Recent decisions for Court of Appeal

Catchwords:

APPEAL – application for leave refused – costs ordered – application to vary order – offer of compromise – indemnity costs sought COSTS – indemnity costs – offer of compromise – whether offer open for reasonable period – whether offer involved compromise – default entitlement – power to order otherwise – onus on applicant to establish reasons for different costs order – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A

Catchwords:

JUDGMENTS AND ORDERS – second application to set aside previous judgment of Court refusing leave to appeal – as with first application, no basis for reopening established

Catchwords:

APPEALS – appellate review of factual findings – appellate review of credit findings – interaction between contemporaneous documents and witness testimony – whether an adverse credit finding on one aspect of a witness’ evidence requires that his or her evidence should be rejected on all issues CORPORATIONS – directors’ duties – whether two directors breached their duties in relation to the sale of shares in a subsidiary of the company of which they were directors – whether transfer of shares in subsidiary company in 2012 transferred the beneficial ownership of those shares in all the circumstances of the case – whether shares transferred for nil consideration – whether sale of shares in subsidiary company in 2013 was at a gross undervalue CORPORATIONS – minutes of board meetings – disputed version of minutes – competing versions of minutes does not mean that one version is necessarily false – when party alleging false minutes did not challenge director who signed minutes with that allegation EQUITY – sham transfer of shares – whether beneficial interest in shares passed on registration of share transfer in circumstances where consideration for transfer of shares not paid – whether transfer of shares for nil consideration was a gift – where no intention on the part of directors to give away company property – where plausible explanation supported by context negated any suggestion that shares were intended to be given away TRUSTS – resulting trusts – whether presumption of a resulting trust over property transferred for nil consideration does not apply to personalty or shares

Catchwords:

ADMINISTRATIVE LAW - Health Care Complaints Commission - decision not to take further steps to progress complaint against psychiatrist - decision reviewed and confirmed by Commission - primary judge dismissed summons seeking judicial review - whether judicial review available - whether any judicially reviewable error disclosed by decisions - leave refused

Catchwords:

COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer”

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of professional disciplinary authority – decision to discontinue inquiry into complaint – refusal of internal review of initial decision – review sought by complainant – availability of orders in nature of certiorari APPEAL – application for leave to appeal from judgment in supervisory jurisdiction – review of decision of Legal Services Commissioner discontinuing inquiries into aspects of complaint – complaint as to disciplinary matter – whether complainant had any right or interest affected by decision PROCEDURE – judicial review – role of decision-maker as contradictor in challenge to decision – exception to principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 – whether contravention would be appealable error

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:

APPEALS – leave to appeal – where primary judge refused leave to appeal to raise argument not dealt with by magistrate – whether argument made to magistrate – no error of primary judge in concluding not made

Catchwords:

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW), s 62 - application for further assessment - proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment - further medical opinions covering similar ground to opinions previously considered - further medical opinions accepted to be additional relevant information - whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect - need for identification of jurisdictional error or error of law on face of record - primary judge erred in finding reviewable error - appeal allowed and decision of proper officer restored

Catchwords:

CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead

Catchwords:

DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff’s imputations – whether harm done by substantially true plaintiff’s imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b)

Catchwords:

APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused

Catchwords:

APPEAL – application for leave – challenge to interlocutory ruling on access to documents – misconceived allegation of bias – unsubstantiated allegations of perjury by solicitor – delay in giving judgment – no demonstration of prejudice – no arguable ground of error identified CIVIL PROCEDURE – production of documents – documents in custody of the court – application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13 – files sought to support application under Vexatious Proceedings Act 2008 (NSW) – access to documents produced – parties to proceedings the subject of the filed notified – objection to access – grounds of objection

Catchwords:

CONSTITUTIONAL LAW — Judicial power — Whether decision of the NSW Civil and Administrative Tribunal as to its jurisdiction was an exercise of the judicial power of the Commonwealth – Nature of the anterior jurisdiction of the Tribunal to consider its authority to decide CONSTITUTIONAL LAW — Judicial power — Whether the Tribunal has power to order costs consequential on a dismissal or transfer of proceedings for want of Federal jurisdiction – Whether power to make such an order outside of the State’s legislative competence to confer on the Tribunal– Whether making such an order would occasion the Tribunal impermissibly exercising the judicial power of the Commonwealth

Catchwords:

CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where property transferred sold by transferee – where part of proceeds of sale used to pay legal costs of transferee subject to undertaking to repay if appeal allowed – consequential orders and declarations COSTS – orders when proceedings involve multiple parties – where no relief sought against one defendant – where that defendant joined in defence with other defendant – whether to order plaintiff’s costs be paid by those defendants jointly COSTS – offers of compromise/Calderbank offers – whether time allowed for consideration of offer reasonable

Catchwords:

JUDGMENTS AND ORDERS – variation of reasons – change in circumstances – where appellant died after delivery of reasons but before making of final orders – where proposed relief based on appellant’s expected remaining lifetime – whether to reopen appeal – whether to vary proposed relief on account of appellant’s death ESTOPPEL – proprietary estoppel – where appeal against successful proprietary estoppel claim dismissed – where defendant now deceased – consequential orders COSTS – gross sum costs order – Civil Procedure Act 2005 (NSW), s 98(4) – order agreed

Catchwords:

EVIDENCE – standard of proof – balance of probabilities – where appellant alleged signature on transfer form was forged – whether necessary to establish “clear and cogent proof” of the fraud – application of Briginshaw v Briginshaw – Evidence Act 1995 (NSW), s 140 APPEAL – new point or issue raised on appeal not taken at trial – where neither party called attesting witness of transfer form – where allegation transferor’s signature forged – where appellant sought a Jones v Dunkel inference on appeal that the missing witness’ evidence would not have assisted the respondent – whether evidence could have been given which possibly could have answered the new point

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – limited vexatious proceedings order in relation to applicant – primary judge extended vexatious proceedings order – Vexatious Proceedings Act ss 8, 9 – application for leave to appeal filed late – no sensible argument advanced nor any explanation for lateness

Catchwords:

CIVIL PROCEDURE — hearings — adjournment – application to vacate hearing of an appeal listed for three days – where appellants’ Senior Counsel travelled to United Kingdom in November 2020 and unlikely to return to Australia given the Covid-19 pandemic – assessment of the interests of justice where competing claims of prejudice – application refused

Catchwords:

APPEAL – application for leave to appeal – orders – where grant of application for leave to appeal conditioned on applicant agreeing not to press for an order setting aside the quashing of the conviction of the respondent – where resulting orders of Court of Appeal set aside an order allowing an appeal against conviction but also set aside an order dismissing charges under s 530(1) of the Crimes Act 1900 (NSW) and remit the matter to the Local Court for determination in accordance with law in circumstances where no express finding had been made in relation to the mental element of the charges preferred. COSTS – where mixed outcome of proceedings in Court of Appeal – costs in the discretion of the Court – no order as to costs.

Catchwords:

LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud

Catchwords:

NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act

Catchwords:

APPEALS – application for leave to appeal – no issue of principle, question of public importance or a reasonably clear injustice MENTAL HEALTH – appeals – appeal from dismissal of application to lift Community Treatment Order while plaintiff prepares for hearing challenging order – application dismissed PROCEDURE – litigants in person – unrepresented litigants – importance of adhering to length, content and form requirements for written submissions – no special rules or treatment for litigants in person

Catchwords:

EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive

Catchwords:

CONTRACTS – real estate agent agreement – non-exclusive agents – entitlement to commission – buyer introduced by first agent who then left for holidays when prospect of a sale appeared lost – buyer contacted second agent to look for other properties – sale then revived and completed – whether the first agent was the, or an, effective cause of the sale of the property – mere introduction of the buyer to the property is insufficient – appeal dismissed

Catchwords:

CIVIL PROCEDURE – stay of proceedings – matter of practice and procedure – whether stay should be granted of Tribunal damages hearing

Catchwords:

STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012

Catchwords:

TORTS – negligence – general principles – Civil Liability Act 2002 (NSW) – personal injury – operating a catching pen gate at a greyhound race – whether “recreational activity” – whether par (c) of the definition of “recreational activity” in Civil Liability Act, s 5K imposes an “artificial meaning” to the word “recreational” – potential anomalous consequence of literal construction – whether activity dangerous – obvious risk – whether respondent in breach of duty to appellant – whether respondent ought to have taken precautions against risk of harm – causation – contributory negligence STATUTORY INTERPRETATION – departure from literal meaning – whether additional words can be read into statute to avoid potential unintended consequences – whether ordinary meaning of defined terms can be used in construction of the statutory definition of the term – unreasonable consequences – activities caught under the definition of “recreational activity” asserted to have an unacceptable reach

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:

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:

DEFAMATION – defamatory matter – where news report on termination of General Manager of Council – where report referred to allegations of bullying and intimidation – whether imputation conveyed that General Manager bullied and intimidated staff DEFAMATION – defences – statutory qualified privilege – reasonableness – relevance of propositions stated in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374

Catchwords:

ENVIRONMENT AND PLANNING – development approval – variation of plans – formalities for approval of changes – whether requirement for written application – recording approval of certifying authority – notification of consent authority – effect of breach of regulations ENVIRONMENT AND PLANNING – enforcement proceedings – construction certificate – variation of development – whether construction certificate modified – whether work undertaken before approval by certifying authority – failure to notify consent authority – whether development unlawful

Catchwords:

ANIMALS - Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) - defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence - consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act - statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals”

Catchwords:

PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents

Catchwords:

PROCEEDS OF CRIME – Freezing orders – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining order – whether frozen property was acquired in circumstances that would not arouse a reasonable suspicion that property was proceeds of an offence – whether exclusion order should have been made in relation to the property – where applicant had provided sufficient consideration and did not have actual knowledge that the property constituted proceeds of an offence – significance of failure to cross-examine – whether inferences sought to be drawn available in the absence of cross-examination.

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed

Catchwords:

ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff

Catchwords:

APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests

Catchwords:

ADMINISTRATIVE LAW – writ of habeas corpus – to whom writ should be directed – who has custody of prisoners in correctional centres – whether prosecutor entitled to appear APPEAL – appeal against refusal to issue writ of habeas corpus – grounds on which appeal available – s 71 Supreme Court Act 1970 considered JUDGMENTS AND ORDERS – sentence of imprisonment – whether warrant for commitment required in addition to court order – s 62 Crimes (Sentencing Procedure) Act 1999 considered JUDGMENTS AND ORDERS – sentence of imprisonment – judicial review sought – release on bail – stay of execution of order – ss 69A-D Supreme Court Act 1970 considered

Catchwords:

APPEAL – practice and procedure – issue of subpoenas – application to review decision of single judge – no issue of principle

Catchwords:

CRIMINAL LAW – extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether appellant was a “convicted NSW terrorism activity offender” – whether primary judge applied heightened standard of satisfaction imposed by Act – whether appellant had made statement advocating support for any terrorist act or violent extremism – deeming provision extended statements advocating support to “using or displaying images or symbols” associated with organisation that supports terrorist acts or violent extremism – whether images or symbols excluded alpha-numeric images or symbols – whether appellant’s posting on Facebook concerning new nasheed from Islamic State’s Ajnad Media engaged deeming provision – whether deeming provision should be read down on basis of constitutionally implied limitation on legislative power to restrict political communication – appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – power of Tribunal to order that a complaint be heard on the papers – where National Law required notice of time and place of inquiry to be given – where National Law entitled practitioner to attend the inquiry – where National Law applied despite any provision in Civil and Administrative Tribunal Act ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – where Tribunal did not afford practitioner procedural fairness – where Tribunal erred in relation to its consideration of certain complaints – where Tribunal failed to give adequate reasons for its conclusions concerning certain complaints

Catchwords:

TORTS – general principles – Civil Liability Act 2002 (NSW) – personal injury – “spear tackle” or “dangerous throw” during a rugby league match – whether “intent to cause injury” – presumption that a wrongdoer intends the natural and probable consequences of his or her conduct. WORDS AND PHRASES – meaning of “intent to cause injury” – Civil Liability Act 2002 (NSW), s 3B(1) – actual, subjective, intention NEGLIGENCE – defences – Civil Liability Act 2002 (NSW) – s 5L materialisation of an obvious risk of a dangerous recreational activity – whether intentional act – whether effected with intent cause injury – recreational activity where an intention to cause some degree of injury is likely or common.

Catchwords:

APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed

Catchwords:

SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action

Catchwords:

APPEALS – leave to appeal – whether leave required – monetary threshold of $100,000 under s 101(2)(r) Supreme Court Act – amount in issue $99,999 – strictly no right of appeal – closeness of sum in issue to the threshold relevant to discretion to grant leave CONTRACTS – remedies – damages – sub-contractor breached contract with builder by supplying and installing materials unfit for purpose – builder paid in full by proprietors and no prospect of it rectifying work – builder not exposed to risk of liability to proprietors – builder did not prove that it suffered loss

Catchwords:

APPEALS - appeal from orders imposed by NCAT cancelling solicitor’s practising certificate and preventing issue of a new certificate for 12 months - Law Society appealed seeking order removing solicitor’s name from roll - nature of appeal - whether necessary to show House v The King error LEGAL PRACTITIONERS - solicitors - appropriate orders following findings by NCAT of professional misconduct and unsatisfactory professional conduct - whether solicitor’s name should be removed from the roll - distinction between suspension of practising certificate, cancellation of practising certificate and removal from roll - significance of recommendations as opposed to conditions - whether NCAT failed to specify appropriate conditions to be satisfied before any new practising certificate issued

Catchwords:

APPEALS — Leave to appeal — parens patriae jurisdiction — where Secretary of the Department of Communities and Justice had assumed care responsibility for applicant’s child — care proceedings part-heard in the Children’s Court —finding by primary judge that the applicant had not established exceptional circumstances to justify interfering with orders made by Children’s Court — whether applicant established any issue of principle, question of general public importance or injustice such as to warrant a grant of leave to appeal

Catchwords:

PROCEEDS OF CRIME – award of costs – whether “all costs” should be awarded to the appellants who succeeded in securing an order that certain property be excluded from a freezing order

Catchwords:

CONTRACTS — Construction — Interpretation – whether contract for sale of a vessel with an annexed marina berthing agreement form a single agreement – whether special condition to contract for sale imposes an obligation to rent a marina berth for a fixed term – whether special condition is inconsistent with an implied right to terminate on notice arising from the standard terms of the annexed marina berthing agreement – primacy between inconsistent terms

Catchwords:

CONTRACTS – construction – whether mistake in written agreement can be rectified by construction – inconsistency concerning right to terminate on face of document – primacy given to handwritten amendments COSTS – appeal books – unnecessary reproduction of thousands of pages already reproduced in appeal books – whether special order as to costs warranted DEEDS – delivery – whether deed restating terms of joint venture delivered to other side in escrow – whether terms of document precluded finding of delivery in escrow – whether deed even if not delivered effective as simple contract ELECTION AND WAIVER – where one party continued to perform work and incur expenses pursuant to joint venture after a contractual right of termination had accrued – absence of any reservation of rights – significance of “no waiver” clause EQUITY – ancillary liability – liability for procuring or inducing breach of trust or breach of fiduciary duty – whether requirement that third party be “dishonest” – whether separate bases of liability for procuring as opposed to inducing breach – whether director of company acting as such capable of procuring or inducing breach of trust by director's company EQUITY – rectification – whether contract should be rectified in equity if mistake incapable of being corrected by construction EQUITY – unconscionability – statutory unconscionability – joint venture to develop land for resale – offer made to one party to sell part of joint venture land at profit – offer communicated to other party with invitation to share profit – other party sought to persevere with joint venture – first party purported to terminate and sell land – finding that first party believed entitled to terminate – in fact first party not entitled to terminate – first party’s conduct not unconscionable contrary to s 21 of Australian Consumer Law

Catchwords:

JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Catchwords:

CIVIL PROCEDURE – undefended judgment – setting aside – where applicant did not appear at hearing of proceedings – whether primary judge erred in describing principles for setting aside an undefended judgment under r 36.16(2)(b) of Uniform Civil Procedure Rules – where applicant sought to rely on Vacuum Oil Pty Co Ltd v Stockdale – whether Vacuum Oil applied to application to set aside undefended judgment under UCPR – whether in 1942 principles for setting aside an undefended judgment different at common law and in equity – whether, with introduction of Supreme Court Act in 1972, a single set of rules applied at common law and in equity – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether primary judge mischaracterised the nature and strength of applicant’s proposed defence – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether prejudice caused to the respondent in setting aside orders – whether prejudice can be remedied by costs order – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether adequate explanation offered for applicant’s non-appearance at hearing and delay – no House v The King error shown

Catchwords:

COSTS – partial success of appellants on appeal – determination of costs of appeal and re-exercise of discretion as to costs at trial – second appellant not originally joined to proceedings at trial – first appellant played no role in proceedings after hearing of principal appeal – successful point not raised until first day of trial – whether global order as to costs, or orders relating to particular aspects of the litigation, should be made

Catchwords:

CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed

Catchwords:

APPEAL – application for leave to appeal – no issue of principle or question of public importance identified

Catchwords:

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

Catchwords:

PRACTICE AND PROCEDURE – application for adjournment – no persuasive reason or basis to adjourn – application dismissed.

Catchwords:

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted

Catchwords:

APPEALS – reopening application by non-party – stay of orders pending determination of reopening application – extension of stay granted by court making orders – admissibility of further evidence PRACTICE AND PROCEDURE – stay – joinder of affected party – whether opportunity to be heard – whether arguable case to adduce further evidence – balance of convenience

Catchwords:

CIVIL PROCEDURE – stay of proceedings – applicant a medical practitioner facing disciplinary proceedings in Tribunal and pending criminal proceedings – both proceedings to deal with the same alleged misconduct – application of Zhao (2015) 255 CLR 46 – applicant would suffer prejudice if disciplinary proceedings not stayed until criminal proceedings resolved – applicant’s registration as a medical practitioner suspended – delay in resolving disciplinary proceedings a relevant but not critical factor

Catchwords:

APPEALS — application for leave to appeal —interlocutory orders – issue of principle identified – application of rr 6.24, 6.29 UCPR – joinder and removal of parties – leave to appeal granted in respect of joinder of the State and removal of named defendants CIVIL PROCEDURE — Parties — Joinder of defendant — whether necessary party – application by State of New South Wales to be joined as party to action in which the State admitted vicarious liability in relation to torts pleaded against defendants – no conclusion that State ought to have been joined by plaintiff as a party – held, not necessary for resolution of all matters for State to be joined CIVIL PROCEDURE — Parties — Removal of parties – where primary judge ordered removal of two named defendants under r 6.29 UCPR after joinder of State – held, joinder of State did not mean that named defendants ceased to be necessary or proper parties CIVIL PROCEDURE — Jury — Availability of jury trial — Interests of justice – where plaintiff alleged apprehended bias on the part of judicial officers – where first defendant is “well known in legal circles” and second defendant is “high profile” – held, no reasonable apprehension of bias – application for leave to appeal refused

Catchwords:

COSTS – whether costs of an application for leave to appeal in relation to a question of discovery should be ordered to be paid forthwith – where application for leave to appeal unsuccessful – whether an “order otherwise” under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 was necessary and, if so, criteria by reference to which it may be made.

Catchwords:

APPEALS – appeal from final judgment – review of interlocutory judgments – interlocutory judgments refusing amendments to pleadings CIVIL PROCEDURE – pleadings – requirement for particularity – conclusory statements in pleadings alleging collusion, fraud and gross negligence by mortgagee in exercise of power of sale MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – challenge to sale process – claim that sale at undervalue – whether advertisements misleading MORTGAGES AND SECURITIES – mortgages – power of sale – property with development consent – whether purchaser entitled to development plans

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3) to vary appeal judgment to include pre-judgment interest – where interest not sought prior to application – whether to backdate judgment to date of decision under appeal

Catchwords:

CIVIL PROCEDURE – application to reopen judgment dismissing appeal – where application relies in part on “further” evidence not led at trial or on appeal – no issue of principle COSTS – ordinary or indemnity – offer of compromise – result less favourable to offeree – whether rejection of offer unreasonable – no issue of principle

Catchwords:

ADMINISTRATIVE LAW – Jurisdiction – Civil and Administrative Tribunal – whether the Tribunal has jurisdiction to review an occupation certificate whilst exercising its jurisdiction under the Home Building Act 1989 (NSW) – whether review of the occupation certificate collateral to the proceedings – capacity of the Tribunal to engage in collateral review of administrative action – where statutory scheme provides Land and Environment Court jurisdiction to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – where running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act invalid

Catchwords:

APPEALS – security for costs – appellants resident outside Australia – appellants without assets in Australia – merits of appeal balanced – order would not stifle appeal – costs not disproportionate to amount in dispute – relationship of UCPR r 42.21 and r 51.50(1) – effect of r 51.50(3)

Catchwords:

APPEALS — Nature of appeal — Appeal by way of rehearing — sentence appeal pursuant to ss 11 and 17 of the Crimes (Appeal and Review) Act 2001 — de novo hearing — requirement that judge engage in fresh sentencing task — where judge adopted lower court’s reasoning – whether judge failed to engage in task imposed by s 17 — whether constructive failure to exercise jurisdiction SENTENCING — Penalties — Intensive correction orders — where sentencing assessment reports indicated offender was a low risk of reoffending and was suitable for community service — whether community safety is a mandatory element for consideration under s 66(2) Crimes (Sentencing Procedure) Act — requirement for court to engage in assessment as to whether an ICO or full-time detention is more likely to address an offender’s risk of reoffending

Catchwords:

APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions

Catchwords:

APPEALS – application for leave to appeal – proposed appeal incompetent – appeal from refusal of earlier application for leave to appeal – appeals limited to appeals from judgments in a Division

Catchwords:

CIVIL PROCEDURE – notices to admit – where formal admission made by the transferring party that transfer made with intent to defraud – whether admission binding on other parties to proceeding against whom intent to defraud must be proved CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where partly encumbered properties transferred at undervalue – whether transferred with intent to defraud creditors – whether appellant a person prejudiced by transfers – whether transferee had notice of intent to defraud – meaning of “notice” in s 37A(3)

Catchwords:

APPEALS – procedure – stay pending appeal – argument that appeal will be stultified if enforcement of judgment permitted – stay granted on terms providing reasonable protection to respondent

Catchwords:

CONTRACTS – formation – intention to create legal relations – uncertainty and incompleteness – owners of three contiguous parcels of land dealt with development group in relation to proposed sale of land for redevelopment – where put and call option deeds entered into – where one owner entered into separate deed for the purchase back of five developed lots – where agreement reached on various matters between parties’ agents at later meeting– whether intention to create legal relations at later meeting – whether terms of agreement at meeting were void for uncertainty and incompleteness CONTRACTS – formation – whether deed which provided for purchase back of five lots abandoned by parties – whether purchaser entitled to damages for breach of deed – where primary judge left undetermined possible basis for finding damages for breach of deed – damages claim remitted for the determination

Catchwords:

PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – appeal from vexatious proceedings order – presiding judge having sat on prior appeal and leave application characterised as vexatious – reliance on transcript – other member of the earlier court dismissive of applicant’s case

Catchwords:

CIVIL PROCEDURE — Parties — Vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – s 6 – meaning of “vexatious proceedings” – s 8(1) – meaning of “frequently instituted or conducted vexatious proceedings” – assessment of frequency CIVIL PROCEDURE — Parties — Vexatious litigants – exercise of discretion – balance between access to the processes of the law and restraint of unwarranted exercise of that access CIVIL PROCEDURE — Hearings — Procedural fairness – expansion of orders as compared to those sought – making an order in terms not foreshadowed during or after the hearing – no opportunity for parties to be heard

Catchwords:

PRACTICE AND PROCEDURE – leave to appeal – failure to address defence – absence of factual findings supporting defence – whether issue of principle raised – whether defence more than merely arguable TORTS – duty to warn – immunity from liability if risk “obvious” – whether immunity limited to verbal risk warnings – application of Civil Liability Act 2002 (NSW), ss 5F, 5H

Catchwords:

CIVIL PROCEDURE — leave to appeal – where proposed appeal turns upon findings of fact – where findings based on primary judge’s assessment of credibility – no issue of principle or question of public importance – leave refused

Catchwords:

OCCUPATIONS — Legal practitioners — Misconduct and discipline — where solicitor alleged to have deliberately misled statutory authority including by fraudulently altering a document in order to obtain a grant of funding for legal representation of a client — absence of any direct evidence that solicitor altered the document — whether circumstantial evidence capable of supporting allegations

Catchwords:

INSURANCE – life and disability insurance – where claim for total and permanent disablement – where definition required insured to be totally and permanently disabled after three month absence from “Own Occupation” – whether three month period must commence on date insured left employment – whether insured can satisfy definition due to psychological condition arising after initial three month absence from engaging in occupation INSURANCE – claims – proof – where claim for total and permanent disablement – whether medical evidence establishes insured unable and unlikely ever again to be able to engage in “Own Occupation”

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court refusing leave to appeal – arguments advanced by applicant plainly groundless and either previously addressed by the Court or not advanced on the previous occasion when the opportunity to do so existed – public interest in the finality of litigation – no change in circumstances or other good reason to permit further leave application to be made

Catchwords:

CONTRACTS – construction and interpretation – where agreement as to “commercial arrangements” to apply to radiology practice conducted through corporate trustee of unit trust – where units held by doctors’ discretionary trusts – whether doctors liable to pay shortfall in event business runs at loss – whether loss had to be based on audited financial accounts – no question of principle

Catchwords:

TORT – trespass – trespass on two different sites subject to long term leases – one site comprising an undeveloped block of land on which lessee was to construct and operate a private hospital – one site comprising an established car park – inquiry as to damages – initial claim for damages for loss of opportunity to earn profits from hospital site and car park site – damages for mesne profits – user principle – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. TORT – trespass – period of trespass – manner of assessment – where order for possession made but orders stayed – whether trespass continued – whether trespass continued on refusal by High Court of application for special leave to appeal from Court of Appeal decision – whether stay order terminated on refusal of special leave application. DAMAGES – damages for trespass to land – various measures of damages – damages sought by way of mesne profits – history of mesne profits – mesne profits and the user principle – manner of assessment – assessment by reference to market rental of land trespassed upon – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. DAMAGES – taxation – grossing up for taxation of damages for mesne profits – where damages calculated were in effect compensation for a lost commercial opportunity – whether it would have been unjust not to take into account identifiable and quantifiable taxation impacts on damages, in line with fourth principle enunciated in Daniels v Anderson (1995) 37 NSWLR 438; (1995) 118 FLR 248. PROCEDURE – where orders for possession made pending further order – consequence of refusal of special leave application – whether refusal of application for special leave had the effect of lifting stay of orders made by Court of Appeal – whether stay of orders needed to be expressly lifted by Court of Appeal.

Catchwords:

COSTS – no issue of principle

Catchwords:

APPEALS – leave to appeal – summons seeking leave filed over three months earlier and no steps taken since – no identification of any ground upon which the proposed appeal might succeed – failure without adequate explanation to comply with Court’s directions – summons dismissed for want of prosecution

Catchwords:

CONTRACTS - construction - mistake - whether mistake can be corrected by construction - contract for sale of proposed lot defined by reference to sketch plan - vendor obliged to procure subdivision in accordance with sketch plan - sketch plan showed area of 2001m2 - purchaser entitled to rescind if registered plan contained area of 2100m2 or more - whether literal meaning of language created absurdity or inconsistency - whether objective intention self-evident - consideration of relationship between construction and rectification - consideration of the term “rectification”

Catchwords:

CRIME – sentence – application for inquiry under Crimes (Appeal and Review) Act 2001 (NSW),Pt 7 – application for stay of sentence – power to stay sentence – Supreme Court Act 1970 (NSW), s 23 JUDGMENTS AND ORDERS – application for judicial review – custodial sentence of full time imprisonment – challenge to lawfulness of imprisonment – applicant on bail pending determination of judicial review proceedings – fresh application for judicial review filed while on bail –whether fresh application effected statutory stay – application out of time – Supreme Court Act 1970 (NSW), s 69C(4) JUDGMENTS AND ORDERS – custodial sentence –application for special leave to appeal to High Court – application for stay – criteria for grant of special leave – whether exceptional circumstances – Judiciary Act 1903 (Cth), s 35A

Catchwords:

RESTITUTION — Quantum meruit – whether necessary to establish “objective standard” or “market rate” for value of work performed – whether invoices prepared by builder capable of being evidence of reasonable remuneration – where unreasonableness of invoices denied by builder – where appeal confined to a question of law

Catchwords:

APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs

Catchwords:

LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

Catchwords:

APPEAL – application for leave to appeal – interlocutory decision joining insurers – whether insurers’ entitlement to disclaim liability “beyond argument” – no determination of insurers’ liability – inutility of interlocutory appeal – leave refused

Catchwords:

APPEAL – burden of proof – elements of claim – evidence that floor safe when surface dry – failure of plaintiff to prove water on floor – weight of evidence did not support claim – admitted fact – inspection system adequate – no error in fact-finding TORTS – negligence – breach of duty – allegation of water on floor – management had system of inspection admitted to be adequate – no breach of duty to take reasonable care – Civil Liability Act (NSW) ss 5B, 5C TORTS – negligence – duty of care – slip and fall at shopping centre – duty of shopping centre manager – no duty to ensure floor surface dry – duty to take reasonable care to maintain dry surface – adequacy of system of inspection

Catchwords:

CORPORATIONS — voluntary administration — Legal proceedings — moratorium on legal proceedings against company under administration — administrators appointed after publication of reasons but before final orders made — section 440D Corporations Act 2001 (Cth) — whether making orders a step in proceedings requiring leave — application for leave under s 440D — whether proposed orders of successful appellant reflect reasons given for appeal

Catchwords:

WORKERS’ COMPENSATION – Construction of Workers Compensation Act 1987 (NSW) s 38A – Whether payment at special rate pursuant to s 38A payable from time of injury or from time the worker satisfies the definition of “worker with highest needs” – consideration of the defined term ‘worker with highest needs”

Catchwords:

CRIME – work health and safety – application for judicial review of verdict of acquittal – risk of death or serious injury to other persons – conduct of employee in the course of his duties – prosecution of employer – employer acquitted due to dishonesty of employee – attempt by prosecutor to review acquittal – Work Health and Safety Act 2011 (NSW), s 19(2) JUDICIAL REVIEW – supervisory jurisdiction – acquittal – principle of double jeopardy – application for judicial review in supervisory jurisdiction of the Supreme Court by prosecutor following acquittal – circumstances in which the Court’s jurisdiction to review an acquittal is engaged JUDICIAL REVIEW – supervisory jurisdiction – discretion to refuse relief – opportunity to address trial judge or to seek stated case to the Court of Criminal Appeal prior to final orders – failure to apply to judge – subsequent attempt to invoke supervisory jurisdiction

Catchwords:

APPEALS — Leave to appeal – where applicant sought judicial review of decisions that were not the operative decisions – where primary judge found no error in original decisions – whether injustice that is reasonably clear – whether issue of principle – whether question of general public importance – application for leave to appeal dismissed

Catchwords:

BUILDING AND CONSTRUCTION – limitation period – limitation period for actions arising out of defective building work more than ten years after completion of work – limitation period originally contained in s 109ZK of Environmental Planning and Assessment Act 1979 – section renumbered as s 6.20 – as originally enacted, s 109ZK applied only prospectively – defendant’s building work done before enactment of s 109ZK – whether limitation period applied to building work done before section enacted – whether s 6.20 replaced s 109ZK – whether limitation period applied to loss of the kind alleged by the plaintiff. STATUTORY CONSTRUCTION – amending legislation – limitation section renumbered and reworded – transitional and savings regulations – regulations deferred commencement and qualified scope of limitation period – effect of repeal of regulation – further regulations including amended regulations preserving repealed sections and qualifying renumbered section – whether effect of legislation and amendment was a period of time during which limitation period did not apply – whether legislation displaced operation of Interpretation Act 1987 – observations on undesirability of regulations affecting operation of statute.

Catchwords:

ADMINISTRATIVE LAW – Where application for inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 dismissed – Whether decision to dismiss application involved error – Whether failure to consider arguments made in support of application – No question of principle

Catchwords:

CONTRACTS – Construction – Interpretation – Where exclusion clause in insurance policy referred to particular legislation “and subsequent amendments” – Whether replacement legislation a “subsequent amendment” CONTRACTS – Construction – Principles – Correction of mistakes by construction – Where policy includes a reference to repealed legislation – Whether parties may be taken to have known of repeal and replacement of repealed legislation as part of surrounding circumstances – Whether reference absurd or clear mistake – Whether reference to be construed as reference to replacement legislation in light of surrounding circumstances

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Discretion – No presumption or default rule as to the basis of the award of costs STATUTORY INTERPRETATION – r 42.2 of Uniform Civil Procedure Rules 2005 (NSW) – whether s 98(1) of Civil Procedure Act 2005 (NSW) confines the judicial discretion in awarding costs – whether a judge must take as a starting point that costs are to be assessed on the ordinary basis and justify any departure from that position

Catchwords:

PROCEDURE – additional evidence on appeal – fresh and further evidence – requirement that evidence could not have been obtained with reasonable diligence at trial – application in substance refused

Catchwords:

NEGLIGENCE – duty of care to avoid economic loss – whether vulnerability required – applicants pleaded vulnerability as an essential element of duty – no obligation on primary judge to consider alternatives to that position – no relevant vulnerability due to applicants’ ability to protect themselves from consequences of liquidators’ actions CONSUMER LAW – misleading or deceptive conduct – whether reliance on accuracy of recitals to deed – clear inference from evidence that person knew of true position CONSUMER LAW – misleading or deceptive conduct – whether conduct “in trade or commerce” – court-appointed liquidators performing statutory functions – assignment of property with view to facilitating business interests of purchaser arguably had an essentially trading or commercial character CORPORATIONS – leave to commence action against court-appointed liquidators – governing principles – relevance of lengthy and inadequately explained delay

Catchwords:

APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – judicial review of appeal judgment – privative provision – need to establish jurisdictional error – procedural unfairness – refusal of adjournment application in district Court – existence of application for review of refusal of legal aid APPEAL AND REVIEW – District Court – criminal jurisdiction – appeal from Local Court – whether appeal against conviction – form of notice of appeal – Crime (Appeal and Review) Act 2001 (NSW), s 14 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – procedural unfairness – alleged incompetence of legal representative – failure to obtain psychologist’s report for application under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – pre-sentence custody – failure to take into account under Crimes (Sentencing Procedure) Act 1999 (NSW), s 24

Catchwords:

JUDICIAL REVIEW – adjournment – criminal proceedings – review of sentence appeal – applicant on bail – protracted procedural history – requirement for finality in criminal proceedings – claim to have lodged internal appeal from refusal of legal aid – bona fides of attempts to obtain legal representation – circumstances in which court may vacate hearing – Legal Aid Commission Act 1979 (NSW), s 57

Catchwords:

TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk

Catchwords:

LAND LAW – easements – imposition of easement by Court – standard of appellate review – requirement that proposed easement be “reasonably necessary for the effective use or development” of the land – Conveyancing Act 1919 (NSW), s 88K(1) LAND LAW – easements – validity – characterisation under general law – rights not to confer exclusive use of servient tenement – enclosure of community land for waste transfer and recycling facility – loss of owner’s use of enclosed land and limited use of residue – whether proposed easement capable of being characterised as an easement LAND LAW – community land – inability of Council to grant easement over community land – whether Court can impose easement where owner cannot grant it – Local Government Act 1933 (NSW), s 46 and Conveyancing Act 1919 (NSW), s 88K

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – fourth application to set aside vexatious proceedings order – application dismissed CONTEMPT – allegation of contempt of court – whether enforcement of costs order in breach of undertaking given to the Court – no leave sought to bring proceedings – Vexatious Proceedings Act 2008 (NSW) s 14 – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given

Catchwords:

APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act 2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

Catchwords:

APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act 2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

Catchwords:

POLICE – search warrant – police seized computer and made copy of hard drive – search warrant invalid – hard drive contained child abuse material – police wishing to investigate child abuse material but presently subject to interlocutory regime – whether discretionary relief for destruction of computer and copy of hard drive should issue – relief refused to owner – police released from restriction

Catchwords:

TORT – misfeasance in public office – elements – identification of public power or duty – where police officer involved in trial laughed and rolled eyes during applicant’s trial – where applicant alleges her conduct amounted to misfeasance in public office – whether a purported exercise of a public power or duty identified – whether a capacity to act as an incident of a public office an exercise of public power TORT – summary disposal – whether statement of claim and particulars disclosed cause of action – whether applicant’s claim for misfeasance in public office was hopeless and doomed to fail – Whether limits of the tort of misfeasance in public office so settled that applicant’s claim is doomed to fail

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – Family provision proceedings – Where plaintiff successful at first instance but lost on appeal – Whether to make no order as to costs of first instance and appeal proceedings

Catchwords:

MISLEADING OR DECEPTIVE CONDUCT – Misleading or deceptive conduct – misleading or deceptive conduct by silence - alleged non-disclosure relating to sale of shares in private company – where purchaser was an experienced commercial participant – whether primary judge erred in characterising specific representation as providing an “assurance” to the purchaser of shares in private company – whether primary judge erred in finding that the purchaser had a “reasonable expectation” that certain disclosures would be made – whether any misleading or deceptive conduct was causative of loss or damage – where as a matter of common sense causation, loss sustained was due to a calculated risk by an experienced commercial participant, and not by any alleged misleading or deceptive conduct

Catchwords:

REVENUE – stamp duties – declaration of trust – whether document styled “Declaration of Trust by Nominee” merely acknowledged position after grant of probate and resealing of grant – dutiable transaction - whether mere acknowledgement a dutiable transaction – significance of Duties Act 1997 (NSW) being tax on transactions, rather than tax on instruments PRECEDENT – precedential authority of dissenting judgment – precedential authority of statements applicable to earlier legislation – precedential authority of points assumed without argument TRUSTS – property held on trust for beneficiary – beneficiary’s will appointed his executor as sole beneficiary of his estate – effect on trust of grant of probate of will and resealing in NSW – estate not fully administered – nature of obligations owed by trustee to executor who was also sole beneficiary of deceased estate – construction of declaration of trust – whether document merely acknowledged existing state of affairs

Catchwords:

LAND LAW – whether title to property acquired by fraud – deregistration of company under the 1981 Companies (New South Wales) Code – whether property of deregistered company vested in ASIC – effect of deeming provisions in s 459(6) of the Companies Code LIMITATION OF ACTIONS – operation of bar – any right to set aside transfer statute barred by virtue of s 27 or s 51 of the Limitation Act 1969 (NSW)

Catchwords:

ENVIRONMENT AND PLANNING – words and phrases – whether primary judge erred in finding identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 (NSW) being land identified by State Environmental Planning Policy (Coastal Management) 2018 (NSW) as “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” or adjoining such land not a jurisdictional fact ENVIRONMENT AND PLANNING – words and phrases – whether the “proximity area” in the Coastal Wetlands and Littoral Rainforests Area Map corresponds in meaning to “adjoining” land in s 6(1) of the Coastal Management Act – whether proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of both the Environmental Planning and Assessment Act and the Coastal Management Act ENVIRONMENT AND PLANNING – words and phrases – Governor’s power is to make an environmental planning instrument – whether Governor must have regard to, approve or do anything at all in relation to making the Coastal Wetlands and Littoral Rainforests Area Map

Catchwords:

APPEALS – leave to appeal – application for leave – relief sought inappropriate on an interlocutory appeal in the absence of necessary and proper parties CIVIL PROCEDURE – parties – necessary and proper – where third-party lessees of premises not joined to proceedings for relief against forfeiture brought by earlier lessees EQUITY – equitable remedies – declarations – whether capable of being made on interlocutory basis REAL PROPERTY – landlord and tenant – agreements for lease – breach – Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) – where tenants in arrears before the relevant “prescribed period” – leave to appeal refused in circumstances where all necessary and proper parties not joined in proceedings

Catchwords:

STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages. TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.

Catchwords:

TORTS – detinue and conversion – property comprising four commercial trucks with trailers – claim for possession by financier – operating company in liquidation – vehicles disappeared – vehicles discovered in secluded location – whether defendant had possession, control or dominion of vehicles APPEALS – challenge to findings of fact – credibility of witnesses – basis for interfering with adverse credibility findings – admissions against interest – use of aerial photography to locate vehicles – all vehicles together – defendant’s admission of control of one vehicle – defendant’s offer to deliver all five vehicles for a fee or purchase vehicles

Catchwords:

COSTS – whether costs to be ordered in relation to argument regarding application to vary costs order

Catchwords:

APPEALS – leave – where proceedings summarily dismissed – whether party using employed solicitor is entitled to recover costs – no question of principle – whether declaration sought hypothetical – unchallenged factual findings – whether injustice if leave refused

Catchwords:

APPEAL – application for leave to appeal refused – subpoena issued to solicitor only caught documents produced in response to earlier subpoena and already ruled to be the subject of legal professional privilege – applicants had opportunity to seek leave to appeal against earlier decision but did not COSTS – timing of payment of costs – r 42.7 UCPR – unsuccessful attempt by applicants to challenge decision that they abused Court process – costs payable forthwith

Catchwords:

PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Misappropriation of trust monies — Requirements for dishonesty — Irregular deposits of trust monies into office account — Deposits made without solicitor’s knowledge — Whether overdraft in office account constitutes misappropriation PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Attempts to mislead — Requisite element of intention PROFESSIONS AND TRADES — Lawyers — Complaints and discipline — Unconditional undertakings — Whether undertaking breached where performance would be unlawful

Catchwords:

CORPORATIONS – oppression – remedies – compulsory buy-out or winding up – many instances of oppressive conduct over many years – companies not actively trading – principal assets real estate and loans – primary judge ordered compulsory buy-out – appellant required to pay $66 million within 30 days – appellant elderly and unwell – relevance of inability to pay – forensic decision not to adduce evidence of financial circumstances – subject to pecuniary orders remedying particular items of oppression, winding up ordered

Catchwords:

CORPORATIONS – oppression – formulation of orders – special orders as to liquidators' costs – applicability of post-judgment interest – whether entitlement of successful plaintiff should be secured by charge – whether surplus should be distributed in accordance with shareholders agreement

Catchwords:

APPEAL – whether or not decision of primary judge based in part on demeanour findings – significance for standard of appellate review and intervention – where primary judge’s decision was supported by contemporaneous documents – no basis for appellate interference with primary judge’s findings of fact. CONTRACT – contractual interpretation – whether warranties in a multi-party deed were made in favour of all parties to the deed or only one party.

Catchwords:

PROFESSIONS AND TRADES – lawyers – complaints and discipline – disciplinary application under Legal Profession Act 2004 (NSW) – proceedings commenced in Civil and Administrative Tribunal of New South Wales – Tribunal’s jurisdiction disputed – jurisdiction contingent upon proceedings being commenced in respect of a “complaint” that was “duly made” – Council of the Law Society of New South Wales passed a resolution that a complaint “be made” – whether language of Council’s resolution constituted a “complaint” – whether Council’s resolution met the s 504 requirements of a “complaint” PROFESSIONS AND TRADES – lawyers – complaints and discipline – complaints made prior to commencement of the Uniform Law – transitional application of Legal Profession Act 2004 (NSW)

Catchwords:

CIVIL PROCEDURE – debt recovery – loans – dispute arising over two undocumented loans between friends – whether primary judge erred in finding that the appellant authorised the appellant’s now-estranged husband to jointly borrow from respondents JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – whether primary judge erred in finding that the appellant not liable to pay interest on loan at rate of 48% per annum

Catchwords:

SUCCESSION – Family provision – Notional estate – Where property of the estate distributed – Where primary beneficiary deceased and her estate held by executor – Where notional estate order made by primary judge – Whether estate of deceased beneficiary able to be designated notional estate under Family Provision Act 1982 (NSW), s 24 – Appeal allowed. SUCCESSION – Family provision – Claim by adult child – Proceedings not commenced within time – Where application made 12 and a half years out of time – Where primary beneficiary of testator now deceased – Where general assurances of a testamentary benefit given to applicant by deceased beneficiary – Whether sufficient cause shown to extend time – Whether primary judge erred in disregarding prejudice to deceased beneficiary and her estate in exercising discretion to extend time – Appeal allowed.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — appeal from District Court determination of appeal from costs assessment of review panel — no right of appeal from District Court to Supreme Court under District Court Act 1973 (NSW) — no question of principle

Catchwords:

REPRESENTATIVE PROCEEDINGS – separate question – whether Supreme Court has power pursuant to s 173 of the Civil Procedure Act 2005 (NSW) to make an order requiring unfunded group members to pay an amount to that funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration to the funder? – whether appropriate to answer the question prior to any settlement having been reached and without knowledge of terms of settlement or orders proposed to be made by the Court following settlement – whether the question determined by decision of High Court of Australia in BMW Australia Ltd v Brewster (2019) 94 ALJR 51; [2019] HCA 45 – different factual context of that decision – answer to separate question posed not obviously answered by majority judgments in that decision.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application to vacate hearing

Catchwords:

APPLICATION FOR LEAVE TO APPEAL – COSTS — security for costs – Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – inherent jurisdiction of Supreme Court – reluctance to make orders against natural person – delay in making application – applicant bankrupt – evidence of funds transferred to overseas bank account in applicant’s name – applicant evasive and untruthful about transferred funds – applicant’s history of non-payment of court orders – where applicant has a history of failure to comply with costs orders

Catchwords:

JUDICIAL REVIEW – criminal proceedings – review of appeal to District Court – guilty plea entered in Local Court – application to traverse plea on appeal – application for leave to appeal out of time – application dismissed – whether arguable case of jurisdictional error JUDICIAL REVIEW – procedure – time limits –summons filed out of time in Court of Appeal – application to review District Court judgment – applicant legally represented when plea entered – extension of time to appeal to District Court refused – application for judicial review out of time – timely but invalid notice of appeal – public interest in finality – no arguable case of jurisdictional error – Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Catchwords:

APPEALS – leave to appeal – assertion that primary judge erroneously relied on affidavits verifying pleadings as evidence – trial conducted with a “level of informality” and involved self-represented parties – findings of fact open to judge – no question of principle warranting a grant of leave GUARANTEE AND INDEMNITY – rights of guarantor to contribution from co-guarantors – whether payments by guarantor to principal debtor made under guarantee or as a loan to principal debtor – Mahoney v McManus (1981) 180 CLR 370 – primary judge’s findings of fact capable of supporting his conclusion

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5F, 5L – meaning of “obvious risk” – identification of risk – level of generality – principles to be applied TORTS – negligence – elements of cause of action in negligence – breach of duty – whether failing to halt event breached Rodeo Association’s duty of care – whether liability defeated by s 5L of the Civil Liability Act 2002 (NSW) WORDS AND PHRASES – “obvious risk” – Civil Liability Act 2002 (NSW), s 5K CONSUMER PROTECTION – s 60 Australian Consumer Law – consumer guarantee – whether new case on appeal permissible

Catchwords:

CIVIL PROCEDURE – subpoenas – application to set aside – documents to be produced claimed to be the subject of legal professional privilege – whether privilege waived by conduct CIVIL PROCEDURE – variations to interlocutory orders – often preferable to approach first instance judge again rather than seek leave to appeal EVIDENCE – legal professional privilege – waiver by conduct – test of inconsistency between conduct and maintenance of privilege

Catchwords:

NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty’s railing and sustained serious injury - history of young children falling through railing to Council’s knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff’s injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State’s and grandparents’ costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order

Catchwords:

APPEAL – stay of execution – informal application for stay pending application for leave to appeal – whether issue already decided by Court of Appeal – whether already decided on remitter from Court of Appeal – whether subsequent High Court authority confirmatory of position – whether prospect of success and balance of convenience favoured a stay – application refused – orders made permitting access to seized item, subject to undertakings, for limited purpose of permitting Commissioner to be heard as to the grant of injunctive relief.

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:

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:

CONSTRUCTIVE TRUSTS – house purchased in name of niece – primary judge found aunt and niece agreed that aunt would pay half outgoings in exchange for a one half beneficial interest – primary judge ordered niece to account to aunt for one half of net proceeds of sale, on terms that aunt repay amounts obtained from Centrelink for rental assistance – whether reasons of primary judge inadequate – whether finding as to common intention should be set aside – whether primary judge erred as to effect of illegality – appeal dismissed

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – no issue of principle – leave refused

Catchwords:

CRIME – extended supervision order – validity –unacceptable risk of committing another serious offence – whether unacceptable risk must subsist throughout the duration of the order – Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 10, 11 STATUTORY CONSTRUCTION – objects clause –statutory statement of objects as aid to construction STATUTORY INTERPRETATION – clear statement rule – right to liberty – not available to subvert power to make extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 5B WORDS and PHRASES – “unacceptable risk”; “high risk offender”; “high degree of probability” – Crimes (High Risk Offenders) Act 2006 (NSW)

Catchwords:

DEFAMATION – defamatory matter – where publication pleaded differs from publication proved – test to be applied – whether language of ‘fatal variance’ helpful DEFAMATION – remedies – aggravated damages – court not in position to assess aggravated damages – leave refused

Catchwords:

COMMISSIONS OF INQUIRY – Royal Commission into Institutional Responses to Child Sexual Abuse – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence COURTS AND JUDGES – Apprehended bias – Application for recusal – where primary judge said to have raised voice towards counsel – where judge apologised for raising voice – whether outcome of hearing could bear on allegation of apprehended bias DEFAMATION – Defamatory matter – Capacity to convey pleaded imputations – whether imputations carried to the ordinary reasonable reader DEFAMATION – Defences – Fair report – Matter of public interest – Royal Commissions – whether publications were substantially accurate DEFAMATION – Defences – Justification – Truth EVIDENCE – Documentary evidence – Royal Commissions – Where transcript and video of appellant’s evidence to Royal Commission admitted in aid of a defence to an action for defamation – Whether s 6DD of the Royal Commissions Act 1902 (Cth) prevents admission of such evidence – Whether s 6DD only precludes admission of evidence given in a Royal Commission in order to establish civil or criminal liability of person who gave such evidence

Catchwords:

HEALTH – Administration of public health system – Legal proceedings by and against authorities – Where directives to health districts provide for procuring of guarantees of liability of Medicare ineligible patients – Whether directives repugnant to other provisions of Health Services Act 1997 (NSW) as providing for representations inconsistent with their effect – Whether utility in determining separate questions concerning validity of directives

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date

Catchwords:

COSTS — Costs assessment — Determination – Gross sum costs order – Conflict between assessment of costs undertaken by solicitor of party entitled to costs and expert costs consultant – $36,000 in dispute – Where no objection taken to solicitor’s affidavit evidence, and he was not cross-examined – Where some arguments raised on appeal relate to unchallenged orders not the subject of appeal

Catchwords:

APPEAL – application for stay of primary judgment – part of judgment unchallenged – partial stay ordered

Catchwords:

TORTS – fraudulent conspiracy – appellant alleged multiple parties fraudulently conspired to procure him to obtain a short-term loan he was unable to repay – case entirely circumstantial with no direct evidence – matters relied upon fell well short of proving allegations to the relevant Briginshaw standard – findings by primary judge credit-based and not shown to be in error

Catchwords:

COSTS – party/party – leave to appeal – where applicants filed submitting appearances – whether applicants responsible for error of consent authority – whether failure by the primary judge to take into account considerations relevant to the costs discretion

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:

CIVIL PROCEDURE – application for leave to appeal from decision dismissing action for defamation summarily – contest as to basis for primary judge’s decision – whether proposed appeal provided the occasion for appellate consideration of the decision in Bleyer v Google Inc – where pleading admittedly deficient – relevance of considerations of proportionality to discretion to grant leave to replead

Catchwords:

LAND LAW – strata schemes – by-laws – scope of subject-matter – purposive limits to the power to make by-laws – Strata Schemes Management Act 2015 (NSW), s 136(1) LAND LAW – strata schemes – by-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on keeping animals contravenes provision – Strata Schemes Management Act 2015 (NSW), s 139(1) STATUTORY INTERPRETATION – use of dictionaries – whether three words comprise a composite statutory criterion WORDS AND PHRASES – “harsh, unconscionable or oppressive” – Strata Schemes Management Act 2015 (NSW), s 139(1)

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:

APPEAL – security for costs – UCPR r 51.50 – special circumstances established – appellant has no assets in Australia to enable satisfaction of judgment but is able to request funds as needed from husband in China

Catchwords:

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Actual knowledge — Reading will aloud before execution — Sufficiency of evidence

Catchwords:

CONSTITUTIONAL LAW – Commonwealth Constitution – Chapter III – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the Act is constitutionally invalid – involuntary detention of a citizen by the State – preventative detention orders – whether the Act directs the Supreme Court as to the manner of the exercise of its jurisdiction – judicial discretion – whether the Act creates procedural unfairness – whether the Act is inconsistent with the institutional integrity of the Supreme Court as a repository of federal jurisdiction STATUTORY INTERPRETATION – departure from literal meaning - Terrorism (High Risk Offenders) Act 2017 (NSW) s 39(4) – meaning when read in context – meaning having regard to the purpose of the Act STATUTORY INTERPRETATION – legislative purpose – Terrorism (High Risk Offenders) Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between the association or affiliation and the advocacy of terrorist acts or violent extremism

Catchwords:

APPEAL – interlocutory decisions to strike out pleadings and refuse leave to amend pleadings – application for leave to appeal – claim for compensation for loss of access to controlled access road – statutory construction of Pt 4, Div 5 of Roads Act 1993 – entitlement to compensation – access restricted or denied as a result of road “becoming” controlled access road – meaning of phrase “as a result of the road becoming” a controlled access road – whether road becomes controlled access road by the event of the Minister’s order declaring road to be a controlled access road or by a “course of conduct” – assessment of compensation – “market value of land” – whether Pointe Gourde principle applies in assessment of compensation

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application — Dismissal under UCPR r 51.50 — Compliance with security for costs — Variation of security for costs CIVIL PROCEDURE — Court of Appeal — Review of order of single judge of appeal — Notice to produce — Ambit of documents — Whether oppressive or vexatious

Catchwords:

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where respondent employed by the appellant as an accountant – where respondent resigned following bullying and harassment in the workplace – respondent contacted the appellant’s clients – where no covenant not to compete and no restraint of trade – appellant claimed respondent misused client information and contact list – where appellant made overbearing threats of litigation including criminal prosecution – deed of settlement and release entered into – where clause provided that respondent pay ‘agreed fee’ to appellant – whether deed was unjust in the circumstances – Contracts Review Act ss 7 and 9(2) – challenge to discretionary decision to refuse to enforce the deed AMENDMENT – appeal – notice of appeal – whether new ground of appeal should be permitted – late attempt to rely upon constraint in granting relief contained in Contracts Review Act, s 6(2) – amendment refused

Catchwords:

CONSTITUTIONAL LAW - State Constitution - extra-territorial operation of legislation - power to provide for - drafting techniques - desirability of providing explicit legislative guidance as to intended territorial reach of laws STATUTORY INTERPRETATION - legal presumptions - presumption of territoriality - Interpretation Act 1987 (NSW) s 12 - applicants were women of Yazidi ethnicity - plaintiffs claimed they were victims of acts of violence perpetrated upon them in Northern Iraq and Syria by a man who had previously lived in New South Wales - Commissioner and NCAT dismissed application for support because acts of violence did not occur in New South Wales - plaintiffs submitted sufficient connection with New South Wales - nature of territorial nexus of Victims Rights and Support Act 2013 (NSW) with New South Wales - consideration of history and construction of s 12 Interpretation Act, extraterritorial legislative capacity, counterparts and precursors to victims compensation schemes - displacement of legal presumptions - appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – no error made out. PRACTICE – representation of children and young persons in judicial review proceedings – common interest with Secretary – nature of appropriate representation in such cases.

Catchwords:

LAND LAW – Conveyancing – Contract for sale – Rescission – Respondent wished to rescind contract – Appellants did not consent to proposed rescission and maintained contract was “still on foot” – Appellants elected to affirm contract rather than terminating and seeking loss of bargain damages – Appellants sought orders for specific performance – Respondent subsequently entered into a Scheme of Arrangement Deed and sought to rescind the contract on this basis – Appellants sought loss of bargain damages – Whether contract came to an end because of supervening circumstances – Whether appellants entitled to loss of bargain damages at the time when respondent terminated contract on basis of entering into Scheme of Arrangement.

Catchwords:

TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – where company failed to remit PAYG withholdings to the Commissioner – where Director Penalty Notice issued – where appellant made payments to the Commissioner but failed to advise they were to be applied to the Director Penalty Notice liability – whether primary judge erred in finding that amounts paid did not extinguish Director Penalty Notice liability ESTOPPEL – estoppel by representation – detrimental reliance – whether ATO officer made representations that the PAYG withholding liabilities had been satisfied – whether Commissioner estopped from asserting that the amount was received and allocated other than in satisfaction of Director Penalty Notice liability

Catchwords:

CIVIL PROCEDURE – appeal from decision dismissing claim to have sales transactions declared void – where respondents gave undertakings in the nature of freezing orders to preserve the moneys the subject of the appeal – application by respondents for release of funds for legal expenses and living expenses of company director

Catchwords:

CIVIL PROCEDURE — Court of Appeal — procedure — application to vacate hearing date — no question of principle

Catchwords:

ADMINISTRATIVE LAW – judicial review of decisions of Industrial Relations Commission relating to removal of officer from NSW Police Force – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered – where decision was not affected by jurisdictional error. INDUSTRIAL RELATIONS – Industrial Relations Commission – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust” – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered. POLICE – officer removed from NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW) for alleged voluntary consumption of illicit drugs –officer successfully reviewed dismissal pursuant to s 181E of the Police Act – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered. STATUTORY INTERPRETATION – construction of s 181F(2) of the Police Act 1990 (NSW) – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust”.

Catchwords:

APPEALS – application for leave to appeal – where submissions in support of application for leave to appeal were oppressive – where submissions were in flagrant breach of procedural rules under Uniform Civil Procedure Rules 2005 (NSW) – where application for leave did not raise issue of principle, question of public importance or a reasonably clear injustice. PROCEDURE – litigants in person – unrepresented litigants – importance of adhering to length, content and form requirements for written submissions as set out in Uniform Civil Procedure Rules 2005 (NSW) – importance of adhering to procedural rules to ensure costs to parties are proportionate to complexity of subject matter in dispute – no special rules or treatment for litigants in person.

Catchwords:

SUCCESSION – family provision – claim by adult child – judgment in favour of appellant for provision from notional estate – whether adequate provision for the proper maintenance, education or advancement of the appellant

Catchwords:

CONTRACTS – breach of contract – whether force majeure clause excused the appellant’s breaches – appellant bore the onus of establishing the applicability of the clause – clause provided an exception to, rather than a qualification of, the appellant’s promises CONTRACTS – damages – whether damages for wasted expenditure or reliance damages can only be awarded where it is impossible to quantify expectation damages – Amann Aviation 174 CLR 64 – Court may award reliance damages where the evidence does not establish any loss of profits – evidence not sufficient to discharge appellant’s onus of proving it unlikely respondent would have earned sufficient revenue to cover its costs over the term of the contract CONTRACTS – cross-claim for breach of separate contract – whether two contracts were interdependent such that appellant precluded from recovering amounts due under one if it did not fulfil its obligations under the other – two sets of agreements inextricably linked

Catchwords:

CONSUMER LAW - enforcement and remedies - compensation orders - proceedings brought by Commissioner on behalf of consumers - consumers purchased moveable dwellings and entered into occupation agreements with respondents - appellants represented that terms of agreements preventing permanent residence would not be enforced - permanent residence precluded by development consent - no challenge to findings of misleading or deceptive conduct and unconscionable conduct by corporate appellants - whether primary judge erred in making orders requiring payment of purchase price 85% of cost of improvements plus interest on terms that consumers reconvey title to moveable homes - whether need to quantify loss or damage before power to make orders under s 72 of Fair Trading Act or s 237 of Australian Consumer Law available - consideration of distinction between such orders and damages - consideration of relationship between such orders and orders for rescission in equity for fraudulent representation - whether primary judge erred in finding unconscionable conduct by director of corporate appellants - appeal dismissed

Catchwords:

ADMINISTRATIVE LAW — administrative tribunals – scope of authority of the NSW Civil and Administrative Tribunal to dismiss proceedings as vexatious – where respondent sought review of a decision determining his application for access to information held by a government agency – where respondent persisted in allegations of misconduct against officers of the agency after those allegations had been dismissed by the Tribunal – relevance of history of making similar allegations in other proceedings – where Tribunal’s decision dismissing proceedings as vexatious overturned by Appeal Panel – whether Appeal Panel erred in regarding persistence in claims that were bad in law as being outside the scope of the collateral purpose principle – whether Appeal Panel erred in declining to have regard to previous litigation brought by the respondent

Catchwords:

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Loss — Causation and remoteness CONTRACTS — Misleading conduct under statute — Remedies — Measure of damages — Where loss of opportunity

Catchwords:

PRACTICE AND PROCEDURE – interlocutory appeal – refusal of trial judge to permit the administration of interrogatories – judicial review proceeding – stay of trial sought pending determination of appeal – judgment below reserved – interrogatories directed to one ground of review – likelihood of grant of leave

Catchwords:

EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased commercial property as tenants in common in equal shares – whether presumption of resulting trust rebutted – where contemporaneous deed evidencing actual intention of parties to hold property beneficially in equal shares – appropriate division of net sale proceeds of the commercial property EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased residential property as joint tenants – whether presumption of resulting trust rebutted – whether constructive trust arising after purchase of property – significance of conduct of parties after purchase

Catchwords:

PROFESSIONS AND TRADES – legal practitioner – where disciplinary application against practitioner in New South Wales Civil and Administrative Tribunal – where Law Society did not first comply with Legal Profession Act 2004 (NSW) ss 537(2) and s 540 – whether Tribunal lacked jurisdiction to hear complaints – where no objection to new point being raised on appeal – where parties seek consent orders – whether desirable to make anonymisation order relating to the Tribunal’s decisions

Catchwords:

CORPORATIONS — Meeting of members of listed scheme called by members —– Requirement of s 252D Corporations Act that a meeting be called “in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity” – whether notice of meeting required to identify members calling the meeting CORPORATIONS — Meeting of members — Notice — whether proper notice given to directors and auditor of incumbent responsible entity – where some unitholders not given proper notice – whether defects substantive or procedural irregularities CORPORATIONS — Meeting of members — Effect of defect or irregularity ––– whether procedural irregularity causing substantial injustice – requirements for the making of orders under ss 1322(2) and 1322(4) Corporations Act CORPORATIONS — Misleading or deceptive conduct — whether explanatory memorandum accompanying notice of meeting misleading by omission – whether reasonable expectation to disclose matters of suspicion

Catchwords:

PRACTICE AND PROCEDURE – application for interlocutory restraining order pending hearing of appeal – judicial review proceedings – determination of separate question – review of determination by adjudicator under Building and Construction Industry Security of Payments Act 1999 (NSW) – appeal fixed for hearing in 5 weeks – concurrent unresolved claim under Australian Consumer Law (Cth), s 18

Catchwords:

PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application to reopen judgment dismissing appeal – application to rely on evidence not proffered at trial or on appeal relating to credibility of respondent PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application for special leave to appeal to High Court of Australia – whether stay necessary to protect subject-matter of proposed appeal – whether substantial prospect that special leave to appeal will be granted

Catchwords:

JUDGMENTS AND ORDERS – orders concerning interim indemnification of previous trustee for costs of delivery of trust documents to new trustee – whether orders final or interlocutory – orders expressly stated to be subject to any further order – exercise of discretion by primary judge in case management and the working out of earlier orders – no final determination of the issues by primary judge – no utility in granting leave to appeal

Catchwords:

NEGLIGENCE — General principles — where appellant injured while climbing down from top of load haul dump machine (“LHD”) — whether employer created an unnecessary risk of injury by modifying LHD prior to the injury — where modification required appellant to climb to top of LHD to refuel where previously refuelling was done from the ground — where no evidence that any form of risk assessment was carried out — where rungs and handholds used for climbing already attached to LHD and considered adequate safeguards by employer TORTS — General principles — Contributory negligence — where employer relied on fact that appellant had climb to top of machine without incident numerous times prior to injury — where employer alleged that injury would not have occurred if appellant had been exercising sufficient care for his own safety — where appellant gave evidence that he had been firmly gripping the handholds when descending from top of LHD

Catchwords:

ESTOPPEL – Proprietary estoppel – Encouragement – Where claim of encouragement not based on specific words – Where primary judge emphasised defendant’s knowledge of plaintiffs’ expectation – Whether estoppel as found properly characterised as estoppel by encouragement or acquiescence ESTOPPEL – Proprietary estoppel – Nature of promise – Where relief encompassed property acquired after encouragement and initial reliance – Where detrimental reliance by plaintiffs continuing – Whether necessary for all property the subject of relief to have been identified and owned by defendant at the time of encouragement and initial reliance ESTOPPEL – Proprietary estoppel – Detrimental reliance – Where plaintiffs found to have made “life-changing” decisions – Whether error in giving significant weight to plaintiff’s “hypothetical” evidence of counterfactual behaviour in making finding of reliance – Whether “countervailing benefits” received by plaintiffs by reason of reliance relevant to assessment of detriment – Whether plaintiffs would suffer substantial detriment if expectation departed from ESTOPPEL – Proprietary estoppel – Relief – Where relief involved “acceleration” of the encouraged expectation – Where constructive trust declared by primary judge – Whether to impose conditions on relief – Whether conditions necessary to “do equity” – Whether condition for payment of rent “conceptually inconsistent” with recognition of constructive trust

Catchwords:

TORTS – negligence – motor vehicle accident – liability admitted by respondent – primary judge awarded appellant limited damages for out-of-pocket expenses and past care only – whether primary judge erred in rejecting appellant’s evidence – rejection of evidence credit-based and rational – no arguable basis for challenges to primary judgment

Catchwords:

COSTS – application to vary costs order – distinct applications for leave to appeal against security for costs and third party costs order – application granted

Catchwords:

TORTS – intentional – assault and battery – false imprisonment – justification for arrest – driving offences – need to identify suspect – claim of preventing fabrication of evidence and repetition of offences – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b), (e) POLICE – use of force – arrest – driving offences – pointing gun at offender – handcuffing offender – conveying to police station – whether force used reasonably necessary – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231 DAMAGES – assessment – intentional torts – compensatory damages – aggravated damages – psychological injury – causal connection with arrest – vindication of claimant’s right to liberty and bodily integrity – Civil Liability Act 2002 (NSW) not applied

Catchwords:

APPEALS – leave – applicant injured thumb when opening overhead compartment on international airflight – whether occurrence of injury was an “accident” within meaning of Art 17, Montréal Convention 1999 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 9E – no question of principle – proposed appeal wholly concerned with factual findings – whether findings glaringly improbable – leave to appeal refused

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:

STATUTORY INTERPRETATION — jurisdiction – Mental Health Review Tribunal – Mental Health Act 2007 (NSW), s 38(4) – statutory construction – whether Mental Health Review Tribunal has power to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

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:

JUDICIAL REVIEW – application for judicial review of orders that the applicant pay costs on an indemnity basis – appeal to the District Court against decision of Costs Review Panel – application for relief refused on discretionary grounds – proceedings extraordinarily protracted, amount in question not large and other discretionary reasons given for refusing relief CIVIL PROCEDURE – directions by primary judge concerning non-parties to notice of motion including legal representatives – directions required their conduct to be brought to attention of regulatory, prosecutorial and disciplinary authorities – relevant persons not given an opportunity to be heard – denial of procedural fairness – declaration made as to invalidity of the subject directions

Catchwords:

EQUITY — Equitable interest in property – Family arrangement — Transferee pays off mortgage on property — Equity in property exceeds amount owing — Transferor permitted to remain in property – licence agreement not signed — Relationship breakdown – Baumgartner v Baumgartner equity — Equitable compensation granted. EQUITY — Equitable remedies — Specific performance — Estoppel — Determination of existence and content of underlying contractual terms. EQUITY — Equitable remedies — Equitable compensation — Assessment — Valuation of property for purposes of assessment.

Catchwords:

PRACTICE AND PROCEDURE – appeal and cross-appeal – failure to prosecute with due despatch – application to dismiss cross-appeal – non-compliance with directions for filing submissions – indulgences granted by extending dates – submissions filed by extended date – Uniform Civil Procedure Rules 2005 (NSW), r 12.7 PRACTICE AND PROCEDURE – appeal and cross-appeal – cross-appeal – procedural irregularity – notice of cross-appeal to commence proceedings against non-appellant – proceedings lacking in merit – whether frivolous, vexatious or an abuse of process – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Catchwords:

TORTS — Negligence — Causation — appellant worker injured whilst working on respondent’s premises — where primary judge found respondent was not liable — finding that reasonable precautions postulated in particulars of negligence would not have avoided risk of harm to appellant worker — challenge to findings of fact at first instance — no error established CONTRACTS — Construction — cross-claim on labour-hire agreement between appellant and respondent corporation — whether primary judge erred in finding contract did not entitle appellant corporation to damages or indemnity — no error established EVIDENCE — Discretions — Exclusion of evidence — where plaintiff sought to tender new expert report at hearing — report rejected by primary judge — no error in exercise of discretion

Catchwords:

TORTS — Negligence — appellant worker injured whilst working on respondent’s premises — evidence at first instance that risk of injury could have been avoided by provision of a ‘pick stick’ — primary judge found respondent company had discharged duty of care and was not negligent — whether primary judge erred in failing to address case put by the parties — whether primary judge erred in failing to find non-provision of pick stick was negligent — whether respondent company was negligent — whether any contributory negligence CONTRACTS — cross-claim on labour-hire agreement between appellant and respondent corporations — where primary judge ordered nominal damages — whether damages ought to have been awarded for costs expended in defending claim

Catchwords:

CROSS VESTING – group proceedings – where similar class action proceedings pending in Supreme Court of Victoria against same defendants/respondents – where concern about operation and continuing efficacy of tolling provision in s 182 of Civil Procedure Act 2005 (NSW) in the event that proceedings cross vested to Supreme Court of Victoria – where risk of prejudice to group members – where undertakings given to negative prejudice.