Recent decisions for Court of Appeal

Catchwords:

APPEALS – Leave to appeal – whether primary judge erred by failing to address claims for the cost of repairs and interest – primary judge erred in failing to address each claim – claim for the cost of repairs faces basic problems – small quantum in dispute –failure to apply to the primary judge under UCPR r 36.16 to set aside or vary judgment – primary judge’s omission contributed to by the applicant – leave to appeal refused

Catchwords:

NEGLIGENCE — Duty of care — Reasonable foreseeability — Foreseeability of harm — whether reasonably foreseeable that respondent would suffer psychiatric injury from watching documentary

Catchwords:

APPEALS — application for leave to appeal — interlocutory injunction pending appeal — where primary judge dismissed application to set aside default judgment — where mortgagee seeks to exercise power of sale pursuant to default judgment — whether arguable case on appeal — balance of convenience — undertaking as to damages of little value — application dismissed

Catchwords:

JUDICIAL REVIEW – jurisdictional error – District Court – prisoner returned to custody after High Court allows appeal and reinstates conviction and sentence – prisoner granted bail after Court of Criminal Appeal allowed appeal and ordered retrial – whether time on bail counts towards sentence – nature of grant of bail – whether District Court empowered to make orders affecting administration of sentence – construction of ss 18, 25A and 28A of Criminal Appeal Act 1912 (NSW) JURISDICTION – supervisory jurisdiction relating to criminal proceedings in District Court – operation of Supreme Court Act 1970 (NSW), s 17 – whether orders of District Court concerning effect of bail on sentence were made in “proceedings for the prosecution of offenders in indictment” within meaning of Third Schedule of Supreme Court Act

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal — Leave to appeal from summary dismissal of applicant’s amended summons refused — No question of principle

Catchwords:

ENVIRONMENT AND PLANNING – development consents to carry out different developments on rural land – construction of consents – nature and extent of developments approved – leave to adduce further evidence to construe a consent – carrying out of development in breach of consents – injunctions to restrain breach of consents – how conditions of consent may themselves be breached – whether terms of injunctions too broad and imprecise

Catchwords:

TORTS – nuisance – private nuisance – plaintiffs’ properties affected by rupture of defendant’s water main – level of generality at which to identify purpose of use – whether purpose of use common and ordinary – whether rupture of water main was caused by a latent defect – whether defendant established that its uses of lands were conveniently done – whether s 43A of Civil Liability Act 2002 (NSW) applicable COSTS – Party/Party – whether exercise of costs discretion manifestly miscarried – where primary judge apportioned costs in respect of one issue but not others – where issues and evidence overlapped

Catchwords:

APPEALS — from finding of fact — contracts — whether primary judge erred in finding existence of three wholly oral loan agreements — whether primary judge erred in finding loans were due and repayable on sale of a property — whether primary judge erred in failing to find allegation that loans were due and repayable on the sale of a property was a recent invention to avoid operation of Limitation Act 1969 (NSW) APPEALS — from finding of fact — credibility of witnesses — where primary judge generally preferred the evidence of one witness over another

Catchwords:

APPEALS — Application for leave — Principles governing — need to establish a reasonably clear injustice beyond that which was merely arguable — where primary judge ordered permanent stay of proceedings — whether arguable case that promise not to sue other than in the Court of Arbitration for Sport applied to application for preliminary discovery where no equivalent procedure available in Court of Arbitration for Sport CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — whether, although held to fall outside the scope of an arbitration clause, application was within scope of promise not to sue other than in Court of Arbitration for Sport — stay ordered notwithstanding that preliminary discovery not available in Court of Arbitration for Sport COMMERCIAL ARBITRATION — Arbitration agreement — where primary judge stayed application for preliminary discovery on basis that promise not to sue other than in the Court of Arbitration for Sport applied to that application — whether primary judge erred — whether scope of negative covenant exceeded scope of arbitration agreement

Catchwords:

ABORIGINAL LAND RIGHTS – “claimable Crown lands” – whether land is – whether land is “the subject of” an application for native title determination under Commonwealth Native Title Act – native title determination applications that must not be made – land on which previous exclusive possession act done – such act includes grant or vesting of Scheduled interest – Scheduled interest includes leases of Crown lands – land claimed subject to such leases – Federal Court determination that native title extinguished – land is claimable Crown land

Catchwords:

APPEAL — expedited application for leave to appeal orders entering default judgment for possession — orders dismissing notice of motion — no reasonably clear error going beyond the merely arguable shown — no issue of principle or question of public importance identified

Catchwords:

LEGAL PRACTITIONERS — Solicitors — whether firm should be restrained from acting for a defendant — where firm sought to be restrained from acting when an employed solicitor was formerly employed by plaintiff firm — test for restraint where confidential information relates to principal of prior firm not client information — whether confidential information needs to be identified - inherent jurisdiction to prevent a lawyer from acting is extraordinary and should be used sparingly — importance of supervision and mentoring opportunities to the legal profession — error of principle to extend dicta relating to restraint of a solicitor possessing client confidential information to support restraint of solicitor allegedly possessing confidential information of a former co-worker APPEAL — whether inherent jurisdiction to protect administration of justice supported restraint in this case CIVIL PROCEDURE — Parties — where orders made against a non-party to motion — whether orders properly made — no application for costs order made — non-party entitled to have costs order set aside

Catchwords:

COSTS – costs assessment – determination – review/appeal – application for judicial review of District Court on appeal against decision of review panel under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – where District Court is to have “all the functions of the review panel” – District Court required to conduct a rehearing of the application for review and consider for itself the question whether the costs are fair and reasonable – where primary judge failed to exercise statutory task – jurisdictional error established ADMINISTRATIVE LAW – privative clause – discussion of history and context of s 176 of the District Court Act 1973 (NSW)

Catchwords:

PROCEDURE – amendment – late amendment made without notice or explanation – application to introduce new ground of apprehended bias – failure to identify material capable of supporting new allegation – application refused

Catchwords:

RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — where services rendered pursuant to void term — where legislative policy prohibits inclusion of unfair terms in standard form contracts — whether legislative policy stultified by permitting quantum meruit claim RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — whether contract survives excision of void term — where remaining clauses silent on fair and reasonable remuneration for services — whether quantum meruit claim “fits” with remaining clauses RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — whether necessary to establish external standard for work performed — whether percentage fee agreed by parties can be some evidence of reasonableness — whether evidence sufficient to discharge onus of proof in respect of quantum of restitutionary claim

Catchwords:

HIGH RISK OFFENDERS — Extended supervision orders — Application — s 20 of Terrorism (High Risk Offenders) Act 2017 (NSW) required subject of application to be “eligible offender” — respondent eligible offender at time of application — successful severity appeal in District Court resulted in respondent no longer being eligible offender at time application determined STATUTORY INTERPRETATION — Amendment and repeal — s 20 amended to include words “or was in custody or under supervision at the time the original application for the order was filed” — whether words removed requirement for respondent to be eligible offender at time application determined — no obviously preferable construction — State’s construction required substantial implied additions to statutory text — respondent’s construction rendered inserted words superfluous — presumption against superfluity not determinative — identification of leading and subordinate provisions — importance of legislative intention in context of words inserted by amendment

Catchwords:

APPEAL – from findings of fact – challenge to trial judge’s finding as to nature of information required by local council – appellant bore burden of demonstrating that finding was wrong – burden not discharged LEASES AND TENANCIES – default and termination – commercial lease – express right to terminate if occupation certificate not obtained by contractual deadline – implied limitation preventing party from relying on own breach or default – construction of lease not challenged on appeal – whether lessee entitled to terminate CONTRACTS – performance – discharge by performance – lessee required to provide all information required for Council expeditiously to process development application – Council requested “BCA report for a fit out” – whether request required clause-by-clause assessment of proposed fit-out and existing building – purpose of BCA compliance report – absence of express statutory requirement immaterial – obligation to seek clarification if request ambiguous – breach established CONTRACTS – causation – material contribution –substantial chance – whether outstanding fire safety order caused requirement for BCA compliance report or material delay – no causal connection established – other requests for information concerned minor matters capable of prompt and concurrent resolution – statutory period allowed by Council for response did not qualify contractual obligation to act expeditiously CONTRACTS – causation – counterfactual program of construction works – expert program aggressive but achievable – alleged concessions overstated – sufficient allowance for contingencies – substantial chance occupation certificate would have been obtained by contractual deadline ENVIRONMENT AND PLANNING – application concerning fit-out and change of use of premises in existing building – assessment under s 64(2) of Environmental Planning and Assessment Regulation 2021 (NSW) – purpose and required content of BCA compliance report

Catchwords:

CIVIL PROCEDURE — application for orders restricting access to court files without notice — where applicant is party to unrelated proceedings — where cross-examination of applicant in unrelated proceedings about matters the subject of proceedings in the District Court and Court of Appeal could pose risk to applicant’s right to silence and privilege against self-incrimination — requirement of notice before access granted

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment —Where primary judge made observations about lawfulness of access to a computer system by a witness called by the appellants and the implications for the appellants’ legal representatives in adducing that evidence — After taking advice counsel acting for appellants withdrew from proceedings and foreshadowed an application to seek leave for the instructing solicitors to withdraw — Application to adjourn proceedings to enable new legal representatives to be briefed — Primary judge prepared to adjourn the proceedings for only three business days to enable new legal representatives to be briefed — Held, granting leave to appeal and allowing the appeal, that the primary judge’s reasons for refusing a longer adjournment revealed errors of a kind in House v R and the discretion miscarried

Catchwords:

APPEALS — procedure — application to adduce further evidence on appeal — where application involves questions concerning nature of the appeal — not appropriate for a single judge of appeal to determine — not appropriate to determine as a preliminary issue — stood over to hearing of appeal CIVIL PROCEDURE — subpoenas — leave to issue subpoenas to produce and attend — proposed subpoena to colleagues — requirement to produce evidence by affidavit — leave refused — proposed subpoenas to health assessor — whether compellable — where Respondent belatedly undertakes to produce supplementary report of health assessor — stood over awaiting supplementary report WORDS AND PHRASES — “acting at the direction of” — Legal Profession Uniform Law (NSW), s 467(2)(f)

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – second application to set aside orders under UCPR r 36.16 – no proper basis established – application clearly an abuse of process

Catchwords:

PROCEDURE – Security – Money paid into court to secure undertaking to pay costs of administration extended by way of interlocutory relief pending appeal – appeal dismissed – whether applicant has established entitlement to security

Catchwords:

COSTS – whether costs should follow the event – minor success by appellant – whether obtaining grant of leave for some grounds in concurrent hearing warrants departure from usual rule – late amendment to advance ground on which appellants succeeded – no proper basis to depart from usual rule

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — where principal member of the Civil and Administrative Tribunal purported, sitting alone, to set aside decision of fully constituted Tribunal — whether a single member could set aside a “stage 1” decision in proceedings in the Occupational Division of the Tribunal on the basis that the decision to set aside was ancillary to or consequential on the stage 1 decision — meaning of “ancillary” and “consequential on” — jurisdictional error — whether appeal still permitted from a decision involving jurisdictional error — appeal or judicial review APPEALS — Right of appeal — Scope of right — whether right of appeal from a purported decision affected by jurisdictional error OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether Tribunal constituted by senior judicial officer has power to set aside stage 1 decision of the Tribunal — whether stage 1 decision is an “ancillary” or “interlocutory” decision — whether s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) cures absence of power OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to “health practitioner” or “registered health practitioner” — whether cl 8 of Sch 2 of the Civil and Administrative Tribunal Act 2013 (NSW) empowers “health practitioner” to continue to deal with matters in proceedings after ceasing to be registered STATUTORY INTERPRETATION — Definitions — Insertion of definition into substantive enactment — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to definition of “health practitioner” — whether context or subject matter otherwise requires that reference refers to definition of “registered health practitioner” STATUTORY INTERPRETATION — Legislative purpose — Statement of objects — where s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) provides that provisions in Pt 8 Div 10 intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 (NSW) — where Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) provides for procedure, and consequences of vacation of office by member, of Civil and Administrative Tribunal — where cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) provides for member who ceases to have required qualification to continue to deal with matter notwithstanding — whether any provisions in Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) and enlivened in present case directly inconsistent with or repugnant to cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

OCCUPATIONS — legal practitioners — solicitors — misconduct and discipline — where Tribunal found unsatisfactory professional conduct — where solicitor attributed statements to a judge in letter to costs assessor — where letter was prepared without transcript or contemporaneous note — where letter seriously departed from exchange recorded in transcript — whether conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer

Catchwords:

APPEALS — Procedure — Stay pending appeal — Stay of primary judge’s orders winding up Co-operative, appointing liquidators and awarding costs — Appeal grounds weak — Delay in seeking stay — Balance of convenience favours respondents — Stay refused

Catchwords:

COSTS – general rule that costs follow the event – where common ground costs should follow the event – where appellant’s motion dismissed – indemnity costs – whether appellant should pay costs on an indemnity basis – whether appellant should have known application for injunctive relief had no chance of success

Catchwords:

PROFESSIONS AND TRADES – medical practitioner – breach of conditions of registration – findings of professional misconduct and unsatisfactory professional conduct – condition “not to administer any conscious sedation (by any route)” – whether intramuscular administration of fentanyl contravened condition – whether subsequent guidance relevant to construction of condition – whether necessary for HCCC to establish depression of consciousness APPEALS – appeal on question of law – requirement to identify question of law – criticism of practice of drafting grounds of appeal with the words “The Tribunal erred in law in” – obligations of practitioners

Catchwords:

APPEALS — Procedural fairness — argument raised on appeal not pleaded or argued below — prejudice to respondent — where steps may have been taken at first instance had argument been raised below — new argument not permitted to be raised on appeal EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property”— knowledge requirement — degree of requisite knowledge — relevance of a “want of probity” — where ATO received “trust property” in satisfaction of defaulting fiduciary’s tax liabilities — where there were unchallenged findings that the ATO had actual and constructive knowledge that the funds were obtained in breach of fiduciary duty and were traceable — whether Commonwealth could rely on its statutory obligations — no special protection —knowledge requirement made out EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property”— meaning of “trust property” — where defaulting fiduciary obtained unauthorised profits in breach of fiduciary duty — whether unauthorised profits comprised “trust property” — where unauthorised profits comprised “new property” never legally owned by the principal — discussion of principle in Keech v Sandford (1726) 25 ER 223, Furs Ltd v Tomkies (1936) 54 CLR 583, Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 and other cases — unauthorised profits obtained in breach of fiduciary are held on trust for principal — trust arises at moment of breach — trust arises independently of curial intervention — discussion of remedial and institutional constructive trusts EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property”— meaning of “trust property” — whether personal remedy on defaulting fiduciary to account altered the nature of trust property — effect, if any, of such a remedy on the character of the “trust property” — prior judicial determination did not alter character of “trust property” — errant fiduciary not entitled to treat funds as if they were his property — third party knowing recipient remained liable to account EQUITY — Fiduciary duties — duty of loyalty — rationale behind duty of loyalty — deliberately onerous, stringent, and uncompromising duty — where de facto director misappropriated corporate funds — where de facto director used fiduciary position to obtain unauthorised profits JUDGMENTS AND ORDERS — Effect of — merger — whether the third-party knowing recipient’s interests merged with the errant fiduciary’s — where there was no finding of privity

Catchwords:

APPEALS — leave to appeal — interlocutory decisions — leave to appeal refused CIVIL PROCEDURE — withdrawal of concession — whether leave should be granted to withdraw the concessions made by the applicant’s senior counsel before the primary judge — whether in the interests of justice to grant leave to withdraw the concession CIVIL PROCEDURE — pleadings — amendment — whether primary judge erred in refusing leave to file a second further amended statement of claim — where pleadings failed to allege the elements the applicant must prove

Catchwords:

COSTS – respondent awarded costs of appeal – failure of appellant to negotiate costs – application made for gross sum costs order – no dispute as to quantum of gross sum – order appropriate in the circumstances COSTS – costs of the application – costs should follow the event – costs reasonably incurred including costs of costs consultant – gross sum costs order appropriate in the circumstances

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication Review Application under the Building and Construction Industry (Security of Payment) Act 2021 (WA) — requirement under s 42(3) of that Act for an applicant making an adjudication review application to give a copy of that application to the other party within one business day after the application is made — statutory construction — whether s 42(3) is a jurisdictional precondition — whether the review adjudicator fell into jurisdictional error BUILDING AND CONSTRUCTION — Statutory Construction — interpretation of s 113 of the Building and Construction Industry (Security of Payment) Act 2021 (WA) requiring the giving of a document in the manner provided for in the contract or in s 113(3) of that Act — whether the primary judge erred in finding that the respondent did not comply with the time requirement in s 42(3) by sending an email with an attached email providing a Mimecast link to the application documents

Catchwords:

APPEALS – application for leave to appeal against refusal to grant interlocutory injunction restraining sale of residential property by mortgagor – where interlocutory injunction also sought on appeal – where appeal has poor prospects of success and damages likely to be an adequate remedy – interlocutory injunction refused

Catchwords:

BANKING AND FINANCE – banker and customer – contract – power to close account immediately in certain circumstances, including “to protect our Legitimate Interests” – grammatical error in standard terms – whether bank had to establish that it was “necessary” to protect its Legitimate Interests – whether contract should be construed with least violence to text – concession that Bank added in good faith and rationally – whether exercise of power required opinion to be reasonably formed – bank officer not cross-examined on basis that he had acted unreasonably – primary judge found bank officer had acted reasonably – even if clause required opinion to be reasonably formed, power available – appeal dismissed

Catchwords:

APPEALS — Leave to appeal — whether the primary judge erred in any finding of fact — whether the primary judge erred in drawing a conclusion that the applicants were the relevant cause of the property damage complained of — no error in the primary judge’s fact finding or conclusions — leave to appeal granted — appeal dismissed TORTS — Private nuisance — Basis of liability —stormwater travelling over and from one residential property to another — failure of drainage system located on the higher property not disputed —attribution of liability for damage to the lower property due to stormwater runoff — whether the applicants’ failure to maintain the drainage system caused the nuisance — whether respondent caused the nuisance themselves during renovations TORTS — Right of support — application of s 177 of the Conveyancing Act 1919 (NSW) — whether there was a loss of support — whether the primary judge erred in dismissing s 177 cross-claim — no error found

Catchwords:

CIVIL PROCEDURE – security for costs – threshold question – whether primary judge prohibited from taking into account unpaid judgment obtained under Building and Construction Industry Security of Payment Act 1999 (NSW) – s 32(2) not concerned with the procedural conduct of civil proceedings under a construction contract but with their substantive outcome – non-payment of judgment debt not something “done under or for the purposes of this Part”

Catchwords:

TORT — negligence — trespass — where appellants in two separate appeals and their family members conducted excavation works on the development site causing the driveway of the first respondent’s property to collapse — where primary judge finds appellants liable in trespass for encroachment over the first respondent’s boundary and negligence constituting a breach of the duty of care pursuant to s 177(2) of the Conveyancing Act 1919 (NSW) — whether respondents established that the appellants encroached on the first respondent’s property and contributed to the collapse TORT — appeal — cross-appeal — trespass — apportionment of liability — whether Civil Liability Act 2002 (NSW) applies to alleged trespass TORT — appeal — negligence — principles of causation — tortious act need only have caused or contributed to harm — not necessary that it be the sole cause TORT — remedies — damages — whether compensation ought be measured by cost of rectification or diminution of value of affected land — relevance of proportionality and intentions of landowners — whether the affected land is the plaintiff’s residence CIVIL PROCEDURE — pleading — proportionate liability defence pursuant to Pt 4 of the Civil Liability Act 2002 (NSW) — importance of identifying concurrent wrongdoer and basis of claim — no error in primary judge holding appellants to pleaded defence APPEALS — from findings of fact — credibility of witnesses — oral evidence can be accepted without corroboration — no need for comprehensive photographic evidence — difficulties of judging distances and depth from photographic evidence

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — late amendment

Catchwords:

INSURANCE – liability insurance – contractor’s pollution legal liability policy – claim by contractor for indemnity for costs incurred in dealing with asbestos-contaminated soil during excavation works – where costs said to be incurred as a result of the dispersal of asbestos fibres into the air – where claimed costs incurred in satisfaction of contractor’s legislative and contractual obligations arising independently of any release of asbestos fibres into the air – loss did not arise from dispersal of asbestos

Catchwords:

DAMAGES — exemplary damages — whether trial judge erred in awarding exemplary damages — basis for award of exemplary damages — whether Harman obligation was breached by provision of CCTV footage to media — whether conduct of civil proceedings formed appropriate basis for award of exemplary damages TORTS — intentional torts — assault and battery — altercation between plaintiff and defendant — whether primary judge erred in relation to factual findings

Catchwords:

CRIME — Confiscations — Forfeiture orders — Substituted serious crime use property declarations — Proper construction of “used in, or in connection with”, in s 9B(1) of Criminal Assets Recovery Act 1990 (NSW) — Whether primary judge erred in finding that there was no sufficiently realistic possibility or probability that methylamphetamine had been smoked in garage and kitchen of South Penrith property — Whether primary judge erred in finding on the balance of probabilities that appellants had manufactured methylamphetamine at that property — Whether primary judge erred in finding that the property had been “used in, or in connection with”, a serious crime related activity

Catchwords:

CONTRACTS — construction and interpretation — where wholly written contract — dispute as to identity of party to contract — effect of Home Building Act 1989 (NSW), circumstances of execution of contract and post-contractual conduct CORPORATIONS — whether primary judge erred in finding that the company was insolvent EQUITY — equitable charges and liens — contribution to acquisition or improvement of another’s property — whether primary judge erred in imposing an equitable charge over the property JUDGMENTS AND ORDERS — interest — where directors breached statutory and fiduciary duties — whether primary judge erred in award of compound interest CORPORATIONS — directors and officers — directors’ duties — inactive director — whether inactive director’s breach of duty causative of company’s loss — factual inferences that should be drawn from evidence before primary judge CORPORATIONS — directors and officers — relief from liability under ss 1317S and 1318 of the Corporations Act 2001 (Cth) — whether primary judge erred in exercise of judicial discretion to not relieve director from liability

Catchwords:

LOCAL GOVERNMENT – roads – right of access between public road and adjoining private land –discussion of right of access at common law and under s 6 of the Roads Act 1993 (NSW) – distinction between private right of access and public right to use public road – whether appellant’s private right of access infringed by construction of Grand Pacific Walk – no relevant restriction of private right to cross the boundary between road and land

Catchwords:

COSTS – applicant’s motion seeking appointment of tutor dismissed – whether respondents should pay applicant’s costs – whether there should be no order for cost – whether applicant should pay respondents’ costs on indemnity basis – no reason to depart from default position that applicant pay respondents’ costs

Catchwords:

CIVIL PROCEDURE – application for pro bono referral – where pro bono assistance previously granted for advice – whether special reasons demonstrated – whether further referral in the interests of justice – referral confined to the provision of advice in relation to merits of appeal

Catchwords:

CIVIL PROCEDURE – registrars – review of registrar’s decision – application by non-party to set aside orders refusing filing of notice of motion and dismissing proceeding as incompetent – applicant sought substitution for deregistered corporation in application for leave to appeal against winding-up order – whether interests of justice favour intervention – no utility in permitting filing of motion seeking to restrain deregistration where deregistration had already occurred – application dismissed CORPORATIONS – deregistration – company deregistered after commencement of application for leave to appeal – company ceased to exist – company’s property, including any cause of action, vested in ASIC – former director and shareholder sought to be substituted as applicant – distinction between rights of company and personal rights of former director and shareholder – applicant lacked standing to assert rights belonging to company – proposed challenge to deregistration constituted new and different application APPEALS – procedural fairness – hearing rule – registrar dismissed proceeding in chambers – applicant given opportunity to address capacity to act for company and declined invitation to apply in personal capacity – no denial of procedural fairness – any denial rectified by hearing de novo on review COSTS – costs follow the event – asserted public interest and novelty insufficient to displace usual order – unsuccessful applicant ordered to pay respondent’s costs

Catchwords:

APPEALS — Leave to appeal — application for leave to appeal — no error of law identified — no issue of principle or question of public importance identified

Catchwords:

CIVIL PROCEDURE — Interim preservation — Freezing orders — where owners’ corporation sought to restrain developer from selling its only substantial assets without notice — where developer sought to use proceeds of sale of assets to repay debt incurred from related parties to fund development — where developer granted security over assets to related parties while litigation pending — whether debts incurred in the ordinary course of business — whether sale of assets in order to pay debts as they fell due should have been carved out of freezing order — whether danger that prospective judgment debt would not be paid caused by apprehended payment of existing debts or the financial position of the prospective judgment debtor

Catchwords:

CIVIL PROCEDURE – injunctive relief pending appeal – where appellant seeks to restrain sale of shares pending determination of the appeal – whether appeal is reasonably arguable – whether balance of convenience favours the appellant – whether undertaking as to damages is inadequate – whether appellant elects to give an adequate undertaking

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay of proceedings — stay pending application for special leave to appeal to High Court — assessing prospects of obtaining special leave impressionistic exercise — unanimity of opinion of decision-makers and doctors relevant to prospects — balance of convenience weighed overwhelmingly against granting stay where patient’s conditions drug-resistant and leading to prolonged suffering and highly problematic behaviour — special leave application rendered nugatory if stay not granted — that fact not sufficient in the circumstances to warrant a stay

Catchwords:

MENTAL HEALTH – Treatment – Electroconvulsive therapy – involuntary inpatient diagnosed with treatment resistant schizophrenia – ECT determination sought by medical team without patient’s consent – ECT treatment authorised by Tribunal and Supreme Court on appeal – construction and application of s 96(3) of the Mental Health Act 2007 (NSW) – treatment reasonable and proper and at least desirable for the safety or welfare of the patient CIVIL PROCEDURE – Hearings – Procedural fairness – primary judge refused leave for self-represented plaintiff to issue subpoenas and adjourn final hearing – nature of procedural fairness issue in such circumstances – no breach of procedural fairness established APPEALS – Further evidence – applicant sought leave to adduce further medical records – no special grounds established and leave refused – respondent sought leave to adduce fresh evidence of patient’s current clinical status – evidence allowed in part

Catchwords:

WORKERS COMPENSATION – coal miners – claim for weekly payments, expenses and compensation for permanent impairment – where primary judge failed to address the question whether the appellant sustained an “injury” within the meaning of the Workers Compensation Act 1987 (NSW) as applicable to coal miners – error in point of law established WORKERS COMPENSATION – independent analysis of causation by primary judge – primary judge’s conclusions not based on expert evidence, not reflective of any submission made, and not put to the appellant – error in point of law established

Catchwords:

CONSTITUTIONAL LAW – judicial power of Commonwealth – where cl 94 of Crimes (Administration of Sentences) Regulation 2014 requires visitors to extreme high risk restricted inmates to undergo criminal record checks – whether provision is an illegal fetter on a right to legal representation said to be derived from Chapter III of the Constitution – no unfettered right to consult with a legal practitioner of the person’s choosing – no material impact on the ability of an extreme high risk restricted inmate to obtain legal representation CONSTITUTIONAL LAW – implied freedom of political communication – whether cl 94 impermissibly burdens the implied freedom of political communication – where provision not directed at political communications by inmates – no burden demonstrated ADMINISTRATIVE LAW – judicial review – whether decision not to approve the use of tablets by inmates at the High Risk Management Correctional Centre for the making of personal telephone calls or telephone calls to legal practitioners legally unreasonable – rational justification for the relevant decision established

Catchwords:

COSTS — costs of proceedings at first instance — where appellant successful — where primary contention advanced on appeal the same as that at first instance — whether apportionment of costs appropriate — where general rule applied

Catchwords:

CORPORATIONS – winding up – voidable transactions – uncommercial transactions - statutory defence under s 588FG(2) of the Corporations Act 2001 (Cth) – good faith – reasonable grounds for suspecting insolvency – subjective and objective elements of s 588FG(2)(b) – whether appellant established statutory defence – relevance of inquiries concerning purchaser's financial capacity CORPORATIONS – winding up – voidable transactions – orders under s 588FF – contract for sale of land declared void – repayment of deposit – relief from contractual obligations APPEALS – from finding of fact – credibility of witnesses – adverse credibility findings – whether trial judge erred in rejecting evidence of principal witness – inconsistent accounts – effect of adverse credibility findings where party bears onus of proof GUARANTEE AND INDEMNITY – personal guarantee – conflicting executed versions of contract – whether guarantee formed part of contract – whether liability under guarantee established

Catchwords:

ADMINISTRATIVE LAW – judicial review – Minister’s appointment of an administrator to Local Aboriginal Land Council – appeal grounds of illegality, irrationality and procedural impropriety – appeal against decision to remove Local Aboriginal Land Council as party to proceedings – constitutional challenge requiring s 78B notice

Catchwords:

ENVIRONMENT AND PLANNING – modification of development consent – only some modifications acceptable or agreed – decision to refuse modification application instead of approve in part – whether duty to determine matter completely and finally – terms of remitter order – whether outside power

Catchwords:

EVIDENCE – privileges – legal professional privilege at common law – respondent the subject of ongoing murder investigations by NSW Police – whether handwritten notes prepared by respondent subject to legal professional privilege – where respondent’s purpose in preparing the notes sought to be proved by inference EVIDENCE – declaratory and injunctive relief on the basis of legal professional privilege – legal professional privilege not an actionable right – consideration of juridical basis of respondent’s claim – respondent’s claim properly characterised as one for breach of confidence CIVIL PROCEDURE – hearings – suppression and non-publication – principles applicable to making suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – no sound justification offered for the suppression orders made in the proceedings – any justificatory purpose for the suppression orders could be achieved through the use of pseudonyms

Catchwords:

TORTS — misfeasance in public office — elements — public power and meaning of public duty — not necessary to establish tort that there be duty to exercise power, although presence of such duty important in cases involving conduct by omission — not necessary to establish that public officer owed a duty not to commit particular abuse complained of to claimant individually or as member of class — duty in s 15A of Director of Public Prosecutions Act 1986 (NSW) applied to exercise of public power in investigating robbery — investigating officer failed to comply with public duty — officer did not act maliciously CRIMINAL PROCEDURE — prosecution disclosure requirements — disclosures in indictment — statutory and common law obligations of legal practitioners acting as prosecutors — statutory framework intended to be capable of consideration and indirect enforcement by judiciary — framework pursues public interest in fair trial and efficient conduct of criminal proceedings COURTS AND JUDGES — adequacy of reasons — complaint about inadequacy of reasons often inutile in appeal by way of rehearing where correctness of decision also challenged — reasons should in general consider and address core matters of law, fact or discretion in dispute — replication of party’s submissions unwise but does not necessarily render reasons inadequate — no distinct and sufficient criterion of inadequacy of reasons that justice has not been seen to have been done — primary judge brought own mind to bear on issues before him

Catchwords:

APPEALS — Application for leave to appeal — application filed out of time — claims for trespass to land and goods — application to stay first instance proceedings refused — claim for trespass to land established — nominal damages awarded — claims otherwise refused — indemnity costs ordered on gross sum basis — monetary threshold for appeal not met — no question of general principle — extension of time to file application granted — leave refused

Catchwords:

COSTS – apportionment – representative proceedings – two representative plaintiffs successful, two unsuccessful – costs incurred in relation to successful and unsuccessful claims – whether partial costs order appropriate – whether departure from principle in ordering partial costs order – whether evidentiary basis for partial costs order

Catchwords:

CONTRACT — construction of oral contract — identification of parties to loan contract — whether post-contractual documents constituted admissions as to the identity of the borrower — whether the primary judge mischaracterised reconciliation document — whether the Court was better placed to assess the identity of the borrower

Catchwords:

SUCCESSION — probate and administration — appointment of independent administrator — where named executor failed to administer estate

Catchwords:

CONTRACTS – Construction – calculation of damages pursuant to Court’s earlier determination of liability – calculation of pre and post judgment interest CIVIL PROCEDURE – Court of Appeal – submissions did not comply with page limit and used impermissibly small font CIVIL PROCEDURE – Court of Appeal – Costs orders – costs awarded in court below – appeal successful in part – purported offer of compromise in evidence – offer dependent upon parties negotiating deed of release – inconsistent with meaning of offer of compromise under UCPR – offer did not encompass successful component of claim – refusal of offer not unreasonable – proportion of appellant’s first instance costs liability reduced CIVIL PROCEDURE – Court of Appeal – Costs orders – indemnity costs awarded in favour of second defendant at first instance – second defendant not party to appeal – not open to challenge first instance costs order CIVIL PROCEDURE – Court of Appeal – Costs orders – Bullock order sought by appellant – utility of second defendant’s inclusion in first instance proceedings unclear – no uncertainty as to appropriate defendant – no question of insolvency of first defendant – no Bullock order warranted

Catchwords:

CIVIL PROCEDURE – amendment – where appellant sought leave at conclusion of trial to add a claim not previously pleaded – where request made on the day after trial for consent orders giving leave to amend – where request to make the consent orders was refused by primary judge without hearing further from the parties – where proposed amended pleading extremely late, internally inconsistent and without clear prospects of success – no material denial of procedural fairness BUILDING AND CONSTRUCTION – appeal against refusal of appellant builder’s claim for lost profits following termination of fixed-price residential building contract – where appellant asserted it would have achieved a profit margin of 15% on the balance of the contract price – no evidence adduced of appellant’s actual likely costs of completing the works – claim not established

Catchwords:

CIVIL PROCEDURE - Subpoenas – Leave to issue subpoena to give evidence – Legitimate forensic purpose – Apprehended bias – Conflict of interest – Statutory decision maker – Member declaring conflict but not participating in decision – Subpoena seeking evidence as to nature of conflict – Leave refused

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents or things – leave to issue subpoena – self-represented litigant – legitimate forensic purpose – proposed subpoena seeking documents concerning alleged transcript amendment and correction history – application for leave to appeal – whether documents relevant to issues to be determined on appeal – subpoena not directed to the issues before the Court – fishing expedition - leave refused

Catchwords:

ENVIRONMENT AND PLANNING – Consent – Appeal – three lots used historically as single residential landholding – lots sold to different purchasers – development application submitted for new dwelling on one lot – purchaser of other lot objected on basis of overshadowing impact – development consent granted – judicial review sought by objector – whether Council failed to consider DCP overshadowing control in its terms – statement of Council’s reasons not sought – burden of proof not discharged – DCP controls to be applied flexibly – comparison of overshadowing before and after proposed development not a mandatory consideration – error not established LAND LAW – Easements – Creation of easements – Creation by order of court – s 88K easement sought to prevent overshadowing following development consent – sought as alternative to judicial review of development consent – notion of reasonable necessity – significant justification required to establish reasonable necessity of easement restraining development on neighbouring lot – easement not reasonably necessary

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – decision of Industrial Relations Commission allowing appeal from decision of Commissioner to reinstate a police officer – nature of jurisdictional error – whether Full Bench denied applicant procedural fairness by determining appeal in accordance with s 181F of Police Act 1990 (NSW) – where parties before Commission at first instance had proceeded on narrower basis – extent to which approach taken by Full Bench was flagged at hearing – whether any material denial of procedural fairness APPEALS – Industrial Relations Commission – whether appellate intervention confined to cases where unreasonable findings made – construction of s 191 of Industrial Relations Act 1996 (NSW) – whether jurisdictional error by Full Bench in finding appellable error in findings by Industrial Relations Commission at first instance POLICE – police officer charged with possession of child abuse material – officer found guilty in Local Court but conviction quashed on appeal by District Court – officer removed from Police Force on basis that the Police Commissioner had reasonable grounds to consider offending had occurred – consideration of reasoning of Police Commissioner – nature of obligation under s 181F of Police Act 1990 (NSW) to review decision of Police Commissioner

Catchwords:

TAXES AND DUTIES – payroll tax – whether contracts for the provision of cleaning services are employment agency contracts – whether services provided “in and for” the client’s business –consideration of significance of degree to which the client controls the way in which the activities are performed by the service provider – appeal dismissed

Catchwords:

COSTS — enforcement and recognition of foreign judgment — where appellant unsuccessfully sought declaration that service not validly effected — where enforcement proceedings commenced while appeal from foreign judgment on foot — where foreign judgment reversed on appeal — whether costs should follow the event — whether costs should be costs in the cause — no order as to costs

Catchwords:

EQUITY — trusts and trustees — breaches of trust — discretionary family trust — where primary judge found the trustee breached its duties by making unauthorised distributions to non-beneficiaries — where primary judge relieved the trustee from liability pursuant to s 85 of the Trustee Act 1925 (NSW) on the basis that it had acted honestly and reasonably — whether the primary judge erred in his discretion in refusing to order an account or for restoration of the unauthorised distributions LIMITATION OF ACTIONS — breach of trust — account — where limitation period has expired — effect of s 48 of the Limitation Act 1969 (NSW) on a claim for an account or order for restoration based on alleged breach of trust — where s 68A of the Limitation Act provides for an extinction of title where limitation period applies RELIEF — where breach of trust established — whether order for restoration of the trust property ought be made or whether declaratory relief sufficient TRIAL — party bound by conduct of proceedings — ought not be permitted to challenge in separate proceedings for an account matters which have already been litigated in contested proceedings where all material evidence before the primary judge RELIEF — when an account will be ordered — no utility in ordering an account where the amounts distributed in breach of trust have already been quantified following contested proceedings

Catchwords:

COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s detention and revocation of conditional release were valid under ss 79 and 81 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – forensic patient – forensic patient scheduled under s 19 of the Mental Health Act 2007 (NSW) – whether extension of time and leave to appeal should be granted – where conditional release breached – whether s 109 of Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a mandatory scheme where conditional release breached STATUTORY INTERPRETATION – whether s 81 limited to detention orders – whether s 81 provides a general power to make orders as to detention of forensic patients – where orders being made after initial detention order – whether power to revoke conditional release implied from express power of detention in s 81 – Anthony Hordern principle of statutory construction considered – futility of order for apprehension under s 109 when forensic patient already detained – whether s 109 has a role to play

Catchwords:

CORPORATIONS — directors — whether company obliged under director’s deed or constitution to indemnify former director for legal costs in defending proceedings alleging he had breached his duties as director and in related proceedings — where primary judge held that director entitled under cl 3.1 of director’s deed to be paid his costs of defending primary proceedings on basis that the company had a right to recover those payments if and to the extent that it was subsequently established that the director was not entitled to an indemnity in respect of those costs in which case the company would have a right to recover those costs under cl 3.3(d) — whether cl 3.1 of the deed obliged the company to indemnify the director for costs incurred in the primary proceedings pending it being known whether or not he had a liability to the company falling within the ambit of s 199A(2)(a) of the Corporations Act 2001 (Cth) — whether cl 3.1 of the director’s deed applied only to costs incurred by the director as an officer of the company during a limited period — whether the company’s constitution required that the company indemnify the director for the legal costs of the primary proceedings

Catchwords:

NEGLIGENCE — occupier’s liability — breach — risk of harm — similar risk — easily toppled table injured girl in cafe at leisure centre — whether risk of harm not insignificant — nature of other risks of harm which presented similar risks — whether reasonable occupier would have taken steps to fix or remove table DAMAGES — future economic loss — plaintiff sustained permanent scarring — buffer for chance that plaintiff might in future be at disadvantage in workforce, or suffer apprehension or stress leading to reduced hours — evidentiary basis for award of future economic loss not established

Catchwords:

NEGLIGENCE – liability of landlord of commercial premises – second respondent operated petrol station from premises licensed from appellant –second respondent sub-licensed part of the premises including a mechanic’s workshop to the first respondent’s employer – first respondent injured in the course of his employment – unsafe system of work for removing waste oil adopted by first respondent’s employer due to the refusal by drivers of waste oil trucks to drive down a concrete ramp at the premises because of concerns about its load-bearing capacity – appellant was on notice of those concerns and was taking steps to investigate and repair the ramp – no unreasonable delay by appellant in repairing the ramp – no evidence to suggest that the repairs would have avoided the first respondent’s injury in any event – no causally relevant breach of duty by appellant – appeal allowed

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — application to set aside orders under UCPR, r 36.16 — no proper basis established

Catchwords:

ADMINISTRATIVE LAW — construction of reasons — functions and powers — whether appointment of administrator fell within the ambit of functions — whether the appointment of administrator was required to fall within the ambit of functions — definition of “horse racing” within the Thoroughbred Racing Act 1996 (NSW) ADMINISTRATIVE LAW — judicial review — jurisdictional error — whether decision-maker erred in treatment of report produced in response to a show cause notice — high threshold in establishing legal unreasonableness — no such error established STATUTORY INTERPRETATION — amendment and repeal — whether provision of the Thoroughbred Racing Act 1996 (NSW) impliedly repealed by the Australian Jockey Club and Sydney Turf Club Merger Act 2010 (NSW) — implied repeal not established CONSTITUTIONAL LAW — alleged inconsistency between Thoroughbred Racing Act 1996 (NSW) and Corporations Act 2001 (Cth) and Corporations Law (NSW) — meaning and scope of operation of s 5E of the Corporations Act — tests for inconsistency under s 109 of the Constitution — whether appointment of an administrator under State Act consistent with provisions in Corporations Act dealing with control and management of corporations — analogy between appointment of an administrator and a receiver — no inconsistency established

Catchwords:

COSTS – appeal and notice of contention raising many points – appeal dismissed principally on basis of amended notice of contention raised on second day of hearing – respondent had hitherto accepted belatedly challenged aspect of reasons of trial judge – other grounds advanced by respondent failed – common ground that Court should depart from the usual order as to costs – appropriate that there be no order as to costs with intention that parties bear their own costs

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment — No issue of principle

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Supervisory jurisdiction — Stay of District Court orders — No issue of principle

Catchwords:

INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings under s 7(2) of International Arbitration Act 1974 (Cth) — whether proceedings involved “matter[s]…capable of settlement by arbitration” — meaning of “matter” as distinct from “proceedings” — arbitrability — where bad faith defence was part of the same “matter” as claim — where cross-claim was a distinct matter — where cross-claim involved construction of deed of company arrangement and was not arbitrable INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — meaning of “through or under” in s 7(4) of the International Arbitration Act 1974 (Cth) — whether third-party defence was brought “through or under” party to arbitration agreement INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — whether arbitration agreement was “inoperative” under s 7(5) of the International Arbitration Act 1974 (Cth) — whether agreement was waived, abandoned or repudiated by commencement or continuation of curial proceedings CONTRACT — ready, willing and able — whether disputing of cross-claim meant party was not ready, willing and able to perform contractual obligations —confined to essential obligations

Catchwords:

APPEALS — leave to appeal — principles governing — whether reasonably clear injustice rising above merely arguable — where dispute is a factual matter of practice and procedure — where orders of primary judge were as to costs only COSTS — party/party — court’s discretion — where primary judge made interlocutory order that the applicant was taken to have been served with interlocutory process — whether preconditions for exercise of discretion by primary judge were satisfied

Catchwords:

PROCEDURE — application for stay of orders pending appeal — where expedition of appeal ordered — where freezing orders in place — where balance of convenience favoured stay of order

Catchwords:

CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid

Catchwords:

PROCEDURE — stay pending application for leave to appeal — where undertaking offered to applicant by respondents — where respondents confirmed undertaking still offered to Court — where applicant indicated content for Court to make orders dismissing application for a stay and listing application for leave to appeal and appeal for expedited concurrent hearing

Catchwords:

CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued

Catchwords:

BUILDING AND CONSTRUCTION – residential building contract – builder issues payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) for works at lock up stage – builder proceeds to adjudication and registers adjudication certificate as a judgment – where owners commence proceedings following dispute about termination of the contract – where primary judge found that works had not reached lock up stage and builder not contractually entitled to payment for works the subject of the claim – where primary judge found that owners validly terminated the contract and entitled to damages – application of s 32 Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

CONTRACTS – construction – whether monthly interest under short-term interest-only loans payable in advance or in arrears – whether provisions relating to payment of interest void for uncertainty – where drafting of provisions unsatisfactory but the intention of the parties is discernible from the loan agreements as a whole

Catchwords:

INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings under s 7(2) of the International Arbitration Act 1974 (Cth) — interpretation of tiered dispute resolution clause in IATA Standard Group Handling Agreement — whether an agreement to agree — whether “the dispute” referred to substantive dispute or dispute as to arbitral process — no mandatory referral to arbitration AVIATION — interpretation of tiered dispute resolution clause in IATA Standard Group Handling Agreement

Catchwords:

APPEALS — stay pending appeal — where primary judge ordered indefinite committal of contemnor — whether grounds of appeal raise serious issues — whether refusal would risk harm or prejudice to applicant — balance of convenience and competing interests — where applicant has ongoing medical issues APPEALS — stay pending appeal — power to grant bail in respect of committal for civil contempt — whether incident of power to order stay

Catchwords:

APPEALS — stay of orders pending determination of summons for leave to appeal — orders for guardianship — protective jurisdiction — where orders made to stay other proceedings — where orders made prohibiting institution and prosecution of other proceedings — where no risk of prejudice if stay not made — where balance of convenience weighs against a stay — application refused CIVIL PROCEDURE — application for pro bono legal assistance — protective proceedings — where all parties appear in person — where referral unlikely to address applicant’s difficulty

Catchwords:

EQUITY – unconscionable conduct – where appellant appoints son as appointor of family trust and transfers marital home to son – where stated purpose of transactions to place assets outside the reach of the daughter in any family provision claim – whether unconscionable advantage taken of any special disadvantage or disability EQUITY – unconscionable conduct – where special disadvantage said to arise from inadequacy of legal advice received and the absence of evaluative advice on the merits of the transactions to achieve the stated purpose – consideration of the role of legal advice in cases of unconscionable conduct – legal advice was not inadequate, and the appellant was capable of assessing the merits of the transactions

Catchwords:

CIVIL PROCEDURE — review of decision of Judge of Appeal — where primary judge dismissed notice of motion seeking document production and interrogatories — whether materials sought relevant to pleaded grounds — whether materials sought protected by legal professional privilege — whether requests amount to a “fishing expedition” — whether order for interrogatories necessary in interests of fair trial — where respondent confirmed it did not possess information sought by applicant CIVIL PROCEDURE — vacation of hearing — whether issues on notice of motion require oral hearing — whether to determine notice of motion on the papers — where applicant sought to adjourn hearing — where question on application is limited

Catchwords:

SUCCESSION — construction — where will provided that rest and residue of deceased’s estate was to be given to her three children in equal shares following distribution of specified pecuniary legacies — where will further directed that a property which had been transferred by deceased and her late husband to the appellant and his wife be treated as an advancement to the appellant and be brought into account and taken in satisfaction to the extent of the gift in his favour — whether primary judge erred in construction of the will — whether primary judge required to decide whether transfer was a gift or advancement to appellant — whether primary judge erred in construing gift to appellant as being qualified by direction as regards property — whether primary judge erred in finding that transfer was a gift or an advancement — whether primary judge erred in approach to evidence

Catchwords:

CIVIL PROCEDURE — summary disposal — contract for design and construction of high physical support accommodation — recovery of unpaid payment claims — summary judgment for plaintiff below — whether triable issue as to valid service of payment claims — whether triable issue as to entitlement to claim progress payments where no insurance for residential construction — whether triable issue because of prospect of expert evidence informing statutory construction — no serious or substantial dispute of fact — no triable issue BUILDING AND CONSTRUCTION — payment claims — Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 — requirements for service of a valid payment claim — whether claimant must establish as a matter of objective fact that construction work was carried out within the relevant time period — failure to serve payment schedule — statutory liability arises from lack of response — payment claims not served prematurely BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW), Sch 1, cl 3(3)(d) — residential building work — dwelling — accommodation specially designed for persons with a disability — meaning of “self-contained units” — no serious question of fact arising from speculative possibility of expert evidence on meaning of words — contextual indications of meaning of “self-contained units”

Catchwords:

APPEAL – application for leave to appeal on costs only – underlying proceedings relate to a defamation claim that was statute barred – whether indemnity costs properly ordered – where it was communicated to the applicant in advance that the claim was hopeless and the applicant proceeded regardless – where advance notice given that indemnity costs would be sought – leave refused

Catchwords:

APPEALS — application for leave to appeal from dismissal of District Court proceedings for false imprisonment — value of claim assessed at $2,000 — primary judge’s conclusion supported by unchallenged findings — proposed grounds of appeal otherwise weak — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused

Catchwords:

STATUTORY INTERPRETATION — consistency with international treaty — foreign state immunity — meaning of “service” — whether provision susceptible to construction consistent with international law — whether statutory method for service inoperative if inconsistent with treaty obligation PRIVATE INTERNATIONAL LAW — jurisdiction — service outside of jurisdiction — Hague Service Convention, Art 9 — meaning of “for the same purpose” — availability of diplomatic channels where receiving party a foreign State STATUTORY INTERPRETATION — literal meaning — Foreign States Immunities Act 1985 (Cth), s 40 — effect of certificate — whether conclusive of valid service

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — where appellant has not filed critical documents and not appeared at hearing

Catchwords:

CONTRACT — lease — tenant’s obligation at end of lease to remediate to standard suitable for on-going commercial/industrial use — Land occupied for many years by Department of Defence — asbestos known to be present on land — whether provision of site audit statement certifying land suitable for commercial/industrial use subject to compliance with environmental management plan discharged tenant’s obligation even though asbestos continued to be present in topsoil — whether primary judge erred in finding asbestos continued to be present in topsoil — tenant’s obligation to return premises clean and in good repair and condition — whether that obligation added to obligation to remediate — significance of statutory regime concerning planning permission and remediation of land — whether appropriate to determine non-dispositive issues concerning release in deed of surrender

Catchwords:

WORKERS COMPENSATION — Compensation for medical, hospital and rehabilitation expenses — Limits on employer liability — s 62(1A) of the Workers Compensation Act 1987 (NSW) — whether Workers Compensation (Private Hospital Maximum Rates) Order 2024 (NSW) made pursuant to s 62(1A) fixes maximum amount of employer’s liability for hospital treatment not specified in Order

Catchwords:

PROFESSIONAL RESPONSIBILITY — whether Director of Public Prosecutions guilty of professional misconduct or unsatisfactory professional misconduct due to alleged 'misrepresentation' — whether advice given by Director of Public Prosecutions was misleading — whether decision by Legal Services Commissioner based on subject advice 'infected' by reviewable error

Catchwords:

CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term

Catchwords:

ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20

Catchwords:

CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity

Catchwords:

COSTS – where costs sought on indemnity basis – offer of compromise – whether applicant/cross-respondent unreasonably rejected offer

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments

Catchwords:

COSTS — security for costs — payment out of court — where moneys paid into court as security for costs of appeal — no order made as to costs of appeal — whether to release amount of security in partial satisfaction of costs at first instance — not the purpose of security ordered — purpose of security spent — order for payment out made

Catchwords:

APPEALS — rectification suit — whether common intention contended for on appeal differed from common intention contended for at trial — whether evidence could have been led at trial to rebut common intention contended for on appeal CONTRACTS — rectification — intention — common intention — proof of common intention — where party to deed knew of concern of other party in relation to a risk — where evidence of communications between solicitors of parties to deed in relation to risk — whether clear and convincing proof of common intention — significance of solicitors being closely involved in drafting of the clause sought to be rectified — significance of failure to call plaintiff’s solicitor

Catchwords:

CIVIL PROCEDURE – Court of Appeal – notice of motion seeking review of order of a single judge of appeal – whether appellants have identified an error of principle or how the decision is plainly wrong

Catchwords:

DEFAMATION — Practice and procedure — Trial by jury — Discharge of jury — Application for trial to continue without jury — Defamation Act 2005 (NSW), s 21 — Applicable principles — Whether primary judge identified incorrect source of power — Whether primary judge failed to take into account argument that change in mode of trial would occasion prejudice to applicant

Catchwords:

APPEALS – competency – appeal from summary dismissal of claim – leave required APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused

Catchwords:

COSTS – partial success on appeal – significance of late offer of compromise – broad brush approach – partial costs order

Catchwords:

NEGLIGENCE – breach – where respondent distributed refrigerators manufactured by parent company in South Korea – where model of refrigerator purchased by appellants was the subject of a voluntary recall after two instances of refrigerators catching fire – where refrigerator purchased by appellants caught fire – serial number of appellants’ refrigerator not included in list of affected refrigerators provided by parent company to the respondent – whether the respondent ought to have made inquiries of parent company concerning affected refrigerators – whether the primary judge erred in concluding that the respondent did not breach its duty of care and that factual causation was not established EVIDENCE – onus of proof – where respondent did not call evidence from parent company about how the parent would have responded to the inquiries contended for by appellants – whether evidence adduced by appellants sufficient to discharge their onus of proof

Catchwords:

COSTS – whether costs of unsuccessful application for leave to appeal from interlocutory decision of District Court should be ordered to be paid forthwith – where application for leave to appeal was misconceived and related to a discrete issue – order made

Catchwords:

COSTS – security for costs – where appeal has reasonable prospects of success and raises an issue of public importance – excessive estimate of costs of appeal – where undertaking provided by director of appellant – no question of principle

Catchwords:

APPEALS — leave to appeal — principles governing — obligation under lease to rectify flood damage — question of construction — points of principle identified — no reasonably clear injustice going beyond something that is merely arguable — costs grossly disproportionate to amounts in issue — special interest in finality where small sums at stake — leave to appeal refused

Catchwords:

WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law

Catchwords:

CONTRACTS — commercial lease — where fire originating on leased premises destroyed structures on leased and adjacent premises — proper construction of indemnity clause — whether causation in indemnity clause satisfied — whether reinstatement provision includes rebuilding not just repair — whether lease provisions imposing liability negatived implied covenant under s 84 of the Conveyancing Act 1919 (NSW)

Catchwords:

APPEALS — practice and procedure — review of single Judge of Appeal — whether a material change of circumstances — where additional evidence before the Court — where cross-appeal has been filed — where discretion re-exercised PRACTICE AND PROCEDURE — costs — security for costs — appeal — whether special circumstances exist — where it was contended that the appeal was unreasonable in nature and with poor prospects — where appellant impecunious — where Court found that no special circumstances exist — where order for security is likely to stultify the appeal

Catchwords:

APPEALS – further and fresh evidence – whether appellants should be granted leave to rely upon further and fresh evidence – distinction between further evidence and fresh evidence under s 75A of the Supreme Court Act 1970 (NSW) – whether special grounds shown to admit further evidence – whether fresh evidence should be admitted APPEALS – application to amend grounds of appeal – whether leave should be granted to appellants for proposed additional grounds of appeal – where no prejudice to respondents APPEALS – whether appellants permitted to raise new issues on appeal – where conduct of the hearing in the Court below proceeded by way of detailed agreed statement of issues – whether possibility that new issues could have been met by evidence at the hearing below APPEALS – from findings of fact – credibility of witnesses – whether primary judge erred in making adverse credibility findings against appellants – where extensive submissions as to credit findings made by counsel – whether primary judge denied appellants procedural fairness contrary to the rule in Browne v Dunn CONTRACTS – construction – share sale agreement – whether primary judge erred in construction of cl 3.3 of the agreement – whether primary judge erred in concluding appellants waived rights – whether ordinary and natural meaning of the words – agreement read as a whole according to terms CONTRACTS – knowledge – whether primary judge erred in finding solicitor’s knowledge imputed to appellants – where solicitor’s knowledge obtained in the course of carrying out the share sale RESCISSION – whether primary judge erred in failing to order partial rescission of appellants’ obligation to pay vendor finance – restitutio in integrum – whether partial rescission available in equity or under s 243 of the Australian Consumer Law – whether primary judge erred taking into account considerations of delay and receivership to conclude partial rescission not available – no causal connection

Catchwords:

CORPORATIONS — members’ rights and remedies — oppression — shareholder and adviser’s exit from financial services business — shareholder corporate vehicles corporate authorised representatives of service entity AFS licensee — exiting shareholder copies client information in preparation to leave business — remaining shareholders cut exiting shareholder’s access to business’ systems — remaining shareholders encourage clients of exiting shareholder to remain with business — whether trial judge erred in finding oppression where alleged baiting — whether compensation warranted or buy-out order should be made — no basis to do so where quantifiable loss not demonstrated CONTRACT — remedies — damages — proof of loss or damage — breaches of corporate authorised representative agreement leading to alleged loss of clients — whether loss adequately demonstrated or quantified — facilitation principle — “fair wind” — whether appellant entitled to the benefit of the doubt and favourable inferences where some loss demonstrated — assistance in proof not warranted — case theory below profoundly misleading — expert report relied upon based on false assumptions — uncertainty in proof of loss resulting also from false basis initially advanced by claimant for damages — unreasonable and unfair for respondents to assume evidential burden APPEALS — procedure — notice of contention — unsatisfactory to do no more than rely on submissions below — calibration to findings of trial judge required

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether to grant leave to file amended response and rely on deed of re-assignment — whether more than merely arguable error in primary judge’s decision to set aside statutory demand

Catchwords:

PRACTICE — application for extension of time for filing of application for review of the orders of a Judge of Appeal — where Judge of Appeal dismissed the applicant’s challenge to dismissal of proceedings as a consequence of guillotine order made by Registrar that if a summons for leave to appeal was not filed by a particular date the proceedings would be dismissed — no error of principle demonstrated — circumstances in which guillotine order will be an appropriate tool of case management — extension of time refused

Catchwords:

APPEALS — from finding of fact — function of appellate court — whether appropriate for appellate court to interfere with findings of primary judge based on observations of witnesses in the course of the trial ESTOPPEL — proprietary estoppel — encouragement — nature of promise — where daughter claims parents promised to transfer family home and family business to her during their lifetimes — whether promise clear and unequivocal

Catchwords:

ANIMALS — companion animals — dogs — where respondent and her dog were attacked by appellant’s dog — where respondent sued under s 25 Companion Animals Act 1998 (NSW) — where circumstances of attack not in dispute — where primary judge gave judgment for respondent — where primary judge found respondent suffered both physical and psychiatric injury — whether primary judge erred in preferring opinion of one psychiatric expert over another — whether primary judge erred in approach to causation — whether evidence before primary judge did not support his Honour’s finding that respondent had suffered impairment of earning capacity — whether primary judge erred in assessment of damages — appeal dismissed

Catchwords:

SUCCESSION — Family provision — Approval of release — Whether release is “fair and reasonable” under s 95(4)(c) of the Succession Act 2006 (NSW) — Evidence of value of assets and liabilities of deceased estate and relevant parties CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to adduce further evidence on appeal to support legal incapacity — Application refused CONTRACTS — Formation — Deeds — Whether deed was delivered in escrow — Whether primary judge erred in finding that deed was delivered in escrow when issue not raised in terms by the parties — Whether deed was incomplete — Intention to be bound by deed on condition that deed becomes effective only upon execution by other party — Mutual assent to be bound by terms of the deed

Catchwords:

PROCEDURE – application for pro bono referral – impecunious but articulate applicant – relatively straightforward appeal – trial including cross-examination conducted by litigant in person – the fact that applicant would be advantaged by pro bono assistance insufficient – application refused

Catchwords:

APPEALS — expert evidence — Class 4 proceedings in the Land and Environment Court — challenge to approval of development of sports complex at Fred Caterson Reserve — asserted failure to consider environmental impact of light spill on vulnerable owl species including Powerful Owls — where primary judge refused leave for the appellant to rely on evidence from an owl biologist — whether evidence relevant to issues to be determined by the Court

Catchwords:

APPEALS — Leave to appeal — appeal brought out of time — extension of time granted — application for leave to appeal from a decision that the Council did not owe and did not breach the duty of care alleged — issues of principle — leave to appeal granted NEGLIGENCE — Personal injury — pedestrian tripped against a “raised lip” on concrete footpath in early morning light — internal Council policy for the assessment and maintenance of footpaths — whether Council owed a duty of care to respond to the 23mm height differential — whether the “raised lip” was an obvious risk — contributory negligence — onus of proof for contributory negligence and obviousness of risk NEGLIGENCE — Damages — personal injury damages — alleged errors in assessment of quantum — discount for vicissitudes — no error shown in evaluation of respective heads of damage — minor arithmetical error

Catchwords:

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — leave sought to appeal against dismissal of applicant’s amended statement of claim in District Court proceedings with leave to re-plead certain claims — leave sought to cross-appeal against grant of leave to re-plead claim against the Director of Public Prosecutions — no question of principle — no demonstrated injustice

Catchwords:

CONTEMPT — Civil contempt — Breach of orders — Clarity of terms — Proper construction of consent order – Meaning of the words “pending the hearing of this matter” — Ambiguity — Whether consent order was ambiguous

Catchwords:

PUBLIC ASSEMBLY — “public assembly restriction declaration” (“PARD”) scheme — Terrorism and Other Legislation Amendment Act 2025 (NSW) — enacted in the wake of the terrorist attack at Bondi Beach on 14 December 2025 — restriction of the holding of public assemblies within a declared area following a terrorist attack — regime for the authorisation of proposed public assemblies displaced — enhanced police powers when and where a PARD is in force — Terrorism (Police Powers) Act 2002 (NSW), Pt 2, Div 3A — Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 200(5) — Summary Offences Act 1988 (NSW), ss 27A, 27B CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — importance of peaceful protest — substantial burden on implied freedom — legislature perceived potential of public assemblies to undermine social cohesion and place community at risk — purpose of provisions to address this mischief by restricting and discouraging public assemblies within declared areas — purpose not compatible with maintenance of the constitutionally prescribed system of representative and responsible government — disharmony, incivility and disruption accepted as features of democratic intercourse — scheme not reasonably appropriate and adapted — PARD scheme a blunt tool — inability under scheme to tailor restrictions to characteristics of particular public assemblies — impugned provisions declared invalid CONSTITUTIONAL LAW — “matter” — justiciability — standing — plaintiffs assert special interest as protest organisers affected by PARD initially declared on 24 December 2025 — PARD lapsed before hearing — impugned provision conferring power to make a PARD still in force — non-remote risk that a future PARD may be made impacting the plaintiffs in their protest activities — plaintiffs continue to have standing to maintain the proceedings — matter persists and requires resolution — justiciable controversy apt to be quelled — prudential considerations telling against the exercise of jurisdiction not engaged

Catchwords:

COMMERCE — Competition and Consumer Act 2010 (Cth), Pt IIIA — Declared service —Construction of access determination — Nature and extent of extrinsic material to be taken into account — Whether appellant able to take advantage of determined wharfage charge without being liable to pay determined navigation service charge

Catchwords:

APPEAL — leave to appeal – alleged procedural unfairness resulting from difficulties in transmission created when applicants’ legal representative appeared by AVL at hearing of respondent’s motion for leave to amend statement of claim — subsequent application for recusal on basis of apprehended and actual bias refused — no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable — leave refused

Catchwords:

PROCEDURE – application for adjournment – applicant admitted to private clinic – second occasion on which applicant had entered clinic shortly before adjourned hearing – application by applicant for appointment of tutor on basis of incapacity – underlying appeal challenging dismissal of applicant’s claim when applicant hospitalised – adjournment granted on basis of overriding purpose

Catchwords:

APPEALS – whether primary judge erred in refusing to order an apology under s 237 of the ACL – whether question of public importance raised APPEALS – cross-appeals – whether primary judge acted on a wrong principle in identifying the event for the purposes of the costs analysis – whether primary judge took into account extraneous or irrelevant matters when making a costs order – whether primary judge erred in failing to find that costs should have been calculated in accordance with UCPR 42.15 – whether primary judge acted on a wrong principle in identifying that offer of money was unlikely to provide a basis upon which to settle – whether primary judge’s exercise of costs discretion unreasonable or plainly unjust

Catchwords:

PRACTICE AND PROCEDURE — application for leave to appeal from decision refusing to grant a permanent stay of proceedings in favour of expert determination — construction of expert determination clause — characterisation of parties’ dispute — relevance of third party as a proper party to proceedings — criteria for leave to appeal not met

Catchwords:

EVIDENCE — opinion evidence — exceptions — expert opinion — where expert certificate tendered and served under and in compliance with ss 177(1), 177(2) and 177(3) of the Evidence Act 1995 (NSW) — where maker of expert certificate not required to give evidence under s 177(5) of the Evidence Act 1995 (NSW) — whether opinion evidence in expert certificate admissible under s 177 of the Evidence Act 1995 (NSW) as an exception to s 76 of the Evidence Act 1995 (NSW) — whether requirements of s 79 of the Evidence Act 1995 (NSW) required to be satisfied for an expert certificate to be admissible under s 177 STATUTORY INTERPRETATION — departure from literal meaning — unreasonable consequences — presumption that word in statute bears same meaning as same word elsewhere in same statute — whether presumption applies less strongly where provision in question containing word was added to statute at later stage of drafting process

Catchwords:

COSTS — Security for costs — pending appeal — whether special circumstances — where appellant wholly unsuccessful at first instance — where judgment debt entered and freezing orders made in proceedings below — where real prospect that assets will not be available to satisfy any costs liability made against appellant — where grounds of appeal face significant hurdles

Catchwords:

OCCUPATIONS — veterinary surgeons — misconduct and discipline — investigation of complaint by Veterinary Practitioners Board — asserted failure to comply with statutory procedures — whether non-compliance with statutory requirements deprived NSW Civil and Administrative Tribunal of jurisdiction — jurisdiction of NSW Civil and Administrative Tribunal to consider procedural error by the Board — effect of non-compliance APPEALS — leave to appeal — appeal from NSW Civil and Administrative Tribunal to Supreme Court — meaning of “interlocutory decision” — meaning of “ancillary decision” — whether leave required — not necessary to decide

Catchwords:

NEGLIGENCE — professional negligence — where solicitor failed to draft notice to complete with reasonable care — client subsequently repudiated the contract — purchaser sued client for return of the deposit and damages — deposit repaid but no damages awarded as causation not established BREACH OF FIDUCIARY DUTY — appeal — failure to advise — where solicitor found liable for breach of duty to client — failure to establish causation of loss claimed REMEDIES — damages — loss of opportunity — assessment of damages where alleged loss of chance — need to prove that alleged lost chance had some value

Catchwords:

APPEALS — appeal from findings of fact — whether the primary judge erred in finding the Council had actual knowledge of the risk which caused the harm — whether knowledge of particular class of Council persons required – whether the primary judge erred in failing to find the liability arose from road works for the purpose of s 45 of the Civil Liability Act 2002 (NSW) — whether the primary judge erred in failing to find that the claim relied on the exercise of a special statutory power for the purposes of s 43A of the Civil Liability Act — no error in any findings of fact APPEALS — TORTS — negligence — personal injury — application of the Civil Liability Act 2002 (NSW) — whether s 45 Civil Liability Act is applicable — whether the address of the risk that caused harm was ‘carrying out road work’ for the purposes of s 45 — whether s 43A Civil Liability Act applicable — whether special statutory power was exercised for the purposes of s 43A

Catchwords:

CIVIL PROCEDURE — parties — persons under legal incapacity — court must be positively satisfied as to legal incapacity — incapacity a task-specific matter — considerations relevant to capacity in context of conducting litigation — level of capacity required commonly greater where person self-represented

Catchwords:

NEGLIGENCE — slip and fall in undercover carpark on speed hump —speed hump not painted — other hazards and irregularities in carpark painted yellow — whether primary judge erred in finding movement-sensitive lighting had not come on when plaintiff fell — whether unpainted speed hump an obvious risk — whether primary judge erred in finding breach and causation — whether primary judge erred in not finding contributory negligence — whether primary judge erred in assessment of future economic loss and future domestic assistance — appeal allowed in part and judgment in lesser amount substituted

Catchwords:

CORPORATIONS — receivers and managers — appeal — standing of receiver to seek declaratory relief in respect of ownership of shares — whether shares formed part of secured property — where bases of grounds of appeal not raised in the Court below APPEAL — where appellant seeks to run a point not taken in the Court below — parties generally bound by the way they conducted themselves at first instance

Catchwords:

NEGLIGENCE — motor vehicle accident — appeal — dispute as to factual matters relating to liability — alleged errors with respect to factual matters relating to the circumstances of the collision APPEAL — from findings of fact — assessment of witnesses by primary judge

Catchwords:

ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether decision to give effect to development consent was one which the Court could make in the proper exercise of its functions – where common ground that cl 6.7(2) of the Kiama Local Environmental Plan 2011 is a jurisdictional constraint – whether Commissioner formed the requisite state of satisfaction so as to satisfy jurisdictional constraint – where Jurisdictional Note provided by the parties ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether Commissioner had power to grant development consent to amended development application – whether third respondent’s role as consent authority was functus officio upon refusing the development application so as to preclude the Commissioner from giving effect to grant of consent – where amendments to development application diminished the impact on neighbouring properties

Catchwords:

APPEAL – Leave to appeal – Application for leave to appeal NCAT Appeal Panel decision under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of fact or question of law – Whether finding of the Appeal Panel that strata application filed out of time concerned question of fact or question of law – Leave to appeal refused

Catchwords:

CIVIL PROCEDURE – application for appointment of tutor – whether appellant under legal incapacity – where insufficient evidence – no appointment of tutor made

Catchwords:

LOANS — account — appeal — quantum of amount owing by son to mother for unpaid loans — erroneous apprehension about the significance of a figure contained in a schedule of payments — requirement to review evidence of the loans and make findings of fact pursuant to power in s 75A of the Supreme Court Act 1970 (NSW) LIMITATION OF ACTIONS — debt — requirement that defence under the Limitation Act 1969 (NSW) be pleaded

Catchwords:

EQUITY — defences — laches — whether claim to rectification of share register barred by laches — disadvantage or prejudice suffered — no link between prejudice and delay EVIDENCE — rejection of affidavit evidence — whether evidence purporting to be in support of laches defence outside pleadings following abandonment of estoppel argument – no error of principle PROCEDURE – no error of principle, matter of public importance or reasonably clear injustice going beyond something that is merely arguable – refusal of leave to appeal

Catchwords:

CIVIL PROCEDURE – requirement of leave – monetary threshold not shown to be satisfied – reasonable and fair although to advise appellant of requirement to seek leave

Catchwords:

AGENCY — enduring power of attorney — effectiveness of — whether certificate under s 19(1)(c) of Powers of Attorney Act 2003 (NSW) must be given contemporaneously with execution of enduring power of attorney by principal — whether instrument can be construed or rectified to include omitted statement required by s 19(1)(c)(iv)

Catchwords:

COSTS – Gross sum costs orders

Catchwords:

APPEAL — Application for leave to appeal — Appeal from Supreme Court — No question of general principle — No question of public importance — Where amount in issue less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

PRACTICE AND PROCEDURE — costs — security for costs — appeal — relevant factors — need for special circumstances — impecuniosity — where appellant has strong ties to the United Kingdom and the expectation of inheritance — whether appellant has established that an order for security will stultify proceedings — relevance of disparity between limited role played by appellant in the Court below and ambit of the appeal

Catchwords:

CIVIL PROCEDURE — subpoenas — to produce documents or things — application for orders of short service and abbreviated times for return

Catchwords:

APPEALS – from findings of fact – appellate deference – forensic advantages of primary judge – limitations of transcript evidence especially where credit in issue – principles in Briginshaw v Briginshaw – large conflicting bodies of evidence – three week trial – credibility and reliability of witnesses – character evidence – tendency evidence 20 years before alleged abuse – imperfections of human memory – witnesses recalling events from 30 years ago – witnesses of a young age at time of events – effect of traumatic incidents on recollection APPEALS – from findings of fact – fact finding methodology in institutional abuse cases – effect of High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle – observations in Longman, Watson v Foxman and Gestmin SGPS S.A. v Credit Suisse (UK) Limited remain valid after AA – requirement for “actual persuasion” by trier of fact LIMITATION OF ACTIONS – personal injury – alleged historic child abuse – legislative removal of limitation periods – construction of “serious physical abuse” under s 6A(2)(b) Limitation Act 1969 (NSW) – alleged abuse by teacher and teachers’ aide over 30 years ago in infants school – use of wooden ruler to discipline students – forced to stand in sun for long periods – large conflicting bodies of evidence – evidence of fellow students and teachers – absence of complaints formally recorded prior to proceedings – limitations in evidence of Appellant – “serious physical abuse” not made out

Catchwords:

COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order in respect of costs of appellate proceedings — no issue of principle — gross sum costs order made in respect of costs of appellate proceedings

Catchwords:

APPEAL — Application for leave to appeal — Application filed out of time — Appeal from decision granting summary judgment for possession of land — No question of general principle — No question of public importance — No error amounting to a reasonably clear injustice going beyond what is merely arguable

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — applicant sought to rely on further evidence in appeal — application of Supreme Court Act 1970 (NSW) — whether application for leave to appeal within meaning of “an appeal” in s 75A — court’s power to receive further evidence in application for leave

Catchwords:

APPEALS – orders on appeal – appeal from conviction in Local Court to District Court – where appeal to District Court dismissed under s 21 of the Crimes (Appeal and Review) Act (NSW) for want of prosecution – whether dismissal of appeal by District Court operates as confirmation of conviction by Local Court – dismissal under s 21 operates as confirmation of conviction – judicial review of Local Court decision unavailable in these circumstances ADMINISTRATIVE LAW – judicial review – whether decision of Local Court reviewable by Court of Appeal where District Court dismissed appeal for want of prosecution – clear jurisdictional error in Local Court – where Magistrate held private discussion in Chambers with Prosecutor during cross-examination of Defendant – Local Court conviction confirmed by dismissal of appeal by District Court – judicial review of Local Court conviction not available – no jurisdictional error in District Court – application dismissed

Catchwords:

APPEALS — Leave to appeal — interlocutory orders — application for leave to appeal from a decision that the Liquidators were justified in declining to convene a meeting of creditors — whether there is any practical utility in the appeal — where there is an available alternative avenue for the applicants to seek the remedy claimed — leave to appeal dismissed APPEALS — Admission of further evidence — whether the primary judge erred in granting leave to the Liquidators to call and admit further evidence after Liquidators had closed their case — whether the further evidence was outside scope of leave granted APPEALS — Statutory Interpretation — whether requirement of “good faith” under r 27-250 of the Insolvency Practice Rules (Corporations) 2016 (Cth) imports condition of objective reasonableness APPEALS — From finding of fact — whether primary judge erred in finding that the Liquidators formed the requisite opinion acting in good faith — whether Liquidators asked themselves the wrong question (in considering the possible outcome of the meeting rather than whether direction to convene the meeting was unreasonable) — whether Liquidators failed to carry out the required balancing exercise between benefits of convening meeting and prejudice to creditors/shareholders of complying with Direction

Catchwords:

Valuation of land – appeal – decision on question of law – whether identified – weight to be given to comparable sales – whether valuation principle – whether error in valuation principle an error on a question of law – calculation of median and mean of values – whether valuation principle – adequacy of reasons

Catchwords:

COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order — no issue of principle — gross sum costs order made

Catchwords:

EQUITY – trusts and trustees – two couples established unit trust for purpose of making property investments – equal division of units – equal board representation on corporate trustee – equal shareholdings in trustee – no provision to resolve deadlocks – trust deed contained clause based on s 3A(3B) of Land Tax Management Act 1956 (NSW) deeming it to be a fixed trust – clause provided that unit holders may require the trustee to wind up the trust and distribute the trust property – whether individual unit holder entitled to wind up trust PRECEDENT – appellate decision on similar clause in trust deed, in unit trust where one person held all units, construed to entitled unit holder to wind up trust – whether earlier decision authority for clause authorising one of a number of unit holders individually to wind up trust – decisions only authority for what was decided – Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111 distinguished CORPORATIONS – members’ rights and remedies – oppression – construction and background to Corporations Act 2001 (Cth), s 232 and 233 – whether applicable to members of trustee companies – whether member’s capacity as person with indirect interest in trust assets relevant – trustee conducted agricultural business – whether ongoing disputes concerning management of business amounted to oppression – whether deadlock as to whether trust should be wound up amounted to oppression RECEIVERS – so-called “principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360” relied on to appoint receiver to wind up trust – nature of principle – whether principle of equity or statutory construction – nature of receivership – whether remedy interlocutory or final – differences between companies and trusts – court’s function to preserve trusts – equitable doctrines directed to preservation of trusts

Catchwords:

WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation

Catchwords:

APPEAL — Application for leave to appeal — Appeal from decision not to dismiss claim summarily — Whether claim so obviously untenable that it cannot succeed — No reasonably clear injustice that is more than arguable

Catchwords:

ENVIRONMENT AND PLANNING — subdivision — land swap deed negotiated by owners of neighbouring properties in Box Hill — negotiations instigated by owners of appellant to expand scope of proposed subdivision — appellant incurs range of expenses to satisfy conditions of development consent — no enforceable agreement about sharing burden of these costs — claim for restitution for unjust enrichment RESTITUTION — nature of restitutionary liability — quantum meruit — unjust enrichment — unjust or vitiating factors — express or implied request — failure to establish on the evidence RESTITUTION — unjust or vitiating factors — “free acceptance” — uncertainty in Australian law — provider of services also principal beneficiary — potential overlap with factors demonstrating implied request — failure to establish why a reasonable person in the circumstances would have known the service provider expected to be paid — unnecessary to resolve legal controversy

Catchwords:

APPEALS – leave to appeal – where application for leave to rely on expert report refused in the Land and Environment Court – whether leave to appeal should be granted to reconsider that decision

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date – heavy burden to vacate shortly before the hearing – where appellants seek to adduce fresh evidence – application dismissed

Catchwords:

CONTRACT — loan agreement — whether payments made by lender to a third party fell within loan agreement — insufficient evidence to establish advances to borrower under loan agreement COMMERCE — money counts — onus of proof — plaintiff bears onus of proving elements of cause of action — rejection of defendants’ case does not assist in proof of plaintiff’s case APPEAL — nature of appeal — functions of appeal court — importance of identifying determinative question

Catchwords:

CIVIL PROCEDURE — Pleadings — Form and content of pleading — purposes served by pleadings — principles relating to pleading claims in negligence — pleading ordinary duty of care — pleading breach of duty — pleading vicarious liability CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — necessity for ordinary duties of care to identify acts or omissions available to defendant which reasonable person would have taken to avoid identified risk of harm — whether respondent failed to plead facts establishing applicant’s provision of opportunity and occasion for wrongful act NEGLIGENCE — effect of High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 — matters plaintiff required to plead following AA — whether respondent’s pleadings sufficient

Catchwords:

CORPORATIONS — takeover bid — whether this proceeding commenced contrary to s 659B of Corporations Act 2001 (Cth) — whether this is a proceeding “in relation to a takeover bid” — s 659B(1) does not apply to this proceeding CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Notice — where respondent issued notice of intention to move a resolution at general meeting of shareholders removing directors of first appellant and notice of intention to nominate new directors — whether notices were valid

Catchwords:

CIVIL PROCEDURE – application for pro bono referral – where proceedings at an early stage – whether referral in the interests of the administration of justice – referral confined to the provision of advice

Catchwords:

CIVIL PROCEDURE — Notices to produce —whether requests for documents sufficiently specific — whether requests relevant to a fact in issue —whether requests amount to a “fishing expedition” — whether leave be granted for discovery — whether draft reasons of a statutory board prepared by a legal adviser attract legal professional privilege — where requests seek documents subject to claims of legal professional privilege — whether leave be granted for interrogatories — whether leave be granted to amend summons — where no form of proposed amended summons before the Court

Catchwords:

COSTS — security for costs — special circumstances and residual discretion — impecuniosity — whether appeal has real prospects for success — unsatisfactory explanation as to delay where notice of motion filed three weeks before hearing

Catchwords:

CIVIL PROCEDURE — application for pro bono referral under UCPR r 7.36 — where party has a history of non-appearance at hearings — application refused CIVIL PROCEDURE — non-publication order — application refused

Catchwords:

WILLS, PROBATE AND ADMINISTRATION – informal wills – Succession Act 2006 (NSW) s 8 – where a document saved on deceased’s iPhone in the Notes application – whether deceased intended document without more to operate as a will – evidence that the deceased considered the document final – where no publication of will prior to death – where will discovered after death

Catchwords:

CONTEMPT – fitness to plead – primary judge found applicant to have committed contempt – whether real and substantial question of fitness arose before primary judge – significance of proceedings being civil and contempt being civil – significance of appointment of a tutor PROCEDURE – appeals – fresh evidence – obligations in Supreme Court Act 1970 (NSW), s 75A(8) and UCPR, r 51.51 – failure to include transcript of hearings – documents sought to be relied on wrongly dated – importance of attending to obligation of preparing appeal papers

Catchwords:

APPEALS — practice and procedure — appellant unrepresented — consideration of extent of court’s role in relation to unrepresented parties APPEALS — procedural fairness — where primary judge refused to allow cross-examination of lay witness present in court — where no prejudice to witness in allowing cross-examination — denial of procedural fairness CONSUMER LAW — misleading or deceptive conduct — liability of intermediaries — where employee personally made misleading oral statements — where employee personally gave misleading document signed by employee on behalf of employer to representee — employee liable

Catchwords:

BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26

Catchwords:

EVIDENCE — Standard of proof — Civil cases — whether primary judge failed properly to apply standard of proof and reached erroneous conclusion — where primary judge did not so err APPEALS — From finding of fact — Credibility and reliability of witnesses — whether primary judge erred in treatment of evidence of appellant and two witnesses — where the weight to be given to the evidence of each witness was a matter for his Honour — where primary judge’s findings were based on his Honour’s assessment of the evidence as a whole — where primary judge did not so err APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in finding respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding — where primary judge did not so err

Catchwords:

COSTS — Security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — Where appellant is a natural person ordinarily resident outside Australia

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — application made by appellant — substantial judgment sum previously paid to appellant — whether test for pro bono referral satisfied

Catchwords:

APPEALS — leave to appeal — whether leave required LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner

Catchwords:

COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused

Catchwords:

GUARANTEE AND INDEMNITY — school for international students — non-payment of rent — company responsible for school liquidated — enforcement of guarantee against appellant by lessor — appellant claimed not to be subject to personal guarantee — defence struck out — summary judgment for lessor APPEALS — leave to appeal — principles governing — enforceability of express term of lease — application of well settled principles of contractual construction — no issue of principle or question of public importance — no reasonable defence raised by reliance on subjective understanding of agreement based on heads of agreement — significance of signature on lease — significance of entire agreement clause — insufficient doubt warranting reconsideration on appeal — no reasonably clear injustice

Catchwords:

APPEAL — application for leave to appeal — no issue of principle or question of public importance identified — where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought

Catchwords:

TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages

Catchwords:

CONSUMER LAW — misleading or deceptive conduct — contractual interpretation — price-capped gas contract — whether gas supplier represented that it would obtain third-party insurance — pre-contractual negotiations — cover email — two phone calls — whether “calculated ambiguity” in terms of contract — whether any ambiguity was exploited — significance of silence or non-disclosure.

Catchwords:

HEALTH — negligence — surgery — medical procedure on eye — liability of hospital for negligence of medical practitioners — tap and inject treatment for endophthalmitis — appellant alleges treating ophthalmic registrar made excessive number of attempts to tap vitreous fluid from eye — alleged failure to document procedure — submissions on whether failure to make clinical notes of procedure amounts to breach of duty — claim fails on the facts — no error in reasoning of trial judge demonstrated — failure to establish causal connection with harm allegedly suffered

Catchwords:

NEGLIGENCE — Professional negligence — Solicitors — Breach of duty — Whether solicitor should have advised proceedings were hopeless and doomed to fail — Whether solicitor should have advised appeal lacked any arguable basis CIVIL PROCEDURE — Effect of grant of “liberty to apply” with respect to costs order — Uniform Civil Procedure Rules 2005 (NSW), r 36.16 — Time limit for application to vary final order — Procedural fairness — Whether primary judge ought to have reserved the question of costs

Catchwords:

CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought

Catchwords:

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — employment of director purportedly terminated by executive chairman of another company — whether executive chairman had actual express or implied authority APPEALS — parties — obligation to join all persons directly affected by orders sought — appellants co-owned company and sought orders that employment contract between company and director validly terminated but joined neither to the appeal — joinder ordered

Catchwords:

APPEAL — sentencing — control orders — Children’s Court — whether a single aggregate control order may exceed two years — coherence between cumulative and aggregate sentencing — jurisdictional limit for aggregate control orders — construction of Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(g), 33A(4), 33C — application of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53B CHILDREN — criminal law — sentencing — control orders — aggregate control order imposed for multiple offences — whether two-year limit in s 33(1)(g) applies — three-year jurisdictional limit under s 33A(4) — power to impose aggregate control order derived from Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A as applied by Children (Criminal Proceedings) Act 1987 (NSW) s 33C

Catchwords:

PROCEDURE – security for costs – application for leave to appeal – security ordered against company in earlier proceedings at first instance – no need for special circumstances – no ability to assess prospects of appeal – estimated amounts of costs excessive – security ordered, in much smaller amount than sought