in restitution by one co-defendant against the other — onus of proof

Catchwords:

CIVIL PROCEDURE – summary dismissal of proceedings – abuse of process – separate proceedings brought by different plaintiffs against same defendant – overlapping factual and legal issues – judgment delivered in first proceedings – application for leave to appeal against primary judge’s refusal to summarily dismiss second proceedings – actions of plaintiff in second proceedings not unreasonable – absence of any decisive overriding consideration of public interest – no abuse of process in second proceedings

Catchwords:

COSTS – application for gross sum costs order – where gross sum costs order was not sought by the applicants when an earlier application to vary the original costs orders was sought and made – application refused

Catchwords:

APPEALS – leave to appeal – where application for permanent stay of proceedings dismissed – Anshun estoppel pleaded as defence in second proceeding by respondent claiming damages for breach of contract – first proceeding sought declaratory relief as to existence of contract and whether validly terminated by applicant – delay by applicant caused prejudice to respondent – no interim stay sought pending leave application – whether reasonably clear injustice going beyond something that is merely arguable

Catchwords:

APPEALS – procedure – stay pending appeal – District Court decision on appeal in child care and protection proceedings – District Court found realistic possibility of restoration of child to mother and ordered preparation of amended care plan – Secretary seeking judicial review of District Court decision in Court of Appeal – motion by Secretary to stay District Court orders pending determination of judicial review application – stay granted

Catchwords:

JUDICIAL REVIEW – decision of Local Court of NSW (Small Claims Division) – decision of District Court of NSW on appeal from Local Court – whether time to challenge Local Court decision should be extended – challenge not fairly arguable – grounds of challenge to District Court decision – no jurisdictional error or error of law on the face of record established

Catchwords:

NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant’s position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal - Workers Compensation Commission medical appeal panel – procedural unfairness –scope of procedural fairness determined by reference to statutory scheme – no opportunity given to address panel on definition of medical condition – medical experts’ function is to form opinion as to medical condition WORKERS COMPENSATION – medical dispute –appeal from certificate of assessor – scope of functions and powers of appeal panel – panel restricted to determining whether error in applicant’s grounds of appeal – decision to issue new certificate – no expansion of panel’s functions

Catchwords:

CRIME – appeal and review – application for leave to appeal from Supreme Court orders dismissing appeal from Local Court – where applicant convicted of unlawfully entering inclosed lands and interfering with business – where conduct done to remove chickens from cruel conditions – whether defence of necessity available – consideration of R v Rogers (1996) 86 A Crim R 542

Catchwords:

TORTS – negligence – liability of employer – scope of employer's obligation to ensure safe system of work – where employee worked as shearers’ cook – where employee dispatched to other place or premises of work – where employee injured when step to accommodation collapsed – where employer conducted visual inspection of premises – whether scope of employer’s duty required employer to conduct physical inspection of the step – whether employer breached duty – whether causation established DAMAGES – past and future economic loss – where employee suffered from PTSD and diabetes – where employee’s income in prior financial years modest – where unchallenged findings that job suited employee’s PTSD and intended to work full-time – where primary judge allowed deduction of 30 per cent for vicissitudes – whether error in award of past economic loss – whether error in award of future economic loss – whether error by primary judge not to refer to appellant’s medical reports material DAMAGES – past domestic assistance and future commercial care – where employee’s son and friend provided gratuitous domestic assistance – whether threshold under s 15(3) Civil Liability Act met – where evidence that employee wanted to relieve son of duties of providing care – where future commercial care assessed at 8.5 hours a week – where primary judge allowed deduction of 15 per cent for vicissitudes – whether primary judge erred in award for past domestic assistance – whether primary judge should have allowed for greater reduction for vicissitudes

Catchwords:

ADMINISTRATIVE LAW – statutory construction – Public Health Act 2010 (NSW), s 7 – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) does not turn upon whether those orders are of an administrative or legislative character – whether those orders were authorised by and validly made under s 7 of the Public Health Act 2010 (NSW) APPEALS – leave to appeal – principles governing – consequences for the parties – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) was sought to be challenged – where two of those orders had been repealed and ceased to operate as at the hearing of the appeal and the third was to expire imminently – where the reasons of the primary judge disclosed no error of principle – where the proper construction of s 7 of the Public Health Act 2010 (NSW) raises a matter of public importance in the midst of an ongoing pandemic – whether there is any utility in granting leave to appeal to review orders already repealed or imminently to expire CIVIL PROCEDURE – Court of Appeal – leave to appeal – concurrent hearing of leave application and appeal – where constitutional arguments sought to be raised – where no arguable case was advanced – where the reasons of the primary judge disclosed no error of principle – where the raising of constitutional arguments does not give a case elevated status when considering a grant of leave to appeal – whether leave to be granted in circumstances of limited utility HUMAN RIGHTS – discrimination – context – employment – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) coerced workers in particular industries and workplaces to be vaccinated – where none of the applicants had been vaccinated in the exercise of their own free will HUMAN RIGHTS – legislation – Public Health Act 2010 (NSW), s 7 – principle of legality – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – whether certain public health orders made during the COVID-19 pandemic interfered with rights – whether those rights recognised by the common law – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence STATUTORY INTERPRETATION – legislative purpose – Public Health Act 2010 (NSW) – statement of objects – where purpose of Act is to promote, protect and improve public health including by the prevention of the spread of infectious diseases – where s 7 of the Act expressly contemplates the limitation of freedom of movement to address a public health risk STATUTORY INTERPRETATION – Anthony Hordern principle – where multiple sources of power in a statute – where some sources of power expressly qualified – Public Health Act 2010 (NSW), ss 7 and 8– whether the same source of power as s 7(2) – where s 7(3) expressly authorised limitation of freedom of movement – where power in s 7(3) expressed “without limiting s 7(2)” – whether the specific power in s 7(3) expressly qualified the general power in s 7(2) STATUTORY INTERPRETATION – principle of legality – common law rights and freedoms – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence – whether any of those rights are recognised at common law – if so, whether they are “fundamental rights” – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) interfered with any of those rights – whether the principle of legality operated to constrain any interference with those rights STATUTORY INTERPRETATION– where s 7(6) of the Public Health Act 2010 (NSW) proscribes the making of orders in relation to any part of New South Wales for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (NSW) – COVID-19 pandemic – whether the emergence of the Delta strain was an “emergency” under s 4 of the State Emergency and Rescue Management Act 1989 (NSW) – where the Premier did not declare a “state of emergency” under that Act

Catchwords:

COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court

Catchwords:

COURTS AND JUDGES – Supreme Court – supervisory jurisdiction – District Court – jurisdictional error – appeal to District Court from conviction in Local Court – complainant not called as witness on appeal – District Court judge had regard to magistrate’s credibility findings – whether jurisdictional error by District Court COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – District Court – jurisdictional error – applicant convicted in Local Court – conviction appeal to District Court – onus of proof on prosecutor to establish guilt beyond reasonable doubt – whether appellant required to establish factual, legal or discretionary error by magistrate – whether requirement that appellant demonstrate error reverses onus of proof – Crimes (Appeal and Review) Act 2001 (NSW) s 18

Catchwords:

CONTRACTS — termination — repudiation of contract — implied refusal to perform — where purchasers raised requisitions on title — whether requisitions properly made — whether vendors adequately answered requisitions — whether vendors evinced intention no longer to be bound by contract CONTRACTS — termination — repudiation of contract — erroneous construction of contract — where vendors insisted on payment of default interest — whether repudiation by insisting on erroneous construction of contract ENVIRONMENT AND PLANNING — heritage conservation — protection of Aboriginal heritage — National Parks and Wildlife Act 1974 (NSW) — meaning of “Aboriginal object” LAND LAW — conveyancing — contract for sale — defect in title — whether presence of Aboriginal objects on land constitutes defect in title — whether Aboriginal objects on land — whether presence of Aboriginal objects constituted defect in title where land already subject to development constraints LAND LAW — conveyancing — contract for sale — termination in accordance with rule in Flight v Booth — whether presence of Aboriginal objects materially or substantially affected contract — no Aboriginal objects on land — no material or substantial effect LAND LAW — conveyancing — contract for sale — requisitions — where requisitions based on plausible contention of presence of Aboriginal objects — whether purchasers’ objections and requisitions on title properly made — whether vendors’ responses sufficient

Catchwords:

APPEALS — Leave to appeal — where earlier proceedings brought by applicant were discontinued by a tutor — where primary judge dismissed notice seeking a declaration that discontinuance was void — no arguable basis for challenging primary judge’s orders

Catchwords:

EQUITY – equitable interests in real property – priorities – where property purchased by trustee on trust for sole unitholder – competing claims of beneficiary under trust and equitable mortgagee – where beneficiary did not pay any monies towards purchase price of property or “fully paid” units in unit trust – where beneficiary’s solicitor advised trustee was untrustworthy – where trust deed conferred wide powers on trustee, including power to mortgage trust assets for any contractual obligation – where trust deed precluded unitholder from lodging caveat against any trust property and no caveat was lodged – where equitable mortgage granted over property to respondent in breach of trust – whether merits of competing equities unequal – whether beneficiary’s prior interest postponed to subsequent interest of equitable mortgagee EQUITY – equitable interests in real property – priorities – where unitholder issued “fully paid” units but no monies paid for units in trust or towards purchase of property – whether evidence that trustee borrowed funds for purchase of property – whether beneficiary has liability to trustee for units issued to it – whether beneficiary was a volunteer

Catchwords:

CRIME – Appeal and review – Stated case – Refusal to state a case – Application for judicial review – Where application before District Court raised no questions of law – Where all grounds of review in this Court represent challenges to factual findings or are otherwise devoid of merit – No jurisdictional error established – Attempt to circumvent lack of further right of appeal on grounds of fact – Application dismissed JUDICIAL REVIEW – Ground of review other than procedural fairness – Decision not authorised – Where primary judge provided revised transcripts of reasons after delivering judgments ex tempore – Whether judgments void because Court functus officio after initial delivery of judgment – Revision of transcripts entirely orthodox – No error established JUDICIAL REVIEW – Bias rule – Apprehended – Particular factual matter giving rise to alleged bias – Where primary judge contacted respondent seeking submissions in response to applicant’s application – Applicant copied on email – No apprehension of bias CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Where no relevant Commonwealth law identified – No inconsistency CONSTITUTIONAL LAW – State legislative power – Proportionality – Whether lack of consonance between Crimes (Domestic and Personal Violence) Act 2013 (NSW) and Declaration on the Elimination of Violence against Women – Act does not purport to enact Declaration as part of domestic law – Challenge misconceived

Catchwords:

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR rr 36.15, 36.16, 36.17 – no basis to set aside established – application dismissed

Catchwords:

CONTACT – share sale agreement – business affected by fire before agreement – business made claims on insurance policies – whether amount received after agreement from insurer for uninsured losses caught by contractual clause – use of evidence of parties’ subjective intentions – primary judge erred in relying on evidence of intentions but construction nevertheless correct – appeal dismissed

Catchwords:

CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company – duty not to use position as director or officer improperly – duty to ensure proper financial records kept – acting as director for two related entities – conflict of duty and interest EQUITY – fiduciary duties – conflict of interest and duty – acting as director for two related companies – involvement in transactions between companies –director holding 25% shares of one company – where one company holds a financial interest in the other and consequently shares in any benefits received by the director – when director inherits and continues an existing and accepted practice as between the companies

Catchwords:

MOTOR ACCIDENTS – judicial review – assessment of permanent impairment – adequacy of assessor’s reasons – whether need to deal separately with further aspect of insurer’s case – requirement to distinguish jurisdictional error from error of law on face of record – requirement to state grounds of review with specificity

Catchwords:

COSTS – gross sum costs – where administration of justice served by bringing litigation to an end

Catchwords:

STATUTORY CONSTRUCTION – interpretation – Health Care Complaints Act 1993 (NSW) (HCC Act), s 4 – definition of “disciplinary body” – whether disciplinary body “established under” the Health Practitioner Regulation National Law 2009 (NSW) (National Law) – definition required to be read into HCC Act, s 90B – where Commission referred complaint to the Tribunal (NCAT) under the National Law, s 145C – where NCAT “established under” the National Law – whether NCAT authorised by the National Law to exercise the specified power of a disciplinary body in relation to a registered health practitioner STATUTORY CONSTRUCTION – interpretation – HCC Act, s 90B – National Law, s 145C – interaction between HCC Act and National Law – where Director of Proceedings determined that the Commission should prosecute complaint before the Tribunal – whether Director of Proceedings acting ultra vires – whether distinction between Commission “prosecuting” the complaint before a disciplinary body and referring the complaint to the Tribunal PROFESSIONS AND TRADES – health practitioners – dental practitioners – whether Commission referred a complaint against registered dentist to the Tribunal pursuant to s 145C of the National Law

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Whether appeal from exercise of cross-vested jurisdiction and so lies only to Federal Court – Whether leave to appeal required CIVIL PROCEDURE – Cross-vesting – Where appellant became bankrupt after commencing proceedings in Supreme Court – Whether a “matter arising under” the Bankruptcy Act – Distinction from exercise of jurisdiction in bankruptcy – Cross-vesting legislation not intended to require appeals from judgment in a matter arising under a Commonwealth Act to be instituted in federal Court where first instance court not exercising cross-vested jurisdiction – Primary judge was not exercising cross-vested jurisdiction – Cross-vesting legislation not engaged CONSTITUTIONAL LAW – The Judiciary – ‘Matter’ – Proceedings not owing existence to federal law but stayed by operation of federal law nevertheless constitute a ‘matter’ arising under federal law APPEALS – Leave to appeal – Whether leave required from declaratory orders – Whether declarations can be interlocutory – Declarations were interlocutory for purposes of leave to appeal – Leave to appeal required – Appellant directed to file application for leave to appeal lest the appeal be dismissed

Catchwords:

APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court’s unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused

Catchwords:

COSTS – variation of order – apportionment where appellant partly successful on appeal – interest on costs

Catchwords:

CONTRACTS — construction — where agreement to pay royalty following “actual sale” of mineral — where royalty a percentage of “net sales realisation” amount — whether “actual sale” occurs when title passes to buyer — whether “net sales realisation” is after deduction of sales realisation expenses CONTRACTS — termination — where breach of time stipulation for making of payment — where demand made after giving further time for payment — whether breach of essential term justifying termination — whether repudiatory conduct evincing an unwillingness to render substantial performance

Catchwords:

PROFESSIONS AND TRADES – medical practitioners – challenge to finding of professional misconduct – where medical practitioner sent inappropriate text messages and voice messages to patient – where breach of health practice conditions limiting intake of alcohol and prescription medication – where conduct found to be unsatisfactory professional conduct – whether such conduct of “sufficiently serious nature” to warrant suspension or cancellation of registration – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to finding that not competent to practise – where medical practitioner admitted alcohol use disorder – where evidence that remission requires period of three years of abstinence – where medical practitioner not yet commenced period of abstinence – where alcohol dependence could grossly impair judgement and clinical ability – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to protective orders made by Tribunal cancelling medical practitioner’s registration – whether challenge involved question of law – where assertion that error of law in House v The King sense – whether Tribunal failed to consider effect of medical practitioner’s alcohol dependence – whether protective orders excessive – whether Tribunal failed to provide sufficient reasons

Catchwords:

CONTRACT – construction – written contract largely in Mandarin entered into between two businessmen without legal assistance – contract concerned acquisition of 40% interest in company with interests in land - whether contract entitled investor after three years to sell the shares or alternatively to obtain title to 40% of the land – no material difference between competing translations – literal meaning of one last sentence favoured transfer of 40% of the land to exiting shareholder – whether legal meaning of contract accorded with literal meaning

Catchwords:

APPEAL – application for leave – interlocutory decisions of District Court – decisions to refuse amendments, to strike out certain paragraphs and to refuse to join new defendants – insufficient prospects of success to warrant grant of leave – application dismissed

Catchwords:

APPEALS – separate questions answered in Equity Division – subsequent attempt to raise additional issues rejected – leave to appeal refused – principle in Anshun 147 CLR 589 applicable APPEALS – procedure – freezing order – sufficient basis for order extending freezing order – leave to appeal refused

Catchwords:

APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error

Catchwords:

COSTS — Chorley exception — where party represented by incorporated legal practice of which he was the principal and sole director and shareholder — whether primary judge erred in denying solicitor applicant costs payable to incorporated legal practice — Bell Lawyers Pty Ltd v Pentelow JUDICIAL REVIEW — what constitutes “the record” for the purposes of error of law on the face of the record

Catchwords:

APPEAL – application for leave to appeal – judicial review of conduct of local council – whether local council an impounding authority – powers of council officers to impound stock straying on public road – whether alpacas are stock or animals PROCEDURE – costs – availability of gross costs order – notice of intention to make gross costs order – whether procedural unfairness

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application – Notice of Motion seeking various orders – Where legal representatives unable to advance any submissions in support of motion – Where Court has serious reservations as to whether party who signed motion in fact filed it – Inability of party to answer basic questions from the Bench or advance any submissions in support of motion – Correspondence from misspelled email address – Court being trifled with – Motion dismissed with indemnity costs CIVIL PROCEDURE – Parties – Joinder – Application to reinstate company as appellant after misconceived attempt to circumvent requirement of representation by joining director instead

Catchwords:

APPEALS – Jurisdiction of appellate court – Court of Appeal – Discretion to exercise jurisdiction – Appeal from District Court Judicial Registrar – Assignment to Supreme Court – Where no submissions by applicant in support of matter remaining in Court of Appeal – Remitted to Equity Division Corporations List

Catchwords:

APPEAL AND REVIEW – supervisory jurisdiction – review of judgment of District Court on appeal from Local Court – refusal to reopen sentence appeal – jurisdictional error – failure to vary sentence to take account of error in calculation of earlier partly concurrent sentence PROCEDURE – civil – discontinuance – notice given after hearing – leave requirement – dismissal – costs

Catchwords:

JUDGMENTS AND ORDERS – Enforcement – Appeal from setting aside of examination orders – Where District Court had given two inconsistent judgments – Where Court of Appeal previously prohibited District Court from taking any further steps in proceedings on basis that second judgment was valid – Where District Court on remittal considered itself to be functus officio – Whether District Court entirely prohibited from taking any further steps in the proceedings – Court of Appeal only quashed second judgment – Court of Appeal only prohibited steps on basis of validity of second judgment – Distinction between adjudication and enforcement – Appeal allowed APPEALS – Right of appeal – Who may exercise – Felons – Application of Felons (Civil Proceedings) Act 1981 (NSW), s 4, in Court of Appeal APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Setting aside of examination orders – Decision had effect of finally disposing of proceedings – Evident merit to appeal – Leave granted APPEALS – Procedure – Time limits – Extension of time – Where respondents on notice of intention to appeal prior to time elapsing – No prejudice identified – Extension granted

Catchwords:

JUDICIAL REVIEW – District Court – conviction appeal from Local Court dismissed as outside three month time limit – erroneous as calculation should have excluded day of lodgement – whether error jurisdictional – whether necessary to show error was “material” – Held – relief granted

Catchwords:

APPEALS — Contracts — Whether loan advance paid pursuant to loan agreement — Error of primary judge — Where loan advance never repaid EQUITY — Trusts and trustees — Express trusts — Unit trusts — Where trust documents not correctly executed — Where no unit holders had subscribed for units — Whether trust constituted — Whether unit holders had a right to trust property if trust constituted — error of primary judge — Where trust constituted and unit holders acquired beneficial interest in trust property

Catchwords:

INSURANCE – Appeal from decision joining insurer to proceedings – Whether there was an insured liability – Where insured gave no notice of facts that might give rise to claim – Whether contractual obligation to give notice – Whether breach of obligation cured by statute

Catchwords:

COSTS – supplementary order concerning costs – successful respondent sought further order entitling his costs in successful defence of appeal to be paid out of estate with administrator subrogated to respondent’s costs order – orders corresponded to form of orders made by trial judge which were unchallenged by appeal or cross-appeal – orders made

Catchwords:

CIVIL PROCEDURE - subpoenas - application to set aside - where production of material unduly burdensome and would not facilitate appeal CHILD WELFARE - care proceedings - interlocutory application - whether orders should be made allowing child to live with mother or allowing daily contact - whether tutor should be appointed

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — Final or interlocutory order — Appeal from determination concerning constructive refusal of application to vary legal practising certificate — where practising certificate in question since expired — No utility in granting leave

Catchwords:

DUST DISEASES — damages for non-economic loss — where proceedings commenced before plaintiff’s death — where deregistered company named as defendant — whether subsequent reinstatement of registration has consequence that proceedings deemed to have been validly commenced and pending at time of death for purposes of operation of Dust Diseases Tribunal Act 1989 (NSW), s 12B CORPORATIONS — deregistration — order for reinstatement of registration under Corporations Act 2001 (Cth), s 601AH(2) — where deregistered company named as defendant in initiating process — whether by operation of s 601AH(5) subsequent reinstatement of registration validates commencement of proceedings

Catchwords:

CIVIL PROCEDURE – stay of orders – application for stay pending application for special leave to appeal to High Court – where no application yet filed in High Court – where no evident prospects of success of obtaining special leave under Judiciary Act 1903 (Cth), s 35A – where no offer by applicants to pay any part of judgments into court as a condition of a stay – whether applicant had accrued right to fee which could be set-off against judgment debts – whether orders should be stayed – whether exceptional circumstances established for grant of stay

Catchwords:

RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son’s name at his direction – where primary judge accepted son’s evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution

Catchwords:

APPEAL AND REVIEW – Court of Appeal – supervisory jurisdiction – review of costs order made by District Court on appeal from Local Court – order in favour of successful appellant – review as to quantum – grounds – failure to take account of evidence/submissions – procedural unfairness in ordering costs motion to reopen PROCEDURE – order for costs – assessment of costs by court – only evidence proffered was a bundle of invoices – invoices included work on other proceedings – amounts held to be irrelevant or excessive – judge entitled to make own assessment

Catchwords:

CIVIL PROCEDURE — stay of proceedings — where interim certificate of costs assessor treated as judgment upon filing in District Court under Legal Profession Act 2004 (NSW), s 368(5) — where applicant’s appeal to the District Court against decision of costs assessor remains afoot — where applicant seeks leave to appeal against District Court’s refusal to set aside judgment — application for stay of deemed judgment, District Court appeal proceedings and the assessment process — whether appropriate to grant interim stays in the circumstances

Catchwords:

JUDICIAL REVIEW – summonses seeking judicial review of decision of Supreme Court orders – whether judicial review lies to Court of Appeal – Penson v Titan National Pty Ltd [2015] NSWCA 404 applied – summonses dismissed

Catchwords:

CIVIL PROCEDURE — pleadings — striking out — abuse of process — where statement of claim pleads fact inconsistent with finding of Court of Appeal in earlier proceedings — statement of claim constitutes collateral attack on Court of Appeal’s decision — statement of claim struck out as abuse of process

Catchwords:

EQUITY — trusts and trustees — powers, duties, rights and liabilities — indemnity of trustee — whether trustee is entitled to be indemnified — where parties are joint tenants of a property — rights of trustees to be indemnified for defending proceedings brought against the trust — trustee entitlements to security for contingent liabilities EQUITY — trusts and trustees — judicial advice — disagreement between trustee and beneficiaries regarding management of property — whether judicial advice should have been sought by the trustee pursuant to Trustee Act 1925 (NSW), s 63 before defending the proceedings — consequences of a failure to seek judicial advice — if judicial advice had been sought, the trustee would have been advised that defending the proceedings was appropriate — that a trustee “should” seek legal advice does not give rise to a legal obligation to do so

Catchwords:

APPEALS — Leave to appeal — where applicant seeks leave to appeal from summary dismissal — where applicant had brought proceedings for recovery of land against party other than the registered proprietor — where no viable claim

Catchwords:

COSTS — Where appellant succeeded in substantially reducing sum awarded to respondent — Where order that respondent pay appellant’s costs of the appeal — Whether appellant entitled to costs of the proceedings below — Where Motor Accidents Compensation Regulation 2015 requires the appellant to pay a certain amount of the respondent’s costs and disbursements in the court below — Where Motor Accidents Compensation Act 1999 (NSW) fixes amount which appellant’s solicitors were permitted to charge, subject to an order otherwise — Whether such order to be made

Catchwords:

ADMINISTRATIVE LAW – application for leave to appeal from refusal of leave to appeal from NCAT – leave refused

Catchwords:

ADMINISTRATIVE LAW – judicial review – application for review of District Court decision dismissing appeal from conviction in Local Court – application for extension of time – where review limited to jurisdictional error on part of District Court – whether personal service of court attendance notice in accordance with Local Court Rules a condition for exercise of Local Court’s summary criminal jurisdiction – whether applicant denied procedural fairness – whether primary judge erred in rejecting applicant’s “claim of right” defence – no arguable jurisdictional error of District Court

Catchwords:

CIVIL PROCEDURE — default judgment — setting aside — where default judgment irregularly entered — whether applicants demonstrated bona fide defence on merits — default judgment set aside JUDGMENTS AND ORDERS — enforcement — garnishee order — where default judgment set aside — order for return of garnished amount

Catchwords:

APPEALS – application for leave – where mortgagee brought proceeding for removal of caveats lodged by guarantor/mortgagor against two adjoining properties – interlocutory order made for withdrawal of caveats – sale of properties completed – contention that sale of properties unauthorised – whether leave should be granted – whether injustice which is reasonably clear – leave refused

Catchwords:

APPEALS – procedure – application to extend time for filing Notice of Appeal – no realistic prospect of success on appeal – no reasonable explanation for delay – extension of time refused and appeal dismissed

Catchwords:

NEGLIGENCE – public authority – Murray Darling Basin Authority – Authority or its delegates alleged to have negligently released water causing damage to plaintiffs’ lands – whether Authority or delegates a “public or other authority” within meaning of s 41 of Civil Liability Act 2002 (NSW) CONSTITUTIONAL LAW – relationship between constitutional and non-constitution issues – role of intervening Attorney-General submitting that constitutional issue does not arise PROCEDURE – defendant Authority pleaded defences from Part 5 of Civil Liability Act 2002 (NSW) on basis that it was a “public or other authority” – paragraphs struck out by primary judge – questions reserved on agreed facts and removed to Court of Appeal – consideration of appropriateness of determining such issue on final basis

Catchwords:

APPEALS — leave to appeal — no issue of principle, question of general public importance, or injustice — leave refused

Catchwords:

CONTRACT — construction — interpretation — debt collection agreement — meaning of ‘collect’ — where agent obtained judgment debt against debtor — where debtor deregistered company — no monies collected from debtor — whether agent entitled to fee — whether agreement authorised agent to pursue other alleged debtors not specified in agreement CONTRACT — breach — where debt collection agreement prohibited principal taking any steps in relation to specified debt — where principal withdrew instructions of solicitors retained on behalf of principal by agent — whether breach of debt collection agreement DAMAGES — damages in contract — causation — loss of commercial opportunity — chance of obtaining fee for collecting a debt — where debtor company deregistered and likely insolvent — whether causation established — whether chance of acquiring fee had some value other than negligible or speculative

Catchwords:

HEALTH – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – inappropriate prescription of drugs of addiction– inadequate clinical records – continuing involvement in unproven therapies HEALTH – professional registration and discipline – proportionality of disciplinary orders to misconduct – whether reprimand and conditions on registration sufficient to protect the public interest – whether orders were made in reliance on particulars not pleaded against the appellant PRACTICE AND PROCEDURE – appeal – stay – reversing order under appeal – order for de-registration effected – stay no longer available – interlocutory injunction to third party to reverse order

Catchwords:

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254 ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation

Catchwords:

COURTS AND JUDGES – application for recusal rejected by District Court judge – summons seeking judicial review of decision dismissed

Catchwords:

PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success

Catchwords:

CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out

Catchwords:

JUDGMENTS AND ORDERS – supervisory jurisdiction – judicial review – application proceeding in Local Court special jurisdiction dismissed – where appeal to District Court under Local Court Act 2007 (NSW), s 70(1) dismissed for lack of jurisdiction – whether jurisdictional error in dismissing appeal CIVIL PROCEDURE – jurisdiction – appeal to District Court under Local Court Act 2007 (NSW), s 70(1) from orders made in special jurisdiction – whether right of appeal from order dismissing proceeding

Catchwords:

CONTRACTS — termination — contractual promise to comply with terms of commercial lease — lease breached — right to terminate subject to notice requirement — peremptory termination without notice — repudiation of contract — acceptance of repudiation CONTRACTS — parties — failure to join all necessary parties to proceedings — corporate entities distinct from individuals

Catchwords:

APPEALS – application for leave to appeal – proposed appeal has no prospect of success

Catchwords:

APPEALS – procedure – application for stay of judgment pending appeal – stay refused on the condition that the first and second respondents give certain undertakings

Catchwords:

OCCUPATIONS – Legal practitioners – Solicitors – Professional negligence – Advising client – Whether solicitor settled motor accident insurance claim prematurely and at an undervalue – Whether solicitor entitled to rely on Civil Liability Act 2002 (NSW), s 5O – Whether causation of loss established – Appeal dismissed NEGLIGENCE – Breach – Standard of care – Professional negligence – Whether solicitor acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice – Expert opinion adduced not determinative merely because not challenged on ground of irrationality – Where solicitor gave clear and repeated advice discouraging premature settlement at undervalue despite client’s perilous financial position and desire for quick settlement – Where early settlement prudent given risk of future disclosure of information adverse to claim – Where accepted offer far from so unreasonable as to warrant warning against acceptance – No breach of duty of care NEGLIGENCE – Causation – Factual causation – Whether client would have accepted offer even if given proper advice – Competing expert opinions – Where accepted offer was slightly above mid-range of potential outcomes – Where client in precarious financial position – Where clear willingness to settle – Where risk of future disclosure of information adverse to claim – Causation not established

Catchwords:

WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court of Appeal

Catchwords:

APPEAL – application for leave to appeal – where final orders entered by consent – applicant claiming not to have understood effect of orders for medical reasons – whether orders liable to be set aside on that basis

Catchwords:

APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no important issue of principle – no question of general public importance

Catchwords:

PROCEDURE – interlocutory appeal from decision striking out paragraphs of defence – decision based on whether defendant was a “public or other authority” for purpose of Part 5 of Civil Liability Act 2002 (NSW) – appropriateness of determining question on strike out application or by way of separate question – directions made for formulation and determination of separate question

Catchwords:

APPEALS — leave to appeal — summary judgment where amendment to defence refused — opportunity to advance further evidence in support of amended defence — limited grant of appeal

Catchwords:

CIVIL PROCEDURE — pleadings — implied abandonment — certain pleadings not expressly raised during trial — supporting evidence admitted — forensic decision by respondent to leave evidence unopposed — pleading unaddressed by primary judge — self-represented litigant — whether pleadings abandoned or merely overlooked in course of proceedings — remedy sought on appeal EQUITY — equitable remedies — equitable compensation — availability — misappropriation of company funds by director — moneys applied for personal uses — recovery of moneys by company EQUITY — fiduciary duties — breach — rule in Barnes v Addy — whether evidence of breach by primary wrongdoer established

Catchwords:

APPEALS – Orders on appeal – Remittal – Whether more appropriate for Court to finally resolve part of the dispute – Where neither party sought remitter – Where Court has all the evidence and submissions – Where Court in best position to understand own judgment – Order for remittal set aside CONTRACTS – Remedies – Specific performance – Whether to exercise discretion to decline specific performance – Imbalance of rights and entitlements of parties – Impairment of development application – Lapse of time – Difficulty of framing orders for specific performance – Likelihood that ongoing supervision necessary – Land of no greater importance to appellant than its value – Availability of alternative remedies – Specific performance declined – Lord Cairns’ Act damages awarded in substitution for specific performance – Resolution of competing valuations COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offer of compromise made during hearing – Where appellant only liable for costs if successful solely on basis of offer – Offer not the basis of appellant’s success – No reason for costs not to follow event COSTS – Party/Party – Exceptions to general rule that costs follow the event – Whether error found by Court of Appeal was attributable to successful appellant not raising point at trial – Where appellant has always advanced case in appropriate terms – No reason for costs not to follow event

Catchwords:

COSTS – where Class 4 proceedings in Land and Environment Court dismissed by consent – where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs – where notwithstanding consent orders applicant clearly successful party – whether manifest error in failing to order respondents pay applicant’s costs of proceedings

Catchwords:

CIVIL PROCEDURE – leave to appeal – where proceeding referred to arbitration and balance stayed – whether arbitration agreement applied to referred proceeding – whether error in ordering stay – leave to appeal refused

Catchwords:

COSTS – gross sum costs order – where submissions and evidence in support of application for gross sum costs order served prior to the hearing of the applicants’ application for judicial review against the possibility that the application for judicial review was unsuccessful – where application for judicial review dismissed with costs – where Court made directions on delivery of judgment for applicants to provide submissions in response – whether application for a gross sum costs order was an application to set aside or vary the original costs order – whether application governed by UCPR r 36.16(3) or 36.16(3A) – where applicant for the gross sum costs order did not file a notice of motion seeking the order within 14 days of the costs order being entered – whether any requirement to do so should be dispensed with

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether parties acted reasonably TORTS — Trespass to land — Continuing trespass — Where subterranean encroachment upon plaintiffs’ land from defendants’ land — Where defendants were not in possession when the encroachment was constructed — Whether defendants liable for trespass committed by predecessor in title — Whether encroaching material affixed to defendants’ land