Catchwords:
JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis for setting aside judgment established COURTS AND JUDGES — bias — where applicant requested notice of motion be heard by differently constituted bench — where members of bench participated in earlier decision refusing leave to appeal — whether previous adverse decision can ground reasonable apprehension of bias — recusal application refused
Catchwords:
ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2) BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether jurisdictional error to fail to investigate “true merits” of a payment claim – where adjudicator’s task limited to deciding dispute on restricted materials BUILDING AND CONSTRUCTION – adjudication – judicial review – setting aside part of determination – meaning and operation of s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether adjudicator entitled to fees after making adjudication affected by jurisdictional error – whether adjudicator’s decision to apportion costs affected by jurisdictional error
Catchwords:
CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest - application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) – where application not served either personally or otherwise – application to be listed for subsequent hearing
Catchwords:
NEGLIGENCE — Personal injuries — slip and fall during open for inspection — admission that driveway had recently been painted — whether non-slip paint was used — whether evidence was that driveway was slippery — whether primary judge erred in finding witness’ evidence unreliable
Catchwords:
ADMINISTRATIVE LAW — procedural fairness — decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident — decision quashed at first instance based on a denial of procedural fairness to the claimant — whether primary judge erred in finding procedural fairness was denied — content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal
Catchwords:
INTERLOCUTORY APPLICATIONS – interim injunction – forestry operations – assumption that serious question to be tried – unexplained delay in seeking interlocutory relief – scope of relief sought too vague and uncertain – balance of convenience a neutral consideration
Catchwords:
CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner’s proceedings are properly characterised as a “cross-claim” for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner’s case — where the builder has delayed in enforcing the judgment debt BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act
Catchwords:
CIVIL PROCEDURE – Subpoenas – Leave to issue subpoena – Court of Appeal – Leave refused
Catchwords:
STATUTORY INTERPRETATION – meaning of “unpaid leave” – whether a period of absence from work due to incapacity from an injury for which a worker was paid workers compensation constitutes a “period of unpaid leave” – cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987 (NSW) – reg 8E of the Workers Compensation Regulation 2016 (NSW)
Catchwords:
COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer
Catchwords:
CIVIL PROCEDURE – Practice and Procedure – filing appeal books – contents of appeal books – unrepresented appellant – no issue of principle
Catchwords:
ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal
Catchwords:
NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but for negligence NEGLIGENCE — assessment of damages — future economic loss — damages by way of buffer — Civil Liability Act 2002 (NSW), s 13
Catchwords:
PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied
Catchwords:
APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs
Catchwords:
APPEALS — Leave to appeal — Principles governing — Interlocutory decision — Public importance — Novel issues raised EVIDENCE — Expert Witness — Medicolegal report — Witness Immunity — Relationship to advocates’ immunity — Proper test
Catchwords:
APPEALS – leave to appeal – monetary threshold – principles governing grant of leave to appeal below monetary threshold – whether application identified issue of principle, question of general public importance or reasonably clear injustice – whether application goes beyond being merely arguable
Catchwords:
GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – relief under Contracts Review Act 1980 (NSW) – whether primary judge erred in finding that clause of Deed of Guarantee and Indemnity was unjust – s 7 of the Contracts Review Act JUDGMENT AND ORDERS – interest – award of on judgment – rate applicable – where primary judge awarded interest at the rate of 10% as provided for in Deed of Guarantee and Indemnity – where pleaded claim was for interest at the prescribed rate under the Civil Procedure Act 2005 (NSW) – whether primary judge erred in finding that interest should accrue in accordance with terms of Deed of Guarantee and Indemnity
Catchwords:
APPEALS – Leave to appeal – Arguable case CIVIL PROCEDURE – Jurisdiction – Where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction CIVIL PROCEDURE – Summary disposal – Where applicant had sought summary judgment – Where respondents had not yet been required to file evidence in defence CIVIL PROCEDURE – Default judgment – Where respondents had not yet been required to file a defence CIVIL PROCEDURE – Pleadings – Amendment – Where amendments were based on contentions the primary judge considered were doomed to fail – Where applicant had not been able to identify the evidence on which he intended to rely – Whether House v The King error was demonstrated CIVIL PROCEDURE – Summary disposal – Where primary judge had summarily dismissed the proceedings – Whether proceedings were doomed to fail COURTS AND JUDGES – Bias – Actual and apprehended bias – Whether primary judge had pre-judged the applicant’s claim – Whether primary judge was intimidatory and bullying towards the applicant APPEALS – Procedural fairness – Whether applicant was afforded a reasonable opportunity to adduce relevant evidence
Catchwords:
WORKERS COMPENSATION – Police Superannuation Scheme – where a member seeks to have a further infirmity certified under s 10B(1) or his earlier certification of infirmity amended to include an additional infirmity for the purpose of being entitled to increased annual superannuation allowance pursuant to ss 10 and 10B of the Police Regulation (Superannuation) Act 1906 (NSW) STATUTORY INTERPRETATION – whether an additional infirmity may be certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) in circumstances where a previous certification of a different infirmity was made prior to the police officer’s discharge
Catchwords:
APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose
Catchwords:
PRACTICE AND PROCEDURE — whether a vexatious proceedings order should be made — where litigant had reagitated the same points on multiple occasions after proceedings in the Court of Appeal and rejection of special leave application — whether sufficient frequency of institution of proceedings for the purposes of s 8(1) of the Vexatious Proceedings Act 2008 (NSW) — vexatious proceedings order made
Catchwords:
COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end
Catchwords:
JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Second application under UCPR, r 36.16(3A) – Applicant seeking to reagitate issues for second time – No basis for re-opening established – Application vexatious and an abuse of process
Catchwords:
JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge – Matter not to be remitted to primary judge REAL PROPERTY – Caveats – Caveatable interests – Where caveatable interest in the nature of equitable charge secured payment of commission owing in respect of sales of property – Whether charge extended to all unsold units – Effect of supplementary agreements is that the properties listed therein are to be treated as included in the primary agreement – Declaration that equitable charge extends to all unsold units to secure debt owed for commission and interest
Catchwords:
PROCEDURE – security for costs – non-compliance with orders to provide security – company placed into liquidation – appeal dismissed
Catchwords:
APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury” TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage
Catchwords:
CIVIL PROCEDURE – asset preservation orders – application for discharge after judgment – claims rejected but subject to appeal – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants resident in Australia – one defendant with history of misappropriating funds – findings of unreliable and untruthful evidence – no need for funds beyond those available for legal fees and daily living permitted under existing order CIVIL PROCEDURE – stay of proceedings – vacation of further trial dates pending appeal – issues reserved for future consideration – relevance of appeal to reserved issues – application for leave to appeal and appeal listed for concurrent hearing in two months –applicants not having requested stay from trial judge
Catchwords:
NEGLIGENCE – claim for work injury damages for back condition – challenges to factual findings – whether breach of duty of care – whether injury caused by employment COSTS – claim for work injury damages against employer and third party – application of Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3
Catchwords:
APPEALS — leave to appeal — where relatively modest claim — whether injustice reasonably arguable — where applicant sought to raise new point on appeal CONTRACTS — parties — identifying parties to contract implied from conduct of the parties — where accounting services provided to several companies and also to individuals — whether individual instructing accountant a party to the contract — where individual is directly or indirectly the beneficiary of services provided
Catchwords:
ENVIRONMENT AND PLANNING – Development applications – Delegation of assessment function of local council – Whether delegate had authority to determine application – Interpretation of relevant instruments of delegation and sub-delegation and policy – Whether primary judge erred by interpreting “submission by way of objection” by reference to the statutorily directed time period under the Environmental Planning and Assessment Act 1979 (NSW) – Whether objection was “a reasonable and unresolved objection resulting from the neighbour notification/exhibition process” – Whether objection was “resolved” ENVIRONMENT AND PLANNING – Development applications – Imposition of orders under s 25B of the Land and Environment Court Act 1979 (NSW) – Whether Council validly regranted consent – Whether there was substantial compliance within the meaning of s 25C of the Land and Environment Court Act 1979 (NSW)
Catchwords:
COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally was absurd and irrational and irreconcilable to purpose of fixing fair and reasonable costs – power of court to correct obvious typographical mistakes in legislation considered – consideration of meaning of “scanning” and “perusing” and “examining” documents STATUTORY CONSTRUCTION – correction of obvious typographical mistakes in legislation – nature of power to construe erroneous text so as to correct obvious drafting error – whether the fact that literal meaning of legislation be capable of being applied prevented error from being corrected – whether sufficient in order to construe legislation so as to correct a mistake that mistake be obvious and intended text obvious – whether necessary also for literal operation to be absurd and irrational and irreconcilable to purpose
Catchwords:
COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Apprehension of bias – Whether issue in proceedings pre-determined by reason of costs order made by Registrar
Catchwords:
TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence
Catchwords:
APPEALS – Leave to appeal from interlocutory decision – no issue of principle or any question of general public importance – no sufficiently arguable error on the part of the primary judge which warranted a grant of leave
Catchwords:
CONSUMER LAW — misleading and deceptive conduct — whether Chief Financial Officer of small proprietary company was a mere conduit of misrepresentations — causation CONSUMER LAW — misleading and deceptive conduct — knowing involvement — requisite degree of knowledge TORTS — deceit — exemplary damages
Catchwords:
ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal – Personal Injury Commission medical appeal panel – whether appropriate consideration given to late documents – no opportunity given to address panel regarding late documents – whether late documents could materially affect decision WORKERS COMPENSATION – medical dispute – extent of whole person impairment – appeal from certificate of medical assessor – scope of functions and powers of medical appeal panel – panel restricted to determining appeal on indicated grounds of appeal – panel restricted to reviewing injury the subject of referral to the medical assessor
Catchwords:
APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement COMPULSORY ACQUISITION – Compensation – vacant land acquired by local council for public purpose of stormwater harvesting project – highest and best use of land for rural residential development – appellants sought $160 million compensation below and on appeal
Catchwords:
ENVIRONMENT AND PLANNING— Land and Environment Court — Crown land — Management of Crown land — National Parks and Wildlife Act — Plan of management — statutory interpretation — whether Secretary has duties to implement individual policies in Plan of Management compellable by mandamus — whether delay implementing policies unreasonable — utility and appropriateness of relief
Catchwords:
APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision of the presidential member – failure to recognise error of law generally an error of law WORKERS' COMPENSATION – entitlement to compensation following death of worker – Workers’ Compensation Act 1987 (NSW) s 9A – alleged misdirection as to proper legal test – alleged constructive failure to exercise jurisdiction – alleged failure to give adequate reasons – limits of judicial review – causation involves evaluative question of fact – no constructive failure to exercise jurisdiction – no failure to give adequate reasons CAUSATION – meaning of “substantial contributing factor” in s 9A of Workers Compensation Act 1987 (NSW) – s 9A a more stringent causation test than “arising out of employment” in s 4(a) – Member found that causation not made out – issue of substantial contribution did not arise – requirement that risk “came home”– similarity to the position in tort – increase in risk insufficient of itself to establish causation for purposes of s 9A – meaning of “common sense” causation – common sense causation connotes a number of ideas – no error in use of common sense causation here
Catchwords:
CIVIL PROCEDURE — abuse of process — where former solicitors claim payment for legal costs — where client recovers legal costs as damages from third party in Court of Appeal — where client subsequently argues that not liable for the costs CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — where applicant’s submissions do not raise any point of principle or general importance, or disclose any substantial injustice — where applicant’s success would make no practical difference APPEALS — appeal from Local Court under s 39 or s 40 of Local Court Act 2007 (NSW) — whether findings of fact can be made on appeal
Catchwords:
EQUITY – charitable trusts – relationship with statute – distinction between charitable trust created pursuant to statute and recognised in equity and “statutory trust” created by statute which ceased when statute repealed – Necropolis Act 1867 (NSW) authorised vesting of land in separate trustees for denominational burial grounds at Rookwood – whether charitable trust recognised in equity thereby created – Necropolis Act repealed – new provisions extinguish any charitable trust over the land – whether new provisions extinguish charitable trust over proceeds of operation of burial ground PARTIES – declaratory relief – absence of contradictor – plaintiffs join Attorney General and seek declaration over existence and nature of charitable trust – Attorney supports plaintiffs’ submission that charitable trust exists, but disputes plaintiffs’ submission that its purpose has changed – whether declaratory relief available and appropriate STATUTES – statutory consolidation – Necropolis Act 1867 (NSW) repealed and replaced by Necropolis Act 1901 (NSW) – whether change in wording effected a change in charitable purpose – principles of construction applicable to consolidating statutes
Catchwords:
ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker erred in construing the consultation requirements in s 99(3)(a)(iii) of the Rail Safety National Law –– whether primary judge erred in declaring the decision maker’s decision invalid ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker misunderstood the nature of the opinion required to be formed under ss 99(3)(a)(i) and 99(3)(a)(iii) of the Rail Safety National Law –– whether decision maker misapprehended nature of opinion required to be formed under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law –– whether decision maker’s decision is invalid CIVIL PROCEDURE –– Court of Appeal –– leave to amend Notice of Contention –– whether respondent’s amendment prejudices the appellant –– whether respondent can raise new points on appeal –– leave to amend granted –– respondent constrained by evidence adduced at first instance COURTS AND JUDGES –– judges –– duty to accord procedural fairness –– obligation to decide the case on the bases argued STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(i) –– whether primary judge erred in declaring s 99(3)(a)(i) a deeming provision –– consideration of the text, context and legislative purpose of s 99(3)(a)(i) –– effect of phrase “persons likely to be affected” STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(iii) –– whether the term “representing” means “entitled to represent” –– consideration of the text, context and legislative purpose of s 99(3)(a)(iii)
Catchwords:
DEFAMATION – appeal from order granting leave to amend – adequacy of pleading and particulars – amendment to pleading introduced matters arising after commencement of Defamation Amendment Act 2020 (NSW) – operation of concerns notice to matters introduced by amendment – whether sufficient particulars of serious harm to reputation provided – whether sufficient particulars of publication provided – significance of claims of denial of procedural fairness in deciding points of law adversely to defendant
Catchwords:
APPEALS – costs – consequential orders – no question of principle
Catchwords:
APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to bring claim by both the first and fifth appellants – whether case not fought at trial may be propounded on appeal – possibility that additional evidence might have been called at trial and different findings made if new issue had been raised at trial
Catchwords:
PROFESSIONS – Legal Practitioners – misconduct and discipline – legal practitioners directed to show cause why judgments and papers should not be referred to Legal Services Commissioner – no submissions provided by legal practitioners – judgments and papers referred to Legal Services Commissioner
Catchwords:
CONTRACTS – Construction – Interpretation – Construction of insurance contract – Whether appellant fell within definition of “Named Insured” in the Policy – Where appellant supplied labour to a sub-contractor undertaking demolition works for principal contractor – Whether “agent” in Policy bore the strict legal meaning of “agent” or more colloquial meaning of intermediary or someone who provides services for another – Whether as a sub-sub-contractor of principal contractor the appellant was a sub-contractor of the principal within the meaning of the policy – Whether appellant was an “agent” of the sub-contractor
Catchwords:
VALUATION OF LAND – Compulsory acquisition – land transferred to public authority as condition of development consent – Compensation – land valued according to principles of compulsory acquisition – Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – Determination of market value – decrease in land value attributed to public purpose – Statutory disregard – Identification of public purpose CAUSATION – whether public purpose caused decrease in land’s value – where owners sought and obtained development consent – whether owners proved a decrease in value of land by comparison with hypothetical use which would have occurred but for public purpose
Catchwords:
APPEALS – costs – consequential orders – no question of principle
Catchwords:
COSTS — Court of Appeal — party/party costs orders — application to vary costs order in favour of respondent — general rule that costs follow the event — where appeal allowed in part and only nominal damages awarded – where appellant failed on all other grounds of appeal — where costs awarded to respondent to reflect practical outcome of appeal — whether award of nominal damages justify a costs order in favour of appellant
Catchwords:
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — order for access — where concurrent contempt proceedings — privilege against self-exposure to penalty — waiver of privilege against self-exposure to penalty — where affidavit served but not read.
Catchwords:
COSTS – security for costs – application for security for costs pending appeal – UCPR r 51.50 – whether “special circumstances” exist – application dismissed – no issue of principle
Catchwords:
ENVIRONMENT AND PLANNING – offences - waste disposal – pollution of land – time for commencement of proceedings – when evidence first came to attention of authorised officer – whether individuals appointed as authorised officers – proceedings dismissed as time-barred – appeal – misconstruction of applicable statute for appointment of authorised officers APPEAL – dismissal of proceedings for offences as time-barred – when evidence first came to attention of relevant authorised officer – whether individuals appointed as authorised officers – instrument of delegation of functions to individuals – delegation of functions not appointment as authorised officer – misconstruction of applicable statute for appointment of authorised officer - misdirection by consideration of non-applicable statute delegating functions – conflation of different statutory powers LIMITATION OF ACTIONS – limitation period for commencement of proceedings for offences – when evidence of offence first came to attention of authorised officer – appointment of authorised officer – delegation of functions not appointment as authorised officer
Catchwords:
COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Bias – Where member of intermediate appellate bench had previously made findings adverse to applicant in previous cases – Where full bench should determine recusal application for single member – Whether previous adverse decisions can ground reasonable apprehension of bias – Recusal application refused as no reasonable apprehension of bias or actual bias established by previous judgments
Catchwords:
OCCUPATIONS — Nurses — Qualification and registration — Impairment — Competence — Where Tribunal found that a registered nurse suffered an impairment — Where registered nurse held not to be competent to act as a nurse — Where Tribunal found impairment rendered nurse a significant risk to health and safety of the public — Registration cancelled and non-review period imposed — Nurse prohibited from providing health services APPEALS — Leave to appeal — Appeal as of right on questions of law — Where no clear grounds of appeal advanced — No errors of law established — No errors in Tribunal’s finding of fact — Leave to appeal refused — Appeal dismissed
Catchwords:
APPEALS – leave to appeal – whether leave required – monetary threshold – where no realistic prospect of parties being awarded damages in excess of $100,000 EVIDENCE – witness evidence – reliability of witness evidence – fallibility of memory over time – where applicants had strong views as to evidence consistent with them having become entrenched in a factual position not necessarily based upon actual recollection – no error in primary judge’s assessment of evidence CONSUMER LAW – misleading or deceptive conduct – “likely” to mislead or deceive – where standard form cost plus contract prepared with price estimate of $300,000 – whether price estimate misleading or deceptive – clear warnings in contract CONSUMER LAW – misleading or deceptive conduct – contract for residential renovation works – requirement that plaintiff prove loss – where property partially renovated – price paid under contract less than value of building works completed – where plaintiff seeking damages to reflect increased cost of building works CONSUMER LAW – unconscionable conduct – whether conduct unconscionable – breach of terms of standard form cost plus contract – where respondent sent invoices and spreadsheets rather than budget reports – invoices issued by respondent in no way prevented applicants from querying costs claimed
Catchwords:
WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) s 151Z — whether employer able to claim recovery of compensation payments from third party tortfeasor under s 151Z(1)(d) in circumstances where employer was joint tortfeasor — construction of s 151Z(2)(e) — whether worker “does not accept satisfaction of the judgment against that employer” — liability of worker to repay compensation out of damages under s 151Z(1)(b) COSTS — where appellant enjoyed partial success on appeal — where multiple cross-claims dismissed — no issue of principle
Catchwords:
LAND LAW – Indigenous land rights – Aboriginal and Torres Strait Islander Act 2005 (Cth) – Conditional grant of land pursuant to statutory functions – Validity of conditions upon grant of land – Challenge to the validity of transfer of land by persons not party to the transfer LAND LAW – Indigenous land rights – Claims for general equitable Indigenous title separate to native title LAND LAW – Adverse possession – Consent of documentary owner CONSTITUTIONAL LAW – Commonwealth Constitution – Race – Scope of legislative power under s 51(xxvi) – Aboriginal and Torres Strait Islanders peoples as distinct “people of any race”
Catchwords:
CIVIL PROCEDURE — stay of judgment pending appeal — where primary judge dismissed claim for specific performance of contract for sale of land and discharged injunction restraining respondent Council from considering rescission motion — where respondent acknowledged that appeal raised serious issues — whether balance of convenience or balance of hardship favours stay of order discharging interlocutory injunction
Catchwords:
COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – whether basis for variation made out
Catchwords:
LAND LAW — Crown land — claim by Crown for possession of Crown land — where land previously subject to a permissive occupancy — whether claim statute barred on the basis that the land has been in adverse possession for over 30 years — ss 27 and 38 of the Limitation Act 1969 (NSW) — effect of s 65 Limitation Act — whether s 13.1 of the Crown Land Management Act 2016 (NSW) precludes the appellant’s defence that the Crown’s action is statute barred LAND LAW — Adverse possession — Intention to possess — where rent paid to the Crown — where occupant sought to regularise his occupation of the land by seeking a permissive occupancy or licence from the Crown
Catchwords:
CONTRACTS — Implied contract — Where agreement automatically terminates upon termination of another contract — Where party fails to notify that first contract has terminated and parties continue acting as if agreement in force — Where parties agree there was an implied agreement which continued after termination — Whether implied agreement terminable on reasonable notice CONSUMER LAW — Misleading or deceptive conduct — Where agreement automatically terminates upon termination of another contract — Whether party engaged in misleading or deceptive conduct by failing to notify other party that other contract had terminated and by representing that agreement was “binding” and remained in force — Whether but for this conduct other party would not thereafter have taken a specific course by entering into a particular agreement
Catchwords:
JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Application under UCPR, r 36.16(3A) – Failure to comply with directions as to length of written submissions – Applicant seeking to reagitate issues – No basis for re-opening established
Catchwords:
COMPULSORY ACQUISITION — Compulsory acquisition of land — Compensation — Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Determination of market value — Decrease in land value claimed to be caused by public purpose — Statutory disregard — Owners advised of acquisition 17 months prior to acquisition and slowed then stopped development work — Issue of causation to be understood in statutory context — Strain on causal attribution where choices made by owners — Causal issue is re effects of public purpose not of acquisition — Potential for windfall to owners — Effects on value caused only by choices by owners because of possibility of the land being acquired not within s 56(1)(a) COMPULSORY ACQUISITION — Compensation — Disturbance — Construction of s 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Stamp duty and mortgage costs only claimable as disturbance under ss 59(1)(d) and (e)
Catchwords:
BUILDING AND CONSTRUCTION — adjudication — whether adjudication determination was affected by jurisdictional error — whether adjudicator denied respondent to adjudication procedural fairness — whether basis of adjudicator’s determination regarding retention monies was in issue on the adjudication — whether respondent could reasonably anticipate basis of determination regarding retention monies — denial of procedural fairness material
Catchwords:
WORKERS COMPENSATION — Proceedings before Personal Injury Commission — Appeal against decision of presidential member in point of law — Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker — Where worker suffered psychological injury — Where Member determined that employment was the main contributing factor to injury — Whether Deputy President erred in implicitly deciding there was evidence capable of supporting the Member’s factual finding — Whether Deputy President erred in implicitly deciding the Member did not misapply or misapprehend relevant legal principles on causation of injury — Whether Deputy President constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument
Catchwords:
CONTRACTS — Construction — Principles –Significance of poor drafting – whether a sum payable under a contract should be characterised as a “conventional deposit”, repayable in the event of the vendors’ default and recoverable in a claim for restitution, or as an option fee that became and remained the property of the grantor
Catchwords:
EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – decision made to recover past financial assistance on the basis that the relevant school was non-compliant because it had operated for profit from 2015 to 2020 STATUTORY INTERPRETATION – where Minister made recovery decision under s 83J of Education Act 1990 (NSW) and non-compliance declaration under s 83F of that Act – whether Minister was empowered to make recovery decision in relation to the period prior to her making the non-compliance declaration because she had not reached the requisite state of satisfaction that the school was operating for profit under s 83E of that Act
Catchwords:
APPEALS – jurisdiction of appellate court – extension of time for filing and serving appeal under UCPR r 51.9(1)(b) – notice of intention to appeal filed and served – no notice of appeal filed and served – whether power under r 51.9(1)(b) may be exercised where no appeal or other proceeding commenced – in absence of filed notice of appeal there is no proceeding within which that power may be exercised
Catchwords:
CONTRACTS — deed of settlement and release — construction — where release restricted to claims “in connection with or arising out of” statement of agreed facts — whether claim released at law — whether necessary to consider equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 where claim not released on proper construction of deed
Catchwords:
APPEALS – Leave to appeal – Principles governing – Whether arguable case – Where primary judge made a winding up order on just and equitable grounds APPEALS – Procedure – Whether stay pending summons seeking leave to appeal ought to be granted
Catchwords:
CIVIL PROCEDURE – Teoh order – where the applicants filed a notice of motion seeking to set aside and vary orders under UCPR, r 36.16 – where application does not raise any new issue and the issues raised have now been repeatedly determined against the applicants – where applicants directed to show cause why the Court should not summarily dismiss proceedings as vexatious and an abuse of process – whether application should be dismissed as vexatious and an abuse of process CIVIL PROCEDURE – Subpoena – where leave to issue a subpoena refused by Deputy Registrar on the basis that there were no active proceedings at the time when the subpoena was filed – where applicants made a further application for leave to issue that subpoena – where documents are being sought by the applicants to support contentions considered and rejected by this Court – whether leave to issue the subpoena should be granted
Catchwords:
APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of debtor company – repeated undertakings – contractual intention – implied contingent agreement – consideration – forbearance – continuing to trade
Catchwords:
GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Where guaranteed loan agreement provided for interest accrual on drawdown — Where side letter agreed between borrower and lender provided for pre-drawdown interest — Where guarantor did not consent to side letter — Whether side letter altered borrower’s obligations under loan agreement pursuant to which funds were advanced GUARANTEE AND INDEMNITY — Discharge of guarantor — Where draft principal contract altered between borrower and lender prior to contract of guarantee — Whether rule discharging guarantee where principal contract varied without guarantor’s consent applied — Rule in Holme v Brunskill (1877) 3 QBD 495 GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether guarantee obligation properly characterised as indemnity — Where guarantee expressed to be principal obligation
Catchwords:
COSTS – Party/Party – Appeals – Where neither party wholly successful on appeal – Where appellant enjoyed some success with respect to discrete aspect of claim – Where appellant asserts there should be no order as to costs – Where respondent substantively successful on balance of contested issues – No issue of principle
Catchwords:
ADMINISTRATIVE LAW – Supervisory jurisdiction – Judicial review – Judicial review of confirmation in District Court of conviction entered in Local Court – Where applicant advances numerous grounds of review asserting jurisdictional error in conduct of trial and appeal to District Court – Where applicant asserts primary judge’s comments gave rise to apprehension of bias – Where applicant asserts denials of procedural fairness arising from inability personally to address Court and judge’s possession of extraneous information – Where applicant asserts constructive failures to exercise jurisdiction by failure to respond to substantial and clearly articulated arguments – Where applicant asserts mistaken denial of appellate jurisdiction in conduct of appeal – Where applicant asserts finding of fact made in absence of any evidence – Where applicant asserts diverse errors of law in conduct of appeal – Where applicant asserts legally unreasonable or irrational finding of fact made – Where none of applicant’s grounds has merit – No issue of principle – Application for judicial review dismissed
Catchwords:
APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for payments due under deed – Where applicant subsequently sought rectification of deed and release of charge over shares or a declaration the deed was void ab initio by reason of mistake – Where mistake said to generate equity of rectification as to effect of granting charge on other financing arrangements between parties – Whether primary judge erred in refusing mandatory interlocutory injunctive relief against respondent – Whether applicant had identified question of principle of general importance or injustice or error going beyond one merely arguable – No issue of principle – Leave to appeal refused
Catchwords:
CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children’s Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court’s parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law
Catchwords:
COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — where mixed outcome on appeal — where issues sufficiently discrete to warrant apportionment — unsuccessful appeal on causation — significant reduction of damages on appeal COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether offer of compromise complied with requirements of Uniform Civil Procedure Rules 2005 – whether offer complied with Calderbank principle
Catchwords:
EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction’s 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction’s 2013 Australian concert tour – in early June 2013 the respondent announced an additional, free One Direction concert to be attended by Coles customers who purchased eligible products and were successful in an online draw as part of an arrangement between the respondent and Coles for Coles to provide sponsorship for the One Direction 2013 Australian concert tour – appellant claimed that in devising the additional, free One Direction concert, the respondent used confidential information he had supplied during the 26 February 2013 meeting – appellant alleged respondent breached equitable obligation of confidence – claim dismissed by primary judge – whether the primary judge erred in finding the information conveyed by the appellant was inherently unspecific – whether the primary judge erred in finding the information conveyed by the appellant was a very general and inchoate idea – whether the primary judge erred in finding that the information was not received by the respondent in circumstances importing an obligation of confidence – whether the primary judge erred in finding that there was no misuse of the information in question EVIDENCE – appellate review of witness evidence – where findings as to credibility and reliability of accounts given by various witnesses played a significant role in some of the primary judge’s key findings rejecting the claim for breach of confidence – where primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses – to the extent the appellant seeks to challenge findings of fact influenced by the primary judge’s findings as to credibility and reliability he must establish findings were glaringly improbable or contrary to compelling inferences – whether primary judge’s findings were glaringly improbable or contrary to compelling inferences APPEALS – procedure – appellant’s claim would not exceed approximately $33,000 – where leave is required to appeal against a final judgment involving a claim or matter in issue of less than $100,000 – appellant sought leave to appeal out of time in his written submissions – appellant’s appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable – leave to appeal granted
Catchwords:
CIVIL PROCEDURE – permanent stay of proceedings – claim of vicarious liability for damages for child abuse – child abuse alleged to have occurred in 1976 at holiday camp – most relevant witnesses deceased – primary judge ordered permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – whether GLJ changed applicable principles – whether fair trial possible of primary allegation of child abuse – where appellants intended to adduce further expert evidence concerning holiday camps – leave granted and timetable for further evidence and submissions ordered
Catchwords:
COSTS – General rule that self-represented litigants cannot recover costs for their own time – Chorley exception – Impact of Bell Lawyers v Pentelow on litigants recouping costs of employed solicitors – Inclusion of “remuneration” in definition of “costs” in the Civil Procedure Act 2005 (NSW) – Where the litigant party has obtained a costs order in their favour – Where the litigant party is also the solicitor on the record – Whether an unincorporated law firm litigant is entitled to recover costs for work done by its employed solicitors during the litigation JUDGMENTS AND ORDERS — Court of Appeal — Review of previous decision of another intermediate Court of Appeal — Whether previous decision interpreted what the High Court said or developed the common law — Court of Appeal not bound by a coordinate court’s interpretation of what the High Court said
Catchwords:
EQUITY — General principles and maxims — Conveyancing — Statute of Frauds — Part performance — High threshold for part performance — Equivocal factors for part performance — Many equivocal acts do not add up to an unequivocal act EQUITY — Equitable interests in property — Property disputes — Assertion of legal ownership by trustee — Trusts and trustees — Evidence of trust — Where evidence of oral declaration of trust inadmissible under s 23C of the Conveyancing Act 1919 (NSW) — Doctrine in Rochefoucauld v Boustead — Doctrine not limited to where was a conditional assignment or written evidence prevented by fraud — Doctrine not limited to where property was assigned by claimant — Doctrine does not involve weighing up merits of conduct of parties APPEALS — From finding of fact — Credibility of witnesses — Challenge to credibility finding not made out
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – variation of costs order – variation sought – where principal appeal judgment addressed all issues raised on costs – where after principal judgment delivered appellant sought to make submissions on a point not raised on appeal – whether variation should be allowed COSTS – costs of trial – where eighth respondent liable on ordinary basis for appellants’ costs of one issue on appeal – whether costs should instead be on partial indemnity basis – where offer did not comply with UCPR r 20.26 – whether eighth respondent unreasonably rejected Calderbank offer
Catchwords:
COSTS – party/party – costs of appeal and primary claim – amendment to original costs order – where mixed success on appeal but appellants prevailed on principal issue – where cross-claim remitted for further hearing – where judgment below $500,000 – whether UCPR r 42.34 applies PRACTICE AND PROCEDURE – funds paid into court – whether and to whom funds should be released
Catchwords:
CONTRACTS – construction of contract – loan agreement – provision to convert amount owing into equity – whether forbearance deed converted loan into equity – whether clauses to be read in isolation or harmoniously – recital in deed cannot override the effect of the deed, properly construed CONTRACTS – variation of contract – loan agreement subject to deed providing forbearance to sue – whether obligations of guarantor of repayment of loan discharged by borrower and lender entering into deed of forbearance
Catchwords:
COSTS — Costs assessment — Whether gross sum costs order should be made — Whether costs should be awarded on an indemnity basis
Catchwords:
COSTS – costs of appeal – where both parties enjoyed measure of success – costs of trial – costs order made at first instance was a ground of appeal – no substantive submissions made on that ground, despite the absence of submissions being pointed out in writing and during the hearing of the appeal – defendants belatedly seek to vary order dismissing that ground of appeal – no basis shown to vary costs order
Catchwords:
COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — notice of motion filed more than 14 days after entry of original costs order — whether application for gross sum costs order a variation of original order
Catchwords:
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — appeal against dismissal from appeal in Local Court — accountant sued for payment of outstanding fees claimed in invoices — amount in issue does not warrant grant of leave to appeal — evidence not adduced to prove basis of amounts claimed in invoices — whether plaintiff needs to do more to establish right to sums depends on whether quantum challenged by defendant — issue whether lump sum claimed in invoice with no explanation as to calculation is evidence of amount owing on invoice does not give rise to issue of principle or question of public importance in circumstances where quantum of invoices not challenged by defendant in defence and raised for the first time in closing submissions
Catchwords:
BUILDING AND CONSTRUCTION — adjudication — adjudication application — misleading deceptive conduct for purpose of s 18 of Australian Consumer Law — whether representations made by claimant to adjudicator in application is conduct in trade or commerce
Catchwords:
APPEALS – leave to appeal – claim for damages for sexual assault by police officers when plaintiff being apprehended – damages less than $100,000 – five day trial – no denial of procedural fairness – no error of principle or public importance – whether errors in fact-finding process – if appeal allowed, necessity for lengthy retrial – whether appropriate to grant leave to appeal
Catchwords:
BUILDING AND CONSTRUCTION — Payment claim requirements — Where alleged payment claim consisted of letter from solicitors and attached invoices — Where correspondence between attached invoices and earlier submitted payment claims — Where indebtedness asserted in letter — Whether payment claim within meaning of s 13(1) of Building and Construction Industry Security of Payment Act 1999 (NSW)
Catchwords:
APPEALS – Procedure – Vexatious litigants – Where recommended that Attorney-General make an application for a declaration that the applicant is a vexatious litigant
Catchwords:
APPEAL – leave to appeal – interlocutory order refusing to strike out defence – defence pleaded plaintiff’s claim apportionable – issue of general public importance – significant impact on course of trial TORT – duty of care – statutory duty for construction work – extension of duty to subsequent owners of land – duty non-delegable – whether claim is apportionable under Pt 4 of Civil Liability Act 2002 (NSW) – claim by owners corporation for defective works – Design and Building Practitioners Act 2020 (NSW), s 37(1) WORDS AND PHRASES – “non-delegable duty – “tort” – “vicarious liability”
Catchwords:
TAXES AND DUTIES – payroll tax liability – employment agency contract – contract for trolley collection and cleaning services – identifying the employment agency contract – contract between agent and client – separate contracts between agent and service providers – onus of proof on tax payer STATUTORY INTERRETATION – payroll tax liability – employment agency contract – procuring services for client – when service provider works “in and for” the business of the client of the agent – use of “indicia” – reliance on factors considered in other cases
Catchwords:
ADMINISTRATIVE LAW – access to personal information – obligation of public sector agency – access to be provided without excessive delay – breach of obligation – power to order provision of information – unresolved issues as to application of conditions and limitations on disclosure obligation CIVIL PROCEDURE – Civil and Administrative Tribunal – appeals – leave to appeal – third appeal – original applicant inactive party – issue of principle as to power of Tribunal – statutory agency appearing as contradictor – no prejudice to original applicant STATUTORY INTERPRETATION – harmonious construction – two State Acts – provision in one Act picking up provisions from another Act – construing picked-up provision so as to apply in different legislative context
Catchwords:
BUILDING AND CONSTRUCTION — Payment schedule requirements — Where payment claim had two distinct and substantial components — Where statement for withholding payment failed to provide any reason directed to a distinct and substantial component of a payment claim — Whether statement was sufficient to constitute “reasons” under s 14(3) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Sufficiency of reasons is to be assessed in a purposive manner
Catchwords:
TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation” for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant’s explanation of reliance on respondent’s insurer and ignorance of right to make claim “full and satisfactory” – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide “full and satisfactory explanation” – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act TORTS – Motor vehicle accident– Late claims – Requirement that “total damages of all kinds likely to be awarded” to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant’s injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act WORDS AND PHRASES – “Full and satisfactory explanation” – “Likely to be awarded”
Catchwords:
APPEALS – leave to appeal – principles governing – where Applicant sought leave to appeal from a discretionary decision of the primary judge to adopt aspects of a referee’s report – whether matter raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable
Catchwords:
ENVIRONMENT AND PLANNING – jurisdiction of Land and Environment Court to hear Class 1 appeals – ss 368(1)(a) and (c) of the Water Management Act 2000 (NSW) – where floodplain harvesting (regulated river) access licence not granted in relation to share component said to have been sought – whether determinations of Minister to grant licences with lower share components than had been sought amounted to refusals to grant access licences – whether decision as to share component for access licence constituted imposition of a discretionary condition
Catchwords:
APPEALS – Leave to appeal – question of general principle – scope of tort of injurious falsehood TORTS – Economic torts – Injurious falsehood – malice – where false representations were beliefs or opinions reasonably held TORTS – Economic torts – Injurious falsehood – falsity – whether any error to approach to falsity in the particular circumstances of the case TORTS – Economic torts – Injurious falsehood – damages – whether representations leading to internal investigation caused actual damage – whether aggravated and/or exemplary damages could be awarded in the circumstances TORTS – Economic torts – Injurious falsehood – scope – where unsuitable to determine given failure of other aspects of the appeal
Catchwords:
COSTS – party/party – appeals – where offer made before appeal hearing – whether the offer reflected genuine compromise – whether unreasonable for appellants not to accept the offer
Catchwords:
CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J’s orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J. APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2).
Catchwords:
Appeals – application for leave to appeal from summary dismissal of proceedings – pleading disclosed no reasonable cause of action – no prospect that leave to replead would result in viable claim – leave to appeal refused – no issue of principle
Catchwords:
TORTS – negligence – occupier’s liability – school cleaner injured by striking head on a storeroom doorframe – storeroom contained cleaning products and other items – whether occupier was negligent – whether relocating entire contents of storeroom was a reasonable precaution – whether burden of taking precaution was overly onerous – where burden included burden of taking similar precautions – cleaner’s contributory negligence – where risk of harm was patently obvious to person in cleaner’s position – apportionment of liability between occupier and cleaner’s employer – assessment of damages for non-economic loss COSTS – party/party costs – costs of appeal – where appellant succeeded on several grounds – where respondent wholly successful on notice of contention – where respondent did not lead primary judge into error
Catchwords:
COSTS – partial success – part of proceedings remitted – agreement as to principled exercise of costs discretion – orders made accordingly
Catchwords:
EQUITY – fiduciary duty – existence – whether employee owes fiduciary obligations to employer – whether employee recognised as accepted category of fiduciary – separate element as to whether employee’s conduct falls within scope of fiduciary obligation – whether open to Australian courts below the High Court to reject separate elements of existence and scope of fiduciary obligations of senior employees – Nottingham University v Fishel [2000] EWHC 221 (QB); [2000] IRLR 471 disapproved EQUITY – fiduciary duty – knowing involvement in breach – level of assistance sufficient to render third party liable – extent of knowledge sufficient to render third party liable – circumstances when knowledge imputed to third party – scope of “fraud exception” EQUITY – fiduciary duty – breach – causation – where loss of opportunity turned upon alleged further breach of trust by trustee to which fiduciary obligations were owed by employees – whether such further breach of trust stood in way of assessment of liability of fiduciaries and knowing assistants – whether proposition produces incoherence and leaves dishonest fiduciaries with a windfall – whether allegation of further breach of trust put to trustee – whether there was informed consent to any further breach of trust EQUITY – fiduciary – breach – loss of a chance – whether any lost opportunity caused by breaches was so speculative that it was not valuable – assessment of loss of chance – discounts for future contingencies – appropriateness of “global” discount because future contingencies not independent – significance of paucity of evidence being a consequence of breaches of fiduciary duty – appropriateness of drawing inferences and resolving doubtful questions against fiduciary
Catchwords:
CONTRACTS – Rectification – Common intention – Proof of common intention – Proof by inference – Where appellant and respondent executed Sole Agency Agreement for marketing and sale of units in residential development – Where appellant as selling agent entitled under Agreement to “Commission” upon sale of units – Where “Commission” as defined in Agreement limited to commission payable on certain units in development – Where appellant asserts common intention that “Commission” should have extended to commission accrued prior to execution of Agreement – Where directors and managers of respondent not called to give evidence on intention as at execution of Agreement – Whether uncontradicted evidence of sole director of appellant amounts to clear and convincing proof of common intention by inference – Relief in nature of rectification denied REAL PROPERTY – Caveats – Caveatable interests – Grant of caveatable interest – Where appellant asserts caveatable interest in nature of equitable charge entitling it to judicial sale of units in development – Where Sole Agency Agreement confers right on appellant to compel sale of specified units at fixed price to itself or others and offset outstanding commission against purchase price – Where Agreement authorises appellant to lodge caveats in order to protect its entitlement to Commission – Whether grant of right to compel sale constitutes express grant of equitable charge – Whether grant of right to lodge caveats constitutes implied grant of equitable charge – Appellant held impliedly to have been granted equitable charge over units in development AGENCY – Property, stock and business agents – Restrictions on real estate agent obtaining beneficial interest in property – Where appellant as real estate agent asserts rights as equitable chargee under Sole Agency Agreement – Where appellant had not obtained client’s consent in writing in form approved by Secretary prior to execution of Agreement – Where interpretation clause in Agreement purports to sever any term or provision of agreement repugnant or contrary to any law – Whether appellant obtained beneficial interest in property in contravention of Property and Stock Agents Act 2002 (NSW) s 49(1) – Whether interpretation clause accordingly severs clauses of Agreement that impliedly grant equitable charge to appellant – Held that clauses impliedly granting equitable charge to appellant not severed from Agreement
Catchwords:
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — abuse of process — defamation proceedings — applicant’s predominant purpose an ulterior purpose to maintain contact with respondent — whether finding of ulterior purpose erroneous — whether ulterior purpose sufficient to make proceedings abuse of process where also pursuing legitimate remedy — ulterior purpose need not be sole purpose LEAVE TO APPEAL — PRACTICE AND PROCEDURE — alleged denial of procedural fairness — where applicant read extensive affidavit near the end of hearing — where applicant sent submissions to primary judge without leave after judgment reserved LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — Anshun estoppel — whether subsequent interlocutory application for dismissal can be brought in same proceedings
Catchwords:
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where appellant had filed notices of appeal 5, 11 and 15 months out of time – Where grounds of appeal had not been properly articulated or did not disclose arguable error – Whether extension of time to file notices of appeal should be granted
Catchwords:
APPEALS — Leave to appeal — Interlocutory decision — Challenge to refusal of application to transfer proceedings — Restraint in interfering with interlocutory decisions on a matter of practice or procedure — Whether reasonably arguable that any House v The King error — Whether reasonably clear injustice
Catchwords:
COURTS AND JUDGES — Apprehended bias —Where complaints on appeal concerning evidentiary rulings and time limitation on cross-examination of witness — Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to issues — Where no basis identified for finding that judge decided case other than on legal or factual merits COURTS AND JUDGES — Actual bias — Whether judge pre-judged appellant’s case — Where no basis for inferring that judge was not open to persuasion CONSUMER LAW — Misleading or deceptive conduct — Whether Health District or recruitment agency misrepresented nature or location of appellant’s appointment to provide locum services as visiting medical officer (VMO) — Where appellant confirmed her correct understanding of the nature of locum role in contemporaneous emails and conversations CONTRACTS — Breach of contract — Where appellant agreed to provide locum services as VMO under locum agreement — Where appointment terminated — Whether Health District’s discretion in locum agreement to determine amount of work “during the term” of agreement authorised termination EQUITY — Breach of confidence — Where no evidence that Health District received confidential information TORTS — Economic torts — Injurious falsehood — Malice — Where notification concerning appellant made to Australian Health Practitioners Regulation Authority (AHPRA) — Where Health District responded to inquiry from Health Care Complaints Commission (HCCC) to provide documents and reports — Whether statements made to AHPRA and HCCC involved malice — Where challenge to findings that statements made in good faith TORTS — Economic torts — Injurious falsehood —Where email inadvertently sent by recruitment agency to appellant and another employee of recruitment agency — Whether statement made to third party — Whether email malicious — Where recruitment agency decided not to arrange further VMO placements for appellant APPEALS — From exercise of discretion — Procedural decisions — Where refusal of application to re-open case — Whether House v The King-type error established — Where no such error identified
Catchwords:
DEFAMATION – defamatory matter – capacity to convey pleaded imputations DEFAMATION – online publication – Facebook post – extent of publication – where proof of publication to only two online readers – relevance to damages DEFAMATION – defences – common law qualified privilege –reply to online attack – where parties agreed matter complained of was published on occasion of privilege and was sufficiently connected to the occasion of privilege – malice – where witness and contemporaneous documents demonstrated publisher’s state of mind – whether appellant discharged burden of proving malice
Catchwords:
CORPORATIONS — priorities — circulating assets — insufficiency of assets — Commonwealth subrogated rights of employees of company being wound up — whether liquidator’s claim for remuneration, costs and expenses ranks ahead of priority creditor — whether order of priority established by ss 556 or 561 of Corporations Act 2001 (Cth) CORPORATIONS — statutory construction — legislative history of provisions — meaning of the word ‘claim’ in s 561 of Corporations Act – relationship between ss 433 and 561 — when determination for insufficiency of assets is to be made by liquidator or receiver
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – correction after notice of motion within 14 days – where on Court of Appeal’s reasoning the respondent remained entitled to $138,629 in rental arrears and $22,817.76 in outgoings (together with interest) – where orders disposing appeal set aside entire award of damages – whether orders should be corrected under UCPR r 36.16(3A) or r 36.17 – whether parties should be permitted to make further submissions on costs
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – where notice of motion filed within 14 days – where amended notice of motion filed more than 14 days after orders entered – power of court to entertain amended application –power to amend motion only to the extent matters adequately notified within 14 day period COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – no basis for variation made out COSTS – appeals – Suitors’ Fund – where submissions by applicant had material role in errors by primary judge – where applicant on appeal opposed setting aside orders of primary judge – application for certificate refused JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – whether proper basis to make variations sought – where matter litigated in District Court – inappropriate for Court of Appeal to resolve case management issues – orders refused
Catchwords:
PROCEDURE – Teoh order – whether further application to set aside orders vexatious or an abuse of process – applicant’s motion dismissed as an abuse of process
Catchwords:
JUDGMENTS AND ORDERS – Inconsistency – where funds misappropriated from partnership – where proceedings commenced by appellants claiming existence of partnership and entitlement to amounts from estate of partner who misappropriated the funds – where proceedings commenced by others seeking distributions from constructive trusts declared over estate funds – where inquiry ordered into what monies appellants entitled to from estate – whether costs order made by primary judge inconsistent with earlier Court of Appeal costs orders – whether Court of Appeal orders insulated costs order in favour of appellants from subsequent diminution or alteration through inquiry PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Contribution and indemnity – whether substantive contribution claim raised – whether issue of contribution determinable by primary judge as part of consideration of costs – whether primary judge erred in failing to determine, or constructively denying, appellants’ contention that other members of partnership were liable to contribute to their costs of proceedings – whether costs incurred in the ordinary and proper conduct of the business of partnership within meaning of Partnership Act 1892 (NSW), s 24(1)(2)(a) – whether costs incurred in manner giving rise to relevant equity grounding right of contribution
Catchwords:
APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy– Leave to appeal refused JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppression of material fact – Effect of collusion on ability to impeach judgment in collateral proceedings – Where applicant denied leave to allege fraud in conduct of Local Court proceedings on basis that that would involve collateral attack on standing judgment – Where applicant also alleged collusion on part of credit provider and lawyers to obtain judgment by fraud – Whether collateral attack possible in circumstances where standing judgment procured by fraudulent collusion as opposed to fraud simpliciter
Catchwords:
CONTRACT — Construction — Interpretation — Contractual purpose — Varied contract to be construed — Commerciality of contractual construction — Price adjustment mechanism — Meaning of Base Date Index Value when that composite term was not defined but when Base Date was defined
Catchwords:
PRACTICE AND PROCEDURE – reference on appeal – adoption of referee’s report – whether referee erred in construction of contract COSTS – at trial and on appeal – Calderbank offer at trial – joint offer by multiple parties – offer of compromise not renewed on appeal – late concessions by party on appeal – whether special costs order appropriate at trial and on appeal
Catchwords:
APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy – Leave to appeal refused
Catchwords:
EQUITY – Set-off – Where the appellant had been ordered to account to the respondent in respect of moneys drawn under a mortgage facility secured over property held for the respondent’s benefit and the respondent had been ordered to re-pay the appellant sums owing under a loan unrelated to the mortgaged property – Whether the two claims were sufficiently closely connected that one could be said to impeach the other in the sense required for an equitable set-off. EQUITY – Whether Brickenden principle (see Brickenden v London Loan & Savings Co [1934] 3 DLR 465) that prohibits speculation by defaulting fiduciaries as to counterfactuals had the default not occurred has application to the issues raised as to equitable set-off in the present case.
Catchwords:
LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer’s claim was claim to recover tax “recoverable on restitutionary grounds” – whether claims “recoverable on restitutionary grounds” confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to “recover” overpaid rates
Catchwords:
EVIDENCE — appellate review of witness evidence — competing accounts of central factual issue — whether primary judge’s findings were most likely affected by impressions about the credibility and reliability of the witnesses — advantage of primary judge in seeing and hearing the witnesses give evidence — whether primary judge’s findings also informed by assessment of evidence as a whole including plausibility of the accounts of various witnesses having regard to documentary evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences EQUITY — appeals — fiduciary duties — where parties were equal shareholders in freight company — where labour divided between shareholder companies — whether parties relationship gave rise to fiduciary duty — whether appellants placed trust and confidence in respondents not to act to their detriment — whether fiduciary duty breached
Catchwords:
COSTS – party/party – appeals – general rule that costs follow the event – whether costs orders below should be amended where part of the appeal is successful
Catchwords:
APPEALS — Procedure — Vexatious litigants — Where allegations of bias and misconduct without merit — Whether ss 6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW) depend on subjective intent — Whether ss 14 or 17 of the Limitation Act 1969 apply to vexatious proceeding orders — Whether proceedings conducted in a rude and offensive manner can be vexatious — Whether order should be made requiring that leave to institute proceedings be given by Supreme Court — Whether time limit should be imposed on order — No House v The King error established for the discretionary making of vexatious proceeding orders
Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Superannuation – where respondent was a NSW Police Officer who resigned in 1999 – where respondent applied for superannuation allowance under Police Regulation (Superannuation) Act 1906 (NSW), s 10B, relying on depressive illness – where Act amended after resignation but before application – whether question of incapability considered by primary judge in requisite sense – whether respondent was incapable, in a permanent or persistent sense, from carrying out the functions of a police officer as at the date of his resignation – whether applicable version of s 10B was that in force as at the date of resignation or application – whether primary judge had regard to the infirmity, as distinct from a susceptibility to an infirmity on question of incapability
Catchwords:
PROCEDURE – parties directed to supply submissions as to appropriate orders after interlocutory appeal determined – one party seeks special leave – whether orders should be made at all – other party seeks interlocutory relief – such relief should be sought in the Equity Division – whether all of numerous questions asked by judge need to be answered – answers to some but not all questions given
Catchwords:
ADMINISTRATIVE LAW – error of law – error of jurisdiction – judicial review of decision to refuse application for post-conviction inquiry pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – where Applicant was convicted of conspiring to import a commercial quantity of a border controlled precursor drug
Catchwords:
APPEALS — TORTS — DAMAGES — motor vehicle accident — successful plaintiff appealing judgment sum — application to adduce further evidence available at time of hearing in Court below — damages calculated based on actual earnings where plaintiff had not paid tax for several years — future economic loss based on past performance of business and unchallenged forensic evidence — whether future projections ought be accepted in an assessment of future economic loss
Catchwords:
EQUITY – Proprietary estoppel – Estoppel by encouragement – Knowledge of detriment – Where the deceased promised to leave the property to a sharefarmer who had worked on the property for approximately 40 years – Where the deceased’s will did not do so – Where the sharefarmer continued to share farm on the property in reliance on the representation – Whether the deceased needed to have actual knowledge of detrimental reliance on the representation for estoppel to be established PROCEDURE – appeals – further evidence – evidence adduced at subsequent hearing before final orders made – whether such evidence “further evidence” for purposes of Supreme Court Act 1970 (NSW), s 75A – whether appellant should be permitted to rely on such evidence following first hearing to impugn findings made after first hearing
Catchwords:
APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing against it — whether scope of liability should extend to stonemason who constructed monument APPEAL — PRACTICE AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion
Catchwords:
NEGLIGENCE – duty of care – duties owed by occupier of licensed premises and security contractor to patrons – breach – whether defendants had knowledge of aggressive character of particular patrons – whether defendants should have turned out particular patrons before plaintiff arrived –distinction between RSA marshals and licensed security guards – whether defendants breached duty by having no licensed security guards on premises – whether defendants should have separated plaintiff from particular patrons after altercation commenced – causation – whether plaintiff established that had defendants not breached their duties of care, particular patrons would have been excluded before his arrival – whether sufficient time between commencement of altercation and plaintiff being struck for licensed security guards to intervene – contributory negligence – extent of plaintiff's contribution to harm suffered when another patron struck him – statutory contribution – nature and extent of breaches of duty by occupier and security contractor – damages – economic loss – challenge to assessment – non-compliance with Civil Liability Act 2002 (NSW) s 13
Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside – application to reopen and vary orders under UCPR r 36.16 after judgments published – where applicants sought to reagitate arguments – no basis for reopening – application dismissed DIRECTIONS – Teoh direction – Show cause direction – Where Teoh direction made to prevent an abuse of process
Catchwords:
APPEALS – leave to appeal – interlocutory decision – submission not made to primary judge – absence of any material error – absence of utility of appeal having regard to proximity of final hearing – leave refused
Catchwords:
PLANNING AND ENVIRONMENT – development application for mixed use development – repeal and replacement of environmental planning instrument – savings provision for development application “made, but not yet determined” by commencement date – when development application “made” – requirements to comply with prescribed form and manner – whether compliance with requirements – interpretation and application of requirements
Catchwords:
ADMINISTRATIVE LAW — Procedural fairness — Whether the adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where necessary provision of procedural fairness attenuated in the context of the statute — Need for a substantial departure from the general requirements of procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Where conversion factor from weight to volume that was applied was not explained in terms by claimant — Where conversion factor was readily calculable — Where party is aware that some conversion factor was applied — Whether reliance made on contractual document which had not been foreshadowed was a denial of procedural fairness — Whether reliance on industry standards not provided by either party was a denial of procedural fairness — No substantial denial of procedural fairness constituting jurisdictional error
Catchwords:
ADMINISTRATIVE LAW – jurisdictional error –application to re-open proceedings pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – where District Court dismissed application – whether jurisdictional error – whether penalty contrary to law SENTENCING – relevant factors on sentence – form 1 offences – jurisdictional error – Crimes (Sentencing Procedure) Act 1999 (NSW), s 35A(2) – whether failure to comply with s 35A(2) invalidates sentence – no jurisdictional error ADMINISTRATIVE LAW – ground of review other than procedural fairness – procedural error – right to reasons – inadequacy of reasons – whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error – nature of judicial duty to give reasons – reasons adequately conveyed essential ground for decision ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – no practical injustice – no materiality
Catchwords:
APPEALS – Procedure – Leave to appeal – Application out of time – Application for leave to appeal from summary dismissal of proceedings – Serious allegations of fraud – Deficiencies in pleading allegations of fraud – Proceedings seeking to re-agitate issues determined over 30 years ago
Catchwords:
CIVIL PROCEDURE – Appeals – Applications to discharge or vary orders and directions given by Judge of Appeal – No issue of principle – Applications dismissed
Catchwords:
EQUITY – fiduciary duties – whether fiduciary relationship overlay contractual relationship between the principal and attorneys – duty of attorneys not to act in conflict with interests of their principal not inconsistent with contractual terms EQUITY – fiduciary duties – breach by attorneys – which breaches were part of a dishonest and fraudulent design – where fiduciaries used relationship to assign interests in land without proper consideration – where fiduciaries used relationship to claim fees at their absolute discretion EQUITY – fiduciary duties – Barnes v Addy – knowing assistance – director and sole shareholder of company had actual knowledge of dishonest and fraudulent design – that knowledge imputed to company – where company dictated terms on which consideration might be provided EQUITY – fiduciary duties – Barnes v Addy – knowing assistance – whether director of company is personally liable where knowledge and participation in dishonest and fraudulent design confined to actions taken in capacity as director of company – where no assistance given other than in capacity as director
Catchwords:
ADMINISTRATIVE LAW – judicial review – jurisdictional error – application to revoke apprehended violence order after order had expired – Local Court dismissed application – District Court dismissed appeal – conceded jurisdictional error by District Court – whether relief should be withheld because District Court reached correct conclusion STATUTORY CONSTRUCTION – amending legislation introduced express provisions authorising revocation of expired apprehended violence orders in 2008 – statutory review recommended repeal of power to revoke expired apprehended violence orders – 2016 amendments repealed provisions authorising revocation of expired apprehended violence orders – ordinary meaning of statute after 2016 amendments permitted applications to revoke apprehended violence orders to be made “at any time” – whether legal meaning of statute departed from literal meaning
Catchwords:
LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving aggravated sexual abuse – whether the practitioner not “a fit and proper person” to remain on the roll – whether the practitioner “likely to be unfit for the indefinite future” – orders not opposed
Catchwords:
LEASES AND TENANCIES – retail lease –executed agreement for lease and lease for period of 10 years – whether lessor entitled to terminate lease – whether termination prohibited by COVID-19 pandemic regulation – whether lessor elected to waive certain grounds for terminating lease – where lease not registered – whether parties bound by contractual force of agreement for lease – proper construction of guarantee – whether guarantors liable for obligations of lessee – where tenant’s entitlement to damage not sufficiently litigated – whether appropriate for appeal court to determine entitlement to damages STATUTORY INTERPRETATION – subordinate legislation – schedule to regulation – application of principles of statutory interpretation – schedule replaced by second version – schedule containing blanket prohibition on terminating lease during “prescribed period” – separate provisions permitting termination subject to conditions – whether specific exceptions prevailed over general prohibition – coherent reading in light of extrinsic materials EVIDENCE – privileges – settlement negotiations – privilege under Small Business Commissioner Act 2013 (NSW) s 19 over discussions during mediation – whether privilege waived by party’s conduct and communications
Catchwords:
PRACTICE AND PROCEDURE — security for costs — application for review of Registrar’s decision ordering security for costs of appeal — stultification of proceedings — whether review application should be adjourned — whether prospects of success arguable — undertaking offered by alter ego of appellant company currently in custody for drug-related offences — whether assets available for enforcement in these circumstances
Catchwords:
CIVIL PROCEDURE – representative proceedings – claims based on breast augmentation surgery performed by defendant/appellant medical practitioners – whether litigation should continue to proceed as representative proceedings – whether claims in statement of claim gave rise to substantial common questions of law and fact – whether representative plaintiffs’ and group members’ claims “common” or “individualistic” – where representative plaintiffs alleged that all surgery was performed according to same system, which gave rise to increased risk of harm – primary judge correct to find that statement of claim gave rise to substantial common questions of law and fact
Catchwords:
NEGLIGENCE — Breach — Where first appellant injured hand in electric anchoring mechanism of boat — Whether owners of boat failed to take reasonable precautions such as installation of chain stripper and extension of spurling pipe — Whether warning needed to be given about use of anchor mechanism NEGLIGENCE — Causation — Failure to warn — Whether first appellant would have chartered boat if warning had been given APPEALS — Where claim abandoned by counsel at conclusion of trial — Whether claim can be reagitated on appeal CONSUMER LAW — Consumer guarantees — Where first appellant’s purpose in chartering boat was to partake in leisure cruise — Whether services reasonably fit for purpose
Catchwords:
CIVIL PROCEDURE – Subpoenas – Notices to produce – Where applicant seeks leave to issue subpoenas and notices to produce to respondents requiring production of certain emails and related metadata – Where applicant seeks such leave to identify third parties alleged to have hacked into applicant’s email accounts – Where previous applications for leave to issue subpoenas and notices to produce requiring production of similar documents dismissed – Whether subpoenas and notices to produce for purpose of identification of non-parties to pending appeal would have legitimate forensic purpose – Leave to issue subpoenas and notices to produce refused
Catchwords:
PRACTICE AND PROCEDURE – costs – whether costs should follow the event – identifying “event” – party obtaining relief unsuccessful on certain issues – whether to be deprived of proportion of costs – reassessing costs of trial
Catchwords:
LEAVE TO APPEAL — appeal against order for security for costs — discretionary matter of practice and procedure at interlocutory level — whether discretion miscarried — whether substantial risk of injustice to applicant if the Court were not to intervene — hearing of appeal directed by Chief Justice pursuant to s 46A(2) of Supreme Court Act 1970 (NSW) APPEAL — PRACTICE AND PROCEDURE — applicant brought claim in negligence in District Court for injury sustained while working for respondent on temporary work visa — applicant ordinarily resident in Fiji — order for security for costs made pursuant to s 42.21(1)(a) of Uniform Civil Procedure Rules 2005 (NSW) — impecuniosity of plaintiff — whether primary judge considered ease with which judgments of District Court could be enforced in Fiji — whether primary judge factored finding into assessment of whether security for costs ought be ordered — order should reflect differential cost of enforcement in Fiji
Catchwords:
CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant’s claim – Whether motion ought to be summarily dismissed as abuse of process – Motion dismissed
Catchwords:
ADMINISTRATIVE LAW – Statutory construction – Relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – Whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application STATUTORY INTERPRETATION — Interpretation Act 1987 (NSW) s 8(c) — Whether the Interpretation Act applies to Ministerial Guideline — Interplay between common law rules on statutory interpretation and drafters of legislative instruments — Courts drawing inferences as to likely intentions of drafters — Whether the plural encompasses the singular
Catchwords:
COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal — Where lack of commonality between parties interested in successful and unsuccessful parts of appeal — Whether separate orders or one set of costs appropriate
Catchwords:
CORPORATIONS — Voluntary administration —Moratorium on proceedings against company under administration — Leave to proceed sought for motion to adopt referee’s report — Leave opposed — Where respondents’ claims not easily dealt with under proof of debt procedure — Whether administrators likely to be distracted from statutory duties by motion to adopt referee’s report — Corporations Act 2001 (Cth), s 440D
Catchwords:
APPEALS — Leave to appeal — Proceedings dismissed for failure to comply with order to provide security for costs — Where plaintiff failed to provide security for costs after two extensions of time — Whether reasonably clear injustice — UCPR, r 42.21(3)
Catchwords:
COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties otherwise assumed correctness of partnership accounts — interim award rejected claim that properties were partnership assets — respondent retained new solicitors and additional accountant — new accountant contended for completely different accounting approach — respondent sought to introduce new “case” based on new accountant’s report into accounting conclave convened between existing accountants to resolve remaining accounting issues — no application to amend statement under s 23(1) — arbitrator made order precluding existing accountants from conferring with new accountant — final award made — primary judge held award should be set aside on basis that respondent was unable to present his case and award was contrary to public policy — Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii) and (b)(ii) — reasonable opportunity to present a “case” does not extend to putting an available case not adverted to in statement filed under s 23(1) nor sought to be subject to amendment under s 23(3) — amended points of claim and submissions identified each party’s “case” and issues in dispute — entitlement to reasonable opportunity does not protect a party from their own “strategic choices” — leave to appeal granted — appeal allowed — proceedings seeking to set aside arbitral award dismissed — respondent to pay applicants’ costs
Catchwords:
CORPORATIONS – Members’ rights and remedies – Oppression – Where one shareholder has control over family company through management shares and position as Governing Director – Whether no oppression if self-dealing transaction was necessary to bring about acquisition of property accepted to be in the best interests of the company – Whether primary judge erred in finding oppressive conduct in relation to omission of demolition clause in lease by company to entity associated with director – Whether relief granted went beyond that necessary to bring end to continuing effect of oppressive conduct. EQUITY – Proprietary estoppel – Encouragement – Detrimental reliance – Where a property had been purchased by parents for the benefit of their son – Where the son had been promised ownership of the property and had expended time and money renovating the property – Whether sufficient detriment had been suffered to establish an estoppel – Whether the relief granted by the primary judge was proportionate to the detriment suffered. SUCCESSION – Family provision – claims made for provision under the Succession Act 2006 (NSW) by three of the deceased’s four adult children – Where the deceased had engendered an expectation in her children that they would share equally in the assets of the family company – Whether provision made for the respective children was proper and appropriate for their advancement or maintenance in life – Where large portion of estate assets held through shares in family company and deceased’s last will left all management (voting) shares to one child – Whether primary judge erred in failing properly to take into account financial needs of children or in making good expectations engendered in the deceased’s children as to future material wealth.
Catchwords:
CONTEMPT – civil contempt – admission of further evidence on appeal – whether psychiatrist’s report should be admitted as evidence of appellant’s vulnerable mental health condition and his father’s occupation – appellant must demonstrate punishment orders are the result of legal, factual or discretionary error – where not contended that with the benefit of further evidence the primary judge must have made different punishment orders – application to admit further evidence refused because evidence not capable of establishing error – appeal dismissed APPEALS – admission of further evidence – appeal by way of rehearing – appellant must demonstrate order the subject of appeal the result of legal, factual or discretionary error
Catchwords:
COURTS AND JUDGES — Supreme Court — Inherent jurisdiction — where solicitor acting for mortgagee has engaged in exorbitant overcharging — where mortgage provides for recovery by mortgagee of all costs expended pursuant to the mortgage on an indemnity basis — whether Court can order solicitor to pay moneys, to the extent of the exorbitant overcharging, to mortgagor pursuant to inherent jurisdiction to control charges and fees of officers of the Court — general consideration of extent of inherent jurisdiction COSTS — Inherent jurisdiction — where costs have previously been assessed as between mortgagee and mortgagor — whether Court adopted costs assessment in its inherent jurisdiction to require solicitor for mortgagee to pay money representing exorbitant charges to mortgagor OCCUPATIONS — Legal practitioners — Solicitors — Costs agreement — where costs agreement between solicitor and mortgagee — whether inherent jurisdiction extends to requiring solicitor for mortgagee to pay money exorbitantly overcharged to mortgagee to mortgagor
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:
PRACTICE – vexatious litigant – whether making vexatious proceedings order without separate oral hearing contravened statute – whether proceedings vexatious – where matter sought to be relitigated had previously been determined on a final basis from which an appeal was dismissed – application dismissed
Catchwords:
LEAVE TO APPEAL — TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of District Court judge to provide reasons, in ignoring essential evidence and finding no proof of damages — whether respondents prosecutors for purposes of tort — applicant failed to identify any issue of principle, question of public importance or reasonably clear injustice COSTS — applicant alleged error in costs order in circumstances where no costs personally incurred by defendants — whether CSO acting without instructions of named defendants — no evidence adduced to challenge retainer — defendants covered individuals for purposes of State of NSW self-insurance arrangement — State entitled to conduct proceedings on behalf of defendants subject to duty of good faith
Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – party seeking to vary orders gave notice of application to Court and other parties within 14 days – Civil Procedure Act 2005 (NSW), s 14 – order made dispensing with requirement for filing of notice of motion COSTS – party/party – appeals – application to vary costs order – Calderbank offer – no basis for variation of Court’s orders
Catchwords:
APPEALS — ADMINISTRATIVE LAW — judicial review — denial of procedural fairness — appeal against interlocutory decision of Appeal Panel of Civil and Administrative Tribunal against decision of Tribunal refusing application to be joined to guardianship proceedings concerning applicant’s child — failure to adjourn directions hearing at which joinder application was determined because applicant was unavailable — denial of procedural fairness because applicant was therefore not a party to the guardianship application and was not served with material before the Tribunal, had no opportunity to adduce evidence and no right of appeal against substantive guardianship or financial management orders APPEALS — PRACTICE AND PROCEDURE — application for leave to appeal against summary dismissal of Supreme Court proceedings — whether applicant already had statutory right of appeal — overlap in relief claimed — whether there was a triable issue
Catchwords:
APPEALS — Leave to appeal — no issue of principle or any question of general public importance — no error on the part of the primary judge which warrants a grant of leave — grounds of appeal raised by applicant not sufficiently arguable CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Vexatious proceedings — Abuse of process — primary judge correct in finding the proceeding constitutes an attempt to re-litigate claims made and determined in previous proceedings
Catchwords:
APPEAL – special federal matters – exclusive jurisdiction of federal courts – whether appeal involved a matter “arising under” a Scheduled Commonwealth Act – appeal arising under Vexatious Proceedings Act 2008 (NSW) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) not engaged APPEAL – application for leave to appeal – failure to allow opportunity to replead – whether applicants had frequently instituted vexatious proceedings – whether error on part of primary judge that was more than merely arguable – whether issue of general principle – whether clear case of injustice
Catchwords:
CIVIL PROCEDURE – Dismissal of proceedings – where first defendant applied for security for costs order – where second defendant joined to proceedings when security for costs order made – no security for costs order in favour of second defendant – security for costs not provided – construction of Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – whether power to dismiss proceedings under r 42.21 against second defendant
Catchwords:
NEGLIGENCE – breach of duty of care – lawful occupant of gym – foot plate of leg press collided with head of user – duty to warn – whether failure to decide material issue – where primary judge made findings relevant to duty to warn – no evidentiary basis that warning would have prevented accident from occurring APPEALS – from findings of fact – inferences from primary facts – where primary judge not satisfied leg press fitted with spring – where evidence of spring related to a different machine – no proper evidentiary basis for finding leg press fitted with spring APPEALS – from findings of fact – inferences from primary facts – negligence – damages – where primary judge not satisfied conversion disorder caused by accident – whether primary judge erred – evidence did not support a finding that conversion disorder caused by accident
Catchwords:
ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Application for review of District Court decision dismissing appeal against sentence imposed by Local Court — Where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception — Where applicant claimed he was criminalised for no reason — Where leave to appeal against conviction not sought — Whether District Court committed jurisdictional error in determining sentence appeal
Catchwords:
INSURANCE — Claims — Where insurer denied insured’s claim to total and permanent disablement benefit on basis that it was not “on risk” for injury or illness causing disablement — Where parties consented to determination of separate questions which could not decide that issue — Issue remitted to Equity Division for decision CIVIL PROCEDURE — Separate determination of questions — Where primary judge dismissed whole of proceedings following answers to separate questions — Where separate questions asked whether there were breaches by insurer in denying and failing to reconsider insured’s claim — Whether separate questions capable of disposing of whole of proceedings — Whether parties’ agreement justified making an order under UCPR r 28.4 dismissing proceedings
Catchwords:
CONTRACT – interpretation – entitlement to fees under an introducer mandate agreement – whether loan offer complied with interest rate requirement – offer contained “standard rate” and “concessional rate” – standard rate so described to avoid penalty – intention that standard rate be within prescribed range – fees not payable for non-compliant offer ESTOPPEL – common assumption – fee entitlement crystallised only with offer of loan secured by unregistered second mortgage and caveat – claimant estopped from obtaining fees where offer non-compliant with fee assumption REAL PROPERTY – caveats – equitable charges – where introducer mandate agreement and loan offer grant equitable charges over the land to secure the payment of fees – whether equitable charges extended to judgment debt
Catchwords:
APPEALS – leave to appeal – Workers Compensation Act 1987 (NSW) s 151A – whether payment made under a deed of settlement recovered in respect of an injury – whether payment inclusive of costs constituted “damages” under Workers Compensation Act 1987 (NSW) s 149 – appeal filed as of right – amount in issue $825 – appeal incompetent – leave to appeal refused
Catchwords:
PRACTICE AND PROCEDURE — interlocutory application — freezing order — orders made by consent
Catchwords:
JUDICIAL REVIEW – judicial review of decision under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – where primary judge dismissed applicant’s request for inquiry into his convictions ADMINISTRATIVE LAW – Jurisdictional error – where applicant claimed primary judge’s dismissal of his application was unreasonable – where applicant claimed primary judge was biased and took into account irrelevant consideration – whether primary judge breached procedural fairness requirements – where applicant claimed primary judge based the dismissal on no evidence and failed to consider evidence – whether primary judge did not adhere to scope of statutory function CONSTITUTIONAL LAW – Commonwealth Constitution – where applicant claimed ss 7(1)(c) and 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are unconstitutional – Kable doctrine - whether provisions offend institutional integrity of NSW courts – whether provisions unconstitutional because they require the Court to create “new offences”
Catchwords:
COSTS — Appeals — offer of compromise — whether applicants entitled to indemnity costs on basis of two offers — first offer made prior to applicants retaining lawyers after Defamation proceedings first commenced by respondent — second offer made before hearing of appeal — whether genuine compromise — whether respondent unreasonably failed to accept offers COSTS — Appeals — order for restitution — repayment of judgment sum
Catchwords:
ADMINISTRATIVE LAW – gambling regulation – applications to transfer or lease gaming machine entitlements – applications to increase gaming machine thresholds – conditions imposed on hotel licenses – whether declarations as to construction of statute were appropriate – whether order requiring grant of application was appropriate – scope of discretions under ss 19, 25 and 34 of the Gaming Machines Act 2001 (NSW) – scope of discretion under s 53 of the Liquor Act 2007 (NSW) – whether s 53 of the Liquor Act provides power to impose conditions on liquor licences relating to harm minimisation concerns relating to gaming machines
Catchwords:
CIVIL PROCEDURE — Court of Appeal — Stay of judgment pending appeal — Judgment for possession of Crown land — Where applicant claims adverse possession — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of enforcement of judgment
Catchwords:
CIVIL PROCEDURE – Application to set aside orders – where appellant complains Court overlooked submissions – where appellant fails to account for how case conducted below – where Court did not fail to address complaint in any case COSTS – Party/Party – Appeals – appeal allowed only in relation to minor issue which took up insignificant amount of time and resources – appellant given opportunity to make brief submissions on tentative costs orders
Catchwords:
COURT OF APPEAL — procedure — application to reopen judgment — where Court inadvertently omitted to deal with application to review decision of Registrar — whether error in case management decision of Registrar CIVIL PROCEDURE — stay of proceedings — stay pending determination of special leave application to the High Court — whether sufficient prospect of obtaining special leave
Catchwords:
PRACTICE AND PROCEDURE – application for recusal – claim of prejudgment – no basis for claim presented – request refused
Catchwords:
OCCUPATIONS — Legal practitioners — Barristers — Qualifications and admission — Refusal of grant of practising certificate as a barrister — Where Bar Council determined applicant not fit and proper person to hold practising certificate — Where applicant held practising certificate as a solicitor — Whether Bar Council bound by Law Society Council’s determination that applicant was fit and proper person — Legal Profession Uniform Law (NSW), ss 44(1) and 45(2) APPEALS — Leave to appeal — Challenge to striking out summons seeking declaratory relief that applicant fit and proper person to hold Australian practising certificate — Where Bar Council refused to grant practising certificate — Where right of appeal from Bar Council’s decision on merits not exercised — Legal Profession Uniform Law (NSW), s 100(1) — Whether issue of principle, general public importance or relevant injustice ADMINISTRATIVE LAW — Whether reviewable error of law — Application for judicial review of Bar Council’s decision to refuse to grant practising certificate — Whether jurisdictional error or error of law on face of the record — Whether failure to accord applicant procedural fairness CIVIL PROCEDURE — Court of Appeal — Review of orders of judge of appeal — Where judge of appeal dismissed contempt charges and challenge to registrar’s orders — Whether applicant demonstrated error of principle or decision was plainly wrong — Supreme Court Act 1970 (NSW), s 46(4)
Catchwords:
COMMERCE — Restraint of trade — Deed of settlement of litigation involving allegations of misleading or deceptive conduct, passing off, and unconscionable conduct — Where respondent instituted proceedings to restrain appellant and company controlled by him from “raptorising” its vehicles — Where “raptorisation” connotes affixing materials to respondent’s vehicles — Where appellant undertakes that neither he nor his “Related Entities” will engage in conduct proscribed by deed — Where appellant’s company subsequently engage in conduct proscribed by deed — Whether restraint of trade doctrine applies to deeds of settlement — Whether mandatory and prohibitive injunctive relief appropriate in circumstances of case — Held that undertaking not void as being in restraint of trade — Injunctive relief granted EVIDENCE — Admissibility of evidence of prior orders of Common Law Division to prove existence of fact in issue — Where fact in issue quantum of respondent’s loss caused by appellant’s breaches of covenant and indemnity — Where no other evidence sought to be adduced to quantify loss — Whether prohibition in s 91(1) of Evidence Act 1995 (NSW) extends to orders — Evidence of prior orders held inadmissible CONTRACTS — Breach of contract — Remedies — Equitable remedies — Injunctions — Whether undertaking not to engage in proscribed conduct better characterised as undertaking or warranty — Whether classification of term as warranty preclusive of injunctive relief — Held that classification of term irrelevant to grant of injunctive relief
Catchwords:
CIVIL PROCEDURE – notices to produce – whether documents “specified” in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 34.1 – whether legitimate forensic purpose for issue of notices to produce – no question of principle
Catchwords:
NEGLIGENCE — breach of duty of care — non-delegable duty of care — employer and employee — labour-hire company — where services of employee contracted out — contractor failed to provide a safe system of work — relevance of steps by employer to ensure that the contractor instituted a safe system of work — relevance of opportunity for employer to intervene to prevent injury WORKERS COMPENSATION — common law remedies — Workers Compensation Act 1987 (NSW) s 151Z — adjustment of damages under s 151Z(2)(c) — whether employer able to claim recovery of compensation payments from third party tortfeasor under s 151Z(1)(d) in circumstances where employer was joint tortfeasor — construction of s 151Z(2)(e) — whether worker “does not accept satisfaction of the judgment against that employer” — whether s 151A applies — liability of worker to repay compensation out of damages under s 151Z(1)(b) TORTS — joint and several liability — contribution —Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 — “just and equitable” — onus of proof — claim by tortfeasor against injured worker’s employer — where employer also a tortfeasor — where no evidence of responsibility of employer for injury suffered by employee — no contribution ordered LIMITATION OF ACTIONS — torts — personal injury — Limitation Act 1969 (NSW) s 50C, s 50D — 3 year post discoverability limitation period — whether cause of action discoverable — where plaintiff unaware of true employer — where legal advisers advised a claim for workers compensation, but not common law damages — whether plaintiff knew the fact that the injury was caused by the fault of the defendant — whether plaintiff knew the fact that the injury was sufficiently serious to justifying the bringing of an action on the cause of action WORDS AND PHRASES — Limitation Act 1969 (NSW) s 50D — “know” — “fact”
Catchwords:
APPEALS – leave – costs – plaintiff discontinues proceedings – primary judge declines to depart from default order as to costs – whether issue of general importance – whether clear injustice – summons dismissed
Catchwords:
EQUITY – fiduciary duty – whether fiduciary duty owed by successor trustee to former trustee – nature of former trustee’s entitlement to trust property to be indemnified for expenses properly incurred – whether former trustee vulnerable to exercise of power by successor trustee – whether former trustee only entitled to appointment of receiver and judicial sale and interlocutory relief – whether analogy with duty owed by mortgagee with surplus after exercising power of sale – Rothmore Farms Pty Ltd (in liq) v Belgravia Pty Ltd [2005] SASC 117 considered – whether property transferred to third parties in breach of asset preservation order – whether property transferred to third parties to defraud creditors
Catchwords:
NEGLIGENCE – occupier’s liability – plaintiff slipped while descending stepped aisle at outdoor stadium – whether reasonable occupier would have installed a handrail – identification of risk of harm – significance of obviousness of risk – no evidence of other persons slipping on stepped aisle – stadium certified as compliant with Building Code of Australia – appeal allowed and judgment for defendant entered
Catchwords:
LICENSING — Gaming Machines Act 2001 (NSW) — gaming machine entitlements (“GMEs”) — gaming machine threshold — application to Independent Liquor & Gaming Authority (“Authority”) to increase gaming machine threshold from 20 to 24 — application accompanied by “Local Impact Assessment” (LIA) — application and LIA approved — subsequent applications to transfer seven GMEs — applications approved and gaming machine threshold increased from 24 to 27 — application to Authority seeking revocation of earlier approval — power to revoke earlier approval of LIA — whether power to revoke earlier approval of increase in threshold — whether power to revoke earlier approval of transfer of GMEs — power of Authority to reduce threshold — whether power to “set” threshold under s 32(1) of Gaming Machines Act could be re-exercised from time to time to permit increase or decrease in threshold ADMINISTRATIVE LAW — Interpretation Act 1987 (NSW), s 48(1) — exercise of function from time to time as occasion requires — whether s 48(1) confers power to revoke previous decision made under a statutory power — whether s 48(1) requires every function to which the provision is directed to be interpreted as including power or authority to revoke earlier exercise of that function — effect of re-exercise of function or power may be to reverse or revoke earlier exercise of power — power conferred by s 19(2)(a) of Gaming Machines Act to approve transfer of GMEs does not include power to revoke earlier approval of transfer of GMEs — power conferred by s 34(4) of Gaming Machines Act to approve increase in threshold does not include power to revoke earlier approval of increase in threshold — in the alternative Gaming Machines Act manifests contrary intention to implication of any such powers of revocation
Catchwords:
PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – earlier rulings unfavourable to applicant in related proceedings – court limited to determining errors of law – no basis to find that a fair-minded lay observer might think that the judge might not bring an impartial mind to the determination of the case PRACTICE AND PROCEDURE – prohibition on judge sitting on appeal from own judgment – judicial review of decision of different judge – whether judicial review an “appeal” within Supreme Court Act 1970 (NSW), s 110 – whether claim that decision under review wrongly concluded that the matter had been dealt with in earlier judgment constituted an appeal from the earlier judgment
Catchwords:
ADMINISTRATIVE LAW – judicial review – crime – application to set aside decision of judge to refuse to consider or otherwise deal with an application for an inquiry into a conviction – whether error of law on the face of the record or jurisdictional error ADMINISTRATIVE LAW – judicial review – boundary of legal unreasonableness – whether little weight accorded to a factor of great importance – need for caution to avoid review of merits CRIMINAL PROCEDURE – functions of judge considering an application for an inquiry into a conviction under Pt 7 of Crimes (Appeal and Review) Act 2001 (NSW) – functions non-judicial – where previous unsuccessful applications – refusal to consider or further deal with fresh application – no function to review correctness of earlier decisions
Catchwords:
ADMINISTRATIVE LAW — Bias rule — Particular factual matter giving rise to alleged bias — Prejudgment — Whether prior involvement on judicial review of refusal of prior application for review into conviction under s 78 of Crimes (Appeal and Review) Act 2001 (NSW) evinces reasonable apprehension of prejudgment of subsequent application for judicial review of refusal to inquire into conviction — Disqualification application refused
Catchwords:
CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee of acceptable quality — Australian Consumer Law (ACL), s 54 — Whether vehicles of acceptable quality to reasonable consumer — Whether vehicles not safe or free from defects given installation of airbags — Where asserted risk of rupture of airbags — Whether appellant established a physical feature of the airbags carried the inherent risk alleged — Where no materialisation of asserted risk within 15-year timeframes tested — Where merely speculative theoretical risk of rupture of airbags not within any meaningful timeframe — Whether unquantifiable risk unacceptable to reasonable consumer CONSUMER LAW — Enforcement and remedies — Defences — Whether assumed failure to comply with guarantee of acceptable quality “only because of” act or default of another person other than manufacturer or its employees or agents — Where third party supplier of airbags not an agent of the manufacturer — Meaning of “manufacturer” — Whether acts of “manufacturer” in choosing third party supplier, installing airbags or releasing vehicles in that state for supply disentitled the manufacturer to defence — ACL, s 271(2) CONSUMER LAW — Enforcement and remedies — Action by consumer for damages under ACL, s 271(1) — Assessment of damages under ACL, s 272(1) — Where common ground that time for assessing damages for any reduction in value of goods is time of supply — Whether subsequent events which illuminate true value of goods at time of supply should be taken into account in damages assessment — Where airbag replaced at no cost — Whether replacement of airbag should be taken into account in damages assessment assuming breach of consumer guarantee CIVIL PROCEDURE — Representative proceedings — New points on appeal — Representative party failed to plead new damages claims on behalf of group members — Whether common questions should be amended on appeal — Where no challenge to orders specifying common questions for determination at trial — Where no application to amend common questions at trial or on appeal — Effect of statutory estoppel on issues raised by common questions — Civil Procedure Act 2005 (NSW), s 179
Catchwords:
APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused
Catchwords:
ADMINISTRATIVE LAW – Proceeds of Crime Act 2002 (NSW) – compulsory examination – exercise of discretion to refuse to order examination – relevant factors – whether referable only to pendency of criminal proceedings on same subject matter ADMINISTRATIVE LAW – Proceeds of Crime Act 2002 (NSW) – compulsory examination – exercise of discretion to refuse to order examination – relevant factors – possibility of future criminal proceedings – multiplicity of examination proceedings CRIMINAL LAW – Criminal Code Act 1995 (Cth), s 400.9 – dealing with money reasonably suspected of being proceeds of crime – onus of proof
Catchwords:
COSTS – party/party – offers of compromise – application under r 36.16(3A) to vary costs order – party seeking to vary costs order gives notice of application to Court and the other parties within 14 days – order made dispensing with filing of notice of motion – costs order varied