Recent decisions for Court of Appeal

Catchwords:

CIVIL PROCEDURE – time – extension of time – costs assessment – statutory appeal to District Court from determination of review panel – application for leave to appeal was filed 30 days late – whether primary judge erred in law in declining to grant an extension of time   COSTS – party/party – appeals – appeal from costs assessment – nature of appeal from review panel to District Court – Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1)   JUDICIAL REVIEW – review of dismissal of appeal to District Court – grounds of review – whether errors of law on the face of the record limited to non-jurisdictional errors of law   STATUTORY INTERPRETATION – amendment and repeal – changes to provisions governing appeals from costs assessments – relevance of other legislative provisions – applicability of decisions considering earlier statutory regimes

Catchwords:

COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles   ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15

Catchwords:

LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants

Catchwords:

NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous

Catchwords:

APPEALS – leave to appeal – Local Court judgment in small amount – parties’ costs exceeded amount in issue – successful appeal would lead to retrial – no case of sufficient injustice to warrant grant of leave

Catchwords:

TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – estimates provisions – where Notice of Estimate issued – where company did not pay the amount of the Notice of Estimate – where Director Penalty Notices issued – where appellants placed company into liquidation – whether Director Penalties were remitted pursuant to s 269-30(1) of Schedule 1 to the Taxation Administration Act 1953 – whether trial judge erred in finding that s 269-30(2) Item 2 of Schedule 1 to the Taxation Administration Act 1953 applied in respect of the Director Penalties   TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – averments under s 255-50 of Schedule 1 to the Taxation Administration Act 1953 – where averments made as to unpaid PAYG amounts withheld – whether averments themselves sufficient evidence that the company had withheld PAYG amounts and not paid those amounts to the Commissioner

Catchwords:

PROCEDURE – bias – application for disqualification for apprehended bias – where judge formerly retained by a particular law firm on behalf of a particular client – where client and law firm alleged to be involved in procurement of vexatious proceedings order – where no basis for allegation made out – consideration of principles concerning apparent bias in circumstances where judge formerly acted for a particular client or was retained by a particular law firm.   PROCEDURE – Vexatious Proceedings Act 2008 (NSW) – whether leave required prior to commencement of proceedings for judicial review – consequence of failing to obtain leave.   VEXATIOUS PROCEEDINGS – party subject to earlier vexatious proceedings order commencing judicial review proceedings in Court of Appeal – where leave to bring proceedings had not first been obtained – consequences of failure to obtain leave – proceedings taken to have been dismissed.

Catchwords:

BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)   BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid   BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4)   STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)

Catchwords:

TORTS – intentional torts – false imprisonment and wrongful arrest – where no decision to charge made at time of arrest – whether arrest lawful – purpose of arrest – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99   STATUTORY INTERPRETATION – contextual construction – relevance of pre-existing common law to construction of statutory scheme – principle of legality – use of legislative history and extrinsic materials   WORDS AND PHRASES – “arrest” – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

Catchwords:

LIMITATION OF ACTIONS – discoverability – personal injury – knowledge of seriousness that warrants bringing a cause of action – when plaintiff “ought to know” fact that injury was sufficiently serious to justify the bringing of an action on the cause of action

Catchwords:

ADMINISTRATIVE LAW – bias rule – actual or apprehended – apprehended – where apprehended bias alleged on basis of interest incompatible with role – whether primary judge erroneously considered notion of degree of closure of mind   ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – whether NCAT constructively failed to exercise jurisdiction

Catchwords:

CONTRACTS — Construction — Interpretation –whether proper construction required that when a liability was incurred under the clause it was incurred collectively by all three promisees regardless of the promisees’ contribution to that liability – whether proper construction of the phrase ‘collectively and individually, as the case may be’ was akin to joint and several liability – where value of the liability was contingent on calculating the commissions earned by each promisee individually - where the promisees’ dealings resulted in an unequal contribution to the total size of the liability incurred   CONTRACTS — Construction — Interpretation – whether promise by seller to indemnify the buyer against liabilities incurred by the company prior to completion was also a promise to the company – where liability potentially incurred prior to completion but not acquitted in final settlement calculations   CONTRACTS — Construction — Interpretation – whether a contract to pay commission on Net Cash generated by introduced clients created a liability upon entry into the contract – where at the time of entry no clients had been introduced – where numerous contingencies must eventuate for a liability to crystallise   CONTRACTS — Construction — Interpretation – whether email correspondence amounted to a Notice of Proposed Change of Control pursuant to the contract – where emails not expressed to be such a notice – where context in which the emails were sent militated against the conclusion that they were contractual notices   CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company – whether failure to cause company to issue a contractual notice to defer the incurrence of a liability was a breach of duty – whether company sustained loss for the purposes of a statutory action for damages

Catchwords:

CONTRACTS – Construction – Interpretation – Principles of construction of commercial contracts.   CONTRACTS – Breach of contract – Consequences of breach – Right to termination – No specific performance.   STATUTORY INTERPRETATION – Home Building Act 1989 (NSW) – Definition of “residential building work” – Preliminary works.

Catchwords:

LAND LAW — Co-ownership — whether order to pay occupation rent ought to be set aside – where the trustee was not the registered proprietor at the time the demand for occupation rent was made – effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner – order not set aside

Catchwords:

APPEAL – application for leave to appeal – proposed appeal from order dismissing summons for judicial review – decision of the Legal Services Commissioner not to conduct an internal review of a decision of the Law Society to close a complaint against a solicitor –power to conduct a review at the “absolute discretion” of the Commissioner – no arguable error identified in primary judge’s decision to dismiss the summons

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Procedure — Notice to produce — Application to restrain further notices to produce   CIVIL PROCEDURE — Court of Appeal — Procedure — Application to remove a party from proceedings

Catchwords:

ADMINISTRATIVE LAW – judicial review – whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar – whether Delegate’s decision contained jurisdictional error – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations – whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion.   WORKERS COMPENSATION – Workers Compensation Guidelines – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment – whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion.

Catchwords:

CORPORATIONS – winding up – leave to appeal from decision setting aside a statutory demand – Corporations Act 2001 (Cth) s 459G – where offsetting claim to retention monies founded on contractor’s acceptance of owner’s repudiation of construction contract – whether affidavit “supported” the s 459G application – whether necessary for supporting affidavit to contain the legal basis of the claim – challenge to primary judge’s factual finding that affidavit supported the s459G application – whether injustice demonstrated

Catchwords:

ADOPTION – “Aboriginal child” - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW) - sufficient to show child was descended from people who lived in Australia before British colonisation - Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved   APPEAL - leave - procedural fairness - applicant alleged submissions supplied after hearing not considered by primary judge - significance of failure to apply to primary judge and delay - whether proper outcome could be reached without a rehearing - leave refused

Catchwords:

CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – interlocutory order made to facilitate settlement at proposed mediation – registration of group members – group members who did not register barred from receiving any settlement amount – order that group members barred from bringing subsequent proceedings against defendant – power to make order   CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – registration of group members – group members who did not register barred from receiving any settlement and from bringing subsequent proceedings against defendant – whether discretion to make order miscarried

Catchwords:

ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses.   CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement. CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses.   CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration.

Catchwords:

TORTS – Professional negligence – valuers – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant. LIMITATION OF ACTIONS – Professional negligence – valuer – valuation obtained for mortgage security purposes – whether lender sustained loss or damage for the purpose of its claims against the valuer by the time of entering into contract for sale of mortgaged property or only when it became reasonably ascertainable that shortfall on loan secured by mortgage could not be recovered from borrower.   MORTGAGES AND SECURITIES – Mortgages – valuation of property for mortgage valuation purposes – when causes of action in negligence and for damages for misleading or deceptive conduct arose against the valuer – whether or not any cause of action accrued prior to it becoming reasonably ascertainable that mortgagee would not be able to recover from mortgagor borrower under personal covenant.   VALUERS – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant.

Catchwords:

ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 for an inquiry into the applicant’s convictions and sentences for child sexual offences – decision to refuse to consider or otherwise deal with the application – applicant seeking to contradict conclusions reached in exercising that power – whether decision entailed vitiating error

Catchwords:

APPEAL – application for leave to appeal – proposed appeal from appeal on question of law under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – where appeal grounds without merit – where arguable errors by Tribunal not relied on in proposed grounds of appeal – where those errors not raised before Tribunal or likely to have been material to outcome – leave refused

Catchwords:

EVIDENCE - expert evidence - trial judge rejected expert report as beyond witness’ expertise and not disclosing reasoning process - Evidence Act 1995 (NSW), s 79 - no error established   NEGLIGENCE - personal injury - plaintiff’s horse fell while warming up before competing in equestrian events – plaintiff’s horse “spooked” by noise made by children near warm-up area - whether plaintiff participating in dangerous recreational activity - whether plaintiff’s harm resulted from materialisation of obvious risk - appropriate level of generality or particularity of “obvious risk of harm” and “dangerous recreational activity” - Civil Liability Act 2002 (NSW), ss 5F, 5K and 5L considered - whether plaintiff had established a reasonable person in defendant’s position would have taken precaution of stationing marshals in warm-up area - significance of risk warning signed by plaintiff as a precaution - Civil Liability Act s 5B(1)(c) considered - appeal dismissed

Catchwords:

CRIME – proceeds of crime – whether primary judge erred in declining to make exclusion order in respect of appellants’ interests in bank accounts in their names – whether appellants acquired an “interest” in “property” each time a deposit was made into their bank accounts within the meaning of Proceeds of Crime Act 2002 (Cth) – whether appellants were a “third party” under Proceeds of Crime Act, s 330(4)(a) – whether appellants acquired their interests in the bank accounts for sufficient consideration – whether circumstances would have aroused a reasonable suspicion that appellants’ interests in the bank accounts were proceeds of an offence

Catchwords:

DEFAMATION – publication – republication – nature of liability for republication – whether plaintiff’s claim against newspaper publisher in respect of radio broadcasts characterised as direct publication or republication as damages claim - ESTOPPEL – abuse of process – unsuccessful s 7A Supreme Court trial in respect of newspaper article – pleadings alleged defendant “caused to be published” three radio broadcasts referring to article – whether an abuse of process for plaintiff to commence separate defamation proceedings in the District Court in respect of radio broadcasts – whether plaintiff seeking in District Court proceedings to re-litigate issue lost in unsuccessful s 7A proceedings – whether plaintiff should have sued owners of radio stations in Supreme Court proceedings – whether success in District Court proceedings would lead to conflicting judgments - PROCEDURE – judgments and orders – effect of judgments – consent judgment entered in favour of defendant in earlier proceedings – defendants in later proceedings not parties to or privies in respect of earlier proceedings – whether consent judgment operates as Anshun estoppel to bar later proceedings - PROCEDURE – abuse of process – whether proceedings abuse of process by application of principles for efficient disposition of litigation in Civil Procedure Act 2005 (NSW), ss 56 – 59 and Defamation Act 1974 (NSW), s 3(d) - PROCEDURE – abuse of process – whether proceedings oppressive where statutory right to seek contribution potentially prejudiced

Catchwords:

Defamation — qualified privilege — Reply alleging improper motive — content of such Reply — particulars to be supplied — relevance of falsity of defendant’s evidence in s7A hearing.

Catchwords:

Jurisdiction to hear appeal from the District Court

Catchwords:

PRACTICE AND PROCEDURE – appeal – application for leave to appeal – interlocutory orders – parens patriae jurisdiction – repeated applications by parent – conditions of listing of further applications in Equity Division – further listing refused – interlocutory relief sought in nature of final relief

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part   CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered   CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73

Catchwords:

CRIME – proceeds of crime – whether primary judge erred in declining to make forfeiture orders in respect of respondent’s interests in bank accounts in his name – whether respondent’s interests in the bank accounts were “proceeds” of an offence within the meaning of Proceeds of Crime Act 2002 (Cth) – whether respondent bore the onus of proving that Proceeds of Crime Act, s 49(4) was satisfied – whether primary judge erred in finding that it was not in the public interest to make forfeiture orders

Catchwords:

PRACTICE AND PROCEDURE – stay of judgment pending appeal – capacity of appellant to pay debt –net worth in illiquid form – liquidation of personal assets during COVID-19 pandemic – short delay pending hearing of appeal – creditor a US citizen – stay of buy-out orders – conditions of stay

Catchwords:

JUDICIAL REVIEW – application for judicial review of District Court decision resentencing applicant on an appeal from the Local Court – whether unreasonable for District Court to have taken into account specific deterrence – Minister for Immigration and Citizenship v Li – whether District Court failed to consider alternatives to custodial sentence and whether sentence of imprisonment should be served by way of an ICO

Catchwords:

APPEAL – grounds – order of consideration – bias – effect on trial – need to address first   BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment   REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4)   REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3)   COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5)   PRACTICE AND PROCEDURE – open justice – holding “informal directions hearings” in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried

Catchwords:

DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters in closing address warranted discharge of jury   DEFAMATION – damages – aggravated damages – whether appellable error in failing to order aggravated damages – relevance of plaintiff’s failure to adduce evidence of hurt from newspapers’ publication of jury’s verdict – relevance of identification of award of damages awarded in respect of each of three defendants’ publications   DEFAMATION – statutory qualified privilege – reasonableness – whether publisher’s conduct was reasonable – whether determined by judge or jury – meaning of “general law” – whether Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 clearly wrong – whether reasonableness as element of Lange qualified privilege determined by judge or jury – Defamation Act 2005 (NSW), ss 22, 30 considered

Catchwords:

PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment

Catchwords:

CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar’s decision   CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A   CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11   CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency

Catchwords:

ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review.

Catchwords:

APPEAL – application for leave to appeal – appeal from summary dismissal of amended claim – where original claim alleging republications subject to defences of absolute privilege – where amended claim alleging only original publication time barred – whether summary dismissal on the basis of amended pleading involved error or was procedurally unfair – leave refused

Catchwords:

APPEALS – notice of motion seeking to reverse result of application for leave to appeal – impermissible attempt to re-argue application

Catchwords:

APPEAL – application for leave – challenge to decision to refuse summary dismissal of proceedings – no appellable error in decision – leave refused

Catchwords:

BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice

Catchwords:

COSTS – appeals – costs of proceedings at first instance – where judgment overturned on appeal – whether successful appellant’s conduct as defendant invited litigation so as to disentitle it to costs at first instance – whether respondent had partial success as plaintiff at first instance on issue of substance – whether proceedings of “public importance” so as to warrant departure from ordinary rule that costs follow the event – no departure justified – respondent ordered to pay costs of proceedings at first instance

Catchwords:

APPEAL – requirement of leave – many proposed grounds of appeal – question whether NCAT had power to make costs order in proceedings based on federal law of general importance – although question not raised at first instance, question would arise between the same parties when costs order was sought to be enforced – no other question warranting grant of leave.

Catchwords:

COSTS — Appeals — whether Court should make order as to costs of the proceedings below where no order was made by the primary judge – where on appeal the Court was not informed of the reason for not making an order as to costs at the time of the principal judgment – cost should follow the event – no issue of principle

Catchwords:

JUDGMENTS AND ORDERS — Court of Appeal – whether order requiring vacant possession be stayed pending the resolution of appeal proceedings – COVID-19 pandemic – no issue of principle

Catchwords:

COSTS — Party/Party — Court’s discretion — primary judge’s assessment of a party’s commercial interests — whether primary judge erred in determining a party achieved a substantial victory.

Catchwords:

APPEAL - further evidence - special grounds - whether further evidence relevant to appeal confined to question of law - whether further evidence not obtainable with reasonable diligence - Supreme Court Act 1970 (NSW), s 75A(8)   WORKERS COMPENSATION - appeal from Workers Compensation Commission constituted by President - appeal confined to question of law - whether President erred in disregarding evidence of psychiatrist - distinction between identifying meaning of expert report and evaluating evidence - whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment - definition of injury in (former) s 4(b)(ii) of Workers Compensation Act 1987 (NSW), considered

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more   DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence   DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry   DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material   DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report   DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter

Catchwords:

STATUTORY INTERPRETATION – whether reference to “compensation” in s 134AB(1) of the Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether or not awarded under the Act or the Act of some other state or territory – expressio unius reasoning inappropriate where dealing with interpretation of a “patchwork” statute.   WORKERS COMPENSATION – whether worker who was injured in Victoria but was not entitled to compensation under Victorian workers compensation legislation was nevertheless required to pass through statutory gateways under Victorian legislation when seeking common law damages – where worker had received compensation under NSW workers compensation scheme – whether reference to “compensation” in s 134AB(1) of Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether awarded under that Act or the Act of some other state or territory.

Catchwords:

WORKERS COMPENSATION ­– determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352   WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4 and 9A

Catchwords:

APPEAL – Leave to appeal – winding up order – no substantial injustice.   CORPORATIONS – Winding up on just and equitable ground – where directors planned to place company into liquidation in any event.

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 131.1(1) of the Criminal Code Act 1995 (Cth) – whether fit and proper person – appropriateness of making of declarations as to fitness and propriety – order removing name from roll

Catchwords:

DEFAMATION – defences – offer to make amends – concerns notice – whether statement of claim a concerns notice – offer to be made within 28 days of receiving concerns notice – no valid offer where made after 28 days – Defamation Act 2005 (NSW), s 14(1)   DEFAMATION – defences – offer to make amends – whether made as soon as reasonably practicable after defendant aware that matter might be defamatory –offer made one year after action commenced – Defamation Act 2005 (NSW), s 18(1)   JUDGMENT – findings at trial that elements of claims made out – defence relied on by trial judge not available – other pleaded defences not pursued – defendant forwent opportunity to appear at trial – plaintiff entitled to judgment on liability   PRACTICE AND PROCEDURE – procedural fairness – bias – actual or apprehended – other proceedings affected – other parties not heard – whether allegations should be resolved

Catchwords:

ADMINISTRATIVE LAW – denial of procedural fairness – whether common law right to procedural fairness excluded by statute – Environmental Planning and Assessment Act 1979 (NSW) Sch 5 – legislative intent plain   ENVIRONMENT AND PLANNING – statutory interpretation – whether carving into cement render of wall constitutes “development” – Environmental Planning and Assessment Act 1979 (NSW) s 4.2 – whether development consent obtained

Catchwords:

JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds   COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1987 (NSW), s 30   COSTS – appeal to District Court – indemnity costs ordered – incorrect law relied on by successful party – correct law resulted in same substantive order – costs of successful party   WORDS AND PHRASES – “proceeding” – “proceedings to which the costs relate commenced” – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59

Catchwords:

DEFAMATION – appeals – publication – Facebook – where defamatory posts made on public Facebook page styled “Narri Leaks” – evidence of publication – whether evidence outside particularised case – proof of extent of publication – whether respondent’s wife was acting on behalf of respondent in downloading the posts – whether answers to interrogatories evidence of proof of extent of publication – whether appropriate to draw Jones v Dunkel inference where defendant did not give evidence   DEFAMATION – appeals – imputations – whether error in finding three imputations were conveyed by fifth matter complained of   DEFAMATION – appeals – defences – common law qualified privilege – where posts made on public Facebook page – whether excessive publication – where posts downloaded by people outside Narrabri Shire – whether privileged occasion – whether error in rejecting defence of common law qualified privilege   DEFAMATION – appeals – defences – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – where finding that publication was unreasonable – whether presumption of honesty – significance of failure to contact plaintiff prior to publication   DEFAMATION – application for leave to appeal – publication – secondary participant in publication –whether endorsement of defamatory statements – Facebook comments – whether question of principle or of public importance involved – where small amount in issue – whether injustice if refusal of leave

Catchwords:

JUDGMENTS AND ORDERS — application to vary orders – directions given – no issue of principle

Catchwords:

APPEAL – Leave to appeal – whether matter at issue amounting to or of the value or involving $100,000 or more – need for party seeking to appeal to demonstrate that jurisdictional threshold satisfied   CONSTITUTIONAL LAW – whether Part 3A of Civil and Administrative Tribunal Act 2013 (NSW) unconstitutional – whether, notwithstanding Part 3A, NCAT invested with federal jurisdiction – whether Part 3A entails discrimination contrary to s 117 of the Commonwealth Constitution   COURTS AND TRIBUNALS – whether Local Court of New South Wales has jurisdiction to entertain a diversity suit involving publication on the internet of matters alleged to contravene s 49ZS of the Anti-Discrimination Act 1977 (NSW)   DISCRIMINATION LAW – whether complaint by a resident of New South Wales against a resident of Queensland referred by President of Anti-Discrimination Board to NCAT could be heard by Local Court of New South Wales

Catchwords:

CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity   EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant's debt to respondent – no error in conclusion by primary judge that impeachment not made out

Catchwords:

LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted   LAND LAW — Co-ownership — Statutory trust for sale – whether share of property held on trust for other co-owner – whether arguable defence to an application under s 66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether award empowers employer to dismiss firefighters during an intrastate multiday deployment – whether firefighters entitled to overtime payment for entirety of intrastate multiday deployments

Catchwords:

COSTS – discretion as to variation of costs order – Calderbank letter

Catchwords:

TORTS – general principles – vicarious liability – workplace – liability of builder for negligent acts of supervisor on building site – supervisor employed by independent contractor – supervisor under builder’s control – whether employer of supervisor vicariously liable for negligence of supervisor   TORTS – negligence – apportionment of responsibility between tortfeasors – both parties occupied parts of building site – liability of head contractor – liability of subcontractor undertaking building work – heavy metal plate covering penetration into underground retention pit removed – replacement with empty pallet – delivery driver injured by fall into pit   TORTS – negligence – contributory negligence – injury to driver of truck – delivery of supplies to building site before dawn – driver clearing site of empty pallet – concealed penetration into underground retention pit – Civil Liability Act 2002 (NSW), s 5R   TORTS – negligence – employer – duty of corporate alter ego of sole employee to provide safe system of work – business involved delivery of supplies to building sites – assessment of risks at sites not controlled by employer – Civil Liability Act 2002 (NSW), s 5B

Catchwords:

COSTS – appeals – offers of compromise – where respondent (plaintiff) achieved a result on appeal no less favourable than his rejected offer of compromise – where application of UCPR r 42.14 as modified by r 51.48(1) engaged – where appellant’s rejection of offer unreasonable – where respondent’s “favourable” judgment, measured by reference to that offer, also represented a successful outcome to appellant (defendant) in the appeal – discretion to “order otherwise” in relation to costs of appeal, both before and after making of offer

Catchwords:

PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – concession that order for security should be made – determination of appropriate quantum of security

Catchwords:

APPEAL – civil – notice of appeal – extension of time to apply for leave to appeal – where notice of appeal filed almost two years after the material date – where government respondent consented to late filing – relevance of model litigant policy   VALUATION – compulsory acquisition of land – assessment of compensation – market value – role of “judicial valuer” – valuation of non-marketable parcel – assessment of value before and after acquisition – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)   VALUATION – compulsory acquisition of land – assessment of compensation – disturbance – where acquired land included resource – assessment of value where resource only had value because of the carrying out of the public purpose for which the land was acquired – whether claimed disturbance related to “actual use” of acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d) and 59(f)

Catchwords:

COMMISSIONS OF INQUIRY – inquiry established under Casino Control Act 1992 (NSW) – whether conferral of powers and authorities of a commissioner under the Royal Commissions Act 1923 (NSW) included power to compel testimony or production of documents irrespective of claim of legal professional privilege – meaning of s 143A of Casino Control Act – whether a witness summoned by or appearing before the person presiding at an inquiry entitled to claim legal professional privilege.   PRIVILEGE – legal professional privilege – whether s 143A of Casino Control Act operated to abrogate legal professional privilege – whether s 143A of Casino Control Act conferred power to compel production of documents irrespective of legal professional privilege.   STATUTORY INTERPRETATION – whether s 17(1) of the Royal Commissions Act conferred a power or authority on a commissioner – whether s 143A of the Casino Control Act picked up s 17(1) of the Royal Commissions Act and abrogated legal professional privilege – principle of legality – legislation to be construed in context of case law existing at time of enactment – meaning of “protection” afforded to a witness in s 11(3) of Royal Commissions Act – permissible use of extrinsic materials.

Catchwords:

TORTS – negligence – motor vehicle accidents – recovery proceeding by workers compensation nominal insurer – worker drove into stationary oversize truck while latter stopped at intersection – trailer protruded from right turning lane into worker’s through lane – whether truck driver breached duty by failing to advance into intersection beyond unbroken stop-line – whether truck driver breached duty by failing to activate hazard lights – whether failure to activate hazard lights caused collision – appeal allowed and judgment entered for truck driver

Catchwords:

TORTS – Negligence – apprentice worker required to insert sausage mince into a machine and link sausages - failure properly to clean the meat room floor by another employee – apprentice worker slips on a piece of sausage mince - Contributory negligence - failure of the apprentice worker to clean the meat room floor   TORTS – Negligence – Apportionment of responsibility and damages - apprentice worker employed by a third party – liability of employer for non-delegable duty of care - apportionment pursuant to s 151Z Workers Compensation Act 1987 (NSW)   INSURANCE – Exclusion clause – Shopping Malls Combined Liability Policy - exclusion of liability for injury to a person under a contract for the provision of labour only services to the insured - whether injured apprentice worker employed by a third party a person under a contract for the provision of labour only services to the insured

Catchwords:

COSTS – party/party – general rule that costs follow the event – appeal upheld in part – whether issues severable – partly successful appellant to pay bulk of respondent’s costs   COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – whether failure to accept offers unreasonable – offers not specifying costs consequences of non-acceptance – offers to discontinue appeal if entitlement to trial costs foregone   COSTS – party/party – exceptions to general rule that costs follow the event – recovery limited to $20,000 –total amount payable to multiple defendants exceeded $500,000 – Uniform Civil Procedure Rules 2005 (NSW), r 42.34 not engaged

Catchwords:

APPEAL — whether primary judge failed to properly consider all objective evidence   EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Obligation to return monies when purpose for which trust was set up has failed

Catchwords:

APPEALS – leave to appeal under Supreme Court Act 1970 (NSW) s 101(2)(r) - appeal against primary judge’s refusal to grant leave to appeal against decision of NSW Civil and Administrative Tribunal – primary judge refused leave for failure to identify questions of law on appeal as required by Civil and Administrative Tribunal Act 2013 (NSW) s 83(1) – no error in primary judge’s reasons for refusing leave – application for leave to appeal dismissed

Catchwords:

POLICE – Search warrant – police officers completed terms of draft warrant and particulars relied upon by issuing officer before application was made – issuing officer signed and dated warrant and issued it in terms sought – issuing officer failed to complete certain parts of warrant – one aspect of warrant supported only by unsubstantiated statement of reasonable suspicion by police – whether issuing officer complied with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether warrant invalid – whether other relief should issue

Catchwords:

JUDGMENTS AND ORDERS – question of discretionary relief remitted by Court of Appeal to single Judge of Appeal – whether open to appellants to contend that respondents should not be permitted to vary interlocutory regime so as to grant access for purpose of being heard as to discretionary relief – effect of orders and reasons of Court of Appeal   POLICE – search warrant – computer seized by police pursuant to warrant – interlocutory injunctive relief granted preventing police from accessing computer – warrant later held to be invalid – owner sought return of computer and delivery up or destruction of image of its hard drive – whether representatives of police should be permitted to access computer for purpose of adducing evidence going on discretion

Catchwords:

CRIME – offences against police in execution of duty – whether police in execution of duty when alleged offences committed – accused arrested without warrant – whether arrest lawful – whether there was evidence on which the court could find, as required by s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), that the arresting officer was “satisfied” that arrest without warrant was “reasonably necessary” for a reason stated in that section – meaning of “reasonably necessary” – need for police officer to engage in a process of comparison and to make an evaluative judgment regarding proportionate response to risk.   ADMINISTRATIVE LAW – judicial review of decision of the District Court dismissing appeal from the Local Court against conviction – review not available unless jurisdictional error established – where function of the District Court was to conduct appeal by way of rehearing “on the basis of” the evidence in the Local Court – where the District Court made a central finding of fact for which there was no basis in the Local Court evidence – whether error of law – whether jurisdictional error.   ADMINISTRATIVE LAW – judicial review of decision of the District Court refusing to submit a question for determination by the Court of Criminal Appeal – whether refusal on erroneous basis that the question was obviously baseless was constructive refusal to exercise jurisdiction – whether jurisdictional error.

Catchwords:

EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights CONTRACTS – Remedies – Penalty – Doctrine extends beyond payment of a stipulated sum of money to deprivation of contractual rights – Application to deprivation of the benefit of restraint clause and warranties CONTRACTS – Construction – Interpretation – Dependent and independent obligations – Whether ‘clear words’ are required to find a relation of independency between obligations

Catchwords:

TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 – Obligation to remit amounts withheld from wages and salaries paid to employee – Requirements of director penalty notice – Where amount claimed by Commissioner changed after giving director penalty notice – No requirement to give further notice before commencing recovery proceedings - No requirement to commence proceedings within a reasonable time after expiry of notice   TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 s 269-20 –Defence of justifiable non-participation in management under (CTH) Taxation Administration Act 1953 s 269-35 – What constitutes participation in management for the purposes of the defence – The defence must be established for the entire period from the “due day” until at least the expiry of the director penalty notice

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether leave to appeal be granted where applicant denied an adjournment before the primary judge leading to the matter proceeding to determination in the applicant’s absence – the applicant did not establish a case which goes beyond merely arguable – no issue of principle or question of public importance – leave refused

Catchwords:

DEFAMATION – defences – common law qualified privilege – whether privileged occasion correctly identified – relevance of privileged occasion – malice   DEFAMATION – remedies – damages – whether manifestly excessive   DEFAMATION – remedies – damages – aggravated damages – where conduct not improper, unjustifiable or lacking in bona fides

Catchwords:

APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults   CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead   TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault

Catchwords:

SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Costs orders – Costs orders for proceedings in the exercise of protective jurisdiction – Whether the appellant’s costs should be paid on the ordinary basis or the indemnity basis.

Catchwords:

APPEAL – application for stay – doubts about financial position of both appellant and respondent – stay ordered subject to payment of judgment sum into court within 14 days

Catchwords:

WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) – construction of s 38A – where appellant a worker with highest needs –whether arbitrator made finding that appellant able to return to pre-injury employment – whether appellant entitled to compensation under s 38A

Catchwords:

TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate   TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A   TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions   TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff

Catchwords:

WORKERS COMPENSATION – s 151Z Workers Compensation Act 1987- recovery action – whether occupier liable to indemnify employer for workers compensation payments as tortfeasor who, if sued by the worker for negligence, would have been liable to pay damages to the worker   TORTS — negligence — Civil Liability Act 2002 –foreseeability of risk – whether occupier had actual knowledge of a risk when risk was earlier reported to person whose employment was taken over by occupier – knowledge of the employee imputed to the occupier   TORTS — negligence — Civil Liability Act 2002 –whether obviousness of the risk ought to have led to conclusion risk was insignificant – risk not obvious – risk not insignificant   TORTS — negligence — whether employer breached duty of care owed to worker – employer not negligent   TORTS — negligence — contributory negligence – whether contributorily negligent in knocking a locking bar when descending a ladder that falls and injures the worker – no contributory negligence as mere accidental inadvertence

Catchwords:

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether right to suspend work validly exercised – whether unpaid interest on late payment of “scheduled amount” forms part of the scheduled amount – the definition of “scheduled amount” does not include interest payable under s 11 on the unpaid amount of a progress payment unless that amount is included in a “scheduled amount”   CONTRACT – Breach of Contract – whether ‘show cause notice’ was validly issued in circumstances where the power to issue the notice was conferred on the principal’s representative – where principal was involved in the principal’s representative’s decision to issue the notice – notice validly issued as principal’s representative gave adequate and proper consideration to issuing the notice and it would be inconsistent with the principal’s right to see that its representative acts properly if it could not be involved in the decision   CONTRACT – Breach of Contract – whether ‘take out notice’ was validly issued where its validity was contingent on the principal’s representative being satisfied that the default that was the subject of the ‘show cause notice’ had not been remedied or the contractor had otherwise failed to show cause – not shown that the principal’s representative failed to give adequate and proper consideration to the issues – not shown that the principal’s representative did not possess the relevant satisfaction   EVIDENCE — Privileges — Without prejudice privilege – whether information obtained during the course of ‘without prejudice’ meetings can be used for purposes other than settlement – ‘without prejudice’ privilege is not based upon an implied agreement that if the negotiations do not result in an agreement for settlement of the dispute, the parties will make no use of what has been disclosed by the other party in the negotiations

Catchwords:

BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed

Catchwords:

CONTRACT - real estate agent buyers agreement - entitlement to commission - agreement between property developer and real estate agent - agent to acquire options over seven contiguous parcels of land - options acquired over some of land - options never exercised by developer - agent rendered invoices for commission as options acquired - some invoices paid - whether agent entitled to commission for obtaining options which were never exercised   MISLEADING AND DECEPTIVE CONDUCT - agent made demands for commission - whether demands misleading or deceptive contrary to s 18 Australian Consumer Law - whether demands were expressions of opinion of agent's legal entitlement

Catchwords:

ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW)   STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act

Catchwords:

APPEALS – application for leave to appeal against refusal of leave for tutor to conduct proceedings without engaging a solicitor – UCPR r 7.14(2)

Catchwords:

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal – application refused – no issue of principle

Catchwords:

APPEALS - time for commencing appeal - orders made dismissing applicants’ claims - costs orders made months later - whether time for appeal only ran from costs orders - whether applicants should have an extension of time - whether applicants had sufficiently explained delay - extension of time for appeal refused   JUDICIAL REVIEW – applicants’ land claimed to be affected by Minister’s plan made under Water Management Act 2000 (NSW) - applicants brought judicial review proceedings challenging numerous decisions including making of the Minister’s plan - proceedings dismissed as not brought within 3 months as required by s 47 - application to reopen after judgment reserved refused - all bases of judicial review rejected - whether primary judge erred in finding proceedings statute-barred - whether Minister entitled to make decisions to make a plan at “high level” - whether Minister had duty to classify water sources of the State - whether first applicant should have been issued with a licence expressed in terms of unregulated water - whether error in refusing application to adduce further evidence - extension of time for appeal refused

Catchwords:

COURTS - jurisdiction - proceedings between former de facto partners in Supreme Court concerning ownership of property – primary claim in equity – alternative claim under Family Law Act 1975 (Cth) – primary judge upholds claims in equity and makes contingent findings under Family Law Act – defendant files appeal confined to challenging orders based in equity – plaintiff/respondent files notice of contention based on Family Law Act contingent findings – whether appeal lay to Court of Appeal – whether even if appeal required to be instituted in Court of Appeal, notice of contention required its transfer to Family Court – prohibition on instituting and determining certain appeals in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 construed and applied – appeal transferred to Family Court

Catchwords:

SUCCESSION – family provision – competing interests of disabled adult son and elderly widow – whether provision ordered in favour of son manifestly excessive – whether “adequate weight” given to widow’s claim to continue to reside in former matrimonial home – appeal dismissed

Catchwords:

APPEAL – application for expedition and stay – no issue of principle

Catchwords:

APPEAL – whether power of attorney from party confers right to appear on behalf of the party – Notice of Motion dismissed

Catchwords:

ASSOCIATIONS AND CLUBS – particular bodies – racing clubs – power of Stewards to use information – where information obtained in exercise of a power under rules of racing – where exercise of power expressed to be for a specific stated purpose – whether use of information limited to that purpose

Catchwords:

APPEAL – application for leave to appeal from summary dismissal of proceedings – proceedings dismissed because rights to sue vested in applicants’ trustees in bankruptcy, and because of earlier litigation – no basis for grant of leave – in any event, any appeal would lie to Federal Court by reason of s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Catchwords:

APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs   CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d)

Catchwords:

APPEAL – extensions of time to file Notices of Appeal refused – no arguable basis for appeals from judgments awarding damages for defamation and finding contempt for breach of injunction against further publication – whether sealed copy of orders required to be served for purposes of contempt proceedings

Catchwords:

CIVIL PROCEDURE – leave to appeal – summary dismissal of proceedings in Division – proposed amended statement of claim not referred to by primary judge in reasons – primary claim dismissed as legally misconceived – whether alleged factual errors in primary judgment material – whether procedural unfairness

Catchwords:

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient   APPEALS – appeal from refusal to make an interim extension order under the Mental Health (Forensic Provisions) Act 1990 (NSW) – source of right to appeal – whether subject to leave – limited grant of leave STATUTORY INTERPRETATION – principle of legality – fundamental rights and freedoms – intention to confer power to infringe liberty – application to extension orders under the Mental Health (Forensic Provisions) Act 1990   STATUTORY INTERPRETATION – use of defined term – whether used as label – whether context and subject matter show intention that definition not apply – application of Interpretation Act 1987 (NSW), s 6   WORDS & PHRASES – “may” – power conferred on Supreme Court to make interim extension order with respect to forensic patient – whether coupled with duty to make order where pre-conditions satisfied – Mental Health (Forensic Provisions) Act 1990, Sch 1, cl 10

Catchwords:

APPEAL – application for leave to appeal from a refusal of leave to appeal from a discretionary decision of the Local Court – no issue of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of “misconduct” – Whether particular transfer a “non-disciplinary transfer” – Meaning of “non-disciplinary transfer”.

Catchwords:

SUCCESSION — Family provision — Appeals — appeal from orders made in chambers approving s 95 Succession Act releases — whether primary judge failed to consider each of the matters listed in s 95(4) Succession Act — appeal dismissed — application for leave to amend grounds of appeal denied — cross-appeal — change of position/ estoppel defence to restitution of moneys paid pursuant to impugned orders

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay pending appeal – no issue of principle – where limited evidence – conditional stay granted

Catchwords:

CONSUMER LAW – misleading or deceptive conduct – where parties engaged in joint venture – where subsequently parties entered deed of settlement to resolve disputes – where one party misunderstood financial position of an entity being acquired under deed – where that party did not make inquiries to verify position – where other party participated in causing the misunderstanding, was aware of it and failed to correct it – whether conduct misleading or deceptive   TAXES AND DUTIES – GST – input tax credits – entitlement to refunds

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – whether valid application under s 459G of Corporations Act 2001 (Cth) – whether affidavit supported the application on ground of an offsetting demand – challenge to primary judge’s factual finding that affidavit did not answer that description – no injustice demonstrated   CORPORATIONS – winding up – whether valid application under s 459G of Corporations Act 2001 (Cth) – where period for compliance with statutory demand has expired – where no extension of period for compliance sought or obtained – no utility in attempting to have statutory demand set aside

Catchwords:

TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief   TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss

Catchwords:

TORTS — negligence — liability — prison authority — where respondent victim of prison assault causing serious injury — where prison authority informed of threat — whether failure to segregate and arrange for transfer breach of duty of care — consideration of powers to order segregated custody under the Crimes (Administration of Sentences) Act 1999 (NSW)

Catchwords:

INSURANCE — Claims — Property Damage – Limitation period – whether claim statute barred – interpretation of insurance policy – time at which insured’s cause of action for damages for breach of contract under an indemnity policy of property insurance arose – whether cause of action for damages arose at the time of the property damage – existence of an implied term requiring performance within a reasonable time

Catchwords:

LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.

Catchwords:

WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity - The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury.   ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.

Catchwords:

CONTEMPT – appellants found guilty of contempt for threatening second respondent with religious sanctions for failing to submit to jurisdiction of a religious court in respect of an alleged commercial dispute – whether primary judge’s findings of contempt were those that were charged – whether primary judge erred in finding appellants placed improper pressure on second respondent to desist from asserting the alleged commercial dispute be resolved in a civil court, which had a real tendency to interfere with the administration of justice generally   SENTENCING – criminal contempt – penalties – fine – whether penalties imposed were manifestly excessive   COSTS – party/party – bases of quantification – indemnity basis – whether primary judge erred in finding appellants should pay part of respondents’ costs on an indemnity basis

Catchwords:

FAMILY LAW — children — adoption — application for leave to appeal against adoption order — where order opposed by biological father — whether evidence established that children capable of consenting to adoption — whether consent were given in accordance with mandatory requirements — whether proposed adoptive parents suitable — where children already cared for by proposed adoptive parents — whether adoption in children’s best interest and clearly preferable to any other course

Catchwords:

COSTS – party/party – appeals – court’s discretion – where appellant filed a submitting appearance and did not cause or contribute to the first respondent’s costs in the proceedings below – where appellant did not cause the errors the subject of the proceedings below – where the proceedings below could not be resolved by consent – whether failure by primary judge to take into account considerations relevant to the costs discretion – order as to costs set aside   COSTS – appeals – Suitors’ Fund – whether decision of claims assessor under the Motor Accidents Compensation Act 1999 (NSW) is a decision of a “court or tribunal” for the purposes of the Suitors’ Fund Act 1951 (NSW) – whether judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) constitutes “an appeal” for the purposes of s 6 of the Suitors’ Fund Act

Catchwords:

LANDLORD AND TENANT – renewals and options – exercise of option – commercial premises – whether email exchange constituted exercise of option – relevance of subsequent conduct – whether absence of further guarantee required by lease precluded enforceable agreement

Catchwords:

CONTRACTS – construction – whether parties to a Deed of Cross Guarantee guaranteed the obligations of all entities named in the Schedule to the Deed

Catchwords:

TORTS – malicious prosecution – appellant convicted of murder – conviction subsequently quashed by Court of Criminal Appeal – appellant brought proceedings against respondent for malicious prosecution – whether primary judge erred in failing to find that the Crown Prosecutor acted with malice in prosecuting appellant – appellant did not contend any error in application of principle – whether cumulative errors established malice – whether error in approach by primary judge – whether error in demeanour-based credit findings – whether prosecutor’s explanations for his conduct were so untenable that they must be rejected – whether malice established

Catchwords:

EQUITY – fraud - respondent’s wife defrauded employer of over $3.5 million and deposited into bank accounts in her name and accounts held jointly by herself and respondent - respondent’s wife paid money realised from gambling into respondent’s bank accounts - appellant sought various orders in aid of the recovery of the amount defrauded – primary judge dismissed all claims except one against respondent – whether primary judge erred in finding that respondent did not knowingly deal with monies obtained by dishonest means and is not personally liable to appellant – whether primary judge erred in failing to find that the respondent knowingly dealt with monies obtained by dishonest means when withdrew $20,000 after receiving summons and is personally liable to appellant for this amount – whether primary judge erred in failing to find that respondent personally liable to account to the appellant as a constructive trustee.

Catchwords:

NEGLIGENCE – personal injury – plaintiff slipped and fell on building site – plaintiff sued occupier of site and employer – plaintiff claimed he fell while descending partially built staircase from which not all formwork had been removed – trial judge not persuaded that plaintiff's case made out – whether appellable error by primary judge in assessment of evidence – multitude of grounds advanced, all rejected – appeal dismissed

Catchwords:

PERSONAL PROPERTY – gifts – conditional gifts – payments by mother to her daughter and son-in-law towards purchase of house by them to be occupied also by her – intention of mother – whether absolute and unqualified gift – whether gift conditional on her having right of occupation amounting to interest in the property

Catchwords:

ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – where conviction and sentence set aside and permanent stay of criminal proceedings ordered – whether District Court misapprehended nature and scope of power to prevent abuse of process – whether District Court misconstrued double jeopardy provision in Crimes (Administration of Sentences) Act 1999 (NSW), s 63 – whether jurisdictional error established

Catchwords:

JUDGMENTS AND ORDERS — interest — award of on judgment — where appeal successful — whether post-judgment interest should run from date of first instance orders or orders allowing appeal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – termination – common law – summary dismissal – whether justified because of lack of candour of employed solicitor in dealing with legal precedents of the firm – no question of principle   CONTRACTS – remedies – damages – wrongful termination of contract of employment – assessment of damages – whether and when partners would otherwise have resolved to terminate and whether would have resolved to make payment in lieu of notice – whether opportunity to seek employment whilst serving out notice period lost and compensable as a valuable opportunity

Catchwords:

ADMINISTRATIVE LAW – refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court   ADMINISTRATIVE LAW – judicial review – grounds of review – where decision is substantially similar to a party’s submissions – whether judge failed to consider submissions – whether judge formed the relevant opinion – whether reasons were inadequate – whether justice seen to be done

Catchwords:

LEASES AND TENANCIES – eviction by landlord – suspension of obligation to pay rent – characteristics of eviction – whether common law rule displaced by lease contract – whether covenants other than for rent suspended during eviction LEASES AND TENANCIES – construction of lease contract – where contract imposed obligations to obtain, maintain, comply with and provide the landlord copies of consents or approvals necessary or appropriate for mining business – time for compliance with obligations – no question of principle LEASES AND TENANCIES – termination of lease by landlord – termination notices – s 129 Conveyancing Act – whether notices required to specify reasonable time in which to remedy breach

Catchwords:

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient   PROCEDURE – interim extension order – whether risk of futility in appeal if not extended

Catchwords:

CIVIL PROCEDURE – appeal – judgment of District Court – amount in issue – leave to appeal required – expiry of period within which to seek leave to appeal – extension of time – non-appearance by appellant – notice under Uniform Civil Procedure Rules 2005 (NSW), r 13.6 – appeal incompetent – summary dismissal

Catchwords:

NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes - whether case warranted greater than usual discount for vicissitudes of 15 per cent   EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence

Catchwords:

SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect

Catchwords:

CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations.   CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator

Catchwords:

CORPORATIONS – unregistered managed investment scheme – winding up – application for directions as to distribution of funds deposited by particular categories of investors   PROCEDURE – appeal – civil – application for leave to commence proceedings against companies in liquidation – application for appointment of representative parties – directions as to payments of costs out of common fund

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made   COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order

Catchwords:

SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate   LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death   LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice

Catchwords:

HIGH RISK OFFENDER – appeal from making of continuing detention order – whether conviction for manslaughter on the basis of excessive self-defence was a “serious violence offence” – whether error in not specifying commencement date for continuing detention order – alleged errors in criminal record – alleged errors in submissions to primary judge and summaries provided to experts – whether error in assessing risk – appeal dismissed

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier.   LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – no arguable grounds identified – application dismissed

Catchwords:

APPEAL – application for leave to appeal – no arguable grounds of appeal – no issue of principle

Catchwords:

MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient   PROCEDURE – civil – appeal pending – interim orders – order required to preserve subject-matter of appeal

Catchwords:

CIVIL PROCEDURE – judicial review – vacation of hearing date – amendment of summons in course of hearing – no basis to delay hearing – summons sought to be amended to add challenge to refusal to state a case to Court of Criminal Appeal – no evidence of application nor of a material question of law

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.

Catchwords:

CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination   LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D   WORDS AND PHRASES – “discoverable” – “knows” – “fact”

Catchwords:

PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment

Catchwords:

APPEALS – stay of proceedings – stay pending application for special leave to appeal to High Court – no prospects of success – stay refused

Catchwords:

JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application   PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available   PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7

Catchwords:

APPEAL – stay of execution of judgment pending determination of appeal – appeal arguable – whether risk that if no stay is granted and appeal succeeds, appellant will be unable to recover from respondent – whether risk that if stay is granted respondent will later be unable to enforce judgment – stay granted

Catchwords:

CONTRACTS – construction – scope and nature of commitment – defendant agreed to supply security services to plaintiff for the purpose of enabling the plaintiff to carry out head contract – whether defendant promised to provide plaintiff with the opportunity to do certain other work for it

Catchwords:

APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence   UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered

Catchwords:

COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted

Catchwords:

TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion   TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court

Catchwords:

CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied

Catchwords:

CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 18 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given “post credits only” status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order

Catchwords:

CIVIL PROCEDURE – representation – unrepresented litigant – referral to a barrister or solicitor on the Pro Bono Panel under r 7.36 of UCPR – no issue of principle

Catchwords:

TORTS – false imprisonment – wrongful arrest – assault and battery – arrest pursuant to a warrant – whether primary judge erred in preferring the evidence of police officers to the evidence of the plaintiff – whether primary judge erred in finding that the plaintiff was lawfully arrested whether primary judge required to consider all submissions made during hearing – whether police required to consider alternatives to arrest – whether police required to give reasons for arrest – whether primary judge erred in failing to award exemplary damages – false imprisonment found to be unintentional

Catchwords:

PROCEDURE – judgments and orders – application for stay of orders pending appeal – no matter of principle

Catchwords:

JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose

Catchwords:

CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge’s discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial

Catchwords:

DAMAGES – non-economic loss – eye injury resulting from hit by tennis ball – whether primary judge erred in assessment of non-economic loss   DAMAGES – future economic loss – impairment of earning capacity – extent of evidence required in case of adolescent – State of New South Wales v Moss (2000) 54 NSWLR 536 considered   APPEALS – nature of appellate review of an assessment of severity of non-economic loss under s 16 of the Civil Liability Act 2002 (NSW)

Catchwords:

CONTRACTS – termination – whether building contract validly terminated – whether in the circumstances, 10 business days notice giving opportunity to remedy default needed to be given prior to termination – alternative bases for termination – Shepherd v Felt & Textiles of Australia Ltd

Catchwords:

APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias   SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims

Catchwords:

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim parental responsibility order to the Minister – application to return child to parent’s care   CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where imminent proceedings in specialist Court – where no seriously arguable error – leave refused

Catchwords:

APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused

Catchwords:

REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016

Catchwords:

APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused

Catchwords:

DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence

Catchwords:

SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW)

Catchwords:

APPEAL AND REVIEW – application for leave to appeal – amount in issue below threshold – whether alleged error more than merely arguable – whether issue of principle or public importance – likely disproportion between the costs of an appeal and amount in issue   GUARANTEE AND INDEMNITY — novation of uncompleted contract for sale of part of land when whole land sold to third party – third party required to indemnify vendor for claims arising “as a result” of the first contract – legal costs incurred by vendor because of his failure to execute deed of novation – whether indemnity covered vendor’s legal costs

Catchwords:

INSURANCE – double insurance – contribution between insurers – “other insurance” clauses – one policy contained an “excess” clause and the other an “escape” clause – whether there was double insurance on proper construction of policies – whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applied

Catchwords:

COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be “just and reasonable” – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be “just”   PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness   JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between “fair and reasonable” and “just and reasonable” – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised

Catchwords:

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle

Catchwords:

CONTRACTS – performance – discharge by performance – valid termination of cleaning services contract – express term prohibiting use of unauthorised subcontracted labour – where unauthorised subcontractors undertook 90 per cent of cleaning services – whether cleaning obligation could be performed vicariously – consideration of personal contracts – no claim for quantum meruit

Catchwords:

TORTS – Whether the Club breached the duty of care it owed to the Worker as an employee of the Club – Whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins.   APPEALS – whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence.

Catchwords:

APPEALS – leave to appeal – respondent sought recovery of unpaid rent for area of seabed over which the applicant’s houseboat is moored – no question of principle raised – application for leave dismissed

Catchwords:

COSTS – Calderbank letter – variation to costs order

Catchwords:

CIVIL PROCEDURE – leave to appeal – from interlocutory orders – where primary judgment did not involve any question of principle – where primary judge had discretion as to costs

Catchwords:

APPEAL – procedural fairness – absence of reasons to support critical finding of fact – absence of reasons to support rejection of account of critical issue by witnesses on both sides of the record – no basis in the evidence to support the finding in fact made or the critical issue – need for a retrial

Catchwords:

CIVIL PROCEDURE – hearings – procedural fairness – primary judge denied applicants procedural fairness by precluding them from making submissions on identified topics – application for leave to appeal dismissed

Catchwords:

PROCEDURE – motion seeking dismissal of appeal for want of due despatch or because no reasonable cause of action shown or because the appeal is an abuse of the process of the Court – no matter of principle

Catchwords:

CIVIL PROCEDURE – subpoenas – application to set aside – where subpoena sought documents demonstrating respondent’s place of practice – whether subpoena lacks legitimate forensic purpose

Catchwords:

PROCEDURE – Client sought leave to file an amended summons by way of appeal from decisions of the Costs Review Panel – Matter struck out or dismissed by primary judge – Primary judge refused to exercise discretion to set aside orders made by the Costs Appeal Panel   JUDICIAL REVIEW – Whether primary judge’s refusal to exercise discretion to grant leave to file the amended appeal summons constitutes jurisdictional error

Catchwords:

CIVIL PROCEDURE – application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel – no issue of principle

Catchwords:

CIVIL PROCEDURE – registrars – review of registrar’s decision – court of appeal – no issue of principle

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay pending appeal – payment of judgment sum below into Court

Catchwords:

CIVIL PROCEDURE – application for pro bono assistance – where pro bono assistance granted in immediately preceding three years

Catchwords:

APPEAL – claim in promissory estoppel based on representations said to derive from two documents – whether primary judge erred in holding that one of the documents was not authentic – no error – no issue of principle   CIVIL PROCEDURE – video link evidence – whether primary judge erred in refusing to permit video link evidence

Catchwords:

COSTS – security for costs – where security order already made – where increase ordered three years after original order – where personal undertaking made to pay costs

Catchwords:

CIVIL PROCEDURE – whether corporation can appear by director – whether special circumstances shown – whether Court should dispense with UCPR r 7.1

Catchwords:

CIVIL PROCEDURE – stay of proceedings – pending appeal – no issue of principle

Catchwords:

LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation   APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS   APPEALS – General principles – Admission of fresh evidence

Catchwords:

APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW) – whether order an interim order   TORTS – tort of collateral abuse of process – distinguished from abuse of process justifying a stay of proceedings – elements of the tort

Catchwords:

TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform   DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Catchwords:

LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle

Catchwords:

CIVIL PROCEDURE – representative proceedings – multiplicity of proceedings – competing proceedings brought in single forum by various plaintiffs against the same defendant – where the plaintiffs sought permanent stays of one another’s proceedings – where stay granted against all but the last-commenced proceeding – whether bringing subsequent proceedings constitutes an abuse of process

Catchwords:

COSTS – Calderbank offer – offer made jointly to both respondents – whether unsuccessful respondent alone could have accepted offer – whether it would have been in a better position if it had accepted offer than it achieved on appeal